The Issue The issue is whether Horace Bradley Sheffield Builders, LLC (“Sheffield Builders”), had insufficient workers’ compensation insurance during the time period in question; and, if so, the amount of the resulting penalty.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Department is the state agency responsible for enforcing the requirement in chapter 440, Florida Statutes (2016),1/ that employers in Florida secure workers’ compensation coverage for their employees. While an exemption can be obtained for up to three corporate officers, any employer in the construction industry with at least one employee must have workers’ compensation coverage. § 440.02(15), Fla. Stat. The Department fulfills its enforcement duty by conducting compliance investigations, and a compliance investigation can begin with a Department investigator visiting a worksite. Lewis Johnson is employed in Tallahassee, Florida, as a compliance investigator for the Department. Mr. Johnson monitors construction and non-construction entities to ensure that they have obtained workers’ compensation coverage. On April 20, 2017, Mr. Johnson was conducting routine checks in the Killearn Lakes area of Tallahassee. He had just visited three worksites and found that the construction firms working those sites had workers’ compensation coverage. Mr. Johnson then drove past a site where a fence was being built: As I saw the fence being built, I stopped momentarily. I took a picture to document the work activity. I then got out and I made contact with the two workers. The first worker identified himself as Horace Bradley Sheffield [III], he advised that he was the subcontractor, owned his own business, Bradley’s Quality Framing and Trim, LLC. He had another gentleman there with him, that gentleman was initially very quiet. I asked Sheffield III whom he worked for, he told me that he was employed by his dad. I asked him who his dad was, he said that his dad was Horace Bradley Sheffield, and that his dad owned Horace Bradley Sheffield Builders, LLC, and that he was the general contractor for the home that was under construction, and that he was working directly for his dad. I then spoke briefly with the gentleman that was with Horace Bradley III regarding his employment. Initially during my conversation with Horace Bradley III, he said that he was trying out this worker. He said that he’d only – he’d been on the job for two days himself, but this was this guy’s first day, and he was just trying him out. So in my conversation with the employee who was identified as Colter Gilmore, Colter said “No, I’m being paid $10 dollars an hour,” and so I documented that information. After the conversation with Mr. Sheffield III, Mr. Johnson looked for any records pertaining to Quality Framing and Trim, LLC, within the Coverage and Compliance Automated System (“CCAS”) and the Division of Corporations. CCAS is a database maintained by the Department, and it enables Department investigators, such as Mr. Johnson, to ascertain if any construction company operating in Florida has workers’ compensation coverage. CCAS indicated that Quality Framing and Trim, LLC, had been dissolved and had no workers’ compensation coverage. CCAS also revealed that Mr. Sheffield III’s exemption had expired on July 10, 2015. After reporting to his supervisor that Mr. Sheffield was paying his son as a subcontractor, Mr. Johnson received authorization to issue a Stop-Work Order to Mr. Sheffield III on April 20, 2017. After issuing the Stop-Work Order, Mr. Johnson testified that he: placed a call to Mr. Horace Bradley Sheffield, the owner of Horace Bradley Sheffield Builders, LLC, Bradley’s dad, and I made him aware of the fact that I had just issued his son a Stop-Work Order for violation of Florida Statute 440; did not have proof of compliance. And then we spoke on the phone regarding that, and he expressed that he did not know, he did not – he was unaware that his son’s workers’ comp exemption had expired. What he said that was most interesting was that he did hire his son as a subcontractor; that he was paying his son directly. I asked him how much, he was paying his son approximately $4.50 a square foot to build a fence, and so that was the renumeration between son and father for the build. And so I then expressed to him that, because of that violation, his son being in violation of Florida Statute 440, that he himself was also in violation because, as a general contractor, it is Mr. Sheffield’s job to demand and require the proof of workers’ compensation coverage from any employer to include a subcontractor. Q: And did Mr. Sheffield do that in this case? A: No, sir, he did not. He sort of indicated that he just failed to do so. Mr. Johnson learned through CCAS that Sheffield Builders had no workers’ compensation policy but that Mr. Sheffield had an exemption for himself. After conferring with his supervisor regarding Mr. Sheffield’s lack of workers’ compensation coverage for those working for Sheffield Builders, Mr. Johnson served a Stop-Work Order and an Order of Penalty Assessment on Mr. Sheffield via hand-delivery on April 21, 2017. The Stop-Work Order required Sheffield Builders to cease all business operations at the Killearn Lakes worksite and was to remain in effect until lifted by the Department. The Order of Penalty Assessment notified Sheffield Builders that it was required to pay an amount: [e]qual to 2 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 within the preceding 2-year period. Employers who have not been previously issued a Stop-Work Order may receive a credit for the initial payment of the estimated annual workers’ compensation policy premium [for] the dollar or percentage amount attributable to the initial payment of the estimated workers’ compensation expense to a licensed employee leasing contract. In all cases a minimum penalty of $1,000 is assessed against the employer. Section 440.107(7)(d), F.S. Mr. Johnson also served on April 21, 2017, a “Request for Production of Business Records for Penalty Assessment Calculation” (“the Request for Production”). Through the Request for Production, the Department sought various types of financial documents pertaining to Sheffield Builders’ payroll during the period between December 10, 2015, and April 20, 2017 (“the noncompliance period”), so that it could calculate the penalty to be imposed on Sheffield Builders. The business records requested by the Department consisted of payroll documents such as time sheets, check stubs, earnings records, and federal income tax documents; account documents such as all business check journals and statements, including cleared checks for all open and closed business accounts; check and cash disbursements; proof of any workers’ compensation insurance or exemptions; and subcontractor information. The Request for Production required Sheffield Builders to provide the aforementioned records within 10 business days of receiving the Request for Production. Mr. Sheffield provided business records, and the Department used those records to reduce the proposed penalty to $7,801.92. Eunika Jackson, a penalty auditor employed by the Department, calculated the aforementioned penalty based on the business records provided by Mr. Sheffield. For each person for whom Sheffield Builders failed to obtain workers’ compensation coverage during the noncompliance period, Ms. Jackson determined how much money Sheffield Builders paid each person during that period. Sheffield Builders paid $32,477.00 to Mr. Sheffield, III; $1,578.00 to Risocani Alfredo; $16,861.50 to Roland Hedrington; and $100.00 to Adam Chew during the noncompliance period. The gross payroll amount for each person was divided by 100 in order to create a percentage, and the percentage associated with each person was then multiplied by an “approved manual rate.” An approved manual rate is associated with a particular class code. A class code describes an employee’s scope of work based on the type of work he or she performs on a daily basis. The National Council on Compensation Insurance publishes the Scopes Manual, and the Scopes Manual sets forth class codes for numerous types of work. Multiplying the gross payroll percentage by an approved manual rate results in a workers’ compensation insurance premium for a particular employee. As required by section 440.107(7)(d)1., Florida Statutes, each premium amount is multiplied by two in order to calculate a penalty associated with each employee for whom workers’ compensation insurance was not obtained. Ms. Jackson then added the individual penalties associated with Horace Sheffield III, Risocani Alfredo, Roland Hedrington, and Adam Chew in order to calculate the total penalty of $7,801.92. With regard to Mr. Sheffield III, Mr. Sheffield acknowledged at the final hearing that his son did not have workers’ compensation coverage during the time period in question. Mr. Sheffield testified that his son had attempted to renew his exemption on-line but failed to realize that his attempt had been unsuccessful. Mr. Sheffield testified that Roland Hedrington had workers’ compensation through his employer, Professional Electrical Systems. Also, Mr. Sheffield supplied the Department with the workers’ compensation policy that Mr. Hedrington provided to him. Ms. Jackson testified as to why she included the compensation paid to Mr. Hedrington in the penalty calculation: Q: And so Roland Hedrington, why did you put that individual down on the penalty? A: He’s on there because the check images that I reviewed had his name written on the check images. [Mr. Sheffield] came back and gave us a certificate of insurance for Professional Electrical Services – or Systems, I did review that document. In addition to that, I went in to CCAS to determine whether or not if Mr. Roland had a workers’ comp exemption, because per statute and rule, we cannot exempt the payments to an individual if they do not have a workers’ comp exemption, even though the company that they work for may have a workers’ comp policy. So in my review of CCAS, it was determined that Professional Electrical did have a valid workers’ comp policy, but on the exemption tab, there was only one individual who had an exemption, and it wasn’t Mr. Roland. So therefore, the payments issued to Mr. Roland [are] considered uninsured, because the payment was issued to that individual and not the entity. Q: Is Roland listed as an owner of the company? A: He wasn’t. When I did my research in Sunbiz, I didn’t find his name on the employer’s detail. Q: And so from the records, Roland is simply an employee of Professional Electrical Systems, correct? A: Yes. Q: And so the payment that went from [Sheffield Builders] in this case to Roland did not go through the – that transaction was not pursuant [to] a worker’s compensation policy of Professional Systems, correct? A: Correct. Q: Okay. ALJ: So let me make sure I understand. So the check in question – or the payment in question to Mr. Roland Hedrington, he works for some sort of LLC, but the check was made payable to him as an individual? A: Correct. ALJ: All right. And the LLC had [a] workers’ compensation exemption? A: Coverage and an exemption, yes. ALJ: Okay. But the coverage did not apply to Mr. Hedrington? A: It wouldn’t apply because the payment was a direct payment to Mr. Hedrington, and not the payment to Professional Electrical. So if the payment was to Professional Electrical, then it’s indicating that Professional Electrical did the services, and whoever that employer is, in turn, would pay his employees, so the payments are covered. But because the payment document had Roland’s name on it, it’s indicating it’s a direct transaction between a subcontractor and a general contractor, not the actual entity that he works for. ALJ: So let me ask a question. So because a check was written to this individual, Mr. Roland Hedrington, I guess in theory he could have been working on his own accord, and that – and he doesn’t have workers’ comp as an individual, so that’s why you put him in the penalty calculation. A: Correct. ALJ: Okay. But if the check had been written payable to the LLC that had coverage, then it would not have gone to the calculation? A: Correct. There is no dispute regarding the mechanics behind the Department’s calculation of the penalty. The only dispute concerns the Department’s inclusion of the funds paid to Mr. Sheffield III, and Mr. Hedrington in the penalty calculation. The Department has proven by clear and convincing evidence that the payments from Sheffield Builders to Horace Sheffield III, Risocani Alfredo, and Adam Chew were not covered by workers’ compensation coverage and that Sheffield Builders should be fined $6,031.46. The Department has not proven by clear and convincing evidence that Roland Hedrington was not working under the auspices of Professional Electrical Systems when Mr. Hedrington performed work for Sheffield Builders during the noncompliance period. As a result, the payment to Mr. Hedrington should not be included in the Department’s penalty calculation.
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 imposing a penalty of $6,031.46 on Sheffield Builders, LLC. DONE AND ENTERED this 27th day of July, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 27th day of July, 2018.
The Issue Whether Respondent violated Subsection 489.129(1)(j), Florida Statutes (1997), and Subsections 489.129(1)(n) and (o), Florida Statutes (1995).
Findings Of Fact At all times material to this proceeding, Frazier was licensed by the Department as a certified roofing contractor, having been issued license number CC CO56955 as Ronald Lee Frazier, d/b/a Frazier Urethane 4 No Leak. On or about November 24, 1995, Frazier, contracted with Victor and Janie Anderson to remove and replace the roof of the Anderson's home at 433 111th Street, Marathon, Florida, for $4,657.25. The Andersons paid the full contract price to Frazier in two increments. On or about November 24, 1995, they paid $2,328.62, and on or about January 25, 1996, they paid $2,328.63. In January 1996, Frazier removed and replaced the Anderson's roof, but Frazier applied the new roofing material without first installing a base sheet or moisture barrier. No evidence was presented on the specific manufacturer's specification for the product installed by Frazier; however, the evidence did establish that typical manufacturers' specifications for products such as urethane require the installation of a base sheet before such products are applied. The Monroe County Building Code does require that self-adhesive roofs such as the one installed by Frazier must have a one ply ASTM D226 type II anchor sheet with a four-inch headlap. In other words, the roof should have a base sheet of 30-pound felt before the urethane is applied. The base sheet or moisture barrier helps keep water off the roof, and it also facilitates removal and replacement of the roof. Failure to install the base sheet contributed to the development of roof leaks which the Andersons began noticing approximately 17 months after the work was done, a much shorter time than the normal life expectancy for the urethane roof materials that Frazier used. Frazier's failure to install a base sheet on the Andersons' roof constitutes incompetency in the practice of contracting. The only way to correct Frazier's work on the Anderson's roof is to remove the roof installed by Frazier and install a new roof in a proper manner. The Andersons began noticing leaks in the roof in June 1997. They notified Frazier by telephone and by letters. Frazier and his employees inspected the Anderson's roof and agreed to perform work to stop the leaks. In September 1997, Frazier went to the Anderson's home and began attempting to work on the roof. Monroe County roofing inspector Al Forrest met with Frazier that day at the Anderson's home and discussed the work that needed to be done. Frazier agreed to correct the deficiencies in the roof; however, Frazier left that day without completing the work and never returned to perform further work. On or about December 1, 1995, Vivian Haverly contracted with Frazier to repair the leaky roof on her home at 1711 Avalon Avenue, Ft. Pierce, Florida. Frazier was to install a new urethane roof on Ms. Haverly's house. Among other things, the contract called for Frazier to "raise the A/C unit on stand as per code." The contract price was $5,039.00. Pursuant to the contract, Ms. Haverly paid Frazier $1,039.00 on December 1, 1995, and $3,900 on January 19, 1996. The Southern Building Code Congress International (SBCCI) has been adopted as the building code by all counties in Florida except for Dade and Broward Counties. Section 1509.1.2 of the SBCCI provides that "[r]oof coverings shall provide weather protection for the building at the roof." Frazier's crew worked on Ms. Haverly's roof but never fixed the leaks. The leaks worsened, causing damage in the interior of Ms. Haverly's house. Frazier failed to raise the roof-mounted air conditioning equipment and sprayed urethane on the air conditioning unit, damaging it to the point that the air conditioner became inoperable and had to be replaced at a cost of $2,700. Frazier did not spray urethane on the portion of the roof below the air conditioning unit as he should have done. Ms. Haverly had to have another company repair her roof. On or about April 18, 1997, John Ward entered into a contract with Frazier as Frazier Urethane 4 No Leak to repair the roof of a two-story building in Marathon, Florida, owned by Virginia Ward and managed for her by her son John Ward. Frazier was to apply a urethane coating to the roof and fix roof leaks for $4,200. The Department incurred costs for the investigation and prosecution of Case Nos. 98-5213 and 99-2186 in the amount of $1,219.18. The Department incurred costs for the investigation and prosecution of Case No. 99-3573 in the amount of $244.65.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ronald Lee Frazier did not violate Subsections 489.119(2) and 489.129(1)(j), Florida Statutes, as set forth in Count III of Case No. 98-5212; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(n), Florida Statutes (1995), as set forth in Count III of Case Nos. 98-5213 and 99-2186 and Count II of Case No. 99-3573; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(o), Florida Statutes, as set forth in Count III of Case No. 99-3573; imposing an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count III of Case Nos. 98-5213 and 99-2186; imposing an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count II of Case No. 99-3573; imposing an administrative fine of $1,500.00 for violation of Subsection 489.129(1)(o), Florida Statutes, in Count III of Case No. 99-3573; suspending Ronald Lee Frazier's license for six months; assessing costs of $1,463.83 for investigation and prosecution in Case Nos. 98-5213, 99-2186, and 99-3573; and taking no action to enforce or collect payment of the fines or assessed costs without authorization of the bankruptcy court unless Ronald Lee Frazier's bankruptcy petition is dismissed or discharged. DONE AND ENTERED this 30th day of August, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland 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 30th day of August, 2000. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Ronald Lee Frazier Post Office Box 12735 Ft. Pierce, Florida 34979-2735 Ronald Lee Frazier 1006 Southwest Sultan Drive Port St. Lucie, Florida 34983 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney L. Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
The Issue Whether the Respondent was required to carry workers' compensation insurance coverage for its employees and, if it failed to do so, whether the Amended Notice and Penalty Assessment Order is correct.
Findings Of Fact At all times material to this case, the Department was the state agency charged with the responsibility of administering compliance with Florida law governing workers’ compensation. At all times material to this case, Genesis has been in the business of providing plastering services. At all times material to this case, Jorge Pinera (Pinera) has been an investigator employed by the Department to perform workers' compensation compliance investigations. On August 8, 2000, Pinera conducted a random inspection at a residential construction site located at 3101 Southwest 129th Avenue, Miami, Florida (the job site). While at the job site, Pinera encountered Jose Castro (Castro), and also observed an individual later identified as Reinaldo Lopez (Lopez). Both men were present on behalf of Genesis, which had been contracted to perform plastering services at the job site. At the time of Pinera's visit, Lopez was applying plaster to a back wall of the house. Pinera conducted field interviews in accordance with Department policies and procedures. At the time the field investigation commenced, Genesis' president, Carmen Duque (Duque), claimed to have relied upon the advice of Genesis' accountant, who allegedly told Duque that compensation insurance was not required for the business. There was no evidence offered to corroborate Duque's claim that such advice had in fact been rendered. Based upon the field interviews of Castro and Lopez, and a review of Department records, Pinera correctly determined that the men were employees of Genesis as that term is defined in Florida Workers' Compensation Law. During the field interview, Lopez informed Pinera that he was being paid an hourly wage by Genesis for plastering services. Lopez reduced this and other information demonstrating his employee status to writing contained in Department's Exhibit 8, which was admitted into evidence without objection. There was no physical evidence at the job site to contradict what Lopez told Pinera, i.e. there were no vehicles, equipment, or materials which one would expect to find at a job site where an independent plastering contractor is working. Genesis attempted to discredit Lopez' contemporaneous statements indicating employee status with Exhibit 14, an affidavit, purportedly executed by Lopez on January 22, 2001, in which Lopez asserts that he is an independent contractor. The affidavit was admitted over the Department's timely objection. The facts set forth in the affidavit are insufficient as a matter of law to support the affiant's legal conclusion that he is an independent contractor. Pinera's field interviews revealed, and Genesis stipulates, that it did not hold workers' compensation insurance on August 8, 2000, nor at any time relevant to this case. At all times material to this case, none of the individuals affiliated with Genesis held valid exemptions from coverage. Rather, the evidence suggests that Genesis was aware of the requirements of workers' compensation law, and took steps to evade it. For example, Genesis charged the job site's owners $10,500 for its plastering services. Prior to the commencement of the job, Genesis secured the signature of its employee, Lopez, on a form styled "Short Form Subcontract Agreement" which purports to create a subcontractor relationship with Lopez for the jobsite. The sum specified in this agreement to be paid to Lopez is $1,200. The vast discrepancy in the amount charged to the owners and the sum to be paid to the individual supposedly responsible for providing all labor and materials necessary for the work suggests that the so-called subcontract agreement is a sham. The evidence further establishes that Genesis provided Lopez with $500 to purchase materials to be used at the job site. This fact belies the contention of Genesis that, because Lopez physically purchased the materials, he was in fact an independent contractor. Rather, the purchase of materials was simply one task which Genesis delegated to its employee Lopez in the course and scope of his employment. Upon concluding that Lopez and Castro were not covered by appropriate insurance and were not exempt, Pinera properly caused a SWO to be issued against Genesis. Genesis admits, and the evidence establishes, that it did not have a valid workers' compensation policy during the three years preceding the stop work order. Despite the pendency of a valid SWO, Genesis performed work at the jobsite on August 24, 2000. Genesis stipulated, and the evidence establishes, that the Amended Notice and Penalty Assessment Order issued by the Department accurately calculates the amounts owed by the Respondent for the three-year period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order confirming the SWO entered in this cause and imposing a penalty in the amount of $11,839.74 as set forth in the Amended Notice and Penalty Assessment Order. DONE AND ENTERED this 27th day of April, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 27th day of April, 2001. COPIES FURNISHED: David C. Hawkins, Esquire Department of Labor and Employment Security Division of Workers' Compensation 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Magda Marcelo-Robaina, Esquire Magda Marcelo-Robaina, P.A. 782 Northwest Le Jeune Road Suite 548 Le Jeune Center Miami, Florida 33126 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue Whether Respondent, Department of Financial Services, Division of Workers' Compensation (Department or Respondent), should pay Petitioners’, Stephen Ogles, LLC, or RL Ogles Roofing, LLC (Petitioners), attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ for initiating Division of Administrative Hearings (DOAH) Case Nos. 13-2448 and 13-2517.
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 and officers, pursuant to section 440.107, Florida Statutes. Petitioners are in the business of roofing, within the construction industry, as defined by subsection 440.02(8), and are Florida employers over whom Respondent has jurisdiction to enforce the payment of workers' compensation premiums for the benefit of Petitioners' employees. Petitioners are the sole members of their respective limited liability companies, each with one employee. An officer of a corporation may elect to be exempt from chapter 440, Workers' Compensation, by filing a notice of election with the Respondent. § 440.02(15)(b)1., Fla. Stat. An officer of a corporation who elects to be exempt from Florida's Workers' Compensation Law is not an employee. § 440.02 (15)(b)3., Fla. Stat. Jonas Hall is employed as an investigator for the Division of Workers’ Compensation. He has been conducting workers’ compensation compliance investigations for approximately five years, and during that time has been involved in between 2,000 and 3,000 investigations. On June 12, 2013, Respondent issued a Stop-Work Order and Order of Penalty Assessment to Stephen Ogles, LLC, and RL Ogles Roofing, LLC, and a Stop Work Order For Specific Worksite Only to Ogles Construction and Roofing, LLC. Findings of Fact 8 through 18 below set forth the specific facts and circumstances known to Respondent at the time the SWO was issued. These facts are based upon the testimony at hearing of Jonas Hall, which is found credible, as well as documentary evidence offered by Respondent, which is corroborative of Mr. Hall’s testimony. Mr. Hall began a random site investigation on June 12, 2013, after he noticed construction work about to be performed at a single-family dwelling located in Live Oak, Florida. Upon investigation, four men were found to be installing roofing at a private residence. One of those workers, Robert Ogles, advised Respondent's investigator that he was working with his three sons, Stephen, Matt, and Robert, Jr. Investigator Hall first spoke to the elder Robert Ogles who advised Investigator Hall that he was the general contractor on the job and that his sons were working as subcontractors. At no time during the interview did Robert Ogles state that his sons were employees of his company, Ogles Construction and Roofing, LLC. Investigator Hall next spoke to Stephen Ogles who stated that he owned his own business and had a valid workers’ compensation exemption. Investigator Hall then spoke to the younger Robert Ogles who also advised him that he owned his own business and had a valid workers’ compensation exemption. Finally, Investigator Hall spoke to the third son, Matt Ogles, who also stated that he owned his own business and had a valid workers’ compensation exemption. At no time during the interview of June 12, 2013, did any of the three sons state that they were employees of their father’s business. After interviewing the four Ogles, Investigator Hall left the jobsite in order to gain access to a wireless internet connection for his computer. Once he obtained a connection, Investigator Hall accessed the Division of Corporations website to look up the correct names of the businesses owned by the four Ogles. With respect to the two Petitioners, the website revealed that Stephen Ogles was the sole member of Stephen Ogles, LLC, and that Robert Ogles, Jr., was the sole member of RL Ogles Roofing, LLC. Investigator Hall then accessed the Coverage and Compliance Automated System (CCAS) to ascertain the status of workers compensation coverage for the four individuals. CCAS revealed that while both Petitioners had at one time held exemptions, both exemptions had expired at the time of Investigator Hall’s site visit on June 12, 2013. Based upon this information, Investigator Hall reasonably concluded that both Petitioners were not in compliance with Florida workers’ compensation coverage requirements. With respect to the third son, Matt, Mr. Hall’s investigation revealed that his company, Matt Ogles, LLC, held a valid exemption, and was therefore compliant with the workers compensation coverage requirements. As such, Investigator Hall did not issue an SWO to Matt Ogles, LLC. After accessing information about Petitioners’ status on his computer, Investigator Hall returned to the jobsite. Upon his return, he observed all four of the Ogles working at the jobsite, with two actively working on the roof of the home. Investigator Hall then called those on the roof down, and served the SWOs on Petitioners. The facts uncovered in Investigator Hall's investigation on June 12, 2013, provided the Department with a reasonable basis to issue the SWOs to Petitioners. On June 17, 2013, Petitioners timely filed a Request for Hearing alleging the affirmative defense that Petitioners had valid workers' compensation exemptions. The Request for Hearing filed on behalf of Stephen Ogles, LLC, specifically stated: The Respondent disputes the SWO, to wit: The Owner’s exemption was not expired. And although worded somewhat differently, the Request for Hearing filed on behalf of RL Ogles Roofing, LLC, stated: The Respondent disputes the SWO, to wit: The WC Exemption was current. The Requests for Hearing filed by Petitioners on June 17, 2013, are consistent with the representations made to Investigator Hall on June 12, 2013, to wit, both Petitioners were subcontractors on the job, and held valid exemptions. On September 10, 2013, Petitioners filed an Amended Request for Hearing disputing the penalty assessment, and contending that Petitioners were employees of Ogles Construction and Roofing, LLC. The Amended Request for Hearing stated in pertinent part: The Respondents disputes the SWO, to wit: Ogles Construction and Roofing LLC disputes the penalty assessment. RL Ogles, LLC contends that he was an employee of Ogles Construction and Roofing, LLC. Stephen Ogles, LLC contends that he was an employee of Ogles Construction and Roofing, LLC. On October 8, 2013, Respondent issued an Order Releasing Stop-Work Order (Revocation) to Stephen Ogles, LLC, and RL Ogles Roofing, LLC. Two witnesses testified as to the reasonableness of the attorney’s fees being sought by Petitioners. Petitioners’ witness on the subject, John Middleton, is a Jacksonville attorney with eight years’ experience in handling workers’ compensation defense matters. Mr. Middleton opined that the $5,000 in fees being claimed by each Petitioner was not excessive, particularly in view of the successful outcomes for Petitioners in the underlying cases. Respondent’s witness, Ralph Paul Douglas, Jr., is a Tallahassee attorney who has concentrated his practice on workers’ compensation matters for twenty years. Mr. Douglas testified that Petitioners’ attorney in the underlying cases claimed 13.3 hours per case for legal services. However, according to Mr. Douglas, at least 1.3 hours of the total hours should be deducted as not awardable due to those hours relating to the preparation of a motion in response to an order to compel. Such fees “cannot be related to any delay, any confusion caused by that party claiming the fees, . . . obfuscation, . . . anything that does not move the case along in the docket.” It was Mr. Douglas’s opinion that 12 hours of legal services is a reasonable number for the underlying cases. However, since the same itemized list of services was submitted for both cases, Mr. Douglas concluded that the second itemized list was duplicative and mostly amounted to only ministerial work. The second itemized list should be, therefore, apportioned. Mr. Douglas testified that a $10,000 fee for the work done on the underlying cases would not be appropriate or reasonable based on the pleadings, the deposition testimony of the attorney performing the work, and the itemization of services. Rather, a reasonable fee would be 12 hours at $200 per hour for one case ($2,400) and $1,200 on the second case. Thus, the total fees that should be awardable for both cases would be $3,600. While the testimony of both Mr. Middleton and Mr. Douglas is credible, the undersigned gives greater weight to the testimony of Mr. Douglas due to his greater experience in the field of workers’ compensation law, and his more detailed analysis of the legal services performed in the underlying cases. The unrebutted testimony presented by Stephen Ogles and Robert Ogles, Jr., established that their respective LLC’s employ fewer than 25 full-time employees and have a net worth of less than $2 million each.
Findings Of Fact Petitioner was registered by the State of Florida as a roofing contractor in October 1976, and this registration remained in effect until it expired June 30, 1977. It has never been renewed. Subsequent to obtaining his registration, Respondent gave up his business and started working for another licensed roofing contractor. Not having need for his license, the Respondent did not renew his registration when it expired in 1977. In 1984, Respondent agreed to replace the roof on the residence of Mr. and Mrs. Snow in Sarasota. Mr. Snow is a friend of Respondent's brother and Respondent and Snow agreed the former would do the job for $5,000. Respondent guaranteed the roof for two years. Snow paid the $5,000 for which he had contracted and Respondent replaced the roof. At the time this work was done Respondent held an active license in Sarasota County (Exhibit 9) but was not licensed by the City of Sarasota when he replaced the roof on Snow's residence. Nor did Respondent first obtain a building permit from the City of Sarasota required for the roofing job. After the work was completed Snow became unhappy with the roofing job and Mrs. Snow wanted more gutters added. Respondent had replaced the gutters and drains. He added forty feet of gutter to the rear of the house to replace the ten feet of gutter he removed. He also replaced the drains but, Mrs. Snow was not satisfied. Following the repair, a leak showed up and the Respondent was called to fix it. Upon inspecting the roof and the leak, Respondent concluded the leak was coming from the screen room over the pool and was not from an improperly laid roof. Snow complained to the Sarasota Building Inspection Department who investigated and preferred charges of alleged violation against Respondent for failure to obtain a permit and for working in Sarasota without a city license. Criminal charges were also brought against Respondent for doing the roof work on Snow's residence without having an occupational or city contractor's license to do so. Respondent was found guilty of this charge and placed on probation. Respondent subsequently applied for and was issued a City of Sarasota license as a roofing contractor and obtained a permit for the roofing job on the Snow's residence. A final inspection by Sarasota Building Department concluded the work was done in full compliance with Sarasota Code. Respondent readily acknowledges that he did not have, initially, a valid license when he did the Snow's roof, that he failed to obtain a permit for this job, and all other charges, except that involving an improperly installed roof.
Findings Of Fact Joseph Barrass is a registered roofing contractor holding State of Florida license number RC0026890. Respondent was so licensed at all times relevant to this proceeding. Respondent began doing business as a registered roofing contractor through his corporation, J. B. Roofing and Repairs, Inc., about six years ago. This corporation was dissolved and he continued as a roofing contractor through a corporation known as Roofing Services, Inc. He next did business through a third corporation, C. B. Roofing, Inc. Most recently he has done business as C. B. Roofing, a sole proprietorship. Respondent failed to register any of these entities with Petitioner, and is still licensed under his original fictitious name, J. B. Roofing and Repairs. Respondent contracted with Green Glades Construction Co. in early 1979, to install roofs on some 28 new houses. A dispute arose between the parties regarding several unfinished and leaking roofs. Respondent contends he refused to complete the roofs at issue due to nonpayment in accordance with the oral contract. He also argues that he was unable to repair the leaks while the roofs were wet, as demanded by Green Glades. The dispute was settled through civil proceedings. Another matter which culminated in civil action concerned the installation and repair of a patio roof pursuant to an oral contract between Respondent and Marvin Berkowitz, at the latter's Coral Springs residence. Berkowitz complained that Respondent failed to correct a leak in this roof as required by their agreement. Respondent claims the leak was the result of an improperly installed ceiling fan and the flat roof design demanded by Berkowitz. Respondent completed the job and received final payment on October 9, 1979. However, the roof leaked and Berkowitz thereafter contacted Respondent on numerous occasions requesting repairs. It was not until Berkowitz retained counsel and threatened legal action that Respondent made any effort to repair the leak. He returned on February 14, 1980, and did limited repair work. The roof continued to leak and Berkowitz sought damages through civil action. The evidence is conflicting as to whether or not the ceiling fan had been removed when Respondent returned in February, 1980. Berkowitz testified that it had been removed, and Respondent testified that it had not. The evidence is also in conflict with respect to the caveats and/or assurances Respondent gave Berkowitz regarding this installation. The recollections of both witnesses were self-serving and their testimony was generally lacking in credibility. The City of Coral Springs' building code requires a contractor to obtain a permit prior to roof installation. Respondent knew he was required to obtain such a permit for the Berkowitz project, but failed to do so.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent be found guilty of violating Sections 489.119, 489.129(1)(g) and 489.129(1)(j), F.S., in failing to register his business entities and contracting without requisite qualification. It is further RECOMMENDED: That Respondent be found guilty of violating Subsection 489.129(1)(d), F.S., for wilful disregard of the Coral Springs building code pertaining to building permits. It is further RECOMMENDED: That all other charges against Respondent be dismissed. It is further RECOMMENDED: That Petitioner suspend Respondent's roofing contractor's license for a period of six months. DONE AND ENTERED this 17th day of February, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 17th day of February, 1982.
Findings Of Fact At all times material here to, Respondent was licensed as a certified general contractor, having been issued license number CG C009484 by the State of Florida. At all times material hereto, Respondent qualified Allstate Roofing & Construction Company with the Florida Construction Industry Licensing Board. Since March 1983, Respondent has also been licensed as a registered roofing contractor and qualifies Allstate Roofing & Construction Company with the Florida Construction Industry Licensing Board under license number RC 0043155. On March 27, 1981, as the qualifier for Allstate Roofing & Construction Company, Respondent entered into a contract with Joe Hill to reroof Hill's home for the contract price of $2,214.10. The contract further provided that workmanship would be unconditionally guaranteed for a period of five years. Respondent in turn entered into a subcontract on April 8, 1981, whereby A & A Roofing Co. subcontracted with Allstate Roofing & Construction Company to perform the work required on the Hill roof for the sum of $1,950, which contract also carried a five-year workmanship unconditional guarantee. In the meantime, Hill and his wife obtained a second mortgage on their home to pay for the replacement of the existing roof, and the mortgage company paid Respondent directly. The subcontractor with whom Respondent contracted for the work on the Hill home was a registered roofing contractor. The existing roof on the Hill home was gravel. Under the contract for replacing the roof on the Hill hoine, asphalt shingles were installed on the portion of the roof which is slanted, and new gravel and tar were installed on the portion of the roof which is flat. After the roof was completely replaced, Hill contacted Respondent to report leaks in the flat part of the roof. In response to that complaint, someone came to the Hill residence and repaired the areas where leakage was reported. Since the roof leaked again, Hill contacted Respondent, and Mr. Davis of A & A Roofing Co. reported to the Hill residence and worked on the roof. In January 1983, Hill's wife contacted Respondent regarding her leaky roof, and once again someone was sent to the Hill residence to effectuate repairs. Although the Hills testified at the formal hearing that the roof still leaked, no evidence was presented to show the precise location of any leak in order o ascertain if the leak was a new" leak or an "old" leak. Both Mr. and Mrs. Hill do admit, however, that Respondent has responded to their complaints every time they have contacted him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed herein and further dismissing the Administrative Complaint against him. DONE and RECOMMENDED this 20th day of October, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 20th day of October, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Clarence. S. Tate 8282 Westernway Circle, Suite 103 Jacksonville, Florida 32216 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
