The Issue Whether Respondent timely filed a written request for an administrative hearing, and, if not, whether the doctrine of equitable tolling provides a defense to the applicable deadline for filing a petition for hearing.
Findings Of Fact The Department is the state agency charged with enforcing workers’ compensation coverage requirements in Florida, including the requirement that employers secure workers’ compensation coverage for their employees. See § 440.107(3), Fla. Stat. Following an investigation to determine whether Respondent had secured sufficient workers’ compensation insurance coverage, the Department served a Stop-Work Order and Order of Penalty Assessment on Respondent on September 10, 2015. The Department served an Amended Order of Penalty Assessment on Respondent on October 15, 2015. The Department served a 2nd Amended Order of Penalty Assessment (the “Penalty Assessment”) on Respondent on December 14, 2015. With the Penalty Assessment, the Department also provided Respondent a document entitled “Notice of Rights.” The Notice of Rights advised, in pertinent part: You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida Statutes. To obtain review, you must file a written petition requesting review. * * * You must file the petition for hearing so that it is received by the Department within twenty- one (21) days of your receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, FL 32399-0390. FAILURE TO FILE A PETITION WITHIN THE TWENTY- ONE (21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. Dale Russell, Compliance Investigator with the Department, personally served the Penalty Assessment along with the Notice of Rights on Respondent. As established by the Certificate of Service on the Penalty Assessment, as well as Mr. Russell’s testimony, Mr. Russell hand-delivered the documents to Respondent on December 14, 2015. Mr. Russell personally served the documents on Jose Fuentes, Respondent’s owner and general manager. Mr. Russell also reviewed with Mr. Fuentes the Notice of Rights. Mr. Russell discussed the import of the 21-day deadline to request a hearing to dispute the Penalty Assessment. Twenty-one days after December 14, 2015, is January 4, 2016. Respondent submitted to the Department a letter requesting review of the Penalty Assessment. Respondent’s letter is dated January 11, 2016. The Department received Respondent’s letter on January 12, 2016. At the final hearing, Mr. Fuentes testified regarding his handling of the Penalty Assessment and request for a hearing on behalf of Respondent. Mr. Fuentes acknowledged that he personally received the Penalty Assessment from Mr. Russell on December 14, 2015. Mr. Fuentes explained that his delay in submitting his letter to the Department was based on difficulties his family was experiencing at that time. His wife was facing surgery. Consequently, he was focused on her medical concerns, as well as caring for their three children. Unfortunately, he lost track of the time in which to file the petition. Based on the evidence set forth at the final hearing, the Department established that Respondent did not file its petition requesting administrative review with the Department within 21 days of Respondent’s receipt of the Penalty Assessment. Therefore, the legal issue to determine is whether Respondent’s petition should be dismissed as untimely filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Financial Services, Division of Workers’ Compensation, enter a final order dismissing Respondent’s request for an administrative hearing as untimely filed. DONE AND ENTERED this 16th day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 16th day of June, 2016.
The Issue The issues are whether Respondent, Deck King Corp., failed to secure workers’ compensation coverage for its employees, and, if so, whether the Department of Financial Services, Division of Workers’ Compensation (“Department”) correctly calculated the penalty assessment imposed against Respondent.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of its employees. Respondent was a business providing services in the construction industry with its principal office located at 2200 Northwest 22nd Court, Miami, Florida 33142. On June 29, 2015, Marilyn Victores, the Department’s compliance investigator, observed Ivan Lopez Avila and Robert Jordan performing construction work on a job site at 150 South Hibiscus Drive, Miami Beach, Florida 33139. She learned from the individuals working that they were performing the job on behalf of Respondent, Deck King Corp. After gathering the information at the job site, Ms. Victores spoke with her supervisor, Ms. Scarlett Aldana, and an investigation was performed. The Division of Corporations’ website was consulted to determine, among other things, the identity of Respondent’s corporate officers. Mses. Victores and Aldana learned that Respondent had three corporate officers and directors listed, Derek Barnick, Thomas Barnick, and Fausto Lopez. They also learned that the corporation was “active.” Ms. Victores consulted the Department’s Coverage and Compliance Automated System (“CCAS”) for proof of workers’ compensation coverage and for any exemptions associated with Respondent. An exemption is a method whereby a corporate officer can be relieved of the responsibility of the requirements of chapter 440, Florida Statutes, pursuant to section 440.05. CCAS is the Department’s internal database that contains workers’ compensation insurance policy and exemption information. Insurance providers are required to report insurance coverage information to the Department which is then inputted into CCAS. Ms. Victores’ CCAS search revealed that Respondent did not have a workers’ compensation policy or an employee leasing policy. Additionally, she discovered that no active exemptions were associated with Respondent. Based upon the information she gathered, Ms. Victores issued and served Respondent with a Stop-Work Order on June 29, 2015. Ms. King simultaneously issued and served Respondent a Request for Production of Business Records for Penalty Assessment Calculation (the “Request for Production”). The Request for Production sought documents to enable the Department to determine Respondent’s payroll for the time period of June 30, 2013, through June 29, 2015. In response to the Request for Production, Respondent provided the Department only bank statements. Ms. Eunika Jackson, a penalty auditor with the Department, was assigned to calculate the penalty to be assessed against Respondent. Ms. Jackson believed the business records produced by Respondent were insufficient to calculate a penalty for the entire audit period as they did not specify payroll or payments made to employees other than two specific checks, which were credited against the penalty ultimately assessed against Respondent. Based upon Ms. Jackson’s calculations, on October 9, 2015, the Department issued an Amended Order of Penalty Assessment to Respondent which was served on Respondent on that date. The Amended Order of Penalty Assessment imposed a penalty of $148,923.16. To make the penalty assessment determination, Ms. Jackson consulted the codes listed in the National Council on Compensation Insurance’s (NCCI) Scopes® Manual, which has been adopted by the Department through Florida Administrative Code Rules 69L-6.021 and 69L-6.031. Classification codes are assigned to various occupations to assist in the calculation of workers’ compensation insurance premiums. Based upon Ms. Victores’ description of the activities Respondent’s workers were performing and the descriptions listed in the NCCI Scopes® Manual, Ms. Jackson determined that the proper classification for employees of Respondent was 5403. Ms. Jackson then utilized the corresponding manual rates for that classification code and the related periods of the alleged non- compliance. Based upon the information provided to her by Mses. Victores and Aldana, Ms. Jackson utilized the appropriate methodology specified in section 440.107(7)(d)1. and rules 69L-6.027 and 69L-6.028, to determine the penalty of $148,923.16. The business records supplied by Respondent in response to the Department’s Request for Production consisted of two years’ worth of bank statements. No tax records, such as W-2s, W-4s, 1099s, or tax returns of Respondent, were provided to the Department to allow it to determine whether any of the workers were independent contractors, what salaries, if any, they were paid, or in any way to mitigate the penalty assessed by the Department. By not appearing at hearing or attempting to file any documents in explanation or mitigation of the penalty assessed against it, Respondent gave the Department nothing upon which to reach any conclusion of payroll other than through imputation. Using the Penalty Calculation Worksheet, Ms. Jackson determined the penalty to be assessed against Respondent. She imputed the income for Derek Barnick, Thomas Barnick, Ivan Lopez Avila, Robert Lopez, and Fausto Lopez, and used actual records provided by Respondent to determine the income of an individual identified only as “Mili” who received $105 in April 2014. Working through the calculations called for by the worksheet included the class code, period(s) of non-compliance, gross payroll, a divisor of 100 which was then multiplied by the approved manual rate, and then multiplied by two to calculate the penalty. The result was a penalty assessment of $148,923.16. By not appearing at hearing or offering any evidence to contradict the penalty assessed by the Department, Respondent waived its opportunity to prove the Department’s data used and calculations made were performed improperly. The Department properly determined the penalty using the worksheet prescribed by its statutes and rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order imposing a penalty of $148,923.16 against Respondent. DONE AND ENTERED this 15th day of March, 2016, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2016. COPIES FURNISHED: Tabitha G. Harnage, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Deck King Corp. 2200 Northwest 22nd Court Miami, Florida 33142 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 The issue is whether Petitioner, U.S. Builders, L.P. (USB), timely and effectively requested a final hearing on the issues related to the Order of Penalty Assessment issued by the Department of Financial Services, Division of Workers’ Compensation (Department) in accordance with the requirements of Chapter 120.57, Florida Statutes.
Findings Of Fact USB is a general contractor engaged in the construction industry and is properly registered to conduct business in the State of Florida. The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation coverage for the benefit of their employees and corporate officers. § 440.107, Fla. Stat. On May 30, 2007, Department Investigator Teresa Quenemoen conducted an investigation or compliance check of USB to determine liability for workers’ compensation coverage. As a result of that investigation, an Order of Penalty Assessment was issued on June 18, 2007, assessing USB a penalty in the amount of $14,983.95. Attached on the opposite side of the page from the Order was a Notice of Rights directing the recipient how to properly respond if he wished to contest the penalty. Quenemoen received a letter, dated June 21, 2007, from J. Roland Fulton, President of USB, which states that he “strongly disagrees” with the Department’s allegations that USB failed to secure adequate workers’ compensation coverage and he wants to “resolve” the matter and “void the Order of Penalty.” If the Department could not make that happen, he wanted to have the “Appeal Procedures.” In a consultation with her Supervisor, Robert Lambert, regarding how to respond to Fulton’s letter, Quenemoen was advised to immediately contact USB and advise them of the Notice of Rights and timeline requirements for any petition they may wish to file. This conversation took place well within the 21-day period for request of formal administrative proceedings. Quenemoen was also advised to provide a copy of the Notice of Rights to USB. Quenemoen, however, delayed taking any action until she contacted USB via letter on August 3, 2007, after the expiration of the timeline requirements for timely filing which occurred on July 9, 2007. Quenemoen indicated within her August 3, 2007 letter to USB that the original date of the Order was the operative date. Robert Lambert testified that the June 21, 2007, letter of USB’s president contained most of the requirements considered necessary for the letter to have been viewed as a petition for administrative proceedings and would have been so considered had the words “Petition for Hearing” appeared at the top of the page. He is also unaware of any prejudice that would result to the Department if the matter of penalty assessment against USB were permitted to proceed to a hearing on the merits of the matter. Quenemoen, in her deposition, opines she did not consider the June 21, 2007, letter to be a petition because she thought it lacked crucial items, such as an explanation of how the party’s substantial interests would be affected by the agency’s decision; disputed items of material fact; and a concise statement of ultimate facts alleged. Quenemoen’s August 3, 2007 letter to USB, inquired why USB had neither paid their penalty nor entered into a Payment Agreement Schedule for Periodic Payment of Penalty, pursuant to Section 440.107, Florida Statutes. The letter re-informed USB that it had 21 days from the receipt of the original Order of Penalty Assessment to file a petition for hearing. On August 23, 2007, the Department received a Petition for Hearing from USB’s counsel. The Department determined the Petition filed by USB met the content criteria but failed on timeliness as it was filed more than forty days past the deadline of July 9, 2007. USB, through the testimony of its President, Mr. Fulton, admitted that he was not “familiar with the law. I did not go look it up.” He also said, “I did not think I needed to go back and consult the textbook of the law.” When asked if he ever decided to consult with a lawyer during the 21-day period, he stated he did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Financial Services enter a Final Order that Petitioner, U.S. Builders, L.P. (USB), timely and effectively requested a final hearing on the issues related to the Order of Penalty Assessment issued by the Department of Financial Services, Division of Workers’ Compensation (Department) in accordance with the requirements of Chapter 120.57, Florida Statutes, and proceed forthwith with provision of such proceedings. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2008. COPIES FURNISHED: William H. Andrews, Esquire Coffman, Coleman, Andrews and Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Marc A. Klitenic, Esquire Kandel, Klitenic, Kotz and Betten, LLP 502 Washington Avenue Suite 610 Towson, Maryland 21204 Kristian E. Dunn, Esquire Anthony B. Miller, Esquire Department of Financial Services Division of Workers’ Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Daniel Y. Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 The Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers’ compensation as alleged in the Stop-Work Order and 3rd Amended Order of Penalty Assessment, and if so, what penalty is appropriate.
Findings Of Fact The parties agree to the following facts as set forth in the Joint Pre-hearing Stipulation: The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and corporate officers. Respondent, a Florida corporation, was engaged in business operations in the state of Florida from November 16, 2010, through November 15, 2013. Respondent received a Stop-Work Order and Order of Penalty Assessment from the Department on November 15, 2013. Respondent received a Request for Production of Business Records for Penalty Assessment Calculation from the Department on November 15, 2013. Respondent received a 3rd Amended Order of Penalty Assessment from the Department on March 11, 2014. Throughout the penalty period, Respondent was an “employer” in the state of Florida, as that term is defined in section 440.02(16), Florida Statutes (2013).1/ All of the individuals listed on the penalty worksheet of the 3rd Amended Order of Penalty Assessment were “employees” in the state of Florida (as that term is defined in section 440.02(15)) of Respondent during the periods of non-compliance listed on the penalty worksheet. None of the individuals listed on the penalty worksheet attached to the 3rd Amended Order of Penalty Assessment had a valid Florida workers' compensation coverage exemption at any time during the periods of non-compliance listed on the penalty worksheet. Respondent did not secure the payment of workers' compensation insurance coverage, nor have others secured the payment of workers' compensation insurance coverage, for any of the individuals named on the penalty worksheet attached to the 3rd Amended Order of Penalty Assessment during the periods of non-compliance listed on the penalty worksheet. None of the individuals listed on the penalty worksheet of the 3rd Amended Order of Penalty Assessment were “independent contractors” (as that term is defined in section 440.02(15)(d)1.) hired by Respondent for any portion of the periods of non- compliance listed on the penalty worksheet. Wages or salaries were paid by Respondent to the individuals listed on the penalty worksheet, whether continuously or not, during the corresponding periods of noncompliance listed on the penalty worksheet. The gross payroll amounts (column “c” of the penalty worksheet of the 3rd Amended Order of Penalty Assessment) for the employees listed on the penalty worksheet are correct. Respondent was engaged in business operations in the state of Florida as an auto recycling store from November 16, 2010, through November 15, 2013. The store operated by Respondent is called A&A Auto Recycling and is located at 5507 9th Street East, Bradenton, Florida. The store consists of an enclosed retail area and an open yard area where vehicles are kept. John Austerman is the business owner and president. Respondent employed at least ten employees at any given time during the period from November 16, 2010, through November 15, 2013. Employees working in the retail area check inventory on the computer, perform customer service, and sell parts. Employees working in the retail area also “mark parts,” such as fenders, when customers bring them in for purchase from the area on Respondent’s property where vehicles are kept (the yard). Respondent does not dispute the assignment of classification code 3821 to the employees identified as such on the penalty worksheet of the 3rd Amended Order of Penalty Assessment. Respondent does dispute, however, that classification code 3821 should be assigned to John Austerman. John Austerman conducts physical inventories of approximately 100 vehicles a month that arrive at the store for recycling. Mr. Austerman’s inventories include opening the doors and popping the engine hoods of the vehicles. Mr. Austerman walks the auto salvage yard approximately once per week for ten to fifteen minutes so as to ensure that the property is being properly maintained. In addition to vehicle and property inspections, Mr. Austerman also performs customer service, accounting, and clerical work for the business. The National Council of Compensation Insurance (“NCCI”), is the rating bureau that establishes class codes for the workers' compensation industry in Florida. NCCI classification code 3821 provides as follows: Code 3821 contemplates dismantling or wrecking of used automobiles, motorcycles and trucks for the salvaging of parts. Auto dismantling may consist of the simple removal of saleable parts by means of hand tools and retaining the frames and bodies for future sale to outside scrap collectors. Some dismantlers will also break up stripped chassis and bodies with acetylene torches or shears to be sold in the form of iron or steel scrap. In addition to the dismantling work, salvaged parts may be reconditioned or repaired and sold over the counter. New parts may also be stocked. In the case of larger risks, a number of other functions may often be performed such as auto repairing, gas station operations, glass reconditioning, brake relining, cylinder re-boring, piston grinding, and battery or tire repair. * * * Special Conditions: Store employees who do not engage in other operations and have no yard exposure are classified to Code 8046. NCCI classification code 8046 provides as follows: Code 8046 applies to those employees of automobile recyclers who are engaged in store operations and have no yard exposure to the yard. Duties conducted by these store employees include but are not limited to greeting and assisting customers, checking inventory on computers, pulling smaller parts from an inside parts warehouse an [sic] taking payments. These store employees may appear to have clerical duties but are properly classified to Code 8046. Refer to Code 3821 for all other employees of automobile recyclers. NCCI classification code 8046 applies to auto salvage employees who only work in the retail area of the store and have no yard exposure. For auto salvage employees, like John Austerman, who engage in other salvage related operations and who have exposure to the yard, code 3821 is the proper classification for such employees. Respondent asserts that all employees assigned the classification code of 8046 on the 3rd Amended Order of Penalty Assessment should be classified as code 8810 because these employees have clerical duties. The credible evidence does not support such a finding.2/ As previously noted, NCCI classification code 8046 provides: “These store employees may appear to have clerical duties but are properly classified to Code 8046.” Petitioner correctly assigned Respondent’s employees appearing on the 3rd Amended Order of Penalty Assessment to classification code 8046. Petitioner assigned the proper classification codes to each of Respondent’s employees. Respondent, in its Proposed Recommended Order, makes no argument with respect to the approved manual rates and only argues that the 3rd Amended Order of Penalty Assessment be amended “to reflect that all employees on the penalty calculation worksheet not classified as ‘3821’ [be] properly classified as ‘8810.’” Given that there is no dispute regarding whether Petitioner applied the appropriate approved manual rates, it is determined that Petitioner assigned the appropriate approved manual rates to assess the workers' compensation insurance coverage premium amounts that Respondent would have paid during the penalty period had Respondent obtained workers' compensation insurance coverage.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order assessing a penalty in the amount of $99,571.67 against Respondent, Austerman, Inc., for its failure to secure and maintain required workers’ compensation insurance for its employees. DONE AND ENTERED this 28th day of October, 2014, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 28th day of October, 2014.
The Issue Whether the doctrine of equitable tolling applies to excuse the late filing of Respondent's Election of Rights form.
Findings Of Fact The Department is the state agency charged with regulating massage establishments pursuant to chapter 20 and section 20.43, Florida Statutes. Respondent is licensed as a massage establishment in the State of Florida, having been issued license number MM 33902. Respondent's address of record is 440 South Military Trail, West Palm Beach, Florida 33415. The August 5, 2016, Letter and First Response On or about August 5, 2016, the Department issued a letter to Respondent at its address of record ("August 5 Letter"), advising Respondent that the Department was conducting an investigation based on an internally generated complaint that on July 24 and August 1, 2016, Respondent ran an advertisement on www.backpage.com ("Backpage") with images "of Asia women dressed in swim wear and lingere," which was considered by the Department as designed to "induce sexual misconduct." The August 5 Letter also alleges that Respondent failed to include a license number in the advertisement. The advertisement in question was not provided to Respondent by the Department. The August 5 Letter advised Respondent that it could submit a written response within 20 days of receiving the letter and that it was not possible to estimate how long it would take to complete the investigation. Respondent, who at that time was owned by Ms. Jing Hui Guo, contacted a retired attorney, Jule Paulk, regarding the correspondence from the Department. Ms. Guo only reads and speaks Mandarin. Ms. Guo had purchased the business, formerly known as "Ocean Spa," about 15 months prior. She was not familiar with the advertising content of Ocean Spa. When she purchased the business, Ms. Guo changed the name to Kai Xin Spa, Inc., and she kept paying the invoice from the prior advertising agency. After receipt of the August 5 Letter, Ms. Guo provided a copy of it to her advertising agency and directed that they remove and/or stop running the offending advertisements. According to her testimony, she approved new advertisement content with the business license number and with none of the cited offending content. That new advertisement ran as of August 8, 2016. On August 15, 2016, Mr. Paulk drafted a written response to the August 5 Letter ("First Response Letter") on behalf of Respondent. The First Response Letter was electronically signed by Ms. Guo and it contained the new advertisement which included the business license number and removed the women in bathing suits and lingerie. The First Response Letter states: We have taken immediate steps to address the issues in the letter mentioned above. We will continue to do so until all issues are resolved. We hope this letter will show our sincere efforts to bring our business into compliance. (Emphasis added). Ms. Guo sold the business in the beginning of 2017 to Mr. Haibing Wang. Hearing nothing further from the Department prior to sale, she reasonably assumed the Department approved of her new advertising and that matter was closed. The April 12, 2018, Letter and Second Response Despite receipt of the First Response Letter, the Department continued to "investigate" Respondent's alleged misconduct. On April 12, 2018, 20 months after its original notification to Respondent, the Department issued a second letter to Respondent ("April 12 Letter"), advising Respondent that the matter was still ongoing. The Department's April 12 Letter was identical to the August 5 Letter except for the date. When it was received by the new business owner, Mr. Wang, he forwarded it to Ms. Guo telling her that it was her problem because she did not tell him about the investigation at the time of the sale. Ms. Guo provided the letter to Mr. Paulk. Mr. Paulk recognized the letter as identical to the August 5 Letter, but noted there was a new document included, dated August 1, 2016, which was styled "Health Care Provider Complaint Form." This form states, "[w]e will send a copy of the Complaint to the health care provider if the complaint is assigned for investigation." The Complaint with the Department of Health was certainly assigned for investigation in 2016, but this form was not given to Respondent until 2018. Mr. Paulk also noted the following additional discrepancies in the Health Care Provider Complaint form: It was dated August 16, 2016, but attached to a letter dated April 12, 2018. The form identified the reason for the complaint to be that of advertising. The box for sexual contact was not checked. Attached to the Health Care Provider Complaint Form was a document signed by Mr. Kevin Lapham dated August 1, 2016. Such document identified the same advertisements, which were the subject of the prior investigation which were published on August 1 and June 24, 2016, and which he thought was resolved. Further, the initial August 5 Letter included an attachment which specifically references advertising to induce sexual misconduct and identifies specific Florida Statutes. However, the Department's April 12 Letter, nor the attachments thereto, reference sexual misconduct or a statute dealing with sexual misconduct. On or about April 16, 2018, Mr. Paulk submitted a written response to the Department's April 12 Letter ("Second Response Letter"), on behalf of Respondent. The letter was electronically signed by Ms. Guo. The Second Response Letter states: Your letter of April 12, 2018 refers to 2016 Case Number 2016-20171. By our letter of August 15, 2016 (copy enclosed), we responded to this Case, assuring your office that we had taken steps to correct the concerns you had listed. We are not sure why you are still addressing this same Case. We assumed that our August 15, 2016 letter had satisfied the concerns. In addition, the concerns expressed in your August, 2016 letter involved a Backpage ad. We corrected those issues at that time. Now, Backpage has been removed from the internet. We hope this information resolved this matter. Please contact us if otherwise. Ms. Guo received no response from the Department to her Second Response Letter. The Administrative Complaint On June 28, 2018, the Department filed an Administrative Complaint against Respondent, alleging that Respondent inappropriately advertised to induce sexual misconduct and failed to include its license number in its advertising. The cover letter included with the Administrative Complaint stated: Please review the attached documents and return the Election of Rights form to my attention. You must sign the Election of Rights form and return the completed form to my office within twenty-one (21) days of the date you receive it. Failure to return this form within twenty-one (21) days may result on the entry of a default judgement against you without hearing your side of the case. (Emphasis added). The cover letter also referenced an enclosed Voluntary Relinquishment form for consideration described as "an offer to resolve this matter without the necessity of further proceedings and the expense of further proceedings." The Administrative Complaint contained a Notice of Rights section, which informed Respondent that "[a] request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code." The EOR form included with the Complaint stated: In the event that you fail to make an election in this matter within twenty-one (21) days from receipt of the Administrative Complaint, your failure to do so may be considered a waiver of your right to elect a hearing in this matter, pursuant to Rule 28-106.111(4), Florida Administrative Code, and the Board may proceed to hear your case. (Emphasis added). The Department mailed the Administrative Complaint, a Notice of Rights, and an EOR form via certified U.S. mail to Respondent's address of record. On July 14, 2018, Mr. Wang received the Administrative Complaint and gave the Administratve Complaint and EOR to Ms. Guo, who provided the documents to Mr. Paulk. Mr. Paulk consulted with counsel for Respondent, Mr. Samuel Holland, Esquire, about the EOR. Mr. Holland completed and signed the EOR on August 8, 2018. However, neither Mr. Paulk nor Mr. Holland returned the completed EOR to the Department until August 17, 2018, nine days later. Mr. Paulk testified that this nine-day delay was because he and Mr. Holland were "confused," "not quite sure how to proceed the best way," that he "needed to collect [his] thoughts," and that he needed to "do a little more looking into [the] matter" in order to decide the "best approach." This confusion is understandable and in large part created by the Department's own doing. At no time did the Department supply Respondent with a copy of the alleged offending advertisement. In fact, even the Administrative Complaint does not attach the advertisement at issue. The allegations in the Administrative Complaint deviate from the matters of which Respondent was provided notice were under investigation. For the first time, the Department indicates a concern that the advertisement contained hearts with arrows going through them, women in "sexually suggestive poses," and massage therapists described as "hot," "beautiful," and "young." The EOR and the penalty for failure to return such was not stated in absolute terms. The EOR form states, "[f]ailure to return this form within twenty-one days may result in the entry of a default judgment against you without hearing your side of the case." The use of the word "may" detracts from any finality to the consequences of failure to return the signed EOR. This sentence also suggests that a hearing will be conducted with or without the return of the EOR. Eventually, Mr. Paulk and Mr. Holland decided the best course of action would be to submit the EOR because "any further delay might be harmful." Twenty-one days from July 14, 2018, was August 3, 2018. The Department ultimately received the EOR via regular mail on August 20, 2018; 16 days after it was due. On or about September 12, 2018, the Department sent a letter to Mr. Holland ("Denial Letter"), denying Respondent's request for a formal administrative hearing. On October 15, 2018, the Department received a letter from Respondent ("October 9 Letter") contesting the Denial Letter. In the October 9 Letter, counsel for Respondent, Mr. Holland, explained the reason for the untimely filing and asked for a hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's request for a formal hearing under section 120.57(1), Florida Statutes, be permitted in accordance with the doctrine of equitable tolling. DONE AND ENTERED this 21st day of August, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 21st day of August, 2019.
The Issue At issue in this proceeding is whether the Respondent, Forever Floors and More, Inc. ("Forever Floors"), failed to abide by the coverage requirements of the Workers' Compensation Law, chapter 440, Florida Statutes by not obtaining workers' compensation insurance for its employees, and, if so, whether the Petitioner properly assessed a penalty against the Respondent pursuant to section 440.107, 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 coverage for their employees and corporate officers. § 440.107, Fla. Stat. Forever Floors is a Florida corporation. The Division of Corporations’ “Sunbiz” website indicates that Forever Floors was first incorporated on February 4, 2012, and remained active as of the date of the hearing. Forever Floors’s principal office is at 8205 Oak Bluff Road, Saint Augustine, Florida 32092. Forever Floors is solely owned and operated by Christopher Bohren. Mr. Bohren is the president and sole officer of the corporation. Forever Floors was actively engaged in performing tile installation during the two-year audit period from April 3, 2013, through April 2, 2015. John C. Brown is a government operations consultant for the Department. During the period relevant to this proceeding, Mr. Brown was a Department compliance investigator assigned to Duval County. Mr. Brown’s job included conducting random compliance investigations and investigating referrals made to his office by members of the public. Mr. Brown testified that as an investigator, he would enter worksites and observe the workers and the types of work they were doing. On April 2, 2015, Mr. Brown visited a worksite at 3714 McGirts Boulevard in Jacksonville. He observed two workers installing tile in a shower in an older single-family residence that was undergoing renovations. Mr. Brown identified himself to the two workers and then inquired as to their identities and employment. Mr. Bohren replied that he was the company officer and that his company had an exemption from the requirement to provide workers’ compensation insurance coverage. Mr. Bohren identified the other worker as Dustin Elliott and stated that Mr. Elliott had worked for Forever Floors for about eight months. Mr. Bohren told Mr. Brown that he paid Mr. Elliott sometimes by check and sometimes with cash. After speaking with Mr. Bohren, Mr. Brown returned to his vehicle to perform computer research on Forever Floors. He consulted the Sunbiz website for information about the company and its officers. His search confirmed that Forever Floors was an active Florida corporation and that Christopher Bohren was listed as its registered agent, and as president of the corporation. No other corporate officers were listed. Mr. Brown also checked the Department's Coverage and Compliance Automated System ("CCAS") database to determine whether Forever Floors had secured the payment of workers' compensation insurance coverage or had obtained an exemption from the requirements of chapter 440. CCAS is a database that Department investigators routinely consult during their investigations to check for compliance, exemptions, and other workers' compensation related items. CCAS revealed that Forever Floors had no active workers' compensation insurance coverage for its employees and that no insurance had ever been reported to the state for Forever Floors. There was no evidence that Forever Floors used an employee leasing service. Mr. Bohren had an active exemption as an officer of the corporation pursuant to section 440.05 and Florida Administrative Code Rule 69L-6.012, effective September 24, 2013, through September 24, 2015. There was no exemption noted for Dustin Elliott. Based on his jobsite interviews with the employees and Mr. Bohren, and his Sunbiz and CCAS computer searches, Mr. Brown concluded that as of April 2, 2015, Forever Floors had an exemption for Mr. Bohren but had failed to procure workers’ compensation coverage for its employee, Dustin Elliott, in violation of chapter 440. Mr. Brown consequently issued a Stop- Work Order that he personally served on Mr. Bohren on April 2, 2015. Also on April 2, 2015, Mr. Brown served Forever Floors with a Request for Production of Business Records for Penalty Assessment Calculation, asking for documents pertaining to the identification of the employer, the employer's payroll, business accounts, disbursements, workers' compensation insurance coverage records, professional employer organization records, temporary labor service records, documentation of exemptions, documents relating to subcontractors, documents of subcontractors' workers’ compensation insurance coverage, and other business records, to enable the Department to determine the appropriate penalty owed by Forever Floors. Mr. Brown testified, and Mr. Bohren confirmed, that Mr. Bohren provided no records in response to the Request for Production. The case file was assigned to a penalty calculator, who reviews the records and calculates the penalty imposed on the business. Mr. Brown did not state the name of the person assigned to calculate the penalty in this case. Anita Proano, penalty audit supervisor for the Department, later performed her own calculation of the penalty as a check on the work of the penalty calculator. Ms. Proano testified as to the process of penalty calculation. Penalties for workers' compensation insurance violations are based on doubling the amount of evaded insurance premiums over the two- year period preceding the Stop-Work Order, which in this case was the period from April 3, 2013, through April 2, 2015. § 440.107(7)(d), Fla. Stat. Because Mr. Bohren had no payroll records for himself or Mr. Elliott on April 2, 2015, the penalty calculator lacked sufficient business records to determine the company’s actual gross payroll on that date. Section 440.107(7)(e) provides that where an employer fails to provide business records sufficient to enable the Department to determine the employer’s actual payroll for the penalty period, the Department will impute the weekly payroll at the statewide average weekly wage as defined in section 440.12(2), multiplied by two.1/ In the penalty assessment calculation, the Department consulted the classification codes and definitions set forth in the SCOPES of Basic Manual Classifications (“Scopes Manual”) published by the National Council on Compensation Insurance (“NCCI”). The Scopes Manual has been adopted by reference in rule 69L-6.021. Classification codes are four-digit codes assigned to occupations by the NCCI to assist in the calculation of workers' compensation insurance premiums. Rule 69L- 6.028(3)(d) provides that "[t]he imputed weekly payroll for each employee . . . shall be assigned to the highest rated workers' compensation classification code for an employee based upon records or the investigator's physical observation of that employee's activities." Ms. Proano testified that the penalty calculator correctly applied NCCI Class Code 5348, titled “Ceramic Tile, Indoor Stone, Marble, or Mosaic Work,” which “applies to specialist contractors who perform tile, stone, mosaic, or marble work.” The corresponding rule provision is rule 69L- 6.021(2)(aa). The penalty calculator used the approved manual rates corresponding to Class Code 5348 for the periods of non- compliance to calculate the penalty. On May 22, 2015, the Department issued an Amended Order of Penalty Assessment in the amount of $23,538.34, based on Mr. Bohren’s imputed wages for the periods not covered by his exemption and the imputed wages for Mr. Elliott for the entire penalty period. Mr. Bohren was served with the Amended Order of Penalty Assessment on June 8, 2015. The evidence produced at the hearing established that Ms. Proano utilized the correct class codes, average weekly wages, and manual rates in her calculation of the Amended Order of Penalty Assessment. The Department has demonstrated by clear and convincing evidence that Forever Floors was in violation of the workers' compensation coverage requirements of chapter 440. Dustin Elliott was an employee of Forever Floors on April 2, 2015, performing services in the construction industry without valid workers' compensation insurance coverage. The Department has also demonstrated by clear and convincing evidence that the penalty was correctly calculated through the use of the approved manual rates and the penalty calculation worksheet adopted by the Department in rule 69L-6.027. Ms. Proano’s recalculation of the penalty confirmed the correctness of the penalty calculator’s work. Forever Floors could point to no exemption, insurance policy, or employee leasing arrangement that would operate to lessen or extinguish the assessed penalty. At the hearing, Christopher Bohren testified that he is the sole proprietor of Forever Floors and that Mr. Elliott had only worked for him for six-to-eight months, mostly on a part-time basis, as of April 2, 2015. He stated that the penalty assessed in this case is more than he has made from his start-up business. After his discussion with Mr. Brown, he immediately procured workers’ compensation insurance coverage for Mr. Elliott and intends to stay within the ambit of the law in the future. Mr. Bohren testified that he was unable to access his business records because they were with his ex-wife, from whom he had an apparently acrimonious departure. Mr. Bohren’s testimony elicited sympathy, but the equitable considerations that he raised have no effect on the operation of chapter 440 or the imposition of the penalty assessed pursuant thereto.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, 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, assessing a penalty of $23,538.34 against Forever Floors and More, Inc. DONE AND ENTERED this 28th day of October, 2015, 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 28th day of October, 2015.
The Issue The issue to determine in this matter is whether equitable tolling applies to excuse Respondent Mac Mar, LLC’s, late-filed petition for administrative review.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers’ compensation insurance coverage for their employees. See § 440.107(3), Fla. Stat. Respondent is a corporation located in Clermont, Florida, engaged in the roofing industry. On March 5, 2018, Department Investigator Keith Howe conducted a workers’ compensation compliance check at a residence located in Daytona Beach, Florida, where Petitioner was installing a new roof. The purpose of Mr. Howe’s visit was to determine whether Petitioner had workers’ compensation coverage for its employees, as required under chapter 440. Mr. Howe made a preliminary determination that persons working at the residence were not covered by workers’ compensation insurance. After Mr. Howe’s visit, on March 6, 2018, the Department issued and served on Respondent (via hand-delivery) a Stop-Work Order and Request for Production of Business Records for Penalty Assessment Calculation. The Stop-Work Order alleged that Respondent failed to secure the payment of workers’ compensation insurance for those individuals at the Daytona Beach worksite, in violation of sections 440.10(1), 440.38(1), and 440.107(2). On June 27, 2018, the Department served Respondent with the Amended Order via certified mail. The Amended Order includes two deadlines. The deadline referenced on the first page of the Amended Order states: Pursuant to Rule 69L-6.028, Florida Administrative Code, if the Division imputes the employer’s payroll, the employer shall have twenty days after service of the first amended order of penalty assessment to provide business records sufficient for the Division to determine the employer’s payroll for the period requested in the business records request for the calculation of the penalty. The employer’s penalty will be recalculated pursuant to subsection 440.107(7)(d), F.S., only if the employer provides all such business records within the twenty days after service of the first amended order of penalty assessment. Otherwise, the first amended order of penalty assessment will remain in effect. The Amended Order’s other deadline is found in the “Notice of Rights” on the second page, and states: You must file the petition for hearing so that it is received within twenty-one (21) calendar days of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399- 0390. FAILURE TO FILE A PETITION WITHIN THE TWENTY- ONE (21) DAYS OF RECEIPT OF THIS AGENCY ACTION CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. Ms. Anderson, who previously served as an attorney for the Department, testified that the Department assigned her to a separate workers’ compensation matter involving Respondent (case 18-069-D7). Ms. Anderson testified that she contacted Ms. Lairsey, Respondent’s chief operating officer, on July 20, 2018, to discuss whether Respondent would agree to waive the 21- day deadline to file the petition in that matter. By that date more than 21 days had already passed from Respondent’s receipt of the Amended Order. Ms. Lairsey’s testimony confirms this conversation. Ms. Lairsey testified that she returned Ms. Anderson’s call, to discuss case 18-069-D7, as well as the instant case. At the time and date of this phone call, Respondent had not filed a petition for relief in the instant case, and the Department had therefore not assigned it to a Department attorney. During this telephone conversation, both Ms. Anderson and Ms. Lairsey testified that they discussed the potential for settlement in case 18-069-D7, and that Ms. Lairsey asked Ms. Anderson if the Department would consider consolidating that case with the instant case. Ms. Anderson testified that, during this telephone conversation, she was unaware of the instant case because Respondent had not yet filed a petition. After reviewing the Department’s database, Ms. Anderson testified that she discovered the Amended Order, but noted to Ms. Lairsey that Respondent had not yet filed a petition, and that if it did, the Department would consider it to be beyond the 21-day deadline, and thus late. Ms. Lairsey’s testimony is consistent with Ms. Anderson’s testimony concerning the discussion of the presumed lateness of the yet-to-be-filed petition in the instant case. Ms. Lairsey testified: So I understood that I was going to be late with the petition, or actually, I didn’t realize—I don’t remember—I didn’t know until that time that I was going to be late, but I wanted to know if I could get an extension of time or somehow find out a way to respond with why it was going to be late because of all the documentation that I needed to create the response. Ms. Anderson testified that she explained to Ms. Lairsey that because the Department would consider a petition in the instant case to be late-filed, it would issue an order to show cause, which “would give her a chance to respond to the Department and tell us why she believed her petition was late and to see if any of those reasons would amount to anything under the law where the Department could, in fact, look at the petition.” Ms. Lairsey testified that she believed that Ms. Anderson told her that a “response” would be accepted after the filing deadline. Ms. Lairsey also testified that she needed to obtain, review, and provide documentation concerning the allegations in the Amended Order to provide the Department with an “honest answer.” Ms. Lairsey also testified that she did not understand the deadlines stated in the Amended Order, although she ultimately testified, “Yes. I knew that it was—this is the one that was the 21 days from filing[.]”1/ Ms. Anderson testified that Respondent’s deadline for filing a petition in the instant matter was July 18, 2018. The undersigned finds that the Department served the Amended Order by certified mail that was received on June 27, 2018, and that July 18, 2018, is 21 days after the service of the Amended Order. The Department received Respondent’s petition for hearing on July 25, 2018, which was seven days after the filing deadline.2/ Thereafter, on August 7, 2018, the Division issued an Order to Show Cause, providing Respondent 21 days to show cause why the petition should not be dismissed as untimely, and to address whether any basis existed for the Department to equitably toll the 21-day deadline for filing the petition. On August 28, 2018, Respondent responded to the Order to Show Cause. The response states, in part: In this instance, there is sufficient evidence to support equitable tolling. Amanda Lairsey, Chief Operations Officer of MAC MAR, LLC, has been in continuous contact with the Division of Worker’s Compensation regarding matters that had arisen with MAC MAR, LLC. Specifically, Ms. Lairsey had been in communication with Taylor R. Anderson, Attorney for Workers Compensation. It is imperative that it be stressed in abundant clarity that MAC MAR, LLC does not believe that there was any responsibility or inaction or inappropriate action undertaken by Attorney Anderson. In Ms. Lairsey’s experience, she had been extremely helpful and professional in helping MAC MAR, LLC resolve its issues for which she was representing the Division. No representative of the Division was appointed or communicated for MAC MAR, LLC for the present matter. When Ms. Lairsey received the amended Order of Penalty Assessment on June 27, 2018, she asked Attorney Anderson whether or not she could be the assigned representative for the Division in this matter and explained that MAC MAR, LLC would need additional time to provide adequate information to the Division. Attorney Anderson indicated that she could not be the representative. Attorney Anderson stated that Ms. Lairsey would need to respond to the Order and that, if she failed to do so timely, that MAC MAR, LLC would receive a letter (which is apparently the Order to Show Cause) and would have to explain why it was filed untimely. Although it is apparent now that Attorney Anderson was properly communicating the requirements, Ms. Lairsey understood the statement to mean that MAC MAR, LLC could respond, and if it failed to do so timely, an explanation would be sufficient. Although it appears that it was not Attorney Anderson’s intention to lull Ms. Lairsey into thinking she could respond even if it was untimely, that is the unfortunate effect of Ms. Lairsey’s understanding of the communication from Ms. Anderson. Ms. Lairsey is not an attorney and did not appreciate the significance of the requirements of Equitable Tolling. The undersigned finds that Ms. Lairsey’s testimony at the final hearing contradicts Respondent’s response to the Order to Show Cause. Ms. Lairsey testified that she understood that Respondent’s petition in the instant matter was late. She testified that she did not understand the deadlines contained in the Amended Order, although Respondent apparently was able to timely file a petition in case 18-069-D7. And, Ms. Lairsey testified that she was aware that she would have an opportunity to respond to the Department’s Order to Show Cause to explain why the Respondent was filing a late petition--not that she believed she had the opportunity to have the Department accept a late- filed petition. Ms. Lairsey testified that she needed additional time to obtain, review, and provide documentation concerning the allegations in the Amended Order, in order to submit an accurate petition. However, the undersigned finds that Florida Administrative Code Rule 28-106.2015(5)(a) through (e) sets forth the substantive requirements for a petition for hearing. The subsections of this rule do not require a respondent to submit or identify documents or records relevant to the dispute. The undersigned finds that neither the Department nor Ms. Anderson lulled Respondent into inaction. Rather, the evidence adduced at hearing demonstrated that Ms. Anderson adequately explained to Ms. Lairsey that any petition filed in this matter was beyond the filing deadline, which Ms. Lairsey acknowledged she understood. Ms. Anderson explained that if Respondent filed a petition beyond the deadline, it would have an opportunity to respond to an Order to Show Cause, which it did. The undersigned further finds that Respondent has provided no evidence that it was, in some extraordinary way, prevented from exercising its rights, or that it timely asserted its rights mistakenly in a wrong forum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Department dismiss Respondent’s petition for hearing as untimely. DONE AND ENTERED this 31st day of May, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2019.
The Issue The issue to be determined is whether the doctrine of equitable tolling should excuse the late filing of a Petition for Administrative Hearing filed with Respondent by Petitioner Florists Mutual Insurance Company.
Findings Of Fact Respondent, the Department, is the state agency charged with resolving disputes over reimbursement for costs of medical services provided to injured workers under workers? compensation law. Petitioner Florists was in a reimbursement dispute with Kendall. The Department issued a Determination that Florists should reimburse Kendall the sum of $100,894.54. Florists received notice of the Reimbursement Dispute Determination on April 8, 2013, via United States Postal Service certified mail. The Reimbursement Dispute Determination included a Notice of Rights advising Florists that a request for an administrative hearing on the Determination had to be received by the Department within 21 days of Florists? receipt of the Determination. It noted in bold print that failure to file a petition within that time period constituted waiver of the right to a hearing. Florists? Initial Petition was sent via certified mail from the Tallahassee office of Petitioner?s counsel located at 1701 Hermitage Boulevard, Suite 103, Tallahassee, Florida, on or about Thursday, April 25, 2013. The filing deadline was the following Monday. The Initial Petition was appropriately addressed to “Julie Jones, CP, FRP, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida.” The Initial Petition was received by the Department on Wednesday, May 1, 2013, at 10:11 a.m. The Department determined that the Initial Petition was untimely, as it was received on the twenty-third day after Florists received notice, making it two days late. Petitioner is a workers? compensation insurance carrier whose substantial interests are affected by Respondent?s Reimbursement Dispute Determination that it must reimburse health care provider Kendall $100,894.54. That determination will become final if Petitioner is determined to have waived its right to a hearing. The distance between the Tallahassee office of Petitioner?s counsel and the office of the Department is approximately four miles. From review of the United States Postal Service tracking information, it appears that after the Initial Petition was mailed, it was processed in Louisville, Kentucky, before it returned to Tallahassee, Florida, for delivery, indicating a journey of some 1,050 miles over the course of six days. Late delivery of the Petition by the United States Postal Service did not prevent Florists from asserting its rights.
The Issue The issue for determination is whether the original and amended petitions for hearing were filed late and should be dismissed pursuant to Section 120.569(2)(c), Florida Statutes (1997), and Florida Administrative Code Rule 62-110.106(3)(b). (All statutory references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to those promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact On May 10, 1999, Sea Ray filed an application for an air construction permit with the Department. The application seeks a permit to construct a new fiberglass boat manufacturing facility in Merritt Island, Brevard County, Florida. On October 7, 1999, the Department issued an Intent to Issue Air Construction Permit (the "Notice of Intent"). On the same date, the Department mailed copies of the Notice of Intent, a Public Notice of Intent to Issue Air Construction Permit (the "Public Notice"), and a draft permit to interested persons including Sea Ray. On October 11, 1999, Petitioner telephoned the Department's Bureau of Air Regulation and requested a copy of correspondence between Sea Ray and the Department. Petitioner also requested that the Department place Petitioner on the list of interested persons. On October 11, 1999, the Department mailed Petitioner, by certified mail return receipt requested, copies of the Notice of Intent, the Public Notice, and the draft permit. Petitioner received the documents from the Department on October 14, 1999, and executed the return receipt on the same date. Both the Notice of Intent and the Public Notice included a notice of rights to substantially affected parties. In relevant part, the notice of rights stated: A person whose substantial interests are affected by the proposed permitting . . . may petition for an administrative proceeding (hearing) under Sections 120.569 and 120.57 of the Florida Statutes. The petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station #35, Tallahassee, Florida, 32399-3000. . . . Petitions filed by any persons other than those entitled to written notice under Section 120.60(3) . . . must be filed within fourteen days of publication of the public notice or within fourteen days of receipt of this notice of intent, whichever occurs first. . . . The failure of any person to file a petition within the appropriate time period shall constitute a waiver of that person's right to request an administrative determination (hearing) under Sections 120.569 and 120.57, or to intervene in this proceeding and participate as a party to it . . . . (emphasis supplied) Petitioner incorrectly concluded that the 14-day filing requirement did not begin to run when he received the Notice of Intent on October 14, 1999, but began to run on a future date when the Department published the Public Notice in the newspaper. In reaching that conclusion, Petitioner did not rely on any representations by any agent or employee of the Department or Sea Ray. Neither Respondent made any representations to Petitioner. On October 31, 1999, the Department published its Public Notice in The Florida Today. No substantive differences exist between the Public Notice published on October 31, 1999, and the Notice of Intent received by Petitioner on October 14, 1999. Petitioner had 14 days from October 14, 1999, or until October 28, 1999, to file his original petition for hearing. Petitioner filed his original petition on November 15, 1999. The original petition was filed 18 days late. On December 15, 1999, the Department dismissed the original petition on the grounds that the petition failed to provide the information required in Section 120.569(2)(c) and the rules incorporated therein. The dismissal was without prejudice as to the grounds for dismissal as required by Section 120.569(2)(c). The dismissal gave Petitioner 15 days from December 21, 1999, the date in the certificate of service, to file an amended petition curing the informational defects in the original petition. The dismissal gave Petitioner until January 5, 2000, to file an amended petition for hearing. Petitioner filed the amended petition one day late on January 6, 2000. Even if the original petition were deemed timely filed on November 15, 1999, the 14th day after publication of the Public Notice on October 31, 1999, the amended petition was not timely filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing the original and amended petitions as untimely filed. DONE AND ENTERED this 4th day of April, 2000, in Tallahassee, Leon County, Florida. 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 4th day of April, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Clarence Rowe 418 Pennsylvania Avenue Rockledge, Florida 32955 Gary Hunter, Jr., Esquire Angela R. Morrison, Esquire Hopping, Green, Sams and Smith, P.A. Post Office Box 6526 123 South Calhoun Street (32301) Tallahassee, Florida 32314
The Issue The issue for determination is whether Petitioner's claim is barred by Section 760.11(7), Florida Statutes (1999), because Petitioner filed a request for hearing more than 35 days after the time prescribed in Section 760.11(3) for a determination of reasonable cause by the Florida Commission on Human Relations (the "Commission"). (All statutory references are to Florida Statutes (1999) unless otherwise stated).
Findings Of Fact Respondent employed Petitioner until June 15, 1995. Petitioner filed a Charge of Discrimination with the Commission on July 10, 1995. The Charge of Discrimination alleges that Petitioner was forced to leave her position of employment because of Petitioner's religion. The Charge of Discrimination alleges, in relevant part, that Respondent terminated Petitioner's employment because she is Christian and "always trying to convert people." Time Limits The Charge of Discrimination was timely filed pursuant to Section 760.11(1). The filing date of July 10, 1995, fell within 365 days of June 15, 1995, which is the date of the alleged discrimination. Section 760.11(3) authorizes the Commission to issue a determination of reasonable cause within 180 days of July 10, 1995; the date Petitioner filed the Charge of Discrimination. Counting July 11, 1995, as the first day of the 180-day time limit, Section 760.11(3) authorized the Commission to determine reasonable cause no later than January 6, 1996. The Commission issued a Notice of Determination: No Cause on January 31, 2000. Section 760.11(7) required Petitioner to file a request for hearing within 35 days of January 6, 1996. Counting January 7, 1996, as the first day of the 35-day period, Section 760.11(7) required Petitioner to file a request for hearing no later than February 10, 1996. Petitioner did not timely file a request for hearing. Petitioner first requested a hearing in the Petition for Relief filed on February 18, 2000. Petitioner filed her request for hearing approximately 1,468 days late and 1,503 days after the expiration of the 180-day time limit prescribed in Section 760.11(3). Petitioner did not respond to the Order to Show Cause to explain why she filed the request for hearing late. Section 760.11(7) statutorily bars Petitioner's claim. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this proceeding as barred by Section 760.11(7). DONE AND ENTERED this 6th day of June, 2000, in Tallahassee, Leon County, Florida. 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 6th day of June, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Maria J. Green 1800 Biscayne Drive, Apartment 4 Winter Park, Florida 32789 Stephen H. Price, Esquire Cramer and Price, P.A. 1420 Edgewater Drive Olando, Florida 32804 Don Reynolds, Director American Home Companions, Inc. Post Office Box 547062 Orlando, Florida 32854
