The Issue At issue in this proceeding is whether Respondent, Sergio A. Balsinde ("Respondent") is entitled to elect to be exempt from the workers' compensation insurance coverage requirements of chapter 440, Florida Statutes.
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 of the workers' compensation law that employers secure the payment of workers' compensation insurance coverage for their employees and corporate officers. § 440.107(3). A corporate officer may elect to become exempt from the workers' compensation insurance coverage requirements of chapter 440 by complying with the election of exemption methodology set forth in section 440.05. If the election of exemption meets the criteria of section 440.05, then the Department is required to issue a certification of the election to be exempt to the officer. § 440.05(3). A corporate officer is ineligible for an exemption if he is affiliated with "a person who is delinquent in paying a stop-work order and penalty assessment order issued pursuant to section 440.107, or owed pursuant to a court order." § 440.05(15). Balco was originally incorporated in 1985. Mr. Balsinde has been a corporate officer of Balco since at least April 28, 2003, the date of the earliest Balco annual report entered into evidence. Mr. Balsinde is also a corporate officer and 10 percent owner of LC Cable Corp. The Department issued and served a Stop-Work Order and Order of Penalty Assessment on Balco on February 8, 2007. At the final hearing in the instant case, Mr. Balsinde testified that the Stop-Work Order and Order of Penalty Assessment had been erroneously entered against his company. He testified that the uninsured workers in question did not even work for Balco. Mr. Balsinde testified that he had attempted to rectify the error with the Department, but was unable to make the Department acknowledge its mistake. Whatever the merits of Mr. Balsinde's factual claim, neither he nor any other representative of Balco formally challenged the Stop-Work Order and Order of Penalty Assessment. Having long ago become final, the Stop-Work Order and Order of Penalty Assessment cannot be contested in this proceeding. On September 23, 2008, Balco entered into an Amended Payment Agreement Schedule with the Department that called for Balco to make 60 monthly payments, each due on the first day of the month, and a suspension of the Stop-Work Order. After Balco ceased making payments according to the schedule, the Department issued an Order Reinstating Stop-Work Order on October 26, 2009. The reinstatement order was served on Mr. Balsinde on October 30, 2009. As of October 26, 2009, the unpaid balance of the penalty assessment against Balco was $22,236.38, which was ordered due immediately by the reinstatement order. As of the date of the hearing in this case, the balance remained unpaid. Neither Mr. Balsinde nor any other representative of Balco filed a timely request for a review proceeding to challenge the reinstatement order. Balco did not appeal the reinstatement order. On July 22, 2010, a final decree in Chapter 7 bankruptcy was entered on behalf of Mr. Balsinde by the United States Bankruptcy Court for the Southern District of Florida, in Case Number 10-18850-LMI. The discharge in bankruptcy was received by Mr. Balsinde as an individual. Though the final decree listed the Department as an unsecured creditor and Balco as a business of the debtor, Balco did not receive a discharge in bankruptcy, nor did the company file a bankruptcy petition subsequent to the issuance of the reinstatement order by the Department. Mr. Balsinde submitted a Notice of Election to be Exempt to the Department on November 29, 2010, as an officer of LC Cable Corp., a corporation operating in the construction industry. The Department reviewed Mr. Balsinde's application to determine his eligibility to elect the exemption. The Department's Coverage and Compliance Automated System indicated that Mr. Balsinde is the officer of a corporation that is delinquent in paying a Stop-Work Order and Order of Penalty Assessment, which makes him ineligible for an exemption. The Department issued a Notice of Denial of Mr. Balsinde's election of exemption on December 6, 2010.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, finding that Sergio A. Balsinde is ineligible for an election of exemption under section 440.05. DONE AND ENTERED this 18th day of May, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 18th day of May, 2011.
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
The Issue Whether or not Petitioner Robert R. Hambley is entitled to an award of attorney's fees pursuant to Section 57.111, Florida Statutes.
Findings Of Fact This case arises in the wake of Robert R. Hambley v. Department of Professional Regulation, DOAH Case No. 88-4788, for formal administrative proceeding stemming from a complaint filed against Petitioner on September 28, 1987. On July 5, 1989, the undersigned Hearing Officer entered a Recommended Order imposing an administrative fine against the Petitioner in the amount of $1,000.00 and placing the Petitioner's license on probation for a period of one (1) year. Petitioner did not file exceptions to the subject recommended order. On August 22, 1989, the Respondent, Department of Professional Regulation, Division of Real Estate, rejected the proposed order and revoked the Respondent's license. Thereafter, Petitioner retained the services of the law firm of LARSON, CONKLIN, STANLEY, PROBST & BOBENHAUSEN, P.A. to represent him, which attorney's filed an appeal in the Second District Court of Appeal contesting the Division of Real Estate's Final Order, specifically the aggravation of the penalty, to wit, revocation of Petitioner's license. In connection with Petitioner's legal representation, he incurred reasonable costs and fees in the amount of $504.49 and $3,393.00, respectively. On October 5, 1990, the Second District Court of Appeal entered its order affirming the findings as found by Recommended Order, but reversed and remanded for implementation of the recommended penalty of $1000.00 and rejecting the recommended penalty of probation, since that was not an authorized penalty at the time of the hearing. The basis of the Court's decision is that Respondent failed to adequately comply with Section 120.57(1)(b)(10), Florida Statutes, in order to properly increase the severity of the recommended penalty. See Bernal v. Department of Professional Regulation, 517 So.2d 113, (Fla. 3d DCA 1987), affirmed 531 So.2d 967 (Fla. 1988). Thereafter, on October 10, 1990, the Respondent filed a motion for rehearing which motion was denied on November 1, 1990. On November 11, 1990, a Mandate issued from the Second District Court of Appeal and Petitioner's license was reinstated on November 21, 1990, with Respondent issuing a Final Order rescinding its prior order of August 15, 1989, and by issuing a supplemental Final Order on December 4, 1990. That December 4, 1990, order implemented the recommended penalty with the exception of probation which was not statutorily authorized. The Administrative Complaint which was filed jointly against Petitioner was a six count administrative complaint and the entity through which he dealt, Real Pro Associates, Inc. Petitioner was found guilty of participating in five transactions which conduct amounted to proscribed conduct within the purview of Subsection 475.25(1)(a), Florida Statutes, by paying real estate commissions totaling over $28,500.00 to Paul George, an unlicensed person. Petitioner was also found guilty of culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes, for having failed to inform or otherwise disclose to Stewart Fidelity Title Company, the company which handled the closing for the transactions, that the stated escrow deposits were never placed in an escrow account as represented in the contracts for sale and purchase which would alert the lender that the purported purchaser had a "no equity" position in the purchases. Petitioner was, via Recommended Order, required to pay an administrative fine of $1,000.00 within thirty (30) days of the entry of the Final Order. Petitioner was found guilty of all violations for which he was cited in the Administrative Complaint filed by Respondent and a monetary penalty was imposed. Respondent was substantially justified in asserting that the Petitioner was in violation of the real estate licensing law when it issued the subject complaint. That proceeding was premised on a reasonable basis in law and fact when it was initiated. See Miller v. Department of Professional Regulation, Division of Real Estate, DOAH Case No. 89-5042F, 12 FALR 2312, 2314 filed 5/16/90. The Florida Real Estate Commission enhanced the penalty to recommendations which were within the parameters set forth in the disciplinary guidelines of the Florida Real Estate Commission as provided for by Rule Sections 21V-24.001(2) and (3), Florida Administrative Code. The rule sections provided that the Petitioner Hambley could have been fined, for such violations, up to $1,000.00 per count and may have had all his licenses, registrations, certifications and permits penalized as follows: (h) 475.25(1)(b) - Up to 5 years suspension or revocation. [Emphasis supplied] (n) 475.25(1)(h) - Up to 2 years suspension. Petitioner has not demonstrated that it was a prevailing small business party under Section 57.111, Florida Statutes. Moreover, the actions of the Florida Division of Real Estate were substantially justified as defined by Subsection 57.111(3)(e), Florida Statutes. This is borne out by the findings as found by the undersigned Hearing Officer, which provides both a reasonable basis in law and fact as well as substantial justification of the administrative action when it was initiated. Particularly, the complaint against Petitioner was reviewed by a probable cause panel on September 15, 1987. That material which was reviewed by the panel included an investigative report and documentary evidence, all of which was presented to the panel and ultimately to the undersigned Hearing Officer. Appended to the investigative report was some 30 pages of exhibits which provided an adequate basis to support the charges of culpable negligence and breach of trust in a business transaction.
Findings Of Fact The Respondent issued an Invitation to Bid by which sought to lease approximately 21,000 net useable square feet of office space to be located in Tampa, Florida. This Invitation to Bid is referred to as Lease Number 590:1946. Three bids were received in response to the Invitation to Bid, and they were opened on July 29, 1988. Bids were received from the Petitioner, Structures, Inc., and a third bidder that has not filed a protest, and is therefore not relevant to this proceeding. All bidders were initially determined to be responsive to the Invitation to Bid. Petitioner and Structures, Inc., submitted bids involving the same office space and real property. Petitioners' bid for this space was lower that the bid filed by Structures, Inc., when compared on a present value rental cost analysis. Despite Petitioners' lower bid, Respondent awarded this lease to Structures, Inc., due to the receipt of a letter dated August 2, 1988, from Intervenor, the owner of the subject property, stating that, "Mr. Hartley (Petitioner) has no right to propose this property to the Department as Mr. Hartley and I have no agreements with respect to my leasing the property to him." On the basis of this letter, the Respondent concluded that Petitioners had no legal interest in the subject property and therefore did not have the requisite control over the property to submit this bid. The Petitioners' bid was determined to be nonresponsive. Petitioners did not present competent substantial evidence to discredit or refute Intervenor's contention that they lacked any legal interest in this property. It is undisputed that Intervenor owns the property, and Intervenor was present at the hearing to confirm that the letter of August 2, 1988, was, in fact, his letter. The Petitioner, James C. Hartley, was not present at the hearing. The only evidence presented by Petitioners of any alleged interest in this property is a copy of a telecopy letter dated June 29, 1988, filed with its bid, which purports to express the intention of Intervenor and Petitioner Hartley to enter into a lease for certain property described on an Exhibit A, which was not presented in evidence. Thus, there is no indication on the face of this document that the telecopy letter relates to the subject property. However, even if the letter does relate to the property owned by Intervenor, the agreement specifically states that Intervenor's obligation to enter into a lease with Petitioner is expressly conditioned upon Intervenor's approval, In his sole discretion, of any sublease with the Respondent. If for any reason the Intervenor disapproved of the Petitioners' bid and lease with the Respondent, according to this agreement, he could simply refuse to enter into any lease of the subject property with Petitioners, and thus, Petitioners would have no interest or control over the property, and could not then sublease it to the Respondent. Finally, there is no recital of consideration in the purported agreement set forth in the telecopy letter. Based upon a complete review of the evidence presented, it is found that Petitioners did not have a valid, legal interest in the subject property which would be sufficient to allow them to file this bid and propose this lease to the Respondent. As such, Petitioners' bid was unresponsive.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioners' protest Lease Number 590:1946. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1988. DONALD D. CONN 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 3rd day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4645BID Rulings on Petitioners' and Intervenor's Proposed Findings of Fact: Petitioners and Intervenor did not timely file a Proposed Recommended Order containing proposed findings of fact. Rulings on the Respondent' Proposed Finding of Fact: Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. 3-5. Rejected as irrelevant and unnecessary. 6-8. Adopted in Finding of Fact 4. 9. Rejected in Finding of Fact 2, and as irrelevant. COPIES FURNISHED: Joseph D. McFarland, Esquire 520 Second Avenue, South St. Petersburg, Florida 33701 Robert L. Rocke, Esquire Post Office Box 3433 Tampa, Florida 33601 Jack Farley, Esquire W. T. Edwards facility 4000 West Buffalo Fifth Floor, Room 520 Tampa, Florida 33614 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Petitioner challenges the validity of Rule 3SF-2.13, Florida Administrative Code. 1/
Findings Of Fact Based on the entire record compiled herein, including the parties' factual stipulation, the following relevant facts are found. MISSION Insurance Co. (MISSION) is a corporation duly authorized to issue insurance policies, including workers' compensation insurance policies in the State of Florida. MISSION conducts its adjusting operations at North Regency One, Suite 400, 985 Regency Square Boulevard, Jacksonville, Florida. In the regular course of its business, MISSION adjusted the worker's compensation claim of Katrine Graham, who was injured on April 30, 1984 in an accident arising out of and in the course of her employment with Smiley's Mobey Dick Restaurant. MISSION received notice of the accident on May 21, 1984. On September 1, 1984, MISSION filed with the DIVISION its initial Injury Progress report (LES From BCL-13), in connection with the claim. On February 11, 1985, MISSION received from the DIVISION's Bureau of Workers' Compensation Carrier practices a letter dated February 4, 1985, notifying MISSION that the Bureau had assessed against MISSION the penalty of $100.00 for filing the form 11 days after the time prescribed by Rule 38F-3.16, F.A.C. A copy of the letter is attached hereto as Joint Exhibit "A." Since at least 1979, the DEPARTMENT has had a policy of imposing a fine of $100.00 on any insurance carrier who files its initial Injury Progress Report (LES From BCL-13) more than 105 days after it receives notice of the accident. The DEPARTMENT applies this policy, through its Bureau of Workers' Compensation Carrier Practices, to all insurance carriers and self-insured employers who come within the jurisdiction of the DEPARTMENT. The DEPARTMENT imposes penalties for the untimely filing of forms other than the BCL-13 form. The penalties to be imposed for the untimely filing of the BCL-13 form, as well as other forms, are stated in a "Penalty Assessment Chart," a copy of which is attached hereto as Joint Exhibit "B." At the time the subject penalty was imposed on MISSION, this chart was used by the DEPARTMENT's workers' compensation examiners in determining whether a penalty should be imposed and, if so, the amount of the penalty. The DEPARTMENT did not implement or use Chapter 120 rulemaking procedures to adopt the Penalty Assessment Chart, or the policy it represents, as a rule. PETITIONER'S POSITION Petitioner contends that the Penalty Assessment Chart amounts to an unpublished rule which has the effect of exacting a penalty for "late" filing in excess of Respondent's legislative authority inasmuch as Respondent is only authorized to impose a penalty based on a carriers failure or refusal to file forms, reports, or notices pursuant to Section 445.185(9), Florida Statutes. Petitioner avers that in the absence of specific statutory authorization for Respondent to impose a penalty or assessment for an untimely filing, there is no basis upon which Respondent can impose the penalty involved herein, that the rule should be declared invalid and the $100.00 penalty imposed based thereon, should be rescinded. RESPONDENT'S POSITION Respondent avers that timely filings are inextricably tied to the Division's reporting requirements and that to conclude that a carrier could file reports, notices, etc. at will, without any directive, would lead to an absurd result in contravention of Respondent's long-standing reporting policy which has been effective since approximately 1979. Finally, Respondent urges that the legislature has authorized it to exact penalties for late filings based on the authority granted in Sections 440.185(5) and (9), Florida Statutes.
The Issue The issue to be decided in this proceeding is whether the Reimbursement Dispute Dismissal issued by Respondent, Department of Financial Services, Division of Workers’ Compensation (the “Department”), should be reversed due to equitable tolling or some other recognized excuse for untimely submission of the reimbursement dispute.
Findings Of Fact Petitioner is a business operating in Daytona Beach, Florida. The nature of Petitioner’s business was not made part of the record. In approximately June 2017, Petitioner submitted a claim to the Department, claiming payment for certain (undisclosed) services or expenditures. The Department issued an Explanation of Bill Review (“EOBR”) in response to Petitioner’s claim. The EOBR set forth the amount of reimbursement the Department would allow for Petitioner’s claim. The EOBR was received by Petitioner on July 10, 2017. Upon receipt of the EOBR, Petitioner had 45 days, i.e., until August 24, 2017, to challenge the Department’s determination of the reimbursement amount. Not satisfied that the amount allowed by the Department was correct, Petitioner challenged the determination by submitting a Petition for Resolution of Reimbursement Dispute (the “Petition”) on DFS Form 3160-0023. The Petition was signed on August 8, 2017. However, Petitioner did not immediately submit the Petition on that date, despite being aware of the 45-day time limit for submitting such forms for relief. Petitioner did not mail the Petition until August 25, 2017, one day after the deadline for doing so. The Certified Mail Receipt for Petitioner’s mailing is clear and unambiguous, clearly showing the date. Petitioner did not present any evidence as to factors which might excuse the late filing of its Petition. The only reasons cited were that Petitioner was awaiting information from two claims management services, Sedgwick and Foresight, before submitting its Petition. Petitioner, through its witness at final hearing, admitted its error in failing to timely file the Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent, Department of Financial Services, Division of Workers’ Compensation, enter a Final Order upholding its Reimbursement Dispute Dismissal. DONE AND ENTERED this 11th day of January, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2018. COPIES FURNISHED: Taylor Anderson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Barbara T. Hernandez East Coast Surgery Center 1871 LPGA Boulevard Daytona Beach, Florida 32117 (eServed) Thomas Nemecek, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
