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 Did Respondent, Tarpon Liquors LLC (Tarpon Liquors), timely request a hearing to contest the Amended Order of Penalty Assessment issued by Petitioner, Department of Financial Services, Division of Workers' Compensation (Division)?
Findings Of Fact The Division is the state agency responsible for enforcing the statutory requirement that employers secure payment of workers' compensation for the benefit of their employees. § 440.107(3), Fla. Stat. (2019). Christina Brigantty is a Division compliance investigator. She checks employers for compliance with Florida's workers' compensation law. If an investigator concludes that an employer is not in compliance, she issues a Stop-Work Order along with a penalty assessment for the asserted periods of non- compliance. The Division determines periods of non-compliance by examining a business's records obtained from the business through a business records request. Investigator Brigantty performed a compliance check of Tarpon Liquors on July 31, 2018. As a result of that check, the Division issued Tarpon Liquors a Stop-Work Order and Order of Penalty Assessment. Subsequently the Division issued an Amended Order of Penalty Assessment dated December 13, 2018. It included a Stop- Work Order and Notice of Rights advising that Tarpon Liquors had 21 days from receipt of the Amended Order to file a petition for a hearing challenging the assessment. The Notice of Rights also stated that failure to request a hearing during that period waived the right to challenge the assessment. The Division transmitted the Amended Order to Tarpon Liquors, attention Ronald J. Maniscalco, registered agent, at 907 Narragansett Lane, Key Largo, Florida, by certified mail. The Narragansett Lane address was the residence of Mr. Maniscalco and Tarpon Liquors' managing member, Mr. Maniscalco's wife, Lorraine Maniscalco. The Division received the certified mail receipt from the postal service with the name Lorraine Maniscalco signed in the box for "Agent", and December 28, 2018, indicated as the date of delivery. Tarpon Liquors maintains that the signature on the certified mail receipt for the Amended Order is not Ms. Maniscalco's signature. Mr. Maniscalco believed that the mail carrier forged the signature. Mr. Maniscalco thought the signature was a forgery because Lorraine Maniscalco always signs her signature the same way and her signature does not match the signature on the certified mail receipt. Mr. Maniscalco filed a complaint with the United States Postal Service, which investigated the matter. The investigation included questioning the mail carrier who could not remember the certified mail document in question. The postal service reached no conclusions. During December 2018, Mr. and Ms. Maniscalco were in the process of moving. They were traveling between Tampa, Punta Gorda, and Key Largo frequently. Mr. and Ms. Maniscalco are unsure whether they were home December 28, 2018, and if they were, when they may have been there. In addition, their Narragansett Lane house was for sale. Consequently, they had to vacate the house frequently when the realtor was showing the house to potential buyers. There is a possibility the realtor signed in an effort to be helpful. Mr. Maniscalco, Ms. Maniscalco, and Ms. Shea, their daughter and also a manager of Tarpon Liquors, are all confident that the signature on the certified mail receipt is not Ms. Maniscalco's signature. There are significant differences between the signature on the receipt and Ms. Maniscalco's signature on her driver's license and on the sample signature admitted into evidence. The bottom loop of the "L" is notably different. The angle of the "M" is different. In addition, Ms. Maniscalco's "M" drops below the signature line while the "M" on the receipt does not. The evidence does not prove who signed the receipt. The weight of the credible, persuasive evidence, however, proves that Ms. Maniscalco did not sign it. In June 2019, Ms. Shea learned of the Amended Order in conversations with Investigator Brigantty. On July 3, 2019, Ms. Brigantty provided Ms. Shea a copy of the Amended Order, including the Notice of Rights. This was the first time that Tarpon Liquors received written notice of the Amended Order and the right to request a hearing. On July 9, 2019, the Division received a request for hearing dated July 5, 2019, from Mr. Maniscalco, challenging the Amended Order. This is more than 21 days after the December 28, 2018, date on the receipt for certified mail. The request for hearing stated: I never received notice of the Amended Order of Penalty Assessment that was sent on 12/12 and signed for on 12/28. The signature on the Return Receipt is not Lorraine Maniscalco's signature. Please see attached Drivers licenses for verification of Lorraine Maniscalco's actual signature for comparative purposes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, accept the request for hearing of Tarpon Liquors LLC as timely. DONE AND ENTERED this 3rd day of January, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 3rd day of January, 2020. COPIES FURNISHED: Leon Melnicoff, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Ronald Maniscalco Tarpon Liquors LLC 1421 Pine Island Court Punta Gorda, Florida 33950 Lena Marie Shea, Manager Tarpon Liquors LLC 4978 Edgewater Lane Oldsmar, Florida 34677-6342 Rean Knopke, Esquire Department of Financial Services 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 The issues in this case are whether Respondent violated chapter 440, Florida Statutes, and Florida Administrative Code Chapter 69L-6, by failing to maintain workers' compensation coverage for its employees, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, Department of Financial Services, Division of Workers' Compensation, is the state agency responsible for enforcing the requirement that employers in the State of Florida secure the payment of workers' compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent, Door Depot of Palm Beach, Inc., is a Florida for-profit corporation engaged in the sale and installation of doors, which is encompassed within the construction industry.2/ Ms. Morris is Respondent's owner and sole corporate officer. Failure to Secure Workers' Compensation Coverage As a result of a public referral, Petitioner initiated an investigation to determine whether Respondent had the required workers' compensation coverage for its employees. Michelle Jimerson, a Compliance Investigator employed by Petitioner, researched Petitioner's Coverage and Compliance Automated System ("CCAS") internal database regarding workers' compensation coverage and compliance, and determined that Respondent did not have current workers' compensation coverage and had not previously secured coverage. Ms. Jimerson's research further revealed that Ms. Morris, as Respondent's sole corporate officer, had a current workers' compensation exemption covering herself, and that she had maintained such exemptions since August 2002. On May 11, 2011, Ms. Jimerson conducted an on-site visit to Respondent's place of business. At that time, Petitioner issued a Request for Business Records to Respondent, seeking copies of payroll documents; bank statements; business tax receipts; check stubs and check ledgers; names of subcontractors; records of payments or disbursements to subcontractors; contracts; and proof of workers' compensation coverage for, or exemptions held by, the subcontractors. Respondent produced the requested records. From a review of the records, Ms. Jimerson determined that Respondent had contracted with three subcontractors, Breeze Image, Inc.,3/ Mike Jacobs, and Ross Whitehouse, to provide construction industry services (specifically, door repair and installation work), between April 22, 2011, and May 10, 2011. Ms. Jimerson's review of Petitioner's CCAS database revealed that none of these subcontractors was exempt from the workers' compensation coverage requirement during the period in which they contracted with Respondent to provide construction industry services, that none had secured workers' compensation coverage for themselves, and that Respondent had not secured workers' compensation coverage for them during this period. Because Respondent came into compliance with chapter 440 during Petitioner's investigation and before initiation of this enforcement action, Petitioner did not issue a Stop-Work Order.4/ Nancy Morris testified on Respondent's behalf. She admitted that Respondent had not secured workers' compensation coverage for these subcontractors. She credibly testified that she had asked if they were exempt from the workers' compensation coverage requirement, that they had told her they were, and that she had believed them. Penalty Assessment On May 24, 2011, Petitioner issued to Respondent a Request for Production of Business Records for Penalty Assessment Calculation, seeking copies of payroll documents; bank statements; business tax receipts; check stubs and check ledgers; names of subcontractors; records of payments or disbursements to subcontractors; contracts; and proof of workers' compensation coverage for, or exemptions held by, the subcontractors. Respondent produced the requested documents. Using these documents, Petitioner's Penalty Calculator, Teo Morel, calculated the penalty assessment for Respondent. Section 440.107(7)(d)1., establishes a formula for determining the penalty to be assessed against an employer who fails to secure workers' compensation as required by chapter 440. Specifically, the penalty is one and a half (1.5) times the amount the employer would have paid in premium when applying approved manual rates to the employer's payroll during periods for which it failed to secure the payment of workers' compensation within the preceding three-year period, or $1000, whichever is greater. Petitioner has adopted a penalty worksheet for calculating the penalty prescribed by section 440.107(7)(d)1. See Fla. Admin. Code R. 69L-6.027. Ms. Morel used the worksheet in calculating the penalty to be assessed against Respondent. Specifically, Ms. Morel identified the subcontractors for which Respondent had not secured workers' compensation and identified the applicable construction industry classification NCCI Manual code for each (here, classification code 5102). For each subcontractor, she identified the periods of noncompliance for the preceding three-year period as required by section 440.107(7)(d)1., determined the subcontractor's gross payroll amount and divided that amount by 100, then multiplied this amount by the NCCI Manual rate applicable to the 5102 classification code. This calculation yielded the workers' compensation premium Respondent should have paid for each subcontractor, had Respondent complied with chapter 440. The premium amount was then multiplied by 1.5 to determine the total penalty amount to be assessed. Pursuant to the information Respondent provided, and performing the statutorily prescribed calculation, Petitioner initially calculated the total penalty to be assessed as $20,266.59. Respondent subsequently provided additional business records consisting of raw job worksite notes. These documents showed that the subcontractors were paid a total contract amount for each job. However, the notes did not indicate the cost of materials per contract, and Respondent was unable to provide records containing this information. Because the cost of materials for each contract was indeterminable, pursuant to Florida Administrative Code Rule 69L-6.035(1)(i), Petitioner assumed that the materials cost constituted 20 percent of each contract, deducted this amount from each subcontractor's gross payroll, and recalculated the premium amount. As a result, the total penalty assessment was reduced by 20 percent, to $16,213.30. Respondent disputes the amount of the amended penalty assessment on the basis that materials costs for each contract constituted more than 20 percent of each contract's amount. However, Ms. Morris was unable to provide any evidence substantiating the cost of materials for each contract. Ms. Morris credibly testified that if Respondent is required to pay the assessed penalty of $16,213.30, it likely will be forced to go out of business. Ms. Morris fully cooperated with Petitioner throughout its compliance investigation leading to this enforcement action against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED that Petitioner enter a Final Order determining that Respondent violated the requirement in chapter 440, Florida Statutes, to secure workers' compensation coverage; imposing a total penalty assessment of $16,213.30; and providing that Petitioner will execute with Respondent a Payment Agreement Schedule for Periodic Payment of Penalty, pursuant to Florida Administrative Code Rule 69L-6.025, under which Respondent shall make a down payment to Petitioner of ten percent of the total assessed penalty amount, which is $1,621.33, and shall repay the remaining penalty in 60 consecutive monthly installments. DONE AND ENTERED this 30th day of January, 2012, in Tallahassee, Leon County, Florida. S Cathy M. Sellers 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 26th day of January, 2012.
The Issue The issues are whether Respondent violated Chapter 440, Florida Statutes, by failing to obtain workers' compensation insurance, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees as required by Section 440.107, Florida Statutes (2008). Respondent is a Florida Corporation that engages in the painting business. Abner Gonzalez is Respondent's President. Painting is a workplace operation that satisfies the criteria of the term "construction industry" as set forth in the Basic Manual of the National Council on Compensation Insurance, Inc. (NCCI). On May 15, 2009, Petitioner's investigator, Allen DiMaria conducted an investigation at the intersection of Normandy Boulevard and Guardian Drive in Jacksonville, Florida. Mr. DiMaria observed one worker on a ladder and another worker on the ground painting a block and masonry entrance to a development. The workers at the site identified themselves to Mr. DiMaria as Abner Gonzalez and César Silvestre. Mr. Gonzalez stated that Respondent had a contract to paint the wall and that he and Mr. Silvestre were Respondent's employees. Mr. Gonzalez stated that, as a corporate officer, he had an exemption for workers' compensation. Mr. Gonzalez admitted that Respondent had not secured workers' compensation for Mr. Silvestre. Mr. DiMaria was able to confirm that Mr. Gonzalez had a current valid construction exemption, specifically for painting. However, Mr. Gonzalez did not have a painting exemption for the entirety of the prior three years. On May 15, 2009, Mr. DiMaria issued and personally served on Respondent a Stop-Work Order and Order of Penalty Assessment for failure to comply with statutory requirements. Mr. DiMaria also issued Respondent a Request for Production of Business Records for Penalty Assessment Calculation. Because Respondent did not promptly provide Petitioner with the requested business records, Petitioner's staff imputed Respondent's payroll and calculated the penalty as the average weekly wage rate multiplied by 1.5. pursuant to Section 440.107, Florida Statutes. Petitioner then issued the Amended Order of Penalty Assessment in the amount of $26,180.24 on June 11, 2009. Respondent subsequently provided Petitioner with business records. The records included Respondent's bank statements for the prior three years and Respondent's 2007 Employer's Quarterly Federal Tax Returns. The records also showed that Respondent provided employment without workers' compensation insurance to persons other than Mr. Gonzalez and Mr. Silvestre during the prior three years. On June 26, 2009, Petitioner issued the Second Amended Order of Penalty Assessment based upon Respondent's business records in the amount of $7,641.14. The Second Amended Order of Penalty Assessment, showing the reduced penalty, was served on Respondent by certified mail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent issue a final order affirming the Stop-Work Order and Second Amended Order of Penalty Assessment in the amount of $7,641.14. DONE AND ENTERED this 14th day of October, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 14th day of October, 2009. COPIES FURNISHED: Paige Billings Shoemaker, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Abner Gonzales 1924 Firefly Drive Green Cove Springs, Florida 32043 Tracy Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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
The Issue Whether KP Roofing Masters, LLC ("Respondent"), failed to secure the payment of workers' compensation coverage for its employees, and if so, whether the Department of Financial Services, Division of Workers' Compensation ("Department"), correctly calculated the penalty imposed against Respondent.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440 that employers in Florida secure workers' compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent was a business providing services in the construction industry. Its principal office is located at 7100 Northwest 12th Street, Suite 210, Miami, Florida 33126. The Investigation. On September 26, 2014, the Department's compliance investigator, Cabrera, observed two individuals performing roofing work on a house in Coral Gables, Florida. Investigator Cabrera interviewed the individuals, identified as Rodolfo Moscoso and Jairo Alvarado. Both men informed Cabrera that they worked for Respondent. Cabrera then checked the permit board located at the jobsite and confirmed that Respondent pulled the permit for the roofing work. After gathering the information at the jobsite, Cabrera consulted the Division of Corporations’ website to determine, inter alia, the identity of Respondent's corporate officers. Cabrera found that Jorge Cappelleti ("Cappelleti") was Respondent's sole corporate officer. Cabrera then consulted the Department's Coverage and Compliance Automated System ("CCAS") for proof of workers' compensation coverage and for exemptions associated with Respondent. An exemption is a method in which a corporate officer can exempt himself from the requirements of chapter 440. See § 440.05, Fla. Stat. (2014). CCAS is the Department's internal database that contains workers' compensation insurance policy information and exemption information. Insurance providers are required to report coverage and cancellation information, which is then input into CCAS. Cabrera's CCAS search revealed that Respondent did not have a workers' compensation policy or an employee leasing policy. Cabrera additionally discovered that Cappelleti had a valid exemption. Cabrera then called Cappelleti who confirmed that the two men at the jobsite were his employees and that the employees were not covered by workers' compensation insurance. Based on the information gathered, on September 26, 2014, Cabrera issued Respondent a Stop-Work Order and Order of Penalty Assessment. On September 29, 2014, Cabrera served Respondent with the Stop-Work Order and Order of Penalty Assessment. Cabrera simultaneously served Respondent with the Request for Production of Business Records for Penalty Assessment Calculation ("BRR"). The BRR requested documents that would enable the Department to determine Respondent's payroll for the time period of September 27, 2012, through September 26, 2014. In response to the BRR, Respondent ultimately provided the Department with bank statements, check details, a general ledger, and other records. Penalty Calculation. In October 2014, the Department assigned Penalty Auditor Ruzzo to calculate the penalty assessed against Respondent. Ruzzo reviewed the business records produced by Respondent and properly identified the amount of gross payroll paid to Respondent's employees on which workers' compensation premiums had not been paid. Ruzzo researched Respondent and Respondent's subcontractors to determine those periods when they were not compliant with chapter 440 during the audit period. Ruzzo determined that Respondent was not compliant for the period of September 27, 2012, through September 26, 2014. However, Respondent's corporate officer was not included in the penalty for the periods in which he had an exemption. Additionally, Respondent's compliant subcontractors were not included in the penalty. The business records ultimately produced by Respondent were sufficient for Ruzzo to calculate a penalty for the entire audit period, except for September 26, 2014. For that day, Ruzzo imputed the payroll. On June 2, 2015, based on Ruzzo's calculations, the Department issued a 4th Amended Order of Penalty Assessment to Respondent. On September 1, 2015, the 4th Amended Order of Penalty Assessment was served on Respondent. The 4th Amended Order of Penalty Assessment assessed a penalty of $68,525.42. For the penalty assessment calculation, Ruzzo consulted the classification codes listed in the Scopes® Manual, which has been adopted by the Department of Financial Services 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. Ruzzo assigned the class codes based on information provided to him by Cappelleti. Ruzzo then utilized the corresponding approved manual rates for those classification codes and the related periods of non-compliance. Ruzzo applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7)(d)l. and rules 69L-6.027 and 69L-6.028 to determine the penalty. The Penalty Associated With Subcontractor Emerald. Respondent only disputes the portion of the penalty associated with its subcontractor, Emerald, in the amount of $8,434.86 for the period of non-compliance from January 1, 2014, through April 8, 2014. Section 440.10(1) provides in relevant part: In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment. A contractor shall require a subcontractor to provide evidence of workers’ compensation insurance. A subcontractor who is a corporation and has an officer who elects to be exempt as permitted under this chapter shall provide a copy of his or her certificate of exemption to the contractor. Noticeably absent from the statute is the time period within which this evidence of coverage must be provided to the contractor or the nature of the required evidence. Rule 69L-6.032(1) provides: In order for a contractor who is not securing the payment of compensation pursuant to Section 440.38(1)(a), F.S. to satisfy its obligation to obtain evidence of workers’ compensation insurance or a Certificate of Election to Be Exempt from a subcontractor pursuant to Section 440.10(1)(c), F.S., such contractor shall obtain and provide to the Department, when requested, the evidence specified in subsections (2), (3), (4) or (5) herein. (Emphasis added). Rule 69L-6.032 sets forth the contractor requirements for obtaining evidence that the subcontractor possesses workers' compensation insurance. If a subcontractor is a client company of a leasing company, such as Emerald, rule 69L-6.032(3) specifies that the evidence shall be a Certificate of Liability Insurance ("Certificate"). According to the deposition testimony of Cappelleti (Exhibit 11, offered into evidence by the Department), when Emerald began providing services to Respondent in January 2014, Emerald represented that its workers were covered by a policy through an employee leasing company. In fact, a Certificate, obtained by Respondent sometime before it was requested by the Department, indicates that Emerald had coverage for the period of January 1, 2014, through December 31, 2014. This period encompasses the period of time for which the Department now seeks to penalize Respondent. Although Respondent obtained proof of coverage from Emerald, this occurred after Emerald was paid by Respondent for work occurring between January 1, 2014, and April 8, 2014. Ruzzo checked the CCAS and found that the Certificate for Emerald was inaccurate. Emerald apparently did not join the leasing company insurance policy until April 9, 2014. Although a contractor does not have a duty to further investigate when presented with what appears to be a valid Certificate, Ruzzo's calculations penalized Respondent for the period of non-compliance of Emerald because Respondent did not seek the proof of coverage until after Emerald's workers were already on the job for Respondent. The Department has demonstrated by clear and convincing evidence that Respondent employed Mr. Moscoso and Mr. Alvarado on September 26, 2014; that Respondent was engaged in the construction industry in Florida during the period of September 27, 2012, to September 26, 2014; and that Respondent failed to carry workers' compensation insurance to cover its employees as required by Florida's Workers' Compensation Law from September 27, 2012, to September 26, 2014. The Department has demonstrated by clear and convincing evidence that Ruzzo correctly utilized the methodology specified in section 440.107(7)(d)l. However, the Department failed to show by clear and convincing evidence that a penalty for Emerald's period of non-compliance, in the amount of $8,434.86, should be included in the total penalty assessment of $68,525.42.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order determining that Respondent, KP Roofing Masters, LLC, violated the requirement in chapter 440, Florida Statutes, to secure workers' compensation coverage, and imposing upon it a total penalty assessment of $60,090.56. DONE AND ENTERED this 2nd day of March, 2016, 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 2nd day of March, 2016.
The Issue The issue is whether Respondent's untimely request for an administrative hearing is excused by the doctrine of equitable tolling.
Findings Of Fact 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. To enforce this requirement, the Department performs random inspections of job sites and investigates complaints concerning potential violations of workers' compensation rules. On January 16, 2018, Hemant Balgobin, a Department compliance inspector, conducted a compliance investigation at a job site in Bartow, Florida. The inspection resulted in a determination by Mr. Balgobin that Respondent was the responsible entity supervising the job site, and three individuals employed by Respondent did not have the required workers' compensation coverage. On January 17, 2018, a Stop-Work Order and Request for Production of Business Records was served on Ms. Morales. After the business records produced by Ms. Morales were reviewed by the Department, on May 21, 2018, the Department served her with a Penalty Assessment proposing to assess the company a penalty in the amount of $55,187.12. The Penalty Assessment contained a Notice of Rights, which stated that, if Ms. Morales wished to contest the penalty, she must file a "petition for hearing so that it is received by the Department within twenty-one (21) calendar days of your receipt of this agency action." It also stated that the petition "must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0300." Finally, the Notice of Rights stated in bold capital letters, "FAILURE TO FILE A PETITION WITHIN TWENTY-ONE (21) CALENDAR DAYS OF RECEIPT OF THIS AGENCY ACTION CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THIS AGENCY ACTION." This meant that a petition had to be filed and in the hands of the Agency Clerk no later than June 11, 2018. The petition was not filed until June 15, 2018. Because the petition was filed four days late, the Department issued an Order to Show Cause, which required Ms. Morales to show cause why her petition should not be dismissed. In her response, Ms. Morales asserted that she did not have a fax number for filing a petition, so she contacted Mr. Balgobin, who told her to fax it to him and "they would fax it to the right person." She essentially contends that this statement led her to believe that by filing the petition with Mr. Balgobin, it would be treated as a timely filing. The Department construed this conversation as possibly excusing the late filing and forwarded the matter to DOAH to resolve that narrow issue. The record shows that on June 14, 2018, or after the filing deadline was missed, Ms. Morales telephoned Mr. Balgobin to ask "who to send it to," as there was no email or fax number in the Notice of Rights. She testified that he told her to fax the petition to the Fort Myers office and it would be forwarded to Tallahassee. After speaking with Mr. Balgobin, she prepared a petition and then faxed it to the Fort Myers office the following day, June 15, 2018. In his testimony, Mr. Balgobin did not say whether he spoke with Ms. Morales on June 14, 2018, or if he told her to fax the petition to him. However, it is reasonable to find that he did, because she faxed a petition to the Fort Myers office on June 15, 2018, and it then was forwarded by that office to Tallahassee. However, all of these events occurred after the deadline for filing a petition. There is no credible evidence that Mr. Balgobin gave Ms. Morales a specific date when the petition was due, and he made no statements that caused her to miss the deadline. In fact, on the few occasions that he spoke with Ms. Morales throughout this process, he always reminded her to read the Notice of Rights. It is not the practice of compliance inspectors (or any other employee in the Fort Myers district office) to tell persons when their petitions must be filed. At hearing, Ms. Morales also contended that one reason for the delay in filing a petition was because the Notice of Rights listed only a street address in Tallahassee, and not a fax number or email address. She explained that she attempted to telephone the Agency Clerk in Tallahassee to secure that information, but was unsuccessful. She gave no explanation as to why the petition was not sent by mail to the Tallahassee address pursuant to the instructions in the Notice of Rights. The undersigned has not credited Ms. Morales' assertion that she was confused on where and how to send a petition, given the clear instructions in the Notice of Rights. Ms. Morales also spoke by telephone with Ms. Almas, a Department regulatory consultant in the Fort Myers office. The record is confusing on the gist of those conversations because Ms. Morales was unclear about when the calls occurred, and whether the calls related to the deadline for filing business records to take advantage of a penalty discount, filing her request for a hearing, or filing a response to the Order to Show Cause. The record is clear, however, that Ms. Almas telephoned Ms. Morales six days after the Stop-Work Order was issued in January 2018 to remind her that all business records must be filed within ten days in order to be eligible for a discount. According to Ms. Almas, a second telephone conversation took place on May 31, 2018, when Ms. Morales contacted her to ask why she did not receive a discount on the penalty. At hearing, Ms. Morales contended that during that call, Ms. Almas provided her with a specific date on which the petition must be filed, and that she timely filed her petition in accordance with those instructions. However, she could not recall the date allegedly given to her by Ms. Almas. Ms. Almas denied giving Ms. Morales a specific due date for the petition and says she only referred her to the Notice of Rights. She also denied providing any misleading information that would cause Ms. Morales to late-file her petition. On this issue, Ms. Almas' testimony is credited. Finally, Ms. Morales acknowledged that she read the Notice of Rights and she understood she had 21 calendar days in which to request a hearing. She admitted that nothing prevented her from filing a petition in a timely manner, but she "was just trying to see how [she] would do it," since this was the first time she was involved in an administrative proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order dismissing Respondent's request for a hearing as untimely. DONE AND ENTERED this 7th day of January, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 7th day of January, 2019.
