The Issue Whether Petitioner, Brian’s Painting and Wall Papering, Inc., conducted operations in the State of Florida without obtaining workers’ compensation coverage, meeting the requirements of Chapter 440, Florida Statutes (2007),1 in violation of Subsection 440.107(2), Florida Statutes. If so, what penalty should be assessed by Respondent, Department of Financial Services, Division of Workers’ Compensation, pursuant to Section 440.107, Florida Statutes, and Florida Administrative Code Chapter 69L.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees. § 440.107, Fla. Stat. Petitioner is a corporation domiciled in Florida and engaged in the construction industry, providing painting and wallpapering services to private residences in Florida. On December 4, 2007, Investigator Ira Bender conducted a random workers’ compensation compliance check of a new home construction site located at 4009 Twenty-second Street, Southwest, in Lehigh Acres, Florida. Investigator Bender observed two men painting. He later identified the two men as Larry Zoelner and Brian Zack, who were later determined to be Petitioner’s employees. Investigator Bender continued the investigation of Petitioner, utilizing the Respondent’s Compliance and Coverage Automated System (“CCAS”) database that contained all workers’ compensation insurance policy information from the carrier to an insured and lists all the workers’ compensation exemptions in the State of Florida. Based on his search of CCAS, Investigator Bender determined that for the period, December 3, 2004, through December 4, 2007 (“assessed penalty period”), Petitioner did not have a State of Florida workers’ compensation insurance policy or a valid, current exemption for any of Petitioner’s employees, including Zoelner and Zack. Based on his search of CCAS, he also determined that Petitioner did not have a State of Florida workers’ compensation insurance policy or a valid, current exemption for Brian Galvin, Petitioner’s owner and operator, for the assessed penalty period. Galvin admitted that he did not have an exemption prior to December 4, 2007. Section 440.05, Florida Statutes, allows a corporate officer to apply for a construction certificate exemption from workers’ compensation benefits or compensation. Only the named individual on the application is exempt from carrying workers’ compensation insurance coverage. Petitioner was not in possession of a current, valid construction industry exemption for its corporate officer, Galvin, during the three-year search period. To be eligible for the exemption in the construction industry, an employer must pay a $50 processing fee and file a “notice of election to be exempt” application with Respondent for each corporate officer and have that application processed and approved by it. 7. Subsections 440.107(3) and 440.107(7)(a), Florida Statutes, authorized Respondent to issue SWOs to employers unable to provide proof of workers’ compensation coverage, including proof of a current, valid workers’ compensation exemption. Failure to provide such proof is deemed “an immediate serious danger to public health, safety, or welfare . . .” § 440.107(7)(a), Fla. Stat. Based on the lack of worker’s compensation coverage and a current, valid workers’ compensation exemption for its employees, including Galvin, Respondent issued a SWO on Petitioner on December 4, 2007. The SWO ordered Petitioner to cease all business operations for all worksites in the State of Florida. On the day the SWO was issued, Investigator Bender also served Petitioner with a “Request for Production of Business Records for Penalty Assessment Calculation,” for the purpose of enabling Respondent to determine a penalty under Subsection 440.107(7), Florida Statutes. Pursuant to Florida Administrative Code Rule 69L-6.015, Investigator Bender requested business records from Petitioner for the assessed penalty period. The requested records included payroll documents, copies of certificates of exemptions, employee leasing records, and other business records. Investigator Bender was satisfied that the records produced by Petitioner were an adequate response to the business records request. Based on Investigator Bender’s review of the business records, he determined that Galvin was dually-employed during the assessed period. Dual employment occurs when an employee is paid remuneration by two different employers. Galvin was simultaneously employed by SouthEast Personnel Leasing, Inc., as a painter and by Petitioner as its chief operating officer. In calculating the assessed penalty, Investigator Bender only took into account Petitioner’s payroll. It was determined that the payroll from the leasing company demonstrated secured payment of workers’ compensation coverage for the two painters and for Galvin, when he was operating as a painter. Pursuant to Florida Administrative Code Rule 69L- 6.035, Investigator Bender included “dividends” paid by Petitioner to Galvin during the assessed penalty period, in calculating Petitioner’s total payroll amount used in the calculation of the assessed penalty. Galvin argued that dividends paid to him by Petitioner should be excluded from the calculation. However, the dividends that Petitioner paid to Galvin constituted unsecured payment for workers’ compensation coverage, in violation of Chapter 440, Florida Statutes, and the Florida Insurance Code. Through the use of the produced records, Respondent calculated a penalty for the assessed period. The Amended Order, which assessed a penalty of $45,363.76, was issued and served to Petitioner on December 13, 2007. Based on business records Investigator Bender received from SouthEast Personnel Leasing, Inc., on December 17, 2007, Investigator Bender determined that the classification code assigned for Galvin should be changed from 5474 to 5606. Classification code 5474 represented the designation for a painter while classification code 5606 represented the designation for a manager. In the course of his investigation, Investigator Bender also deleted Charlie Galvin after he determined Charlie Galvin was not Petitioner’s employee. Investigator Bender assigned the new class code to the type of work performed by Galvin while working as a manger for Petitioner, utilizing the SCOPES Manual. He multiplied the class code’s assigned approved manual rate with the payroll per $100, and then multiplied all by 1.5. Consequently, the 2nd Amended Order, which was issued and served to Petitioner on December 18, 2007, assessed a penalty in the amount of $19,943.08. The recalculated penalty, as calculated, was consistent with the method in which the investigator had calculated the previous penalties.
Recommendation Based on the Findings of Fact and Conclusions of Law, it RECOMMENDED that Petitioner enter a final order, as follows: Petitioner failed to secure workers’ compensation coverage for its employees, including its corporate officer, as required by statute; and Petitioner be assessed a penalty of $19,943.08. DONE AND ENTERED this 22nd day of May, 2008 in Tallahassee, Leon County, Florida. S 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 22nd day of May, 2008
The Issue The issue is whether Respondent, Simpro Homes, Inc., conducted business operations in the State of Florida without obtaining workers’ compensation coverage meeting the requirements of Chapter 440, Florida Statutes, and, if so, whether the penalty in the amount of $326,861.58, was properly assessed by Petitioner, State of Florida, Department of Financial Services, Division of Workers’ Compensation, pursuant to Section 440.107, Florida Statutes, and Florida Administrative Code Chapter 69L.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. Insurers are required by law to report all workers’ compensation policies to Petitioner. Respondent is a corporation domiciled in Georgia. Respondent is engaged in the business of framing, which is a construction activity, pursuant to Chapter 440, Florida Statutes, and Florida Administrative Code Rule 69L-6. On August 10, 2005, Petitioner's investigator, Allen DiMaria, visited 4307 Edgewater Drive, Jacksonville, Florida, on a random site visit, and interviewed a number of workers at the work site. Mr. DiMaria documented his investigation in the narrative of his Initial Investigative Report. Based upon these field interviews, Petitioner determined that the workers were employed by Respondent. Mr. DiMaria asked the superintendent on site whether Respondent had provided him with a certificate of liability insurance indicating workers’ compensation coverage, and was informed that Respondent had provided one. Mr. DiMaria was subsequently provided with the Certificate of Insurance by the general contractor on the work site. Mr. DiMaria also obtained a copy of Respondent’s workers’ compensation insurance policy which had a policy period of October 30, 2004, to October 30, 2005. The policy and the information contained in the Certificate of Insurance were consistent. Subsequent to the site visit, Mr. DiMaria continued the investigation of Respondent utilizing the Department’s Compliance and Coverage Automated System (“CCAS”) database that contains information on all workers' compensation insurance policy information from the carrier to an insured, and determined that Respondent did not have a State of Florida workers' compensation insurance policy. Petitioner, which maintains a database of all workers’ compensation exemptions in the State of Florida, also did not find any current, valid exemptions for Respondent. The St. Paul Travelers insurance policy held by Respondent at the time of Petitioner's site visit on August 10, 2005, did not contain an endorsement which utilizes Florida class codes, rates, rules, and manuals that comply with Chapter 440, Florida Statutes, and the Florida Insurance Code, satisfy the standard. Specifically, the insurance policy did not have Florida listed as a covered state under Section 3A. There is also no evidence that Respondent secured Section 3C coverage for Florida. The premium was based on a rate that was not the Florida premium rate and on a class code that was not indicative of the actual work being performed by Respondent. The policy shows that Respondent was insured for operations under National Council on Compensation Insurance (NCCI) class code 5645 at a premium utilizing Georgia premium rates. Class code 5645 refers to framing of one- or two- family homes. Mr. DiMaria utilized class code 5651 in his review of Respondent because Respondent was framing a dwelling that consisted of more than a two-family dwelling, pursuant to Florida Administrative Code Rule 69L-6.021(1). On August 11, 2006, after consulting with his supervisor, Mr. DiMaria issued and served on Respondent a stop- work order and order of penalty assessment for failure to comply with the requirements of Chapter 440, Florida Statutes, and more specifically on the grounds that Respondent did not secure the payment of workers’ compensation based on Florida class codes, rates, rules, and manuals. Employers on job sites in Florida are required to keep business records that enable Respondent to determine whether the employer is in compliance with the workers' compensation law. Mr. DiMaria issued a request for production of business records to Respondent on August 11, 2006. The request asked the employer to produce, for the preceding three years, documents that reflected payroll and proof of insurance. Respondent produced check stubs for a number of employees who were not on the investigated work site, and an affidavit that stated the employees on the work site were performing framing work for Respondent. Respondent failed to produce the requested records for the employees working in Florida. Hans Prosser, Respondent's president, testified that he had provided the records to his attorney who was charged with reviewing the records and turning them over to Petitioner. Apparently, the attorney never delivered the records to Petitioner. Once Respondent failed to provide the requested information, Petitioner imputed the payroll of the employees and calculated a penalty for the time period of August 11, 2002, through August 11, 2005. Mr. DiMaria assigned a class code to the type of work performed by Respondent utilizing the SCOPES Manual, multiplied the class code’s assigned approved manual rate by the imputed payroll per one hundred dollars, and then multiplied that by 1.5. The payroll was imputed back to October 1, 2003. Pursuant to Florida Administrative Code Rule 69L-6.028(4), for the period prior to October 1, 2003, Petitioner assessed a penalty of $100 per day for each calendar day of noncompliance. The Amended Order of Penalty Assessment ("Amended Order") which assessed a penalty of $327,969.47, was served on Respondent on September 1, 2005. The Department issued and served a second Amended Order of Penalty Assessment (“Second Amended Order”) with an assessed penalty of $326,861.58, via a Motion to Amend Order of Penalty Assessment to Respondent on January 6, 2006. The reduction was the result of an error in the calculation of the penalty in the Amended Order. The motion was granted by this Administrative Law Judge on March 20, 2006. Respondent contends that it had been dissolved as a corporation on February 24, 2001, and was reinstated as a corporation on January 23, 2003, and thus should not be penalized for any time prior to that date. In support of this contention, Respondent offered into evidence a certified copy of a document entitled "Certificate of Reinstatement," demonstrating that Respondent had been administratively dissolved on February 24, 2001, "for failure to comply with the requirements of Title 14 of the Official Code of Georgia Annotated." The document further explains that all taxes have been paid and that Respondent "may resume its business as if the administrative dissolution had never occurred." This document was not presented to counsel for Petitioner prior to the final hearing as required by the Order of Pre-hearing Instructions issued in this matter.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Assessment Order assessing a penalty of $326,861.58. DONE AND ENTERED this 4th day of August, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 4th day of August, 2006. COPIES FURNISHED: Colin M. Roopnarine, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Hans Prosser Simpro Homes, Inc. 5055 Old Winder Highway Braselton, Georgia Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether Respondents violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers? compensation as alleged in the Stop-Work Order and Amended Order of Penalty Assessment, and if so, what penalty is appropriate.
Findings Of Fact Petitioner, Department of Financial Services, Division of Workers' Compensation (the Department), is the state agency responsible for enforcing the requirement that employers in the State of Florida secure the payment of workers' compensation for their employees. Mr. Alfred Strange was a managing member of Respondent Al?s Painting Service, LLC (the LLC), which had been created at least as early as 2004. The LLC was administratively dissolved on September 24, 2010, for failure to file an Annual Report. After this date, no further Annual Reports were filed. As a managing member of the LLC, Mr. Strange had initially obtained an exemption from workers? compensation coverage beginning on October 21, 2004, which was renewed once for a two-year period and finally expired on October 20, 2008. Mr. Frederick Crutchfield, another managing member of the LLC, had an exemption which expired on November 20, 2008. After this date, no further Requests for Exemption were filed by the company or its officers. Mr. Strange and Mr. Crutchfield did not have exemptions in effect from January 8, 2010, until September 24, 2010, when the LLC was dissolved. Mr. Carl Woodall is a senior investigator with the Division of Workers? Compensation. Mr. Woodall was appointed as an investigator on July 2, 2007, and was appointed as a senior investigator, Position Number 43003044, on September 1, 2012. He has been involved with over 400 enforcement cases under chapter 440. The position description for Position Number 43003044, effective September 1, 2012, provides in relevant part: The incumbent in this position is responsible for conducting investigations for the purpose of ensuring employer compliance with the workers? compensation requirements; entering and inspecting any place of business at any reasonable time for purpose of investigating employer compliance; examining and copying business records; and issuing, serving, and enforcing stop-work orders, penalty assessment orders, and any other orders required under s. 440.107 F.S. On January 7, 2013, Investigator Woodall conducted a site visit to a commercial building at 20721 Central Avenue East, Blountstown, Florida. Outside this address, there was a van with advertising on its side showing a man painting with a paint roller, the words “Al?s Painting,” and a phone number. Inside, he encountered Mr. Strange painting the east wall of the building. Investigator Woodall was wearing a shirt displaying a seal with the words “State of Florida Workers? Compensation Investigator” emblazoned on it. Investigator Woodall showed Mr. Strange his identification, which contained his name and identification number 03044, and indicated that he was a senior compliance investigator with the Division of Workers? Compensation. In response to questions from Investigator Woodall, Mr. Strange provided identification in the form of his driver?s license and stated that he had been working at the Central Avenue address for a few days and was painting only part of the building. Mr. Strange stated that he was being paid $15.00 per hour and that he had been paid once by check. Mr. Strange provided a business card to Investigator Woodall. Investigator Woodall testified that Mr. Strange may have told him that he had an old card in the van and Investigator Woodall remembered that Mr. Strange did go to the van and look for something. The business card that was provided to Investigator Woodall was printed with “Al?s Painting Service, LLC.” It is not clear that Mr. Strange ever held himself out as doing business under the name “Al?s Painting Service, LLC” in obtaining the work at Central Avenue or at any time after the LLC was dissolved. Investigator Woodall checked workers? compensation information for Al?s Painting Service, LLC, by accessing the Coverage and Compliance Automated System (CCAS) maintained by the Department. The database indicated no workers? compensation coverage was in effect for the LLC. It indicated that Mr. Strange and Mr. Crutchfield were managing members of the LLC but that their exemptions had expired in 2008. Information in the CCAS is submitted by insurance companies and the National Council of Compensation Insurance (NCCI). Investigator Woodall also accessed the Department of State, Division of Corporations? website. That database indicated that Al?s Painting Service, LLC, had been dissolved on September 24, 2010. On January 7, 2013, at approximately 12:40 p.m., Investigator Woodall personally served a Stop-Work Order and Order of Penalty Assessment on Mr. Strange and the LLC, along with a Request for Production of Business Records for Penalty Assessment Calculation. Mr. Strange was actively involved in business operations in Florida during the period of January 8, 2010, through January 7, 2013, inclusively. Mr. Strange operated within the construction industry during the period of January 8, 2010, through January 7, 2013, inclusively. Mr. Strange was an "employer" during the time period of January 8, 2010, through January 7, 2013, inclusively, as that term is defined in section 440.02(16). Mr. Strange neither obtained workers' compensation insurance coverage under chapter 440 for any of the individuals listed on the Penalty Worksheet, nor verified that any of those individuals or corporations had workers' compensation coverage before contracting with them for construction services at any point in time during the period of January 8, 2010, through January 7, 2013, inclusively. Class Code 5474, used on the penalty worksheet attached to the Amended Order of Penalty Assessment, and as defined by the NCCI SCOPES Manual, is the correct occupational classification for Alfred Strange, d/b/a Al's Painting Service, LLC, a Dissolved Florida Limited Liability Company. None of the employees listed on the Penalty Worksheet of Exhibit C were covered by workers' compensation insurance obtained through an employee leasing company for the period of January 8, 2010, through January 7, 2013. Alfred Strange and Frederick Crutchfield were "employees" of Alfred Strange, d/b/a Al's Painting Service, LLC, a Dissolved Florida Limited Liability Company, as that term is defined in section 440.02(15), during the period of January 8, 2010, through January 7, 2013, whether continuously or not. Neither Alfred Strange nor Frederick Crutchfield was an independent contractor of Alfred Strange, d/b/a Al's Painting Service, LLC, a Dissolved Florida Limited Liability Company, as that term is defined in section 440.02(15), during the period of January 8, 2010, through January 7, 2013. Remuneration was paid to Alfred Strange and Frederick Crutchfield during January 8, 2010, through January 7, 2013. The Request for Admission that the approved manual rates applied on the Penalty Worksheet attached to the Amended Order of Penalty Assessment were correct was deemed admitted pursuant to Florida Rule of Civil Procedure 1.370.1/ The penalty shown in column „g? of the Penalty Worksheet attached to the Amended Order of Penalty Assessment is the correct penalty for the employees listed there. Mr. Strange did not provide the Department any of the records requested in the Request for Production of Business Records for Penalty Assessment Calculation. The imputed salary amounts for each employee listed on the penalty worksheet of the Amended Order of Penalty Assessment equal the statewide average weekly wage multiplied by 1.5.
Recommendation Upon consideration of the above Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers? Compensation, enter a final order determining that Respondent Mr. Alfred T. Strange violated the requirement in chapter 440, Florida Statutes, to secure workers' compensation coverage, and imposing upon him a total penalty assessment of $28,175.64. DONE AND ENTERED this 22nd day of August, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 22nd day of August, 2013.
The Issue The issue in the case is whether the Department of Labor and Employment Security (Department), in implementing a workforce reduction that resulted in layoffs and demotions for employees, should have adopted by rulemaking, policies related to compensation reductions that occurred during the workforce reduction.
Findings Of Fact In 1999, a funding shortfall at the Department of Labor and Employment Security resulted in implementation of a workforce reduction plan. Petitioners Altamese Thompson and Sue Ezell were employees of the Department with permanent status in the Career Service system and whose employment and compensation were substantially affected by the Department’s workforce reduction program. Petitioner Florida Public Employees Council 79, AFSCME, represented the employees on collective bargaining issues affected in the workforce reduction. AFSCME members’ employment and compensation were substantially affected by the Department’s workforce reduction program. The 1999 workforce reduction was not the Department’s first experience with employee layoffs. In previous reductions, Department policy, set forth in LES Manual 1101.1.1.1 (October 1, 1996) was to retain, at existing salaries, as many employees as funding permitted. The Department policy was not adopted as an administrative rule. When the Department began to consider the workforce reduction of mid-1999, the Department apparently decided to increase the number of retained employees by reducing the salaries of workers who accepted "voluntary" demotions in lieu of layoff. By issuance of a "Change Notice" to LES Manual 1101.1.1.1, dated May 14, 1999, the Department redefined voluntary demotion to include "demotions requested by associates in lieu of layoff during workforce reduction pursuant to Chapter 60K-17, F.A.C." The revision also set forth a formula by which the compensation paid to employees who accepted voluntary demotion in lieu of transfer would be reduced. The change in the Department policy was not adopted as an administrative rule. Chapter 60K-17, Florida Administrative Code, sets forth the rules applicable to reduction of Career Service employees through the layoff process. The rule essentially establishes what is generally identified as the "bumping" procedure utilized by state agencies when employee levels are reduced. Rule 60K-17.004(3)(j), Florida Administrative Code, states in part, "[w]ithin 7 calendar days after receiving the notice of layoff, the employee shall have the right to request a demotion or reassignment. " Rule 60K-17.004(3)(p), Florida Administrative Code, states that "[a]n employee who accepts a voluntary demotion in lieu of layoff and is subsequently promoted to a position in the same class in the same agency from which the employee is demoted in lieu of layoff, shall be promoted with permanent status." Chapter 60K-17, Florida Administrative Code, does not prohibit salary reductions implemented as part of a voluntary demotion. Rule 60K-4.007, Florida Administrative Code, governs "demotion appointments" in the career service system. The rule states that a "demotion appointment" includes assignment to a job class having a "lower maximum salary or having the same or higher maximum salary but a lower level of responsibility. Rule 60K-2.004, Florida Administrative Code, governs salary determinations upon appointment to employment. Rule 60K- 2.004(4), Florida Administrative Code, states, "[a]n employee who is given a demotion appointment in accordance with Chapter 60K-4, F.A.C., may be demoted with or without a reduction in base rate of pay. " Rule 60K-9.005, Florida Administrative Code, addresses a Career Service employee’s right to appeal employment actions to the Public Employees Relations Commission. Generally, an employee who has attained permanent status in the Career Service System can appeal employment actions to the Public Employees Relations Commission. However, Rule 60K-9.005(5)(c), Florida Administrative Code, states than "[a]n employee who receives a reduction in pay, a demotion, or a transfer shall waive all rights to appeal such action if the employee has signed a written statement that the action is voluntary." By certified letters dated May 24, 1999, Petitioners Thompson and Ezell were advised that "[d]ue to impending budget cuts" the Department was reducing the number of positions in the Department’s Division of Jobs and Benefits (where Petitioners Thompson and Ezell worked) and that "[r]egretfully, you will be adversely affected by this work force reduction on June 30, 1999, at the close of business." The May 24 letter included a form titled "STATEMENT OF CHOICE OF OPTIONS DUE TO LAYOFF SITUATION" which set forth available jobs and included an option allowing the employee to select a layoff rather than the job demotion. The form included a signature line that stated, "I understand that by selecting demotion as an option, I am requesting a voluntary demotion in lieu of layoff, and my pay upon such voluntary demotion will be subject to the newly revised Section 1101.1.1.1.9d of the LES Personnel Manual." The evidence fails to establish the content of Section 1101.1.1.1.9d of the revised LES Personnel Manual. The documents entered into evidence at the hearing are identified as 1101.1.1.1. There is no subsection 9d. Subsection (c)2.c. addresses pay upon voluntary demotion and states as follows: Associates requesting voluntary demotions must have their base rate of pay reduced by one-half (1/2) of the percentage/salary increase received upon promotion and/or reassignment. For example, if an associate received a 10 percent promotional increase, his/her base rate of pay must be reduced by 5 percent. Permanent career service associates who have not had a promotional increase will have their base rate reduced by 5 percent. The Division Director/Commission Chairman equivalent has authority to take final action provided, however, that any variations must be submitted to the Assistant Secretary of Administration for review prior to final action. This provision also applies to demotions to classes that are higher or lower than the classes held prior to promotion and/or reassignment. Ms. Thompson noted her preferences as to the available jobs positions and signed the form. Ms. Ezell noted her preferences as to the available jobs positions and signed the form, but wrote a notation on the form indicating her disagreement with the situation, in part stating, "I am not voluntarily requesting demotion. I have absolutely no other choice after 27 years. A pay reduction should not occur. " At hearing, both Ms. Thompson and Ms. Ezell suggested that being forced to accept a demotion and pay reduction in lieu of total layoff did not present an entirely voluntary choice. There is no evidence that the Department provided copies of the cited Personnel Manual revision directly to affected employees either before or after the May 24 letters were issued. There is no evidence that either Ms. Thompson or Ms. Ezell saw the revised Personnel Manual prior to signing the "STATEMENT OF CHOICE" forms. During the spring of 1999, the Division’s Director circulated a publication entitled "Friday Fax" to employees of the Department’s Division of Jobs and Benefits. The "Friday Fax" dated March 19, 1999 indicates that an employee demoted as part of the pending reduction in force would retain their current salary. This reflects the existing policy of the Department that had been applied in prior workforce reductions. There is no credible evidence that the Division Director was explicitly authorized to restate the Department policy in the March 19, 1999 Friday Fax. There is evidence that the Department executives were considering the possibility of salary reductions during the ongoing planning for the workforce reduction. By the following week, a new Division Director had been appointed. By April 2, 1999, publication of "Friday Fax" was suspended. A new publication "Just The Facts. . ." began to be issued by the Department’s Office of Communications and was circulated to agency personnel. On May 24, 1999, the same day that the workforce reduction letters were mailed to Petitioners Thompson and Ezell, an issue of "Just The Facts" was published which stated that demotions in lieu of layoff would incur salary reductions, and referenced the revised LES Personnel Manual section as "1101.1.1.1 9.d.(1)(6)(c)2.c."
The Issue Whether Petitioner properly issued a Stop-Work Order and Penalty Assessment against Respondent for failing to obtain workers' compensation insurance that meets the requirements of chapter 440, Florida Statutes.
Findings Of Fact Petitioner is the state agency responsible for enforcing the Florida Workers' Compensation Law, chapter 440, Florida Statutes, including those provisions that require employers to secure and maintain payment of workers? compensation insurance for their employees who may suffer work- related injuries. Respondent is an active Florida limited liability company, having been organized in 2006. Howard?s Famous Restaurant is a diner-style restaurant located at 488 South Yonge Street, Ormond Beach, Florida. It seats approximately 60 customers at a time, and is open for breakfast and lunch. In 2006, Edward Kraher and Thomas Baldwin jointly purchased Howard?s Famous Restaurant. They were equal partners. Mr. Baldwin generally handled the business aspects of the restaurant, while Mr. Kraher was responsible for the food. At the time the restaurant was purchased, Mr. Baldwin organized That?s Right Enterprises, LLC, to hold title to the restaurant and conduct the business of the restaurant. Mr. Baldwin and Mr. Kraher were both identified as managing members of the company.1/ On June 27, 2007, a 2007 Limited Liability Company Annual Report for That?s Right Enterprises, LLC, was filed with the Secretary of State. The Annual Report bore the signature of Mr. Kraher, and contained a strike-through of the letter that caused the misspelling of Mr. Kraher?s name. Mr. Kraher testified that the signature on the report appeared to be his, but he had no recollection of having seen the document, or of having signed it. He suggested that Mr. Baldwin may have forged his signature, but offered no explanation of why he might have done so. Although Mr. Kraher could not recall having signed the annual report, and may have had little understanding of its significance, the evidence supports a finding that Mr. Kraher did, in fact, sign the annual report for That?s Right Enterprises, LLC, as a managing member of the business entity. From March 9, 2009, through March of 2011, Mr. Kraher and Mr. Baldwin received salaries as officers, rather than employees, of That?s Right Enterprises, LLC. Their pay was substantially equivalent during that period. The paychecks were issued by the company?s accountant. Mr. Kraher denied having specific knowledge that he was receiving a salary as an officer of That?s Right Enterprises, LLC. Since Mr. Baldwin left the company, Mr. Kraher has continued to use the same accountant, and has continued to receive his salary as an officer of That?s Right Enterprises, LLC. On March 24, 2011, after having bought out Mr. Baldwin?s interest in the company by paying certain company- related debt owed by Mr. Baldwin, Mr. Kraher filed an annual report for That?s Right Enterprises, LLC. In the annual report, which was prepared and filed at his request, Mr. Kraher assumed control as the sole member and registered agent of the company. Mr. Baldwin was removed as a managing member and registered agent, and other changes were made consistent therewith. Mr. Kraher denied any understanding of the significance of his operating as the same corporate entity, but rather thought he was “buying a new LLC.” On March 8, 2012, Petitioner's investigator, Carolyn Martin, conducted an inspection of Howard?s Famous Restaurant. Ms. Martin introduced herself to one of the waitresses working at the restaurant. The waitress called Mr. Kraher from the kitchen to speak with Ms. Martin. Mr. Kraher identified himself as the owner of the restaurant for the past six years. Ms. Martin asked Mr. Kraher for evidence that Respondent?s employees were covered by workers? compensation insurance. Mr. Kraher retrieved a folder containing the restaurant?s insurance policies and information. Ms. Martin reviewed the folder, and determined that Respondent did not have workers? compensation insurance. Mr. Kraher, who was very cooperative with Ms. Martin throughout the inspection, was genuinely surprised that the restaurant employees were not covered by workers? compensation insurance. He had taken out “a million-dollar insurance policy” that he thought covered everything he needed to have. While Ms. Martin was at the restaurant, Mr. Kraher called his insurance agent who, after reviewing his file, confirmed that Respondent did not have workers? compensation insurance. Mr. Kraher immediately asked his agent to bind a policy, and paid his first six-month premium using a business credit card. A copy of the policy was quickly faxed by the agent to Ms. Martin. Ms. Martin took the names of Respondent?s employees, which included two kitchen staff and four wait staff. Some of the employees worked in excess of 30 hours per week, while others worked part-time. Ms. Martin went to her vehicle and completed a Field Interview Worksheet. Ms. Martin reviewed the Coverage and Compliance Automated System (CCAS), which is the statewide database for workers? compensation information, to confirm Respondent?s status in the workers? compensation system. Using the CCAS, Ms. Martin confirmed that Respondent had no workers? compensation coverage on file for any employee of the company. She also accessed the Florida Division of Corporations website to ascertain Respondent?s corporate status. After having gathered the information necessary to determine Respondent?s status, Ms. Martin contacted her supervisor and received authorization to issue a consolidated Stop-Work Order and Order of Penalty Assessment. The Stop-Work Order required Respondent to cease all business operations statewide. The Order of Penalty Assessment assessed a penalty, pursuant to section 440.107(7)(d), equal to 1.5 times the amount the employer would have paid in premium when applying the approved manual rates to the employer's payroll for the preceding three-year period. The consolidated order was hand- delivered to Mr. Kraher on behalf of Respondent at 11:00 a.m. on March 8, 2012. At the time she delivered the consolidated Stop-Work Order and Order of Penalty Assessment, Ms. Martin also hand- delivered a Request for Production of Business Records for Penalty Assessment Calculation. The Request required that Respondent produce business records for the preceding three-year period, from March 9, 2009, through March 8, 2012. Respondent was given five days in which to provide the records. On or about March 12, 2012, Mr. Kraher produced three boxes of business records to Ms. Martin. Those records were forwarded by Ms. Martin, and placed in the queue for review by the penalty auditor. The records were reviewed by Petitioner?s penalty auditor, Lynne Murcia, and were found to be insufficient to establish the actual compensation paid to Respondent?s employees for the preceding three year period. Therefore, pursuant to section 440.107(7)(e), salaries were imputed for each of the six employees based on the statewide average weekly wage. Ms. Murcia used the “Scopes Manual” published by the National Council on Compensation Insurance to ascertain the classification of Respondent?s business, based upon the nature of the goods and services it provided. Class code 9082, titled “Restaurant NOC,” is described as “the „traditional? restaurant that provides wait service.” Ms. Murcia correctly determined that Howard?s Famous Restaurant fell within class code 9082. The salaries of Respondent?s six employees, as employees of a class code 9082 restaurant, were imputed as though they worked full-time for the full three-year period from March 9, 2009, to March 8, 2012, pursuant to section 440.107(7)(e). The total imputed gross payroll amounted to $1,130,921.64. The penalty for Respondent?s failure to maintain workers? compensation insurance for its employees is calculated as 1.5 times the amount Respondent would have paid in premium for the preceding three-year period. The National Council on Compensation Insurance periodically issues a schedule of workers? compensation rates per $100 in salary, which varies based on the Scopes Manual classification of the business. The workers? compensation insurance premium was calculated by multiplying one percent of the imputed gross payroll ($11,309.21) by the approved manual rate for each quarter (which varied from $2.20 to $2.65, depending on the quarterly rate), which resulted in a calculated premium of $26,562.06. The penalty was determined by multiplying the calculated premium by 1.5, resulting in the final penalty of $39,843.18. On March 28, 2012, Petitioner issued an Amended Order of Penalty Assessment assessing a monetary penalty amount of $39,843.18 against Respondent. Respondent subsequently provided Petitioner with additional payroll records regarding the six employees. The records had been in the possession of Respondent?s accountant. The records, which included Respondent?s bank statements and payroll records for the six employees, were determined to be adequate to calculate the actual employee salaries for the preceding three-year period. Ms. Murcia revised her penalty worksheet to reflect that payroll was now based on records, rather than being imputed.2/ Respondent?s total payroll for the three-year period in question was determined to be $154,079.82. Applying the same formula as that applied to determine the penalty amount reflected in the Amended Penalty Assessment, the premium was calculated to have been $3,624.33, with a resulting penalty of $5,436.64. On April 24, 2012, Petitioner issued a 2nd Amended Order of Penalty Assessment reducing Respondent's penalty from $39,843.18 to $5,436.64.
Recommendation Based on the 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 of $5,436.64 against Respondent, That?s Right Enterprises, LLC, for its failure to secure and maintain required workers? compensation insurance for its employees. DONE AND ENTERED this 31st day of August, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2012.
The Issue The issues are whether Respondent conducted business operations in Florida without obtaining workers’ compensation coverage that met the requirements of Chapter 440, Florida Statutes (2009), for its employees, and if so, what penalty should be assessed.
Findings Of Fact Petitioner is the state agency that is responsible for enforcing Chapter 440, Florida Statutes, which requires employers to secure the payment of workers’ compensation for the benefit of their employees. Respondent is a Louisville, Kentucky-based corporation that is engaged in the construction, maintenance, and painting of elevated water tanks. Respondent has a second fabrication facility located in Newnan, Georgia. Respondent’s work constitutes construction. On March 4, 2010, Petitioner’s investigator, Lawrence F. Eaton, observed Respondent’s employees working on a water tower in Pace, Florida. While visiting the worksite, one of Respondent’s employees stated that he did not have any information regarding if and how the men were covered by workers’ compensation. The employee gave Mr. Eaton a telephone number for Respondent. Next, Mr. Eaton consulted the Kentucky Secretary of State website to find information concerning the corporate status of Respondent. The website indicated that Respondent was incorporated in 1892 and that it had three corporate officers. Mr. Eaton then consulted Petitioner’s Coverage and Compliance Automated System (CCAS) database. CCAS contains workers’ compensation policy information for each employer that has a Florida policy and information relative to workers’ compensation exemptions that have been applied for and issued to individuals by Petitioner. Mr. Eaton was unable to find any indication on CCAS that Respondent had secured workers’ compensation coverage by purchasing a Florida policy. CCAS also provided no evidence that Respondent had entered into an arrangement with an employee leasing company to provide workers’ compensation coverage to its employees. Additionally, CCAS did not show that Respondent had obtained exemptions for its corporate officers. Mr. Eaton subsequently spoke with one of Respondent’s representatives. Mr. Eaton was informed that Respondent was self-insured for workers’ compensation in Kentucky. Mr. Eaton also learned that Respondent had another workers’ compensation policy. Respondent’s representative indicated that she would send Mr. Eaton the policy paperwork. When he received the paperwork from Petitioner, Mr. Eaton determined that the insurance coverage did not comply with the requirements of Florida’s workers’ compensation law. The paperwork included an excess policy of workers’ compensation and a Georgia workers’ compensation policy. On March 5, 2010, Mr. Eaton issued a Stop-Work Order and Order of Penalty Assessment against Respondent. Specifically, the Stop-Work Order states that Respondent was not in compliance with Chapter 440, Florida Statutes, because Respondent failed to obtain workers’ compensation coverage for its employees. On March 5, 2010, Mr. Eaton issued a Request for Production of Business Records for Penalty Assessment Calculation to Respondent. On March 8, 2010, Respondent provided Mr. Eaton with additional workers’ compensation policy information. The information included the declarations page for Chartis Company Policy No. WC 005-73-7942. The Chartis policy is a Workers’ Compensation and Employers Liability Policy. In Item 3A, the policy lists the states that are covered, in Part One of the policy, pursuant to each state’s workers’ compensation law. Georgia is named as a covered state in Item 3A. In Item 3C, the Chartis policy lists the states that are covered, in Part Three of the policy, as "other states insurance." Florida is listed only in Item 3C. Item 4 of the Chartis policy states that "[t]he premium of this policy will be determined by our Manuals of Rules, Classifications, Rates and Rating Plans. All information required below is subject to verification and change by audit." In response to the request for business records, Respondent provided Petitioner with payroll information for work it had performed in Florida between September 2007 and February 2010. After receiving this information, Respondent’s Penalty Calculator, Robert McAullife, calculated a penalty. Because Respondent had not provided all of the requested business records, Mr. McAullife imputed Respondent’s payroll for a portion of the relevant time period. In calculating the penalty, Mr. McAullife first sought to determine the amount of premium that Respondent would have paid had it been properly insured for the relevant three-year period. Mr. McAullife assigned a class code for each of Respondent’s employees, reflecting the work they performed. Mr. McAullife then took 1/100th of the payroll and multiplied that figure by the approved manual rate applicable to each class code. Mr. McAullife then took the previously obtained product and multiplied it by 1.5 to find a penalty in the amount of $122,242.23. This penalty is based on Respondent having $382,146.90 in Florida payroll that would have required $81,494.66 in workers’ compensation premium. There are no errors in Mr. McAullife’s penalty calculation. Mr. Eaton issued an Amended Order of Penalty Assessment on March 23, 2010. On March 24, 2010, Respondent and Petitioner entered into a Payment Agreement Schedule for Periodic Payment of Penalty that required ten percent of the penalty to be paid in advance and the remainder to be paid in 60 interest-free monthly payments. Respondent also produced a policy that provided coverage in compliance with Florida law with an effective date of March 12, 2010. As a result, Petitioner issued an Order of Conditional Release, permitting Respondent to return to work. During the hearing, Respondent presented evidence that it is a registered self-insured company in Kentucky for the first $500,000.00 of workers’ compensation. Additionally, Respondent has excess insurance for any workers’ compensation claims that exceed the $500,000.00 threshold. Because it is self-insured in Kentucky, Respondent must purchase letters of credit on an annual basis. Respondent paid the following for its recent letters of credit: (a) 2007, $26,755.54; (b) 2008, $32,438.48; (c) 2009, $33,626.38; and (d) 2010 to date, $8,931.39. The State of Kentucky assesses qualified self-insureds a six and one half percent tax based on an annual simulated premium. The amount of the simulated premium represents what a qualified self-insured would pay for a "first dollar" policy of workers’ compensation insurance. Respondent’s recent simulated premiums are as follows: (a) 2007, $453.440.00; (b) 2008, $480,637.00; (c) 2009, $623,940.00; and (d) 2010, $1,006,243.00. Respondent also maintains a "high dollar" deductible policy of insurance that provides workers’ compensation coverage for its Georgia employees. Respondent’s Georgia policy, Chartis Company Policy No. WC 005-73-7942, which includes Florida as part of "all other states" in Item 3C of the declarations page, also requires the payment of premiums. Respondent recently paid the following premiums for this insurance: (a) 2007, $124,736.78; (b) 2008, $125,950.08; and (c) 2009, $64,465.28. The premiums paid by Respondent for the Chartis Company Policy No. WC 005-73-7942 are not based on Florida rates. From 2007 to 2010, Respondent provided workers’ compensation benefits for at least four different workers that were injured while performing work for Respondent in Florida. The workers’ compensation benefits paid by Respondent on these claims totaled $147,958.25.
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, finding that Caldwell Tanks, Inc., failed to comply with Chapter 440, Florida Statutes, and imposing a penalty in the amount of $122,224.22. DONE AND ENTERED this 8th day of December, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2010. COPIES FURNISHED: Claude M. Harden, III, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Jamila Georgette Gooden, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0390 Honorable Alex Sink Chief Financial Officer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0390
The Issue The issues in this case are whether Respondent, Gary the Carpenter Construction, Inc., failed to comply with the requirements of Sections 440.10, 440.107, and 440.38, Florida Statutes, and, if so, the appropriate amount of penalty which should be assessed against Respondent.
Findings Of Fact The Department of Financial Services (hereinafter referred to as the “Department”), is the state agency charged with the responsibility of enforcing the requirement of Section 440.107, Florida Statutes, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. Respondent, Gary the Carpenter Construction, Inc. (hereinafter referred to as “GTC”), is a Florida corporation, which at the times relevant employed subcontractors in the performance of its general contracting business located in Key West, Florida. GTC and its subcontractors, at the times relevant, were performing construction activities in the State of Florida. On March 25, 2008, GTC was renovating a structure at 1300 Virginia Street, Key West, Florida. An investigator of the Department’s Division of Workers’ Compensation (hereinafter referred to as the “Division”), conducted a compliance check at the construction site, determining that GTC was the general contractor and that it was using an out-of-state business entity, Pryjomski Construction (hereinafter referred to as “Pryjomski”), as a subcontractor. A Stop-Work Order was issued to Pryjomski. Pryjomski is a Michigan corporation. As a result of the Division investigator’s findings with regard to Pryjomski, on or about April 22, 2008, a Business Records Request was made by the Division to GTC. In response to the records request, GTC provided documentation of its workers’ compensation coverage. Those records were reviewed by Russell Gray, the Department’s “Penalty Calculator.” Based upon his review of GTC’s records, it was found that GTC’s employees were covered for workers’ compensation insurance through an employee leasing service. The records provided by GTC also indicated, however, that GTC utilized the services of numerous subcontractors. A review of Department records concerning the subcontractors revealed that four of the subcontractors utilized by GTC did not meet coverage requirements: Christian Construction, Perez Painting, Pryjomski, and Tiles Etcetera. The accuracy of the penalty assessment proposed by the Department attributable to Christian Construction and Perez Painting was stipulated to by the parties, and GTC did not contest that amount of the penalty assessment attributable to those two subcontractors. Pryjomski As to Pryjomski, it was discovered that it had two Certificates of Liability Insurance (hereinafter referred to as “Certificates”), both with issuance dates after March 25, 2008, the date the Division’s investigator conducted the compliance check at GTC’s construction site. A 2007-2008 workers’ compensation policy was issued two days after March 25, 2008, and a 2006-2007 workers’ compensation policy was issued September 29, 2009. Obviously, these policies were obtained by Pryjomski because it had no coverage for 2006-2007 and 2007- 2008, as of March 25, 2008. Even if the policies obtained by Pryjomski had been effective prior to March 25, 2008, the policies were written by an out-of-state insurance company not licensed to write policies in Florida, and the policies did not have a Florida Endorsement under “Item 3A” of the declaration page of the policies. Any policy issued to an out-of-state business like Pryjomski must have an endorsement indicating that the foreign entity is paying Florida rates for Florida classification codes. This endorsement is found under “Item 3A” of the declaration page of a policy. The Pryjomski policies did not have the appropriate endorsement. At the times relevant to this matter, Pryjomski was not listed by the Department as a business with appropriate workers' compensation coverage in Florida. GTC could not, therefore, have exercised due diligence in an effort to ensure that Pryjomski had the required insurance coverage when it utilized Pryjomski’s construction services. If due diligence had been exercised, GTC would have been aware of Pryjomski’s lack of appropriate coverage. Based upon documentation provided by GTC, the Division calculated the total amount of Pryjomski’s “payroll” for which GTC was responsible. Absent any receipts for materials for which the payments were made by GTC to Pryjomski, the Division treated 20 percent of the payments as non-payroll pursuant to Florida Administrative Code Rule 69L-6.035(1)(i). Payroll for 2007, less materials, was determined to be $22,106.00. For 2008, payroll, less materials, was determined to be $10,811.93. Utilizing the “finish carpentry” classification code (number 5437) and the approved manual rate therefore of the National Council on Compensation Insurance of 13.01, the penalty for 2007 was determined to be $4,313.99. The rate for 2008 was determined to be 10.47, and the penalty was determined to be $1,698.02. Tiles Etcetera Tiles Etcetera had previously been issued a Certificate of Exemption from coverage for Gregory Veliz, the president of Tiles Etcetera. That Certificate, however, expired on August 23, 2007. Any contract amounts paid to Tiles Etcetera by GTC while the Certificate was in effect are not subject to assessment and have not been included in the penalty assessment in this matter. Amounts paid by GTC to Tiles Etcetera while the Certificate of Exemption had expired are subject to penalty. Based upon documentation provided by GTC, the Division calculated the total amount of “payroll” paid to Tiles Etcetera for which GTC was responsible. Absent any receipts for materials for which the payments were made by GTC to Tiles Etcetera, the Division treated 20 percent of the payments as non-payroll pursuant to Florida Administrative Code Rule 69L- 6.035(1)(i). Payroll for the period from August 24, 2007, to October 19, 2007, less materials, was determined to be $22,269.17. Utilizing the tile installation classification code (number 5438) and the approved manual rate therefore of the National Council on Compensation Insurance of 8.34, the penalty for 2007 was determined to be $2,786.88.
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: Finding that Respondent, Gary the Carpenter Construction, Inc., failed to secure the payment of workers’ compensation for its employees, in violation of Section 440.107, Florida Statutes; and Assessing a penalty against Gary the Carpenter Construction, Inc., in the amount of $11,122.74. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 31st day of March, 2009. COPIES FURNISHED: Kristian E. Dunn, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Jerry D. Sanders, Esquire Vernis & Bowling of Key West, P.A. 604 Truman Avenue, Suite 3 Key West, Florida 33040 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact At all times pertinent to the issues herein, the Respondent was an employee of the School Board of Sarasota County having started work there on August 6, 1986. He was a custodian and number one keyholder for the Board's 20 plus building administrative complex. At approximately 5:30 AM on June 20, 1989, Respondent arrived at the complex and started to walk toward building R-21 to unlock it. While he was on his way, he claims, Mr. Basil Mays, the regional assistant director of maintenance came up to him, grabbed him by the arm, and told him to "keep his mouth shut" about a purported alteration of a report of property loss he, Respondent had submitted. In response, Respondent told Mays not to "fuck" with him and walked away to his board-owned vehicle. At this point, Respondent noticed that neither Thomas Crown nor Calvin Albritton, other workers and friends of Mays who usually congregate in the parking lot in the morning, were present. However, they soon arrived and went up to Mays' van to talk. At this point, Respondent walked up, shoved his time card through Crown and Albritton and gave it to Mays. He advised Albritton, with whom he was to work that day, he would meet him at Sarasota High School. He then left to go purchase the ceiling tiles he was to bring to the school for Albritton to install. Respondent completed his tasks that day though his arm bothered him on and off the whole time. Before initially leaving the board grounds, he put cold water on the arm where he had been grabbed and was observed by Mr. Kaze, to whom he reluctantly told the story. Kaze recommended he see a doctor and report the incident to the police. He did not mention the incident to Albritton because they were not close, and though he did try to speak with Mr. Desormier about it at the pizza party held that day, every time he did, Mays would come up. He didn't mention the incident to anyone else at the Board offices. When he finally got to speak with Desormier the next day, he was advised to get the arm checked and if it did not get better, to see Mr. Palmer, head of risk management, about it. During the day of the incident and the next, Respondent tried to do his normal tasks, but was unable to fully do so. He did what he could but was unable to use the arm for any heavy work. He subsequently reported the incident to the police. Mr. Mays was not arrested at that time. On June 22, 1989, Donald W. Donovan, a physician's assistant, treated the Respondent for a large bruise on his right arm with numbness and pain radiating down the arm. His examination showed a 5 centimeter hematoma with nerve involvement in the 4th and 5th fingers which usually is an indication of lateral nerve involvement. Respondent claimed he had been grabbed by his supervisor whose thumb had caused the bruise. In Mr. Donovan's opinion, the injury was consistent with the Respondent's story. Admittedly, though difficult to do, this injury could have been self-inflicted. At the time he saw Otten, he appeared very apprehensive and fearful of repercussions about the incident. As a result, he suggested Respondent see a psychiatrist. He treated Respondent for about a month and prescribed physical therapy. Mr. Mays denies injuring Respondent. He admits, that he asked Otten to increase the value of the theft on his report form because he couldn't account for all missing tools and did not think Otten could account for them, either. He claims, however, that on the day in question he got to work about 5:20 AM and met Crown and Albritton there. When Respondent came up, Mays laid out the work schedule for the day and Otten walked off with one of the men. He had his regional meeting later in the day at which Respondent was present, but indicates they had no conversation. On June 21, 1989 Mays left for New York, remaining there until June 25, 1989. When he got back to work on June 26, 1989, he received a call from city detectives warning him to stay away from Otten. When he asked what this was all about, he was told that Otten had alleged he had grabbed him and was fearful that Mays would retaliate. Mays was not arrested at that time and though he subsequently was apprehended, the matter was dropped because the prosecutor determined the evidence was insufficient to warrant prosecution. Both Mr. Crown and Mr. Albritton saw Respondent on the morning of the alleged assault, after it supposedly happened, and he made no mention of it to them. Albritton claims that though he worked with Respondent all that day, Otten said nothing to him. He saw Otten the next day at Sarasota High School favoring his arm. When he asked what happened, Otten said somebody had grabbed him. This is consistent with Otten's story. Neither Crown nor Albritton are friends of the Respondent. In fact, Crown did not care to work with Otten and admits he may have said he would not be surprised if Otten broke into his own van. After Mays was contacted by the police, he reported the matter to his supervisor, Dr. Francis who asked that Mays write out a statement. Thereafter, Otten filed a notice of injury which required other paperwork and an investigation by the Deputy Superintendent for Human Resources. Dr. Francis then prepared a memo to that officer recommending that Respondent be terminated for filing a false claim of injury and a false report against a supervisor. There is no report of any additional investigation made by Dr. Francis into the incident before making that recommendation. However, before any action was taken, an investigation was conducted by Dr. Price, the Assistant Superintendent for Human Resources, (not made available at the hearing), and after the Respondent's worker's compensation claim was rejected, the Board took its action to terminate him from employment. Respondent claims to never have been in trouble with his employers before this incident. When his van was broken into, he immediately prepared a report of the theft, listing, to the best of his ability, the tools stolen from him. It was this report which Mays asked him to falsify and which was the basis for the incident here. His reputation as a school board employee, at least with Mr. Desormier, formerly a regional custodian manager and now manager of the Board's Custodian Academy is that of a very good and cooperative employee. Desormier never knew Otten not to tell the truth over the approximately 3 1/2 years they worked together. Worker's Compensation benefits were denied Mr. Otten because the Judge of Compensation Claims found that his version of the facts was not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Respondent, Stephen J. Otten, be reinstated as a classified employee. RECOMMENDED this 13th day of December, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 13th day of December, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-0865 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1.-2. Accepted and incorporated herein. 3.-5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. 8.-12. Accepted and incorporated herein. 13. Accepted as a restatement of the testimony, but not as dispositive of the issue. 14.-17. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 20.-22. Accepted and incorporated herein. 23. Accepted. 24.-25. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted and incorporated herein. Not a proper Finding of Fact. 4.-10. Accepted. 11.-12. Accepted and incorporated herein. 13.-14. Not proper Findings of Fact. 15. Not a Finding of Fact but a restatement of and comment on the evidence. 16.-17. Accepted and incorporated herein. 18.-19. Accepted and incorporated herein. Accepted but irrelevant. Accepted and incorporated herein. 22.-24. Accepted and incorporated herein. COPIES FURNISHED: Maria D. Korn, Esquire Kunkle & Miller 290 Cocoanut Avenue Sarasota, Florida 34236 Frederick P. Mercurio, Esquire Mercurio & Hogreve 1800 Second Street, Suite 290 Sarasota, Florida 34236 Dr. Charles W. Fowler Superintendent of Schools Sarasota County 2418 Hatton Street Sarasota, Florida 34237 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue Whether the Respondent committed the violations alleged in the Second Amended Order of Penalty Assessment filed October 17, 2008, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for enforcing the requirement of Section 440.107, Florida Statutes, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. Valou Enterprises is a Florida corporation located in Miami, Florida, which does business under the fictitious name of "Mr. Rooter Plumbing" ("Mr. Rooter"). Leslie McMillan is part- owner and the President of Valou Enterprises. Pedro Rolle is part-owner and the Treasurer of Valou Enterprises, and he is responsible for the business's day-to-day management. Welthial McMillan is part-owner and the Secretary of Valou Enterprises. Mr. Rooter is a franchise that engages in the business of providing plumbing services and repairs. According to franchise documents, among the services offered by Mr. Rooter are HydroScrubbing™ sewer lines to remove blockages; water heater installation; kitchen and bath installation and repairs, including faucets, sinks, tubs and toilets; and leak detection and water line repair and installation.2 On its website, Valou Enterprises advertises that Mr. Rooter provides full-service plumbing, including bath sinks, bathtubs and showers, drain pipes, faucets, floor drains, gas meters, gas vents, kitchen sinks, pipe repair, sewer lines, and water softeners.3 Mr. McMillan is a Florida-certified plumbing contractor, and he is the qualifier for Mr. Rooter. Mr. and Mrs. McMillan and Mr. Rolle, have elected, as officers of a corporation engaged in the construction industry, to be exempt from Florida's workers' compensation law, in accordance with the provisions of Sections 440.02(15)(b)2. and 440.05(3), Florida Statutes. Valou Enterprises hires plumbing technicians to provide plumbing services to Mr. Rooter's customers. These plumbing technicians are not licensed; rather, they work under Mr. McMillan's plumbing contractor's license. They do not receive a salary and do not have regular hours during which they must be at the Mr. Rooter office or at a jobsite. The plumbing technicians are paid commissions based on the work they perform, and they are required to supply their own tools. The plumbing technicians are on-call with Mr. Rooter at all times, but they only perform services for Mr. Rooter when actually dispatched to a job. When a plumbing technician is called and notified of a job, he is free either to accept or to reject the job. Mr. Rooter also dispatches plumbing helpers when a plumbing technician needs assistance. Valou Enterprises employs Catia Duque, who takes calls and dispatches plumbing technicians to Mr. Rooter jobs. Kenneth Mecure runs errands for Valou Enterprises part-time when needed, on a part-time basis. Late in the afternoon on Friday, June 27, 2008, a compliance investigator working for the Division of Workers' Compensation stopped at the Mr. Rooter office, which was located in a warehouse district. The visit was random, initiated when the investigator saw white vans parked in front of the office, with the name "Mr. Rooter Plumbing" and logo on the sides of the vans. When the investigator entered the office, she observed four men wearing shirts with the "Mr. Rooter Plumbing" logo. When the investigator requested information about Valou Enterprises's workers' compensation insurance coverage, Mr. Rolle referred her to Ms. Duque. Ms. Duque told the investigator that she would send whatever information she had regarding workers' compensation insurance coverage by facsimile transmittal, but the investigator did not receive any information from Ms. Duque. After her visit on June 27, 2008, the compliance investigator conducted research through the Coverage and Compliance Automated System database, which provides information on workers' compensation insurance coverage and exemptions. The investigator's research revealed that Mr. McMillan, Mrs. McMillan, and Mr. Rolle had exemptions from the workers' compensation law as officers of a corporation engaged in the construction industry and that none of the persons she observed in the Mr. Rooter office on June 27, 2008, were covered by a workers' compensation insurance policy. The investigator confirmed the lack of workers' compensation insurance coverage by consulting the website for the National Council on Compensation Insurance, Inc. ("NCCI"). The compliance investigator returned to the Mr. Rooter office on Monday, July 1, 2008, and spoke with Mr. McMillan. Mr. McMillan was unable to provide her with proof that Valou Enterprises had workers' compensation insurance coverage. The investigator then prepared a Stop-Work Order and an Order of Penalty Assessment, which she hand-delivered to Mr. McMillan on July 2, 2008, and posted at the Mr. Rooter office. At the same time, the investigator served Mr. McMillan with a Request for Production of Business Records for Penalty Assessment Calculations. The Stop-Work Order required Valou Enterprises to "cease all business operations for all worksites in the state." An Order of Penalty Assessment was included in the Stop-Work Order, in which Valou Enterprises was advised that a penalty would be assessed in an amount [e]qual to 1.5 times the amount the employer would have paid in premium when applying approved manual rates to the employer's payroll during periods for which it failed to secure the payment of workers' compensation required by this chapter within the preceding 3-year period, or $1,000, whichever is greater. Section 440.107(7)(d), F.S. In addition, the Order of Penalty Assessment also advised Valou Enterprises that a penalty of "[u]p to $5,000 for each employee who the Employer misclassified as an independent contractor" would be imposed pursuant to Sections 440.10(1)(f) and 440.107(7)(f), Florida Statutes. On July 3, 2008, the compliance investigator returned to the Mr. Rooter office. The office was closed, but she observed a white van turning out of the office parking lot. The van had the "Mr. Rooter Plumbing" name and logo on the side, and it was driven by Michael Dassell, a plumbing technician the investigator had met during her visit to the Mr. Rooter office on July 27, 2008. The investigator questioned Mr. Dassell, who told her that he was on-call that day. Mr. Dassell had not been dispatched on a job or called into the office but had gone to the office to pick up a commission check. Mr. Dassell had not been told that the Mr. Rooter office was closed on July 3, 2008. Mr. McMillan provided the compliance investigator the payroll and other records requested in the business records request. Based on these records, the compliance investigator calculated the penalty to be imposed on Valou Enterprises for its failure to have workers' compensation insurance coverage in the amount of $59,652.93. The investigator also imposed a penalty of $1,000.00 for a one-day violation of the Stop-Work Order and a penalty of $35,000.00 for "misrepresenting the status of the employee(s) as an independent contractor(s)." The total penalty of $95,652.93 was set forth in an Amended Order of Penalty Assessment that the investigator hand-delivered the order to Mr. McMillan on July 9, 2008. Valou Enterprises obtained workers' compensation insurance coverage effective July 4, 2008, and, on July 9, 2008, Mr. McMillan entered into a Payment Agreement Schedule for Periodic Payment of Penalty, remitting at the time a down payment of 10 percent of the penalty, or $9,566.00. As a result, an Order of Conditional Release from Stop-Work Order was entered on July 9, 2008. The compliance investigator subsequently recalculated the penalty assessment and prepared a 2nd Amended Order of Penalty Assessment dated October 17, 2008. The $35,000.00 penalty assessed for misclassifying employees as independent contractors was deleted for lack of evidence, and the final penalty assessment was in the amount of $60,652.93, which consisted of a $59,652.93 penalty for failure to secure workers' compensation insurance coverage for Valou Enterprises employees and a $1,000.00 penalty for violating the Stop-Work Order.4 The compliance investigator looked to the NCCI SCOPES Basic Manual of Classifications ("SCOPES Manual") for classification codes attributable to the various workplace operations of the persons working for Valou Enterprises. The classification code assigned by the compliance investigator to the plumbing technicians and plumbing helpers performing work for Valou Enterprises was Code 5183.5 According to the SCOPES Manual and to Florida Administrative Code Rule 69L-6.021(1)(r), Code 5183 is a code applicable to the construction industry and covers "Plumbing NOC and Drivers." The description of the scope of Code 5183 is stated in the SCOPES Manual in pertinent part as follows: Applicable to gas, steam, hot water or other types of pipe fitting. Includes house connections and shop operations. * * * Code 5183 is applicable to plumbing operations provided that the work performed is "not otherwise classified" (NOC). Insureds contemplated by Code 5183 may install, remove, or repair equipment that is used to direct gas or water supplies to a destination. This equipment includes but is not limited to piping and related fixtures, appliances, and accessories. No limits have been established as to the size of the pipe being repaired or installed. The operations contemplated by Code 5183 also include "the cleaning of building sewer connections using portable equipment" and "the installation or service of domestic water softener systems." The approved NCCI Manual rate in Florida effective January 1, 2006, for Code 5183 was $10.04 per $100.00 of payroll; the approved NCCI Manual rate in Florida effective January 1, 2007, for Code 5183 was $8.13 per $100.00 of payroll; and the approved NCCI Manual rate in Florida effective January 1, 2008, for Code 5183 was $6.75 per $100.00 of payroll.6 The classification code found in the SCOPES Manual assigned to Ms. Duque and to Paul Anderson, who was a clerical worker in the Valou Enterprises office in 2006, was Code 8810. According to the SCOPES Manual, Code 8810 covers "Clerical Office Employees."7 The description of the scope of Code 8810 is stated in the SCOPES Manual in pertinent part as follows: "The duties of a clerical office employee include . . . telephone duties." The approved NCCI Manual rate in Florida effective January 1, 2006, for Code 8810 was $.58 per $100.00 of payroll; the approved NCCI Manual rate in Florida effective January 1, 2007, for Code 8810 was $.48 per $100.00 of payroll; and the approved NCCI Manual rate in Florida effective January 1, 2008, for Code 8810 was $.37 per $100.00 of payroll.8 The classification code assigned by the compliance investigator to Kevin Mecure, a part-time employee who ran errands for Valou Enterprises, was Code 7380.9 According to the SCOPES Manual, Code 7380 covers "Drivers, Chauffeurs & Their Helpers NOC - Commercial." The description of the scope of Code 7380 is stated in the SCOPES Manual in pertinent part as follows: "The term "drivers" refers to employees who engage in duties on or in connection with vehicles " The approved NCCI Manual rate in Florida effective January 1, 2006, for Code 7380 was $12.20 per $100.00 of payroll; the approved NCCI Manual rate in Florida effective January 1, 2007, for Code 7380 was $10.18 per $100.00 of payroll; and the approved NCCI Manual rate in Florida effective January 1, 2008, for Code 7380 was $8.74 per $100.00 of payroll.10 The compliance investigator calculated the total penalty attributable to Valou Enterprises's failure to provide workers' compensation insurance coverage for the plumbing technicians, clerical workers, and drivers using the Department's Penalty Worksheet. She obtained the names of each of the individuals included in her calculations and the amount of the gross payroll for each individual from the payroll information provided by Mr. McMillan in response to the business records request. The compliance investigator calculated the penalty as follows: She listed Valou Enterprises's employees on the Penalty Worksheet; assigned each employee a classification code based on the definitions of workplace operations that most closely described the work they performed for Valou Enterprises; set out the dates during which Valou Enterprises did not provide workers' compensation insurance coverage11; entered the annual or pro-rated gross payroll for each employee during the period of non-compliance; divided the gross payroll for each employee by 100; set out the approved manual rate for each employee during the period of non-compliance in accordance with his or her classification code; determined the premium that Valou Enterprises would have paid for workers' compensation insurance coverage for each employee during the period of non-compliance by multiplying the approved manual rate and one one-hundredth of the gross payroll for each employee; calculated the penalty attributable to each employee during the period of non- compliance by multiplying the premium for each employee by 1.5; and, finally, calculated the total penalty owed by Valou Enterprises attributable to its failure to secure workers' compensation insurance coverage for its employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that Valou Enterprises, Inc., d/b/a/ Mr. Rooter Plumbing, failed to secure workers' compensation insurance coverage for its employees in violation of Section 440.38(1), Florida Statutes, and imposing a penalty in the amount of $59,652.93 for the failure to provide the required workers' compensation insurance coverage. DONE AND ENTERED this 28th day of April, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 28th day of April, 2009.
The Issue The issues are whether Respondent violated Chapter 440, Florida Statutes (2009), by failing to secure the payment of workers' compensation, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that Florida employers secure the payment of workers' compensation for the benefit of their employees. See § 440.107(3), Fla. Stat. Respondent is a Florida for-profit corporation providing pharmacy services. Respondent has business locations at 842 West Plymouth Avenue, Deland, Florida, and 112 East First Avenue, Pierson, Florida. Respondent's Pierson business site sells a small amount of food like bubble gum and other sundries. Activities at the Pierson location include filling prescriptions, compounding and blending drugs, and dispensing drugs or medicine to walk-in customers and patients. The patients are referred from a health care clinic known as Northeast Florida Health Services (NEFHS). The patients are federally qualified as indigent pursuant to a federal poverty calculation. Respondent's Deland location deals solely with prescription drug transactions to indigent patients who are referred by NEFHS. The Deland business site is very small and has no walk-in customers or food or other sundries for sale. At the end of the month, Respondent sends a bill to NEFHS for the prescriptions dispensed by Respondent at both locations. NEFHS than reimburses Respondent for its services. Respondent pays its employees at both locations out of a single checking account. Only one tax identification number is used for both business locations. On October 27, 2009, Hector Beauchamp, one of Petitioner's workers' compensation compliance investigators, received a referral, indicating that Respondent was operating without workers' compensation insurance coverage for its employees. After receiving the referral, Mr. Beauchamp used the website of the Department of State, Division of Corporations, to obtain Respondent's federal employer identification number. The Department of State website showed that Respondent became Pierson Community Pharmacy, Inc., on March 3, 2005. The website also indicated that Respondent had two corporate officers, John Eidt and Hanan Francis. Next, Mr. Beauchamp contacted Samantha Nixon, one of Petitioner’s penalty calculators, to research Respondent's unemployment compensation tax information on the Department of Revenue's website. Ms. Nixon's research revealed that Respondent employed in excess of four employees for each quarter in the past three years. Mr. Beauchamp also consulted Petitioner's Coverage and Compliance Automated System (CCAS) database. The CCAS database lists the workers' compensation insurance policy information for Florida employers together with any workers' compensation exemptions for corporate officers. The CCAS database accurately revealed that Respondent had no workers' compensation insurance policy in place for its employees and no workers' compensation exemptions for either Mr. Eidt or Ms. Francis as corporate officers. This was true from October 29, 2006, through October 28, 2009. Additionally, the CCAS database did not reveal any utilization of employee leasing by Respondent. Mr. Beauchamp also researched the National Council on Compensation Insurance, Inc. (NCCI) on-line database. Using Respondent's name and federal employer identification number, the database showed no record of a Florida workers' compensation insurance policy for Respondent. On October 28, 2009, Mr. Beauchamp visited both of Respondent's business locations. At the Pierson location, Mr. Beauchamp observed five individuals working behind a Plexiglas partition filling prescriptions. Mr. Beauchamp spoke with Mr. and Mrs. Francis. They confirmed that Respondent did not have workers' compensation insurance in place. Mr. Beauchamp then issued and served a Stop-Work Order. He also issued and served a records request. On October 29, 2010, Respondent provided Petitioner with the following records: (a) corporate tax records for 2007 and 2008; (b) a workers' compensation insurance application submitted after the issuance of the Stop-Work Order; and (c) payroll summaries for October 2006 through October 2009. The records confirmed that Respondent had employed more than four employees for the prior three years. On October 30, 2009, Petitioner issued and served the Amended Order of Penalty Assessment. That order was followed by the Second Amended Order of Penalty Assessment on March 15, 2010. Ms. Nixon calculated the gross payroll for Respondent's employees for the relevant time period. The gross payroll amounts for Ms. Francis from January 1, 2008, through December 31, 2008, and April 1, 2009, through June 30, 2009, were limited to the average weekly wage in effect at the time the Stop-Work Order was issued, multiplied by 1.5 for those periods pursuant to Florida Administrative Code Rule 69L- 6.035(2). As a corporate officer, Ms. Francis' actual earnings were in excess of these amounts. However, Florida Administrative Code Rule 69L-6.035(2) limits the amount of a corporate officer's income upon which workers' compensation penalties may be assessed to 1.5 times the average weekly wage in effect at the time a Stop-Work Order is issued or actual earnings, whichever is less. Using the classification codes in the NCCI Scopes® Manual, Petitioner accurately assigned the occupation classification code 8045, which corresponds to "Store: Drug Retail." Classification code 8045 is "applicable to store locations where the employer's books of accounts reflect at least 40 percent gross receipts in prescription sales and less than 50 percent gross receipts in the service of food." Prescription sales intended for the patients of health care facilities are included even though the facility is billed instead of the individual patient. Ms. Nixon then divided the payroll for each year by 100 and multiplied that figure by the approved manual rates adopted by the Florida Office of Insurance Regulation for 2006, 2007, 2008, and 2009 for classification code 8045. That product was then multiplied by 1.5 to find the penalty for the period for the three-year period. The total penalty is $13,996.60.
Recommendation Based on the foregoing Findings of Facts and Conclusion of Law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers' Compensation, issue a final order affirming the Stop- Work Order and Second Amended order of Penalty Assessment in the amount of $13,996.60. DONE AND ENTERED this 26th day of April, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 2010. COPIES FURNISHED: John C. Eidt Pierson Community Pharmacy Inc. 112 East 1st Avenue Pierson, Florida 32180 Justin H. Faulkner, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, CRP, FP Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
