The Issue Whether the petitioner is entitled to an award under section 57.111, Florida Statutes, of attorney’s fees and costs incurred in the appellate matter Witmer v. Department of Business and Professional Regulation, 631 So. 2d 338 (Fla. 4th DCA 1994), and, if so, the amount of such award.
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 of Business and Professional Regulation, Division of Pari-Mutuel Wagering, is the state agency responsible for issuing occupational licenses to veterinarians with access to the backside of a racetrack and for regulating such licensees. Sections 550.10(1)(b) and .105(2)(d)2, Florida Statutes. Dr. Witmer has been licensed to practice veterinary medicine in Florida since January 1, 1993, and, as of October 19, 1993, he was authorized to practice veterinary medicine at Florida racetracks by virtue of a pari-mutuel wagering occupational license (“license”) issued by the Department. He has been domiciled in Florida at all times material to this matter. On October 19, 1993, Dr. Witmer was a partner in a professional practice in veterinary medicine with its principal office at 1450 Southwest Third Street, Pompano Park, Broward County, Florida. His professional practice had three full-time employees and a net worth, including both personal and business investments, of less than $2 million. In the Administrative Complaint and Emergency Order of Suspension dated October 19, 1993, the Department took two actions with respect to Dr. Witmer’s license.1 First, in the administrative complaint, it put Dr. Witmer on notice that the Department had initiated a disciplinary action against him, charging him with violations of a statute and a rule governing his license which, if proven, would justify the imposition of penalties, including revocation or suspension of his license. Secondly, in the emergency order of suspension, it summarily suspended Dr. Witmer’s license. Dr. Witmer requested a formal administrative hearing pursuant to section 120.57(1), Florida Statutes, to challenge the truth of the allegations contained in the administrative complaint. The request was forwarded to the Division of Administrative Hearings and assigned DOAH Case Number 93-6638. That action was pending at the time Dr. Witmer filed the application for attorney’s fees and costs at issue in this proceeding. Underlying proceeding On the basis of the allegations contained in the administrative complaint and its determination that Dr. Witmer’s interest in his license was “far outweighed by the immediate danger to the public health and safety and to the integrity of harness racing in the State of Florida,” the Department suspended Dr. Witmer’s pari-mutuel wagering occupational license as of October 19, 1993, ordered him to cease and desist from all activities authorized by the license, and barred him from entering any pari-mutuel establishment as a patron for the duration of the emergency suspension. Dr. Witmer chose to seek immediate judicial review of the emergency order pursuant to sections 120.60(8) and 120.54(9)(a)3, Florida Statutes (1993). It is this appellate proceeding which is the proceeding underlying Dr. Witmer’s application for attorney’s fees and costs at issue herein. State agencies are authorized by section 120.60(8), Florida Statutes (1995) to immediately suspend a license under the following circumstances and subject to the following conditions: If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, it shall show compliance in its order with the requirements imposed by s. 120.54(9) on agencies making emergency rules. Summary suspension, restriction, or limitation may be ordered, but a formal suspension or revocation proceeding under this section shall also be promptly instituted and acted upon. Section 120.54(9)(a), Florida Statutes, provides in pertinent part: If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger by any procedure which is fair under the circumstances and necessary to protect the public interest, provided that: * * * 3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. . . . The agency’s findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable. On February 2, 1994, the District Court of Appeal for the Fourth District of Florida issued its opinion in Witmer v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, Case Number 93-3232, reported at 631 So. 2d 338. The court quashed the Emergency Order of Suspension, concluding that the order was “facially inadequate,” and ruling that “the Department’s findings of immediate danger to the public welfare are not supported by specific facts and reasons as required by 120.54(9)(a)3, Florida Statutes.” Id. at 340, 343. The district court in Witmer observed that its review was limited to a determination of whether the order complied with the requirements of section 120.54(9)(a)3 and based its analysis upon the following rules of law: If the facts alleged in the complaint and [emergency] order are sufficient to demonstrate immediacy, necessity and fairness, no hearing is required prior to the emergency suspension. . . . The factual allegations contained in the emergency order must sufficiently identify particularized facts which demonstrate an immediate danger to the public. (Citation omitted.) Where, as here, no hearing was held prior to the entry of the emergency order, every element necessary to its validity must appear on the face of the order. (Citation omitted.) The order must be “factually explicit and persuasive concerning the existence of a genuine emergency.” (Citation omitted.) Witmer, 631 So. 2d at 341. In reaching its conclusion that the emergency order was facially inadequate, the court in Witmer held that the Department failed to allege facts in the complaint and order to establish the essential elements of the violations upon which the emergency suspension was based. Firstly, the court found that the charge in the emergency order that Dr. Witmer had failed to report gratuities was not supported by any allegations of fact in the complaint and order. Id. at 341. Secondly, the court found that the Department failed to allege that Dr. Witmer’s actions related to horse racing or to race horses, an essential element of a violation of section 550.235(2), Florida Statutes, and of rule 61D-1.002(10), Florida Administrative Code. Id. at 342. Thirdly, the court found that the Department failed to allege that Dr. Witmer reached an agreement with a second person to commit the violation, an essential element of any conspiracy, including one to violate section 550.235(2) and rule 61D-1.002(10). Id. Finally, the court concluded that the public harm alleged by the Department in the order was too attenuated to support the emergency suspension of Dr. Witmer’s license. Id. at 343. The district court issued its mandate to the Department on February 18, 1994, directing it to act in accordance with the opinion quashing the Emergency Order of Suspension. The Department did not seek review of the decision of the district court in the Florida Supreme Court. Consequently, the decision of the district court had the effect of nullifying the emergency suspension of Dr. Witmer’s license. Summary Dr. Witmer was a small business party, as that term is defined for purposes of section 57.111, at the time the Department entered the emergency order.2 The evidence is sufficient to establish that the Department initiated an action against Dr. Witmer when it entered an Emergency Order of Suspension. This order was issued under the authority granted state agencies in section 120.60(8), Florida Statutes. The order had the effect of immediately and summarily suspending Dr. Witmer’s pari-mutuel wagering occupational license. Dr. Witmer had the right to seek immediate judicial review of the emergency order pursuant to section 120.54(9)(a)3. The appellate court quashed the emergency order because it was legally insufficient to support the suspension of Dr. Witmer’s license under the standards of section 120.54(9)(a)3. The Department did not appeal or seek further review of the appellate court’s decision. Dr. Witmer, therefore, prevailed in the administrative proceeding initiated by the Department. The Department presented no evidence to establish that its action in ordering the emergency suspension of Dr. Witmer’s license had a reasonable basis in law and fact or that any special circumstances exist which would make an award of attorney’s fees and costs in this case unjust.3 The monetary value of the attorney’s fees rendered in connection with the appellate proceeding culminating in the decision quashing the Emergency Order of Suspension is $9,715.00, and the costs incurred total $250. These fees and costs are reasonable and were necessary to prosecute the appellate proceeding.4
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations of the. administrative complaint, Respondent, Michael James Hanly, was a licensed registered nurse, license no. RN 78035-2. On or about November 18, 1987, the Board of Nursing entered a final order regarding disciplinary action against this Respondent. The final order found the Respondent guilty of improper conduct and specified the following penalties: The licensee shall pay an administrative fine of $500.00 within 6 months. The licensee is hereby placed on PROBATION for a period of two years, subject to the following terms and conditions: The licensee shall not violate any Federal or State law, nor any rule or order of the Board of Nursing. The licensee shall submit written reports to the Board, which contain the licensee's name, license number, current address, current employer's name, address and telephone number, and a statement by the licensee describing his nursing employment and performance These reports shall be submitted quarterly, as scheduled by the Board probation section. The licensee shall enroll in and successfully complete, in addition to normally required continuing education courses, courses in the following subject areas: medical ethical considerations and legal aspects of nursing within six (6) months from the filing of this Order. * * * While employed as a nurse, the licensee shall be responsible for causing reports to be furnished by his employer to the Board; these reports shall set out the licensee's current position, work assignment, level of performance, and any problems. The reports shall be submitted every three months as scheduled by-the Board probation section. If employed otherwise than as a nurse, the licensee shall report the position, employer and place of employment to the Board section on the scheduled quarterly dates. If not employed, the licensee shall so notify the Board probation section on the scheduled quarterly dates. Any deviation from the requirements of this probation without the prior written consent of the Board shall constitute a violation of this probation. Subsequent to the entry of the final order, the Respondent did not submit reports, did not complete the continuing education, and did not pay the administrative fine. On June 10, 1988, the Department wrote to the Respondent to notify him that the terms of the final order had not been met. This letter was received by the Respondent on June 14, 1988. On June 29, 1988, the Department again wrote to the Respondent to advise him that he was delinquent and in violation of the final order. This letter was received by the Respondent on July 12, 1988. Upon receipt of the correspondence described in paragraph 3, Respondent replied to the Department by stating that the matters addressed in the final order were on appeal to the district court of appeal. The Respondent did not pay the administrative fine nor seek additional time within which to comply with the remaining terms of the final order. Finally, the Department wrote to Respondent on July 22, 1988, acknowledged that the final order had been appealed, but informed Respondent that he was required to comply with the final order unless a stay were entered by the appellate court. Respondent did not obtain a stay from the appellate court and, as of the date of the hearing, had not complied with the terms of the final order entered November 18, 1987.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Nursing enter a final order which finds Respondent guilty of the violation alleged in the administrative complaint, imposes an administrative fine in the amount of $250, and lengthens the period of Respondent's probation to four years. DONE and ENTERED this 5th day of July, 1989, in Tallahassee, Leon County, Florida. Hearings Hearings JOYOUS D. PARRISH Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative this 5th day of July, 1989. APPENDIX TO THE RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 and 2 are accepted. With regard to paragraph 3, it is accepted that the Respondent filed an appeal which was assigned case no. 88- 1069; whether that appeal was timely or complied with the provisions of Section 120.68, Florida Statutes, is unknown and not a part of this record. It is accepted that the parties, for purposes of the hearing, believed the appeal to be proper. Paragraphs 4 through 11 are accepted. The Respondent did not submit proposed findings of fact. An ex parte communication was submitted on June 19, 1989, which is rejected as argument, irrelevant or contrary to the weight of the credible evidence. COPIES FURNISHED: Michael A. Mone' Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 M. James Hanly, R.N. Post Office Box 1472 Boynton Beach, Florida 33425 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729
Findings Of Fact In 1977, Dr. Reavis applied for licensure as a medical doctor in Florida by endorsement pursuant to Section 458.051, [now Section 458.313(3)], Florida Statutes. Dr. Reavis was licensed in January 1978 by the Board. Dr. Reavis moved to Lakeland, Florida in 1978, where he has practiced medicine continuously since that time. The Board without actual notice to Dr. Reavis entered a Final Order on February 5, 1981, which purported to declare null and void the license of Dr. Reavis to practice medicine in Florida. Dr. Reavis became aware of the Board's action in 1984 when he sought to renew his license. Dr. Reavis immediately took steps to have the Board's order of February 5, 1981, rescinded. The Board reinstated the license of Dr. Reavis on February 15, 1984, but concurrently gave notice of its intent to reprimand Dr. Reavis for violation of Rule 21M-22.17, Florida Administrative Code. Rule 21M-22.17, Florida Administrative Code was enacted on December 12, 1983. Rule 21M-22.17, Florida Administrative Code, requires a doctor licensed by endorsement to present evidence to the Board of actually practicing in Florida. It is this provision of the rule which the Board alleges Dr. Reavis violated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Medical Examiners dismiss forthwith the Notice of Intent to Reprimand, and take no penal action against the Respondent, Dr. Wilton Reavis. DONE and ORDERED this 22nd day of January, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1985. COPIES FURNISHED: Susan Tully, Assistant Attorney General Department of Legal Affairs Office of the Attorney General The Capitol Tallahassee, Florida 32301 Thomas L. Clarke, Jr., Esquire P.O. Drawer J Lakeland, Florida 33802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is a contractor engaged in highway construction and holds a certificate of qualification with Respondent. Action pending in DOAH Case No. 84-2538 could result in the suspension of Petitioner's certificate if an alleged contract delinquency is proven. Section 337.16, F.S., delegates to Respondent the authority to revoke or suspend a certificate when contract delinquency is demonstrated. This statute provides: No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked. The department may suspend, for a specified period of time, or revoke for good cause any certificate of qualification. The purpose of the above statute is to enforce timely completion of construction work and to prevent a contractor from taking on new work which might require diversion of resources from the delinquent job, thus lessening the contractor's ability to catch up. Rule 14-23.01, F.A.C. was promulgated by Respondent to implement its authority to suspend or revoke contractor certificates for job delinquency. Because contractors charged with delinquency frequently catch-up or cure the delinquency during the pendency of administrative proceedings, 1/ Respondent's statutory authority to enforce construction schedules was easily thwarted. To "put teeth" in its ability to deter job delays, Respondent amended its delinquency rule in 1982 to provide after- the-fact certificate suspension where a contractor was proven to have been delinquent in its progress on a construction project. This provision, which is challenged here, states as follows: (b) REINSTATEMENT. Any contractor disqualified under the above provisions shall be disqualified from further bidding and shall be disapproved as a contractor until the delinquency is cured. Where a contractor cures the alleged delinquency during the course of administrative proceedings, the Department may suspend the qualification to bid and disapprove as a subcontractor for the number of days the contractor is administratively determined to be delinquent. Specifically, Petitioner challenges the last sentence which it contends amounts to unauthorized punishment since the deficiency sought to be corrected by the statute no longer exists. However, the provision would arguably have some deterrent force since contractors would recognize that suspension could not be avoided merely by requesting formal proceedings 2/ and counting on administrative delay to render the delinquency issue moot.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: On August 31, 1988, Respondent was authorized by the Board Of Medicine (Board) to provide respiratory care services in this state under license number TU C000050, a license she still holds. Respondent did not take a licensure examination. She was granted her license based upon her pre-October 1, 1987, respiratory therapy work experience pursuant to Section 468.357(3)(a), Florida Statutes, as amended by Chapter 87- 553, Laws of Florida. In December, 1990, Respondent sought to renew her license. As part of the renewal process, she submitted to the Board a signed Affirmation of Eligibility for License Renewal, which read as follows: I HEREBY AFFIRM THAT I HAVE MET ALL OF THE REQUIREMENTS FOR LICENSE RENEWAL SET FORTH BY THE DEPARTMENT OF REGULATION AND/OR THE PROFESSIONAL REGULATORY BOARD INDICATED ON THE REVERSE SIDE OF THIS NOTICE. I UNDERSTAND THAT WITHIN THE UPCOMING RENEWAL PERIOD, IF MY LICENSE NUMBER IS SELECTED FOR AUDIT BY THE DEPARTMENT OF PROFESSIONAL REGULATION AND/OR PROFESSIONAL REGULATORY BOARD, I MAY BE REQUIRED TO SUBMIT PROOF THAT I HAVE MET ALL APPLICABLE LICENSE RENEWAL REQUIREMENTS. I UNDERSTAND THAT PROOF MAY BE REQUIRED BY THE DEPARTMENT OF PROFESSIONAL REGULATION AND/OR PROFESSIONAL REGULATORY BOARD AT ANY TIME AND THAT IT IS MY RESPONSIBILITY TO MAINTAIN ALL DOCUMENTATION SUPPORTING MY AFFIRMATION OF ELIGIBILITY FOR LICENSE RENEWAL. I FURTHER UNDERSTAND THAT FAILURE TO COMPLY WITH SUCH REQUIREMENTS IS IN VIOLATION OF THE RULES AND STATUTES GOVERNING MY PROFESSION AND SUBJECTS ME TO POSSIBLE DISCIPLINARY ACTION AND FURTHER, THAT ANY FALSE STATEMENT IS IN VIOLATION OF SECTION 455.227, FLORIDA STATUTES, SUBJECTING ME TO DISCIPLINARY ACTION AS WELL AS THOSE PENALTIES PROVIDED BELOW. I AFFIRM THAT THESE STATEMENTS ARE TRUE AND CORRECT AND RECOGNIZE THAT PROVIDING FALSE INFORMATION MAY RESULT IN DISCIPLINARY ACTION ON MY LICENSE AND/OR CRIMINAL PROSECUTION AS PROVIDED IN SECTION 455.2275, FLORIDA STATUTES. At the time she made the foregoing affirmation, Respondent believed that she had met all of the requirements for the renewal of her license, including those relating to continuing education. She did not intend to deceive or mislead the Board regarding her eligibility for license renewal. Based upon her review of the copies of the statutory and rule provisions with which the Board of Medicine had previously provided her, Respondent was under the impression that she needed to have earned only 24 hours of continuing education credit biennially in order to be eligible for license renewal. She had earned 31 hours of such credit, 15 in 1989 and 16 in 1990, and therefore thought that she had met the continuing education requirement for eligibility for license renewal. She was unaware that Chapter 468, Part V, Florida Statutes (1987), had been amended by Chapter 87-553, Laws of Florida, to require licensed respiratory care practitioners in her situation to complete 20 contact hours of approved continuing education courses each year. Notwithstanding that she had completed less than 20 contact hours of approved continuing education courses in both 1989 and 1990, Respondent's license was renewed based, in part, upon the representations made in her Affirmation of Eligibility for License Renewal. The Board subsequently selected Respondent for audit and asked her to submit documentation establishing her compliance with the continuing education requirements referenced in her Affirmation of Eligibility for License Renewal. Due to illness and other extenuating circumstances, Respondent was initially unable to provide any documentation in response to this request, however, she ultimately provided certificates of completion for each of the continuing education courses she had taken in 1989 and 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order (1) finding that Respondent did not violate Section 468.365(1)(a), Florida Statutes, as alleged in the Amended Administrative Complaint; (2) dismissing said charge; (3) finding that Respondent violated Section 468.365(1)(j), Florida Statutes, as alleged in the Amended Administrative Complaint; and (4) disciplining Respondent for having violated Section 468.365(1)(j), Florida Statutes, by placing her on probation for a period of one year during which she must, in addition to meeting the 20 contact hour per year continuing education requirement prescribed by Section 468.357(3)(a), Florida Statutes, as amended by Chapter 87-553, Laws of Florida, complete 9 extra contact hours of approved continuing education course offerings and provide the Board with documentation, in the form of receipts, vouchers, certificates or other like papers, verifying her completion of these additional 9 contact hours. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of April, 1992. STUART M. LERNER 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 20th day of April, 1992. 1/ See Chino Electric, Inc. v. United States Fidelity & Guaranty Co., 578 So.2d 320, 323 (Fla. 3d DCA 1991); Nagashima v. Buck, 541 So.2d 783, 784 (Fla. 4th DCA 1989). 2/ That Respondent was not aware of the 20 contact hour per year continuing education requirement prescribed by Section 468.357(3)(a), Florida Statutes, as amended by Chapter 87-553, Laws of Florida, does not excuse her failure to have complied with this requirement. See Moncrief v. State Commissioner of Insurance, 415 So.2d 785, 788 (Fla. 1st DCA 1982)(licensed bail bondsman could be found guilty of employing an unlicensed runner, notwithstanding his belief that "he was not required to have [the runner] licensed;" "the courts universally recognize that ignorance or mistake of law will not excuse an act in violation of the laws so long as the laws clearly and unambiguously proscribe the conduct alleged"). COPIES FURNISHED: Arthur B. Skafidas, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Pamela Sue Morgan 7324 S.W. 25th Court Fort Lauderdale, Florida 33317-7005 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Conclusions By letter dated March 31, 2010, the Agency for Persons with Disabilities (APD) informed Angels of America, Inc., that it was terminating the Medicaid Waiver Services Agreement that it and Angels of America had entered into. Following the receipt of a request for an administrative hearing, the matter was referred to the Division of Administrative Hearings (DOAH). On May 26, 2010, APD moved to dismiss the proceeding on the basis that Petitioner had not shown that its substantial interests would be affected by the Agency’s action. On June 9, 2010, the Administrative Law Judge entered an Order Relinquishing Jurisdiction and Closing File. THEREFORE, based on the foregoing and being otherwise fully apprised of the premises, it is hereby ORDERED that the hearing request filed in the above-styled case is hereby DISMISSED and this case is CLOSED, DONE AND ORDERED, this 16th day of June, 2011, in Tallahassee, Leon County, Florida. _ . PSY Nt ee Percy W. Mallison, Jr., Esquire Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, FL 32399-0700 APD-11-4859-FO | 1 Filed June 16, 2011 1:04 PM Division of Administrative Hearings CERTIFICATE OF SERVICE Copies provided to: Jeffrey C. Marty, Esa. Juan R. Collins, Esq. Post Office Box 3159 Agency for Persons with Disabilities Zephyrhills, Florida 33539 4030 Esplanade Way, Suite 335B Tallahassee, Florida 34785 APD Area 13 Office | HEREBY CERTIFY that a copy of this Final Order was provided to the above- named individuals at the listed addresses, by U.S. Mail or electronic mail, this 16th day of June, 2011. Percy i Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 APD-11-4859-FO | 2
The Issue Whether Respondent has committed the acts alleged in the Stop Work Order and Order of Penalty Assessment and if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure workers' compensation insurance for the benefit of their employees. § 440.107, Fla. Stat. On August 11, 2006, Robert Lambert, the Jacksonville District Supervisor for the Division of Workers' Compensation, Bureau of Compliance, was contacted by Katina Johnson, an investigator for the Division.1/ Based on the information provided to him by Ms. Johnson, Mr. Lambert approved the issuance of a Stop Work Order against Capella Ventures, Inc. The investigator served a Stop Work Order and Order of Penalty Assessment, both by posting at the worksite and by hand delivery, on Capella Ventures. The Department investigator also issued a Request for Production of Business Records for Penalty Assessment, requesting records for a period of three years, from July 31, 2003. These records were requested in order to calculate the penalty required pursuant to Section 440.107, Florida Statutes, for not having workers' compensation insurance. The records were to be used in conjunction with the classification codes contained in the Basic Manual (Scopes Manual) published by the National Council on Compensation Insurance. Records were provided by Capella Ventures' counsel. Based on the records provided, an Amended Order of Penalty Assessment was prepared, assessing a penalty of $8,769.16. Mr. Peter King was, at all times material to this case, an officer of Capella Ventures, along with his father. His father is now deceased. Mr. King admitted that workers from Capella Ventures were assisting his father with a construction project on a home next to the home where they lived. He did not dispute that the workers were performing construction work and that the company had no workers' compensation coverage for them at the time. Nor did he dispute the amount of the penalty reflected in the Amended Order of Penalty Assessment. He contended that while his father performed the framing on the property, one of the two other employees did not have the skill to actually perform framing. The class code used by the Department to determine the appropriate penalty was 5645, which is used for carpentry operations on residential structures. Use of this code was appropriate. Capella Ventures filed for an address change in August of 2006, and voluntarily dissolved in January of 2008. No evidence was presented regarding what actions were taken by Capella Ventures with respect to the dissolution of the corporation. No evidence was presented regarding what, if any, distribution of assets was undertaken at the time of dissolution. No evidence was presented to indicate that any successor corporation or entity was formed upon the dissolution of Capella Ventures.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent, Capella Ventures, Inc., violated Section 440.107, Florida Statutes, by failing to secure workers' compensation for its employees, and assessing a penalty of $8,769.16. DONE AND ENTERED this 10th day of September, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2008.
Findings Of Fact 14. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on September 29, 2004, the Amended Order of Penalty Assessment issued on October 14, 2004, the second Amended Order of Penalty Assessment issued on January 20, 2005, and the 3rd Amended Order of Penalty Assessment issued on August 25, 2010, attached as “Exhibit A”, “Exhibit B”, “Exhibit C“, and “Exhibit F”, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the request for administrative hearing received from Bill Veczko, d/b/a Bill’s Painting, the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the second Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On September 29, 2004, the Department of Financial Services, Division of _ Workers’ Compensation (hereinafter “Department”), issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 04-590-D1 to Bill Veczko, d/b/a Bill’s Painting. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On September 29, 2004, the Stop-Work Order and Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On October 14, 2004, the Department issued an Amended Order of Penalty Assessment to Bill Veczko, d/b/a Bill’s Painting. The Amended Order of Penalty Assessment assessed a total penalty of $30,844.10 against Bill Veczko, d/b/a Bill’s Painting. The Amended Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting was. advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On May 27, 2010, the Amended Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On January 20, 2005, the Department issued a second Amended Order of Penalty Assessment to Bill Veczko, d/b/a Bill’s Painting. The second Amended Order of Penalty Assessment assessed a total penalty of $104,044.10 against Bill Veczko, d/b/a Bill’s Painting. The second Amended Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting was advised that any request for an administrative proceeding to challenge or contest the second Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the second Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 6. On May 27, 2010, the second Amended Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On June 8, 2010, Bill Veczko, d/b/a Bill’s Painting filed a petition for administrative review (“Petition”) with the Department. Pursuant to Sections 120.54(5)(b) and 120.569(2), Florida Statutes, the Department carefully reviewed the Petition to determine if it was in substantial compliance with Rule 28-106.2015, Florida Administrative Code. A copy of the Petition is attached hereto as “Exhibit D”. 8. After reviewing the Petition, the Department determined that the Petition was not in substantial compliance with the requirements of 28-106.2015, Florida Administrative Code, in that the Petition did not contain a statement identifying the material facts in dispute, or a statement indicating that there were no material facts in dispute. Accordingly, on June 24, 2010, the Department issued an Order Dismissing Petition for Section 120.57(1), Florida Statutes, Proceeding Without Prejudice. In the Order Dismissing Petition for Section 120.57(1), Florida Statutes, Proceeding Without Prejudice, Bill Veczko, d/b/a Bill’s Painting was given an opportunity to file, within 21 days, an amended petition curing the defects in the original Petition. 9. On August 9, 2010, Bill Veczko, d/b/a Bill’s Painting filed an amended petition for administrative review (“Amended Petition”) with the Department, which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-7312. A copy of the Amended Petition is attached hereto as “Exhibit E”. 10. On August 25, 2010, the Department filed with the Division of Administrative Hearings a Motion to Amend Order of Penalty Assessment with an attached 3rd Amended Order of Penalty Assessment. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $103,958.56 against Bill Veczko, d/b/a Bill’s Painting. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 11. On August 25, 2010, Administrative Law Judge W. D. Watkins entered an Order Granting Motion to Amend Order of Penalty Assessment. 12. On October 12, 2010, Bill Veczko informed the Department that Bill Veczko, d/b/a Bill’s Painting did not wish to proceed to an administrative hearing in DOAH Case No. 10- 7312. 13. On October 12, 2010, the Department filed a Joint Motion to Relinquish Jurisdiction with the Division of Administrative Hearings. As a result, Administrative Law Judge W. D. Watkins entered an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit G”.
