The Issue Whether the Appellee's suspension of Appellant was in compliance with Chapter 110, Florida Statutes, and Chapter 22A-7.10F and G(2), Florida Administrative Code. Whether the Appellee's suspension of Appellant should be sustained.
Findings Of Fact C. W. Mathis was on January 22, 1977, a state trooper, employed by Appellee, Department of Highway Safety and Motor Vehicles, Florida Highway Patrol, in Orlando, Florida. By letter dated February 22, 1977, Trooper Mathis, the Appellant, was notified that he was being suspended for eight (8) hours without pay by the Appellee, Department of Highway Safety and Motor Vehicles, Florida Highway Patrol for: "Leaving the workstation without authori- zation and negligence, in violation of Department of Highway Safety and Motor Vehicles Personnel Rules and Regulations 2.lC, willful violation of statutory authority, rules, regulations or policies, and General Order 43, l.A.(4), pages 43-2 and 43-4, Florida Highway Patrol Manual." Trooper Mathis appealed this suspension which is the subject of the bearing. The Division of Administrative Hearings, Department of Administration, has jurisdiction of the cause. On January 22, 1977, Trooper Mathis was on State Road 400, out of his assigned authority, and running radar at approximately 8:50 A.M. He pursued and stopped a car which was clocked at speeding 75 miles per hour. Trooper Mathis asked the driver for a drivers license and when the driver stated he had none, Trooper Mathis told him to get out of the vehicle and asked the driver's name and proof of ownership of the vehicle. The driver indicated that his information was in the glove compartment and both Trooper Mathis and the driver obtained an instrument from the glove compartment of the driver's automobile. In the stopped vehicle was a white male passenger. Trooper Mathis returned to the patrol car and had the driver sit in the right front seat of the patrol car. Mathis then left the left front seat of the patrol car to obtain the vehicle identification number from the automobile and returned to the patrol car where the driver or violator was sitting. Mathis then called the radio dispatcher for a "check for wanted" personal (10-29). Trooper Mathis was looking down and when he looked up the automobile he had stopped was gone, driven obviously by the passenger who was left seated in the stopped vehicle. The driver of the automobile seated in the patrol car with Trooper Mathis told Trooper Mathis that he didn't see his car leave and that he had picked up the white male passenger hitchhiking on State Road 400 at the Turnpike. Trooper Mathis then proceeded west on State Road 400 in hopes of finding the car. He also called the station and asked radio operator Roundtree to copy a vehicle identification number without asking for a "check for wanted" 10-29. Radio operator Roundtree ran the first vehicle identification number (1Y27D 57106363) given by Trooper Mathis and it came back nothing on file. (The second vehicle identification number (1Y27D5T1O6367) later came back registered to the following: Eva Kuhn, 25 North Westview Avenue, Feasterville, Pennsylvania, on a 1975 Chevrolet, license number A02326.) Radio operator Roundtree then ran the tag number for 10-29 thinking that both vehicle identification numbers he had run were negative for wanted. The tag came back negative. After a search of the area and not locating the vehicle Trooper Mathis asked to meet with a deputy sheriff. The meeting with the deputy was for his passenger to make a "stolen car" report. When the violator finished his report with the deputy he advised Trooper Mathis that he had relatives visiting at Disney World and would like to be dropped off there. Trooper Mathis then brought him to Disney World and left him there. It was later found that the driver-violator had stolen the vehicle. Appellee, Department of Highway Safety and Motor Vehicles, contends: Trooper Mathis was negligent and should be Punished for (1) failing to ask for a proper 10-29 ("check for wanted") on the vehicle identification number; (2) failing to keep the stopped vehicle under surveilance so that the passenger was able to drive it away unnoticed; (3) failing to require identification from the violator-driver before believing the violator's story. Appellant, C. W. Mathis, contends: (l) that under the circumstances it was excuseable that he failed to immediately ask for a proper 10-29 "check for wanted"; (2) that the traffic was very heavy and he was obliged to go very fast if he were to properly find the violator and do the job for which he was paid; (3) that the radio operator was inexperienced and should have made the proper calls which would have notified Trooper. Mathis that the driver-violator was not the owner of the stopped vehicle.
Recommendation Dismiss appeal; the suspension was for just cause. DONE and ORDERED this 4th day of August, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building, Room 530 Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1977. COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 C. W. Mathis 1409 Lukay Street Ocoee, Florida 32761 Enoch J. Whitney, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkmam Building Tallahassee, Florida 32304
The Issue The issues in this case are whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a license by fraud, misrepresentation, or concealment; violated Florida Administrative Code Rule 61J2-2.027(2), by failing to disclose material information in her application; and, if so, what, if any, penalty is appropriate. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to rules adopted in the Florida Administrative Code in effect on the date of this Order.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate broker pursuant to license number 0421942. The last license issued to Respondent was as a broker t/a Action First Realty, 7622 Praver Court, Jacksonville, Florida 32217. On January 9, 1984, Respondent applied for a license as a real estate salesperson. On February 11, 1993, Respondent applied for a license as a real estate broker. On each application, Respondent signed a sworn affidavit that all of her answers were true and correct and: . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . . In relevant part, question six on the sales license asked Respondent whether she had ever been arrested or charged with the commission of an offense against the laws of any municipality or state without regard to whether she was convicted. Question nine on the broker application asked Respondent whether she had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no" to both questions. In each case, Petitioner relied on the accuracy of the application and issued a license to Respondent. On November 7, 1978, Respondent was adjudicated guilty of cashing a worthless check in the amount of $5.00. Respondent wrote the check to Carvel Ice Cream for a birthday cake for her daughter's birthday. Respondent was in the process of moving, and the notice of insufficient funds was not delivered to her. Respondent went to court and paid the $5.00 check and the court costs. The judge characterized the charge as frivolous and was perturbed that the charge consumed time in his court. On October 30, 1980, adjudication was withheld on the charge of driving with a suspended license. Respondent attended driving school. The offense does not appear on Respondent's Florida driving record for her entire driving history. Respondent did not willfully misstate a material fact on either application. Respondent testified under oath that she did not consider either offense to be a crime and did not try to lie about either offense. Her testimony was credible and persuasive. Respondent answered "no" to questions six and nine on her applications in the good-faith belief that the offenses were immaterial and not the type of offenses addressed in either question. When Petitioner's investigator interviewed Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), finding Respondent guilty of violating Rule 61J2-2.027(2), and imposing no penalty. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999. COPIES FURNISHED: Geoffrey Kirk, Esquire Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32801-1900 Barbara Lynn Clarke 7622 Praver Court Jacksonville, Florida 32217 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in the case is whether Clifford McCullough (Petitioner) was the subject of unlawful discrimination by Nesco Resources (Respondent) in violation of chapter 760, Florida Statutes (2015)1/.
Findings Of Fact The Respondent is a company that refers pre-screened job candidates to employers upon request by an employer seeking to fill a specific position. The Petitioner is an African-American male, born in 1959, who sought employment through the Respondent. The Respondent does not make the hiring decision. The actual decision is made by the employer requesting referrals from the Respondent. The Respondent is compensated by the employer if and when the employer hires an applicant referred by the Respondent. On occasion, the Respondent publishes advertisements seeking applications to fill specific positions, such as “forklift drivers.” The fact that the Respondent seeks applications for specific positions does not mean that an employer has contacted the Respondent seeking referrals for such positions. The advertisements are used by the Respondent to create an inventory of applicants who can be referred to employers. On December 20, 2013, the Petitioner submitted a job application to the Respondent seeking a “forklift driver” position. At that time, the Petitioner indicated to the Respondent that he was available to perform “warehouse, packing, production, shipping and receiving tasks.” Several weeks prior to the Petitioner’s application, the Respondent had referred job candidates to an employer seeking to fill an available forklift driver position. The employer filled the position by hiring an African-American male born in 1961 who was referred to the employer by the Respondent. As of December 20, 2013, the Respondent had no pending employer requests seeking referrals to fill forklift driver positions. The evidence fails to establish that the Respondent had any employer requests at that time which were consistent with the Petitioner’s skills. The Respondent’s general practice when contacted by a prospective employer is to recommend applicants who have maintained ongoing contact with the Respondent’s staff after the submission of an application. There was minimal contact between the Petitioner and the Respondent after the Petitioner submitted his application in December 2013. The Respondent presumes that some people who submit applications subsequently relocate or obtain employment elsewhere. Accordingly, the Respondent requires that previous applicants periodically submit new employment applications so that the Respondent’s inventory includes only active job seekers. On April 8, 2014, the Petitioner submitted another application to the Respondent. Also in April 2014, an employer contacted the Respondent to obtain referrals to fill another forklift driving position. The employer filled the position by hiring an African- American male born in 1964, who was referred to the employer by the Respondent. Prior to his referral for the forklift driver position, the successful applicant routinely contacted the Respondent’s staff, in person and by telephone, regarding available employment opportunities. The evidence fails to establish whether the Respondent was included within the applicants who were referred to the requesting employer. There is no evidence that the Respondent’s referral process reflected factors related to any applicant’s race, color, sex, or age. The Petitioner has also asserted that his application should have been referred to an employer who, on one occasion, was seeking to fill an available cleaning position. The position was a part-time job paying an hourly wage of $10. The Petitioner had not submitted an application for such a position. Nothing in the information provided by the Petitioner to the Respondent indicated that the Petitioner was interested in such employment. Through the Respondent’s referrals, the employer filled the cleaning position by hiring an African-American male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's complaint of discrimination. DONE AND ENTERED this 21st day of June, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of June, 2016.
The Issue This is a case in which the Petitioner seeks a determination that a policy of the Respondent is a rule, and that such policy/rule is invalid because it has not been adopted pursuant to the procedures set forth at Section 120.54, Florida Statutes. The challenged rule was described in the petition as a policy to the effect that . . . a man's middle name can be changed to his wife's maiden name on his driver's license only by court order and not by presenting a copy of his marriage certificate. However, a female may add her husband's name on her driver's license as a surname by presenting a copy of her marriage certificate. . . . At hearing it was clarified that the policy to which the challenge is directed is the policy set forth in the last paragraph of page 7-3 of the Florida Examiner's Manual. At the hearing both parties presented testimony and offered exhibits which were received in evidence. The parties were originally allowed until December 17, 1988, within which to file their proposed final orders. At the request of the parties that deadline was extended until December 22, 1988. Both parties filed proposed final orders containing proposed findings of fact and conclusions of law. All findings proposed by the parties are specifically addressed in the appendix to this final order.
Findings Of Fact Based on the evidence received at the hearing in this case, I make the following findings of fact. Petitioner's birth name, which name he used until the time of his marriage, was Joseph Charles Sexton. On August 8, 1988, Petitioner was married to Beth-Anne (NMN) Thye. Since the marriage, the Petitioner has used the name Joseph Thye Sexton and his wife has used the name Beth-Anne Thye Sexton. The marriage certificate of the Petitioner and his wife does not state what name either of them intends to use after the marriage. Following the marriage, Petitioner's wife was permitted to change her name on her driver license from Beth-Anne Thye to Beth-Anne Thye Sexton, using only her marriage certificate. Following the marriage, Petitioner' attempted to change the name on his driver license from. Joseph Charles Sexton to Joseph Thye Sexton, using only his marriage certificate, but was told by employees of the Respondent that he would need a court order to make such a change. The Respondent has published a manual with the title Florida Examiner's Manual. The manual has been distributed by the Respondent and is used by the Respondent's employees in the fulfillment of their duties related to the issuance of driver licenses. The manual contains the current policies of the Respondent. The portions of the manual quoted hereinafter have not been adopted as rules pursuant to the rulemaking procedures of Section 120.54, Florida Statues. The Florida Examiner's Manual, at page 7-7, under the subheading Applicant With Name Established On Florida Computer Record, reads as follows: Name changes can be proven by the following documentation: Females: *Marriage certificate, *Court order, *Out-of-state license, *Naturalization papers, *Divorce decree (Dissolution of marriage), *Names already established on record, or --May go back to previous last name, such as a maiden name, without Court Order, etc., if name is already on record. *Two forms of identification in the same name as listed on page 7-1. M *Naturalization paper, *Court Order, or *Two forms of identification in the came name as listed on page 7-1. Page 7-3 of the Florida Examiner's Manual, under the subheading Hyphenated Names, includes the 2. Hyphenated first, second, and/or last names can be used. *Maiden-married or married-maiden names of female applicants can be hyphenated at the request of the female applicant without court order. Identification proving maiden and married names must be presented. *Male applicants may not assume the maiden name of their spouses or use a hyphenated combination of the husband's last name and the wife's maiden name unless authorized by Court Order (pursuant to a May 7, 1984 Departmental legal opinion.) The Respondent's rationale for the policies quoted in paragraphs 5 and 6, above, is that it is "customary" for a woman to take her husband's surname upon marriage, but it is not "customary" for a man to take his wife's maiden name upon marriage. Those policies promote administrative convenience, because they are consistent with established custom. It is very important for the Respondent to establish and maintain accurate information as to the identity of its licensees, in order to protect the business community, law enforcement officers, the motoring public and the public at large. To this end the Respondent operates an extensive fraud prevention program. If a male driver changes his name and is issued a new driver license in his new name, the Respondent does not lose track of that driver's prior driver record. Rather, an inquiry under the new name will also access information under the prior name.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Claude B. Arrington, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Petitioner’s Notice of Voluntary Dismissal With Prejudice, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED Filed July 7, 2011 7:53 AM Division of Administrative Hearings © DONE AND ORDERED this day of July, 2011, in Tallahassee, Leon County, Florida. pe Oe Sandra C. Lambert, Director Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this__A2“day of July, 2011. Nalini Vinayak, Dealer Wcense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCLivlg Copies furnished: J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Mikhael Ann Bortz-Buchanan, Esquire Zarco Einhorn Salkowski & Brito 100 Southeast Second Street, Suite 2700 Miami, Florida 33131 Claude B. Arrington Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Elizabeth W. McArthur, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Petitioner’s Notice of Voluntary Dismissal With Prejudice, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed October 1, 2010 10:23 AM Division of Administrative Hearings. DONE AND ORDERED this DW ~day of September, 2010, in Tallahassee, Leon County, Florida. arl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this _ 32s) day of September, 2010. Nalini vane. bea ‘Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Mark L. Ornstein, Esquire Killgore, Pearlman, Stamp, Ornstein & Squires, P. A. Post Office Box 1913 Orlando, Florida 32802 Virginia Gulde, Esquire Nelson, Mullins, Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Findings Of Fact At all times relevant thereto, respondent Santiago Baez, held commercial driving instructor certificate card number 6498 issued by petitioner, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (Division). Baez who is fifty-eight years old, has been an instructor for at least eight years and was last employed at the Fajardo Driving School in Hialeah, Florida. Acting upon a tip received on July 14, 1986 from an informant that a driving instructor at Fajardo Driving School could obtain fraudulent drivers' licenses, the Florida Department of Law Enforcement (FDLE) undertook an investigation of the Division's driver license examination facility in Hialeah, Florida to ascertain if such licenses were being fraudulently issued by Division personnel. To assist in the investigation, the FDLE employed the services of a paid informant named Orlando Zirio. He was instructed to call "Jorge" at a particular telephone number and attempt to obtain a Florida driver's license. In actuality Jorge was the respondent. After telephoning respondent, Zirio and respondent agreed to meet on August 8 in the parking lot of the La Fonda Restaurant on West 60th Street in Hialeah. The restaurant shared a parking lot with the Division's driver license examination facility. Pursuant to instructions from the FDLE, Zirio told Baez that he was a drug smuggler, that he had lost all identification documents, and that he needed a Florida driver's license with a name different from his own to evade law enforcement officials. Zirio apparently had no luck with respondent that day. A series of meetings between Zirio and Baez took place during the next few weeks with Zirio repeatedly asking Baez to help him procure a driver's license. During such meetings, the FDLE orchestrated all of Zirio's communications with Baez. At some point in their meetings, Zirio told Baez he only had one identification card issued by the City of Key West. When Baez informed Zirio that he must have at least two identification documents to obtain a driver's license, Zirio replied he could not obtain the necessary documents. Zirio was then told to meet one Felix Aravjo who could provide false identification documents. After obtaining a Puerto Rican birth certificate and an American social security card in the name of Orlando Perez from Aravjo, Zirio met again with Baez on August 12 in the restaurant parking lot and handed the two identification documents to Baez. The two then entered the examination facility. With the assistance of a Division license examiner named Peralta, Zirio was issued a driver's license under the name of Orlando Perez. For their services, respondent received $250 and Peralta and Aravjo were each paid $300. Zirio was compensated $500 plus expenses by the FDLE for his undercover activities. Baez was arrested by FDLE agents on August 12, the day the license was issued by Peralta. He was charged with violating Subsection 322.212(2), Florida Statutes, which prohibits certain unlawful acts in relation to a driver's license. After being given a statement of his rights, Baez voluntarily answered in Spanish a series of questions posed by FDLE agents Valdes and Ventura. The interview was tape recorded by Valdes. It was later transcribed into English and reduced to writing by an unknown person. However, Agent Valdes reviewed the transcript and stated it accurately represented the questions asked and answers given during the interview. Baez later pled nolo contendere to criminal charges in September. Adjudication of guilt was withheld by the court. Unlike Peralta and Aravjo, Baez was not incarcerated or placed on probation, but was merely required to cooperate with officials in any further proceedings. Baez desires to continue as a driving instructor since it is the only livelihood that he knows. He has a pending job offer as an instructor if his license is reactivated. He did not deny that he committed the illicit conduct, was arrested and pled nolo contendere but stated that he agreed to help Zirio only after Zirio had made repeated requests for his assistance.
Recommendation Based on the foregoing findings of fact and conclusions of law it is Recommended that respondent be found guilty of violating Rules 15A- 2.09(2)(a) and 15A-2.11(1)(j) Florida Administrative Code, and that his commercial driving instructor certificate card be suspended for one year from date of the emergency suspension. DONE AND ORDERED this 28th day of October, 1986 in Tallahassee Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1986.
Findings Of Fact At all times relevant thereto, respondent, William Reinhart, was licensed to operate a commercial driving school called Easy Method Auto Driving School at 920 North Dixie Highway, Suite 144G, Pompano Beach, Florida. He is holder of commercial driving instructor certificate card number 6634 and commercial driving school license number 2460 issued by petitioner, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (agency or Division). Reinhart has owned and operated his driving school since 1976. The school presently has four instructors, including Reinhart. Beginning in April, 1986 respondent undertook the driving instruction of Kathleen McKeever, a thirty-two year old female who resides in Boca Raton, Florida. Prior to their lessons, the two had never met. She selected respondent's firm by chance out of the telephone directory. McKeever took approximately five or six one-hour driving lessons from Reinhart between April and June, 1986. On the first two lessons, Reinhart placed his hand in McKeever's lap while she was driving. She thought this was unusual but believed it might have been necessary in the event Reinhart had to suddenly grab the wheel. 1/ She did not voice any objection to his actions at that time. On the third or fourth lesson, the two drove on I-95 in Fort Lauderdale. While heading north on that roadway Reinhart reached over and placed his hands on her breasts and "private areas." McKeever at once began "squirming" in her seat. Reinhart then asked her if she minded him flirting with her, and she responded "yes", but he did not stop. The actual length of time in which Reinhart fondled McKeever was not disclosed, but McKeever stated she feared having an accident on I-95 while this occurred. After the lesson was over, McKeever did not disclose the incident to her family or friends because she was embarrassed and afraid it would upset her mother, who was home recuperating from heart bypass surgery. Fearing possible distress to her mother if she suddenly quit her lessons, McKeever decided to return for another driving lesson in June, 1986. At the beginning of the lesson, Reinhart placed his hand in her lap but she pushed it away. Later on, Reinhart offered McKeever $100 if she would give him a "blow job." She told him she wasn't a prostitute. The lesson ended a few minutes later when McKeever stalled the car in a parking lot and it would not restart. She was forced to telephone her family to get a ride home. After the lesson, McKeever telephoned a local television station (WPLG) and asked if the station would send a reporter to investigate the incident. When the station declined, she reported the incident to the Division. The emergency suspension of respondent's two licenses followed on July 21, 1986. According to the chief of the Division's driver improvement bureau, Reinhart's conduct constituted a lack of good moral character as well as a threat to the safety of others since the incidents occurred while a student (McKeever) was driving the vehicle in traffic. He also stressed the fact that an instructor should have good moral character because of the trust which students place in their instructor. Respondent offered two witnesses on his behalf, one a current instructor and the other a former office manager of the driving school. The office manager related that McKeever had never voiced any complaints to her, and that it was not unusual for every instructor to receive complaints from students at one time or another. However, she acknowledged that no complaints had ever involved sexual harassment. The second witness, an instructor, characterized the job of an instructor as being difficult because of the nervous and erratic nature of students. Although he stated it was necessary to keep his left hand near the student for the purpose of grabbing the steering wheel, he acknowledged that this would not require an instructor to place his hand in the student's lap. Respondent denied McKeever's allegations stating she had concocted the story because McKeever was not progressing well in her training and needed an excuse for ending the lessons. Through cross-examination of his counsel, he also suggested that McKeever might have long-standing psychological problems which prompted her to fabricate the story. However, Reinhart's version of events and contentions concerning possible psychological problems on the part of McKeever are not deemed to be credible and are accordingly rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's instructor certificate card number 6634 be REVOKED for violating Rules 15A-2.09(2)(a) and 15A-2.11(1)(a), Florida Administrative Code. The charges concerning respondent's driving school license number 2460 should be DISMISSED and the license immediately reinstated. DONE and ORDERED this 26th day of September, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1986.
The Issue The issue to be determined in this case is whether the Department of Highway Safety and Motor Vehicles (“Petitioner”) may properly terminate its contract with Perotte Driving and Traffic School, Inc. (“Respondent”), on the basis of failure to comply with the provisions of the contract, pursuant to section 322.56(3)(f), Florida Statutes.
Findings Of Fact Petitioner is the State agency authorized to enter into contracts with driving schools to administer driving and skills portions of examinations for driver licenses, pursuant to section 322.56. Petitioner regulates third-party administrators for compliance with contract provisions in furtherance of Petitioner’s mission to ensure safe roads in the State of Florida. Section 322.56 authorizes Petitioner to contract with private sector entities to conduct services in the same manner Petitioner conducts services at both its driver license offices and tax collector offices. Respondent is a third-party administrator under contract with Petitioner to conduct Class E Knowledge Examinations for State of Florida driver licenses. Ms. Dume is employed as a Regulatory Program Specialist for Petitioner. Her duties include visiting third-party administrators and monitoring their activities to ensure that they are abiding by the terms of their contracts with Petitioner. Assistance by Misrepresentation On October 8, 2020, Ms. Dume was present at Respondent’s school conducting an on-site inspection. She left at 5:45 p.m., having been informed by Mr. Perotte that the school closed at 6:00 p.m. Ms. Dume returned to continue her inspection on October 9, 2020, arriving at 10:20 a.m. She monitored the school from the parking lot before entering at 11:20 a.m. Then, Ms. Dume observed Mr. Perotte entering information into his computer showing that a student had completed the four-hour Traffic Law Substance Abuse Education course (“TLSAE”). The TLSAE is a requirement to earn a Florida driver license. The course must be taken in one consecutive four-hour period. Ms. Dume obtained the certificate for TLSAE course completion for the student, which reflected a completion date of October 9, 2020. However, based on Ms. Dume’s credible testimony, it would have been impossible for the student to have completed the four-hour TLSAE course on the date that Mr. Perotte entered into the computer because Ms. Dume was present up until 15 minutes prior to the school closing and did not observe the student taking the course. Mr. Perotte’s claim that the student took the course after Ms. Dume left was not credible. His credibility was further diminished by his inconsistent and illogical testimony that he entered the erroneous date of course completion by mistake. Although it was established that the same student did complete the TLSAE in 2013, that fact is immaterial to Mr. Perotte’s clear misrepresentation of the course completion date. Ensuring Only Applicants Allowed in Examination Area During Ms. Dume’s on-site inspection on October 8, 2020, she observed an applicant inside the testing room taking the knowledge exam with an instructor also inside the testing room. The instructor explained to Ms. Dume that she was inside the testing room to have the applicant sign paperwork, but Ms. Dume believed that the reason was pretextual based on her observations. On October 14, 2020, during another on-site inspection of Respondent, Ms. Dume observed Mr. Perotte inside the testing room standing over a customer who was sitting down taking the knowledge exam. Mr. Perotte testified that he was inside the testing room while a test was in progress to fix a technical issue with the computer. He also testified, however, that in the event of a technical issue, he would ask the examinee to exit the testing room while a staff member addressed the issue. Mr. Perotte’s testimony was unconvincing and inconsistent. Allowing the Department to Conduct Random Inspections Ms. Dume testified that for each of her on-site inspections that are relevant to this proceeding, on October 8, 9, and 14, 2020, she entered Respondent’s facility through an unlocked door. During her October 14, 2020, inspection, Ms. Dume observed that there were a number of customers present when she arrived at 12:30 p.m. A few minutes later, all of the customers were gone, and Mr. Perotte stopped others from entering the school. Ms. Dume believed that the customers were discouraged by Mr. Perotte from patronizing the school while Ms. Dume was present. Ms. Dume left around 2:30 p.m., due to the school being empty. The reasons why customers may have left or decided not to enter the school in Ms. Dume’s presence were based on assumptions and were not conclusively established.
Conclusions For Petitioner: Elana J. Jones, Esquire Roberto R. Castillo, Esquire Department of Highway Safety and Motor Vehicles Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399 For Respondent: Matthew E. Ladd, Esquire Matthew E. Ladd P.A. Suite 301 4649 Ponce De Leon Boulevard Coral Gables, Florida 33146
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found in violation of the contract, as alleged in the Complaint, and that the contract be terminated. DONE AND ENTERED this 22nd day of October, 2021, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2021. COPIES FURNISHED: Elana J. Jones, Esquire Department of Highway Safety and Motor Vehicles Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399 Joseph R. Gillespie, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432, MS02 2900 Apalachee Parkway Tallahassee, Florida 32399-0504 Terry L. Rhodes, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-443 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Christie S. Utt, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Matthew E. Ladd, Esquire Matthew E. Ladd P.A. Suite 301 4649 Ponce De Leon Boulevard Coral Gables, Florida 33146
The Issue The issues to be resolved in this proceeding concern whether the Respondent, P.A.T. Auto Transport, Inc., committed the violations alleged in the relevant Stop-Work Order and the Fourth Amended Order of Penalty Assessment, and, if so, what, if any, penalty is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged with the responsibility of enforcing the Workers' Compensation coverage requirements embodied in Section 440.107, Florida Statutes (2008), whereby Florida employers must secure the payment of workers' compensation insurance coverage and benefits for their employees. See § 440.107(3), Fla. Stat. The Respondent, P.A.T., is a corporation conducting a trucking business, headquartered in Pensacola, Florida. The Respondent's services include transporting motor vehicles using a fleet of some 61 highway tractors and associated auto transport trailers. Michelle Newcomer is an investigator employed by the Petitioner. Her duties include conducting inspections and investigations of businesses who may be workers' compensation employers, to determine if they are required to have workers' compensation coverage under Florida law, and the extent and compliance of that coverage. Ms. Newcomer conducted an inspection of the Respondent at 6732 Rambler Drive in Pensacola, Florida, on March 18, 2009. She determined that two companies, or businesses, operated at that address, the Respondent and MNT Enterprises (MNT). MNT had a workers' compensation policy covering its employees and was statutorily compliant. Ms. Newcomer also investigated the Respondent and learned that the principal stockholder, George Hedges, was exempt from coverage. She inquired about the status of the truck drivers working for the company and was told by Tracie Hedges that they were independent contractors. She was unable to witness any violations occurring at that time and concluded the investigation. Later, in April 2009, she received information that led her to believe that the Respondent's truck drivers were employees and not independent contractors. She had an opportunity to see a pay stub for a truck driver who had worked for the company who had been injured and had a workers' compensation issue. She noticed that the pay stub reflected that Federal Income Tax withholding had been deducted, along with various other deductions, such as Social Security and Medicare. She felt this might be indicative of an employee relationship, rather than the drivers being independent contractors. She returned to the Respondent's address later that month and issued a written Request for Production of Business Records to the Respondent and to an associated company called TK131. She issued a Stop-Work Order for the Respondent due to its purported failure to comply with workers' compensation coverage requirements for employees. The Respondent did provide the required business records. She reviewed the records provided to her and was able to ascertain that the Respondent employed more than four employees. Additionally, she learned that, although the Respondent, through a leasing arrangement for its office employees, had workers' compensation coverage for them, the 59 drivers and corporate officers did not appear to be covered by workers' compensation insurance. Thereafter, the Stop-Work Order was amended to include the purported failure to secure payment of workers' compensation coverage as required by Chapter 440, Florida Statutes. That resulted in a Stop-Work Order and Penalty Assessment. The Department also issued a Stop-Work Order and Penalty Assessment to DTS, LLC, which included the predecessor company, Darts Transport. The Stop-Work Order and Penalty Assessment issued to DTS was later revoked, however. The Department takes the position that the Respondent, P.A.T., paid its drivers through the entity known as "DTS", or directly with P.A.T. checks during the audit period, and that the number of drivers paid for their services was more than four employees and closer to 59 drivers for the 61 tractor-trailers owned by the Respondent. The Department does concede that a small number of the drivers were clearly owner-operators and no longer contends that they were employees. The Department thus contends that at no time pertinent hereto did the Respondent have a workers' compensation policy or an employee leasing arrangement in place by which workers' compensation coverage was provided for the drivers. The original Order of Penalty Assessment covered the period April 22, 2006, through April 22, 2009. The 4th Amended Order of Penalty Assessments for those dates, which is at issue in this case, also included a $108,000 fine for the Respondent's working in violation of a Stop-Work Order. The total fine assessed and sought by the Petitioner is $1,564,707.91. The Department maintains that the drivers working for the company are employees and therefore should have been covered with workers' compensation insurance, but the Respondent disputes that claim, asserting that the drivers are independent contractors and therefore do not need to be covered by workers' compensation insurance. The Petitioner maintains that office workers employed by the Respondent were required to be covered by workers' compensation insurance as well. The Respondent maintains that these were covered through coverage obtained from an employee leasing company, through an employee leasing program. The Department also maintains that three employees, as corporate officers, were not properly qualified to be exempt. The Respondent maintains that the required Exemption Request forms were properly delivered to the Department and therefore it complied with the law in obtaining exemptions from workers' compensation coverage. Finally, the Department maintains that certain named individuals were employees of the Respondent and should have been covered by workers' compensation coverage or insurance, but the Respondent maintains that these employees, who essentially performed incidental, non-recurring tasks for the Respondent, were not employees and did not have to be covered by such insurance. Moreover, the Respondent claims that it has a contingent liability insurance policy in place which served as a policy of workers' compensation insurance and for this reason it is compliant also. The parties agree that Florida Administrative Code Rule 69L-6.035 defines "payroll" as the basis for calculating a penalty. Payroll can include any of ten variations of payments from or through an employer to or on behalf of an employee. These include the payment of traditional wages and also bonuses, un-repaid loans to employees, expense reimbursements that are not documented on the employer's business records, payments binding an employer to a third party on behalf of an employee for services rendered by the employee, among others. Investigator Newcomer relied on Florida Administrative Code Rule 69L-6.035(1)(a) to define payroll for the office workers and truck drivers paid directly from the Respondent's account. The drivers were paid from the P.A.T. account from July 16, 2008, through April 22, 2009. Investigator Newcomer opined that the drivers' payroll prior to July 16, 2008, could not be included on the Penalty Worksheet based upon Rule 69L- 6.035(1)(a), but rather was based on Rule 69L-6.035(1)(i). Ms. Newcomer did not rely on Rule 69L.6.035(1)(b),(d),(e),(f),(h), or (j) to define P.A.T.'s payroll. The Department included payments to various child support enforcement agencies, made on behalf of drivers, on the Penalty Worksheet, by authority of Florida Administrative Code Rule 69L-6.035(1)(c), defined as payments made to a third party on behalf of the employer for services rendered to the employer by the employee. The Department also included as payroll on the Penalty Worksheet loans made to drivers, maintaining that these have not been repaid and should be deemed as part of payroll under Rule 69L-6.035(1)(g). There is no proof that this is the case, however, because neither Ms. Newcomer nor Ms. Hedges offered any evidence to establish that there is proof that some or all of the loans remained unpaid. The Petitioner, through the testimony of Investigator Newcomer, takes the position that payments made by P.A.T. to Darts Transports or DTS,LLC are properly included on the Penalty Worksheet by authority of Florida Administrative Code Rule 69L.- 6.035(1)(i). Those payments were made prior to July 16, 2008, before P.A.T. began making payments directly to drivers. The Rule provision in question, concerns payments made to an alleged non-compliant employer who has contracted with the customer, if the contract includes payment for labor and materials. If it is impossible to segregate the cost of materials from the employee payroll in such a contract, then under this Rule provision, 80 percent of the total contract price shall be presumed to be the employer's payroll, with regard to that customer and contract. The unrefuted evidence, however, establishes that the drivers in this situation were paid a flat 25 percent commission of the hauling fee charged by P.A.T., after deduction of the cost of fuel for the trucks. P.A.T.'s customers paid the fuel surcharge to P.A.T. There is no evidence that P.A.T. provided customers with any materials. Its business operation involves solely and simply the transportation of customer-owned vehicles. The Department also maintains that corporate officers Bradley Hedges and Gregory A. Hedges, as well as Teri Kimberly Forret, corporate officers of P.A.T., are non-exempt employees. It contends that under Rule 69L-6.035(2) their compensation constitutes "payroll," under the default formula in that Rule provision, for defining payroll to a corporate officer, if the ten factors under sub-section(1) of that Rule do not address the means of compensation received by those corporate officers. The quintessential question in this case, however, concerns whether the drivers are independent contractors or employees. If they are independent contractors, then there is no obligation on the part of the Respondent to ensure payment of workers' compensation benefits for them. This would mean that the Respondent cannot be adjudicated non-compliant by the Petitioner Department and payments to the drivers would not constitute payroll and would be stricken from the Penalty Worksheet calculation. Independent contractor status is defined in Section 440.02(15)(d)1.a.(I)-(VI) and b.(I)-(VII), Florida Statutes (2008). Under the former statutory provision, four of the six criteria must be met for independent contractor status to be established. Under the latter provision, any of the seven conditions named in that provision may be satisfied and independent contractor status thus established. With regard to the criteria in Section 440.02(15)(d)1.a.(I)-(VI), the preponderant weight of the evidence shows that some of the truck drivers are independent contractors with federal employer identification numbers and some are sole proprietors who are therefore not required to obtain a federal employer identification number under pertinent state or federal regulations. § 440.02(15)(d)1.a.(II), Fla. Stat. The evidence also shows, for purposes of Subsection(15)(d)1a.(V) of this statutory provision, that the drivers are permitted to work or perform work for other entities or companies needing their services, in addition to the Respondent, at the election of the driver. There is no showing that an employment application must be completed to perform such tasks for other unrelated entities. The drivers must use the unrelated company's truck for work assigned to them by such other companies or entities. They are not permitted to use P.A.T. trucks for non-P.A.T. transportation work (driving) they have agreed to perform. Moreover, all the drivers are compensated for completion of a task or set of tasks according to a flat 25 percent commission of the hauling charge imposed by P.A.T. There is no evidence that clearly shows a contractual agreement which expressly states that an employment relationship exists between the drivers and P.A.T. Even if the status and operations of the drivers referenced above does not meet four of the criteria listed in sub-subparagraph a. Subsection 440.02(d)1., they may still be presumed to be independent contractors and not employees, based upon a full consideration of the nature of their individual situation with regard to satisfying any of the conditions or criteria referenced in Section 440.02(15)(d)1.b.(I)-(VII). With regard to the first criteria under that provision, the drivers perform the services of driving for a specific amount of money in the form of a 25 percent commission. They control a substantial amount of the means of performing the services or work. The driver is asked to deliver vehicles from point A to point B for that commission. He gets paid that commission whether it takes one day or six days to accomplish the task. The driver determines the route to be driven. The driver, within the limits of the Department of Transportation rules, determines when to begin driving and when to pull over to sleep. The driver is free to decline to accept a hauling job. There is no detrimental action taken against a driver for declining to accept a given hauling job, unless it happens too frequently for satisfactory conduct of P.A.T.'s operations. The driver must provide the incidental tools and equipment, such as binding chains and maintenance tools to operate the truck and securely transport the load of vehicles he is required to transport. The driver is responsible for maintaining current driver's license qualifications and DOT physical examination requirements. The driver is responsible for paying for any necessary badges authorizing entry at maritime ports, a frequent occurrence in the transportation of foreign-manufactured vehicles. The Respondent, P.A.T., either owns or leases the trucks used by the drivers and pays for the insurance policies for the trucks. P.A.T. also pays for routine maintenance of the truck. If the driver causes damage of any sort to the truck, the driver must bear the financial responsibility for repair of the damage. The driver must also bear responsibility for any damage to the vehicles being transported on the trucks. It can thus be seen that both the Respondent and the drivers control a substantial portion, respectively, of the means of performing the services or work. Clearly, the unrefuted evidence shows that the drivers receive compensation for the work or services performed (driving services, incidental loading and unloading and protection responsibilities, with regard to the vehicular cargo), for a commission or per job basis and not on any other basis. Therefore criterion number IV, cited last above, is clearly met. Concerning criterion (II) under the last-referenced provision cited above, the drivers incur expenses for costs of their commercial driver's license, repair costs for any vehicle damage to the truck or to the vehicles which are being transported by the truck; any DOT fines incurred by the drivers; any badge expenses, as port entry and exit fees, must be borne by the drivers; lodging and meal expenses on the road during a haul must be borne by the drivers, without reimbursement. Concerning criterion (III), the driver is responsible for the satisfactory completion of the work or services that he or she agrees to perform, in the operational sense, in that the driver will not be paid if the delivery of the vehicles ordered to be transported is not satisfactorily accomplished. The privity of contract, however, for a given hauling job runs between the customer and P.A.T., the Respondent, who the customer actually contracts with to have the vehicles transported. The drivers, for purposes of criteria (V), (VI), (VII), of the last-referenced statutory provision, as established by the unrefuted testimony of Ms. Hedges, stand to realize a profit, or suffer a loss, in connection with performing the transportation driving services. They have continuing or recurring business liabilities or obligations aside from the expense of owning or leasing the truck, insuring the truck, or the fuel expense which they do not bear. They do, however, have recurring or continuing business liabilities or obligations which have a direct effect on whether they realize any net gain from a commission on a given hauling job. The success or failure of their business, even as sole proprietors, depends on the relationship of their receipts, under their 25 percent commission arrangement, and their expenditures for each hauling job for which they earn that commission. Drivers often complain of losing money due to vehicle repair bills, fines, towing charges, etc. Additionally, as referenced above, although when transporting loads for P.A.T., the drivers must use P.A.T. owned or leased trucks, the drivers are free, under their arrangement, to engage in hauling for other companies or customers, if they are not currently engaged in the middle of a hauling job for P.A.T. They may do so for other companies using other trucks, so long as they do not engage in such transportation services for other entities with P.A.T.'s truck. This factual arrangement tends to also militate in favor of the drivers not being employees. Many of the drivers have the standard federal tax withholdings deducted from their commission payments, as well as, in some cases, court-ordered child support payments. While this might be deemed to militate in favor of an employer/employee relationship, the unrefuted testimony of Ms. Hedges establishes that this is a service that drivers have come to P.A.T.'s management and requested, because in view of their many hours and days spent on the road, and for other reasons, involving their business management abilities, it is an assistance to them to have the tax liabilities simply withheld from their commission payments. This helps to avoid personal difficulties involving arrearages to the Internal Revenue Service. Status of Non-Driver P.A.T. Workers and Corporate Officers Persuasive testimony offered by Tracie Hedges, established that Regina Davis, Robin Hand, Stanley Warren, William Bertelsen, Cecil Hannah, Chipley Atkinson, Kristene Viverios, Katherine Flores, Laura Dunn, Amber Taylor, Amy Murphy, and Ms. Hedges herself, are office workers of P.A.T. They are covered by a policy of workers' compensation insurance through AES Leasing, a worker leasing company. Apparently the Petitioner no longer disputes this. Ms. Hedges reviewed, in her testimony, the final Penalty Worksheet concerning the status of various named persons who the Petitioner contends were employees, not covered by workers' compensation coverage. Ms. Hedges established with persuasive testimony that Arthur Nicolas was not a P.A.T. employee, but did some improvements on the office building (i.e. in the nature of carpentry). Alex Sibbach and Witt Davis did not ever work as employees for P.A.T. They may have performed some yard work or sold some equipment to P.A.T., but were never employees. She also established that Richard Burrson and Robert Marra were dump truck drivers for a company by the name of MNT Enterprises and had never been P.A.T. employees. Bradley and Gregory A. Hedges and Kimberly Forret are officers of P.A.T., or were at times pertinent to this case. The Petitioner contends that they had not established an exemption from the requirement of being covered under a policy of workers' compensation insurance. This is because of the Petitioner's contention that no corporate officer exemption had been filed or made effective. Bradley Hedges and Gregory A. Hedges are children of owners Greg and Tracie Hedges. Kimberly Forret is Tracie Hedges' sister. Ms. Forret is an office worker at P.A.T. and both Bradley and Gregory A. Hedges work at P.A.T. on a part-time basis while attending school. Ms. Hedges completed exemption forms for all three of them and delivered them to Investigator Newcomer's office on Burgess Road in Pensacola, Florida. Investigator Newcomer took the position that the exemptions for these people had not been established or filed based on her examination of agency computer records. The computer program or site failed to establish to her that the three individuals in question had established exemptions. Exemption status is triggered by compliance with Section 440.05, Florida Statutes (2008).1/ Tracie Hedges established with persuasive testimony that the exemption applications for the named three officers had been hand-delivered to the Burgess Road office of the Department of Financial Services. Janice Evers is a staff worker at that office. She testified that her research could neither confirm nor deny that the exemption applications were delivered to her office, but acknowledges their receipt by the Department. It must be concluded that the applications were delivered to the office on Burgess Road but were never forwarded to the Tallahassee office by Ms. Newcomer's or Ms.' Evers staff. Investigator Newcomer's business address is 610 East Burgess Road in Pensacola, the location where Ms. Hedges testified that the exemption applications were delivered. When the Department made a Discovery Request for Production of the Business Records of the Respondent, it required that those records be produced at that same business address in Pensacola, Florida. It is thus "an office of the Department" for purposes of Section 440.05(c), Florida Statutes (2008). Ms. Hedges established that the exemption applications were delivered during the 2005 calendar year although she was unable to provide an exact date of delivery. Ms. Evers acknowledges that fact in her testimony. The Stop-Work Order at issue in this case by statute can only date back as early as April 22, 2006. Even if the applications were delivered on December 31, 2005, the three officers in question would be exempt from workers' compensation coverage requirements prior to April 22, 2006, when the time period, or audit period, related to the Stop-Work Order began. It is determined that at least by January 30, 2006, exemptions had been established, by delivery at least 30 days prior thereto, for Bradley Hedges, Gregory Hedges, and Terri Kimberly Forret. It is found that the exemptions were shown by persuasive evidence to have been delivered during the 2005 calendar year. Inasmuch as they were "received" by the Department in 2005, then they would have become effective, by operation of law, on or before January 30, 2006, well before the effective date of the Penalty Assessment of April 22, 2006.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, dismissing the Stop-Work Order and Fourth Amended Order of Penalty Assessment, in its entirety. DONE AND ENTERED this 29th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2010.
