Findings Of Fact Respondent Larry B. Lewis is a real estate salesman licensed under the laws of the State of Florida, having been issued license number 0052189. Respondent Melvin M. Lewis is a real estate broker licensed under the laws of the State of Florida, having been issued license number 0052222. Gateway Acres, Inc., was incorporated under the laws of the State of Florida in February, 1984, for the purpose of selling certain undeveloped property in Osceola County, Florida. Both Respondents are officers of that corporation, and Respondent Melvin M. Lewis is the sole stock holder. Because she had previously sold undeveloped property in Florida to him, a salesperson employed by Gateway Acres, Inc., contacted Ray O. Newbill, an insurance agent in Tennessee, in approximately early June, 1984. As a result of that conversation, Newbill received from Gateway Acres, Inc., an Agreement for Deed and other promotional material. That form Agreement for Deed related to an unspecified "1 1/4 acres more or less" at Gateway Acres in Osceola County. However, the terms and conditions of sale were specified on that form, which consists of one sheet of paper, with writing on the front and back of that sheet. The form initially sent to Newbill contained several "privileges". There was an Inspection Privilege whereby a buyer could receive a full refund at the time that the buyer completed a company guided inspection tour so long as that tour occurred within six months from the contract date. Pursuant to the Vacation Privilege, Gateway Acres, Inc., agreed to pay room and tax charges for three days and two nights at a motel in Orlando while the buyer participated in the inspection tour. The form next provided a 30 Day Unconditional Refund Privilege whereby the buyer could receive a refund for any reason whatsoever within 30 days from the date of purchase. Newbill signed that Agreement for Deed on June 18, 1984. In the signature portion of that document there appeared the following language requiring notarization: I HEREBY CERTIFY that on this day before me an officer duly qualified to take acknowledgments personally appeared an officer of Gateway Acres, Inc., a Florida corporation to me well known to be the grantor described in and who executed the foregoing instruments, and acknowledged before me that he is duly authorized by the corporation to do so and that this instrument is the act and deed of the corporation. WITNESS MY HAND and official seal at Miami in the said County & State, this day of , 19 . Although that language clearly calls for notarization of the signature of an officer of Gateway Acres, Inc., the seller of the property, Newbill had his secretary notarize his signature using that part of the form. Newbill mailed to Gateway Acres, Inc., the Agreement for Deed which now bore his signature and the false notarization by his secretary, together with his check in the amount of $500, the down payment on the property. When that document was received by Gateway Acres, Inc., Respondent Larry B. Lewis telephoned Newbill to explain that the false notarization invalidated that form and that particular Agreement for Deed could not now be executed by the seller. Since Newbill was anxious to immediately inspect the property and receive his vacation privilege, Newbill and Respondent Larry B. Lewis agreed that Newbill would come to Florida and he would be presented with a new form to execute. On approximately June 21; 1984, Newbill arrived in Orlando with his wife and eight children in a station wagon. He met both Respondents at the motel being paid for by Gateway Acres, Inc. Newbill and his wife then went with both Respondents to Gateway Acres and completed the company guided inspection tour of the area. When Respondents returned Newbill and his wife to their motel, Respondent Melvin M. Lewis gave to Newbill for his signature an Agreement for Deed. The front of that document obviously differs from the document that Newbill had executed in Tennessee. The second document is for a specifically described piece of property and carries that specific lot's legal description. The second document has a large blank space in the middle of the page where the first document had described the Inspection Privilege and Vacation Privilege. These paragraphs were no longer relevant since Newbill had already received his paid vacation and inspection tour. The third and most important difference in the second document was that only a Three Day Unconditional Refund Privilege was offered rather than the 30 Day Unconditional Refund Privilege offered in the first document given to Newbill. Respondents reviewed that document with Newbill, and Newbill signed. Newbill's offer was accepted on June 26, 1984, when Faye Lewis signed on behalf of Gateway Acres, Inc., as its secretary, and Respondent Melvin M. Lewis notarized that signature and executed the required certification regarding the corporate officer signing the instrument. On July 10, 1984, Gateway Acres, Inc., directed to Newbill, by certified mail, a copy of the contract entered into between them. That mailing reached Newbill on July 17, 1984. On July 12, 1984, Newbill sent a letter by certified mail to Respondent Melvin M. Lewis advising that he wished a refund of his $500. That letter reached Melvin M. Lewis on either July 16 or July 17, 1984 (both dates appear on the post office's receipt) On approximately August 10, 1984, Newbill left a message for Respondent Larry B. Lewis on the answering machine for the telephone at Gateway Acres, Inc., demanding that his $500 be returned or he would file a complaint with the Florida Real Estate Commission. To date, Gateway Acres, Inc., and the Respondents have failed to return to Newbill his $500 down payment. No other disciplinary actions have been filed by Petitioner against either Respondent Larry B. Lewis or Respondent Melvin M. Lewis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent Melvin M. Lewis and Respondent Larry B. Lewis not guilty of the allegations contained within the Administrative Complaint and dismissing with prejudice the Administrative Complaint filed against them. DONE and RECOMMENDED this 18th day of March, 1986, at Tallahassee, 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 18th day of March, 1986. COPIES FURNISHED: Susan Hartman, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Harry E. Geissinger, III, Esquire Suite 201 415 West 51st Place. Hialeah, FL 33012 Harold Huff, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Fred Roche; Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301
The Issue The issue presented is whether Respondent is entitled to a "name clearing" hearing in this proceeding after Petitioner terminated the employment of Respondent in a separate proceeding.
Findings Of Fact Petitioner is the state agency responsible, in relevant part, for the employment and dismissal of non-instructional employees at the University of South Florida (USF). Petitioner was a non-instructional employee at USF from a date sometime before March 25, 2003, until sometime before April 16, 2005. The precise dates of employment and termination are not identified in the record. Shortly before March 25, 2003, Petitioner suspended Respondent without pay for three days. The suspension occurred on March 25, 26, and 27, 2003. The suspension of an employee without pay affects the substantial interests of an employee within the meaning of Florida Administrative Code Rule 6C4-10.213(1)(e). On April 17, 2003, Respondent filed a grievance for informal resolution, but was unsuccessful. Respondent proceeded with what is identified in the record as a Step-1 internal review. Respondent was unsuccessful in the Step-1 internal review. On November 26, 2003, Respondent requested an administrative hearing, and Petitioner referred the matter to DOAH on March 24, 2004. The request for administrative hearing requests reinstatement of Respondent to full-time employment for the three-day suspension and reimbursement of the compensation to which he was entitled during the three-day suspension (back pay). On June 15, 2005, Petitioner paid Respondent the entire amount of back pay claimed by Respondent. The suspension of an employee with pay does not affect the substantial interests of an employee within the meaning of Florida Administrative Code Rule 6C4-10.213(1)(e). Respondent is not entitled to reinstatement for the period covered by the three-day suspension. Subsequent to the request for hearing in this proceeding, Petitioner terminated the employment of Respondent on separate grounds in a separate proceeding that was addressed in an order of the Public Employees Relations Commission (PERC) filed on April 14, 2005. Larry Fisher v. University of South Florida, Case No. CA-005-001, Order No. 05U-079 (PERC April 14, 2005). DOAH is precluded by the judicial doctrine of collateral estoppel from revisiting the issues addressed by PERC. Respondent claims that he is entitled to proceed in this proceeding to clear his name (a name-clearing hearing). Respondent is not entitled to a name-clearing hearing based on a three-day suspension with pay. Respondent suffered no injury in fact. The three-day suspension with pay did not alter the legal status of Respondent's employment, did not deprive Respondent of any property right, and did not injure the reputation of Respondent. If it were determined that the three-day suspension with pay injured the reputation of Respondent, the intervening termination of Respondent on separate grounds in a separate proceeding renders inadequate any remedy available to Respondent in a name-clearing hearing in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the original proceeding for lack of jurisdiction and denying Respondent's request for a name-clearing hearing in this proceeding. DONE AND ENTERED this 1st day of August, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2005. COPIES FURNISHED: Larry Fisher Post Office Box 424 Zephyrhills, Florida 33539 Gerard D. Solis, Esquire University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620
The Issue The dispute in this case arises out of Respondent's attempt to collect alleged salary overpayments from Petitioner, a former state employee who allegedly continued to be paid wages after resigning her position with Respondent.
Findings Of Fact Having determined, for the reasons set forth below, that the Department lacks subject matter jurisdiction to adjudicate the instant claim for "money had and received" against its former employee, the undersigned declines to make findings of fact, as such would be a nullity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing this administrative proceeding for lack of subject matter jurisdiction. DONE AND ENTERED this 4th day of November, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2005.
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)
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 in this case is whether the allegations of the Administrative Complaint, are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this case, Cameron D. Smith (hereafter "Respondent") was certified by the Criminal Justice Standards and Training Commission (hereafter "Petitioner") and was issued certificate numbers 04-86- 222-04 and 14-84-502-02. During the months of August and September, 1987, the Respondent was employed as a correctional officer at the Gainesville Road Prison (now Gainesville Work Camp), a unit of the Department of Corrections (hereafter "DOC"). Each week, the Respondent worked from midnight to 8:00 a.m. Friday through Tuesday, and was off on Wednesday and Thursday. On occasion, the Respondent has suffered recurring pain and incapacity related to a foot injury which occurred in June, 1986. At one time, surgery to correct misalignment of a bone in his foot was scheduled, but was cancelled when the condition improved. The Respondent has obtained medical treatment when such was warranted. The DOC time sheets used by employees to record time worked include a code which identifies one option for leave time as "worker's comp" time. (The evidence does not establish any relationship between the DOC's "worker's comp" time and Chapter 440, Florida Statutes, setting forth the state's worker's compensation system. Therefore, the referenced statute has been disregarded in preparation of this Recommended Order.) The Department of Corrections pay period is a biweekly period ending on the day that time sheets are due. The relevant pay periods are from August 7 to August 20, 1987, and from August 21 to September 3, 1987. Records which specifically identify the days worked by the Respondent at the Road Prison are in evidence. During the period from August 7 through September 1, 1987, the Respondent claimed several days of leave time due to his continuing foot ailment, and marked "worker's comp" leave time on his DOC payroll time sheets. On August 13, 1987, the Respondent became employed as a part-time stock clerk at a newly-opened Walmart store on Archer Road in Gainesville. The Petitioner introduced evidence indicating that the Respondent worked at Walmart on Mondays, Wednesdays, and Fridays from 5:00 p.m. to about 10:00 p.m. The Respondent asserted that worked on other days or at other times as his services were required. The greater weight of evidence, including Walmart payroll records, supports the Respondent. Walmart's payroll records demonstrate that, during some weekly periods, the Respondent worked total hours in excess of the approximate fifteen which would result were the Petitioner's evidence correct. Walmart pays employees on the day following close of the weekly pay period. Pay is computed from employee time cards which are punched by a time clock at the start and finish of each employee's shift. The relevant pay periods are from the Respondent's employment on August 13 to August 14, 1987, from August 15 to August 21, 1987, from August 22 to August 28, 1987 and from August 29 to September 4, 1987. Records which would specifically identify which days the Respondent worked at Walmart are not in evidence. The evidence identifies the number of hours worked during each pay period. On August 17-18, 21-25, and 28-31, 1987, the Respondent claimed worker's compensation leave time from his DOC employment. The Respondent's supervisor refused to approve the time sheets which included the worker's compensation leave time. The supervisor believed that the Respondent was working at Walmart during the periods of time for which worker's compensation leave had been requested. Such claims are approved only when the employee is incapable of working. The Administrative Complaint alleges that the Respondent falsified official records of the Department of Corrections. The apparent falsification of official records relates to the claim of "worker's comp" time on DOC time sheets during periods when the Respondent allegedly worked at his Walmart job. Upon reconciliation and review of payroll records from both employers, the evidence fails to establish that the Respondent worked at Walmart on dates when he was unable to work at the Road Prison. From August 7 through August 14, 1987, the Respondent worked his full DOC shifts. He became employed by Walmart on August 13. For the period ending August 14, 1987, he worked 11.76 hours at Walmart. From August 15 through August 21, 1987, the Respondent worked Saturday and Sunday at the Road Prison, claimed worker's compensation leave on Monday, Tuesday and Friday, and had Wednesday and Thursday off. For the period ending August 21, 1987, he worked 14.76 hours at Walmart. There is no evidence that the Walmart hours were worked on either Monday, Tuesday or Friday. From August 22 through August 28, 1987 the Respondent did not work at the Road Prison, claiming five days worker's compensation leave, with the usual Wednesday and Thursday off. He worked no hours at Walmart during this pay period. From August 29 through September 1, 1987, the Respondent claimed worker's compensation Saturday through Monday and worked his usual shift beginning on Tuesday. There is no evidence that the Respondent worked at Walmart during this period. One witness testified to having seen the Respondent working on a ladder in a "Newberry Road" Walmart while claiming worker's compensation time, the implication being that, were the Respondent suffering a foot ailment, he would not be on a ladder working at Walmart. The witness was unable to identify the date upon which he saw the Respondent working at Walmart and did not document the information, but reported it to his supervisor. The supervisor was likewise unable to identify the date of the incident. There is no evidence that the Respondent was ever employed in a "Newberry Road" Walmart store, if one exists. The Respondent denied having climbed a ladder during his employment with Walmart. The Respondent's testimony related to his employment at Walmart is accepted.
Recommendation Based on the foregoing, it is hereby RECCOMMENDED that the Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a Final Order dismissing the Administrative Complaint against Cameron D. Smith. DONE and RECOMMENDED this 10th day of April, 1990, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1990. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Cameron D. Smith 1138 Northeast Second Avenue Williston, Florida 32696 James T. Moore Commissioner Post Office Box 1489 Tallahassee, Florida 32302 Jeffery Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the violations alleged in the Stop Work Order and Second Amended Order of Penalty Assessment and if so, what penalty should be imposed?
Findings Of Fact The Department of Financial Services, Division of Workers' Compensation is the state agency charged with enforcement of workers' compensation compliance pursuant to Chapter 440, Florida Statutes. Respondents Earl Marshall and Justin Marshall were partners in ownership of Marshall and Son Painting Company on June 16, 2006. Respondents were working in the construction industry at Lot 12, Oak Meadows III, Lake City, Florida 32615, on June 16, 2006, for which they received payment. On June 16, 2006, Respondents had not secured the payment of workers' compensation as that term is defined in Chapter 440, Florida Statutes. Respondents do not dispute liability for failure to secure workers' compensation insurance. They contend that the calculation of the penalty to be imposed is inaccurate. Marshall and Son Painting Company came to the attention of the Division through a random site visit by one of its investigators. The Division's investigator, Katina Johnson, requested proof of workers' compensation coverage after observing Earl and Justin Marshall painting a new house. She was informed that Respondents previously held exemptions from workers' compensation coverage that had expired at the end of 2003. Ms. Johnson issued a Stop Work Order and Order of Penalty Assessment on June 16, 2006. She also issued a request to Respondents for written business records, including bank statements for the business, federal tax returns, and copies of checks from their business ledger. Respondents supplied the requested records. On June 21, 2006, the Division issued an Amended Order of Penalty Assessment (Amended Order). The Amended Order imposed a penalty of $53,519.52. Respondents entered into a payment agreement whereby they paid 10 percent of the penalty assessment and agreed to pay the remainder over a 60-month period. Upon execution of the payment agreement, the Division issued an Order of Conditional Release from Stop Work Order. On October 3, 2006, the Division issued a Second Amended Order of Penalty Assessment, reducing the amount of the penalty assessment to $43,649.40. A second Payment Agreement Schedule for Periodic Payments was entered, reducing the amount of the monthly payments to be made by Respondents. Earl Marshall and Justin Marshall have dissolved Marshall and Son Painting Company and have formed a new limited liability company, Marshall and Son Painting, LLC. Each has obtained workers' compensation exemptions under the new business, and are considered to be in compliance with Chapter 440, Florida Statutes. Ms. Johnson's calculation for the penalty assessment was based upon the checks written to Earl Marshall and Justin Marshall (individually) for the period at issue. She did not go back a full three years, but began with January 1, 2004, the point in time that the Marshalls' previous exemptions from workers' compensation coverage expired. Ms. Johnson used the Scopes Manual published by the National Council on Compensation Insurance and assigned occupation code 5474, which is the appropriate code for painting within the construction industry. Ms. Johnson based her final calculations on the amount evidenced by canceled checks payable to Earl Marshall or Justin Marshall, and upon their admission that these amounts represented their salaries as partners in the business. Ms. Johnson multiplied one percent of the payments to Earl Marshall and Justin Marshall for the relevant period by the manual rate assigned to the class code for painting, giving the premium Marshall and Son Painting Company would have paid for workers' compensation insurance. This number was then multiplied by 1.5. The Respondents' dispute with the penalty calculation is that it includes all of the partnership's profits as wages for the purpose of determining the rate of pay for insurance coverage. They contend that the Division should, instead, base the calculations on an industry standard for painters in the Lake City area. While the Respondents believe that the penalty assessment should be based upon a $12 an hour industry standard for painters in the Lake City area, Earl Marshall described the checks paid to Respondents as salary checks. These checks are, quite simply, the only evidence of actual payroll presented to Ms. Johnson in response to her request for records or presented at hearing. The methodology used by Investigator Johnson is mandatory.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered approving the Stop Work Order and Second Amended Order of Penalty Assessment that assessed a penalty of $43,649.40. DONE AND ENTERED this 17th day of November, 2006, 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 17th day of November, 2006. COPIES FURNISHED: Douglas D. Dolan Assistant General Counsel Division of Legal Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-6502 Jimmy E. Hunt, Esquire 654 Southeast Baya Drive Post Office Box 3006 Lake City, Florida 32056-6800 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Mu?niz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
