The Issue At issue in this proceeding is whether the Respondent, George Washington Beatty, III, failed to abide by the coverage requirements of the Workers' Compensation Law, chapter 440, Florida Statutes, by not obtaining workers' compensation insurance for himself and/or his 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. George Washington Beatty, III, is a sole proprietor who works as a painter and general construction handyman in the vicinity of Panama City. The types of work performed by Mr. Beatty are properly considered construction industry work. Mr. Beatty’s business is not incorporated. He has no regular employees other than himself. His Form 1099-MISC tax forms indicate that he was actively engaged in performing construction work during the two-year audit period from September 9, 2012, through September 8, 2014. Carl Woodall is a Department compliance investigator based in Panama City. On September 8, 2014, Mr. Woodall drove up to 1803 New Hampshire Avenue in Lynn Haven, a vacant house where he saw a “for sale” sign and indications of work being performed on the house: the garage door was open and contained a great deal of painting materials such as drop cloths and paint buckets. A work van and a pickup truck were parked in the driveway. Mr. Woodall testified that as he walked up to the front door, he could see someone inside on a ladder, painting the ceiling. As Mr. Woodall started to go in the front door, he was met by Mr. Beatty on his way out the door. Mr. Woodall introduced himself and gave Mr. Beatty his business card. Mr. Woodall asked him the name of his business and Mr. Beatty stated that he did not know what Mr. Woodall was talking about. Mr. Beatty then told Mr. Woodall that he worked for Brush Stroke Painting but that he was not working this job for Brush Stroke. Mr. Beatty told Mr. Woodall that he was helping out a friend. Mr. Woodall asked whether Mr. Beatty had workers’ compensation insurance coverage, and Mr. Beatty again stated that he did not know what Mr. Woodall was talking about. He was just there helping out his friend, the owner of the house. Mr. Woodall asked Mr. Beatty to give him the owner’s name and phone number. Mr. Beatty went out to his van to retrieve the information. While Mr. Beatty was out of the house, Mr. Woodall took the opportunity to speak with the three other men working in the house. The first man, whom Mr. Woodall approached, was immediately hostile. He said that he was not working for anyone, that he was just helping someone out. He walked out of the house and never returned while Mr. Woodall was there. Mr. Woodall walked into the kitchen and spoke to a man who was on a ladder, painting. The man identified himself as Dennis Deal and stated that he was working for Mr. Beatty for eight dollars an hour in cash. He told Mr. Woodall that he helped out sometimes when Mr. Beatty needed help. Before Mr. Woodall could speak to the third person, Mr. Beatty came back into the house with the owner’s contact information. Mr. Beatty continued to deny that he was paying anyone to work in the house. With Mr. Beatty present, Mr. Woodall spoke with the third man, Michael Leneave, who stated that Mr. Beatty was paying him ten dollars an hour in cash. Mr. Woodall then took Mr. Beatty over to Mr. Deal, who reiterated that Mr. Beatty was paying him eight dollars an hour. Mr. Beatty responded that he could not believe the men were saying that because he had never told them a price. Mr. Woodall asked Mr. Beatty to identify the man who left the house, and Mr. Beatty told him it was Tommy Mahone. Mr. Beatty stated that Mr. Mahone had a bad temper and probably left to get a beer. After speaking with Mr. Beatty and the other men, Mr. Woodall phoned Brian Daffin (Mr. Daffin), the owner of the house. Mr. Woodall knew Mr. Daffin as the owner of an insurance company in Panama City. Mr. Daffin told Mr. Woodall that Mr. Beatty was painting his house, but was evasive as to other matters. Mr. Woodall stated that as the owner of an insurance company, Mr. Daffin was surely familiar with workers’ compensation insurance requirements and that he needed a straight answer as to whether Mr. Daffin had hired Mr. Beatty to paint the house. Mr. Daffin stated that he did not want to get Mr. Beatty in trouble, but finally conceded that he had hired Mr. Beatty to paint the house. Of the other three men, Mr. Daffin was familiar only with Mr. Mahone. He told Mr. Woodall that he had hired Mr. Beatty alone and did not know the details of Mr. Beatty’s arrangements with the other three men. At the hearing, Mr. Beatty testified that he was asked by Mr. Daffin to help him paint his house as a favor. Mr. Beatty had met Mr. Daffin through James Daffin, Mr. Daffin’s father and Mr. Beatty’s friend. No one was ever paid for anything. Mr. Beatty stated that he took the lead in speaking to Mr. Woodall because he was the only one of the four men in the house who was sober. He told Mr. Woodall that he was in charge because Mr. Daffin had asked him to oversee the work. None of the three men alleged to have been working for Mr. Beatty testified at the hearing. Mr. Daffin did not testify. Mr. Beatty’s testimony is thus the only direct evidence of the working arrangement, if any, which obtained between Mr. Beatty and the three other men present at the house on September 8, 2014. The only evidence to the contrary was Mr. Woodall’s hearsay testimony regarding his conversations with the three men and with Mr. Daffin. Mr. Woodall checked the Department's Coverage and Compliance Automated System ("CCAS") database to determine whether Mr. Beatty 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 Mr. Beatty had no exemption or workers' compensation insurance coverage for himself or any employees. There was no evidence that Mr. Beatty used an employee leasing service. Based on his jobsite interviews with the alleged employees and Mr. Beatty, his telephone conversation with Mr. Daffin, and his CCAS computer search, Mr. Woodall concluded that as of September 8, 2014, Mr. Beatty had three employees working in the construction industry and that he had failed to procure workers’ compensation coverage for himself and these employees in violation of chapter 440. Mr. Woodall consequently issued a Stop-Work Order that he personally served on Mr. Beatty on September 8, 2014. Also on September 8, 2014, Mr. Woodall served Mr. Beatty with a Request for Production of Business Records for Penalty Assessment Calculation, asking for payroll and accounting records to enable the Department to determine Mr. Beatty’s payroll and an appropriate penalty for the period from September 9, 2012, through September 8, 2014. Mr. Beatty provided the Department with no documents in response to the Request for Production. On September 24, 2014, the Department issued an Amended Order of Penalty Assessment that assessed a total penalty of $141,790.96. The Amended Order of Penalty Assessment was served on Mr. Beatty via hand-delivery on October 16, 2014. 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 September 9, 2012, through September 8, 2014. § 440.107(7)(d), Fla. Stat. Because Mr. Beatty initially provided no payroll records for himself or the three men alleged to have worked for him on September 8, 2014, the penalty calculator lacked sufficient business records to determine an 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 Florida Administrative Code 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 5474, titled “Painting NOC & Shop Operations, Drivers,” which is defined in part as “the general painting classification. It contemplates exterior and interior painting of residential or commercial structures that are constructed of wood, concrete, stone or a combination thereof regardless of height.” The corresponding rule provision is rule 69L-6.021(2)(jj). The penalty calculator used the approved manual rates corresponding to Class Code 5474 for the periods of non-compliance to calculate the penalty. Subsequent to issuance of the Amended Order of Penalty Assessment, Mr. Beatty submitted to the Department, IRS Wage and Income Transcripts for the tax years of 2011, 2012, and 2013, but not for tax year 2014. These Transcripts consisted of Form 1099-MISC forms completed by the business entities for which Mr. Beatty had performed work during the referenced tax years. The Department used the Transcripts to calculate the penalty for the 2012 and 2013 portions of the penalty period and imputed Mr. Beatty’s gross payroll for the 2014 portion pursuant to the procedures required by section 440.107(7)(e) and rule 69L-6.028. On August 25, 2015, the Department issued a Second Amended Order of Penalty Assessment in the amount of $58,363.88, based on the mixture of actual payroll information and imputation referenced above. At the final hearing convened on November 3, 2015, Mr. Beatty stated that he now had the Wage and Income Transcript for tax year 2014 and would provide it to the Department. At the close of hearing, the undersigned suggested, and the Department agreed, that the proceeding should be stayed to give the Department an opportunity to review the new records and recalculate the proposed penalty assessment. On December 21, 2015, the Department issued a Third Amended Order of Penalty Assessment in the amount of $9,356.52. Ms. Proano herself calculated this penalty. The Third Amended Order assessed a total penalty of $9,199.98 for work performed by Mr. Beatty during the penalty period, based on the Wage and Income Transcripts that Mr. Beatty submitted. The Third Amended Order assessed a total penalty of $156.54 for work performed by Messrs. Mahone, Deal, and Leneave on September 8, 2014. This penalty was imputed and limited to the single day on which Mr. Woodall observed the men working at the house in Lynn Haven. Mr. Beatty’s records indicated no payments to any employee, during the penalty period or otherwise. 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 Third Amended Order of Penalty Assessment. The Department has demonstrated by clear and convincing evidence that Mr. Beatty was in violation of the workers' compensation coverage requirements of chapter 440. The Department has also demonstrated by clear and convincing evidence that the penalty was correctly calculated through the use of the approved manual rates, business records provided by Mr. Beatty, and the penalty calculation worksheet adopted by the Department in rule 69L-6.027. However, the Department did not demonstrate by clear and convincing evidence that Tommy Mahone, Dennis Deal, and Michael Leneave were employees of Mr. Beatty on September 8, 2014. There is direct evidence that Mr. Woodall saw the men working in the house, but the only evidence as to whether or how they were being paid are the hearsay statements of the three men as relayed by Mr. Woodall. The men were not available for cross-examination; their purported statements to Mr. Woodall could not be tested in an adversarial fashion. Mr. Beatty’s testimony that the men were not working for him and that he was merely supervising their work as a favor to Mr. Daffin is the only sworn, admissible evidence before this tribunal on that point. Mr. Beatty was adamant in maintaining that he did not hire the men, and his testimony raises sufficient ambiguity in the mind of the factfinder to preclude a finding that Messrs. Mahone, Deal, and Leneave were his employees. Mr. Beatty could point to no exemption or insurance policy that would operate to lessen or extinguish the assessed penalty as to his own work. The Department has demonstrated by clear and convincing evidence that Respondent was engaged in the construction industry in Florida during the period of September 9, 2012, through September 8, 2014, and that Respondent failed to carry workers’ compensation insurance for himself as required by Florida’s Workers’ Compensation Law from September 9, 2012, through September 8, 2014. The penalty proposed by the Third Amended Order of Penalty Assessment should be reduced to $9,199.98, the amount sought to be imposed on Mr. Beatty himself.
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 $9,199.98 against George Washington Beatty, III. DONE AND ENTERED this 6th day of July, 2016, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2016.
The Issue The issue is whether Petitioner properly issued a Stop Work Order (SWO) and Second Amended Penalty Assessment against Respondent for failing to obtain workers' compensation insurance that meets the requirements of Chapter 440, Florida Statutes.
Findings Of Fact The Division is a component of the Department of Financial Services. It is responsible for enforcing the workers' compensation coverage requirements pursuant to Section 440.107, Florida Statutes. Nobel is a corporation operating as a moving business in Florida. Nobel was incorporated in 2004 and has been operating with an active status since its inception. Yaniv Dalei is the sole owner and president of Nobel. On June 9, 2009, Petitioner's investigator, Cesar Tolentino, visited 18255 Northeast 4th Court, North Miami, Florida ("business site"), after being referred to the location to investigate Respondent for compliance with the Florida Workers' Compensation Law. At the business site, Petitioner's investigator spoke to the manager, and saw the bookkeeper and the receptionist during the visit. Respondent was not at the business site, but was out of the country in Panama when Tolentino visited. Respondent spoke to Tolentino by telephone. Respondent informed Tolentino that he had five employees and that he "was in the process of obtaining workers' compensation insurance." While at the business site, Tolentino, used the Department of Financial Services' Coverage and Compliance Automated System (CCAS), and confirmed Respondent lacked insurance for the payment of workers' compensation coverage. Additionally, Petitioner's investigator verified through the CCAS that Nobel had not secured an employee leasing company to secure workers' compensation insurance for its employees as well as found that no exemptions from workers' compensation had been issued in connection with Nobel. Petitioner's investigator also performed a National Council on Compensation Insurance search on Nobel while at the business site. The search revealed that Nobel's employees had not had workers' compensation insurance in the past. On June 9, 2009, Petitioner's investigator issued a SWO and posted it at the business site. The SWO required Respondent to cease all business operations. On June 10, 2009, Respondent obtained a certificate of insurance for workers' compensation coverage with the effective date being the same. The policy was issued by One-Stop Insurance Agency. Respondent provided the certificate to Tolentino upon receipt. On June 12, 2009, Petitioner's investigator issued to Respondent a Division of Workers' Compensation Request for Production of Business Records for Penalty Assessment Calculation ("Request"). Soon thereafter, Respondent responded to the Request and provided Petitioner's investigator with the requested records. Petitioner's investigator forwarded the documents to Jorge Pinera, Petitioner's penalty calculator, for review. On or about July 17, 2009, Petitioner issued an Amended Order of Penalty Assessment assessing a penalty of $74,794.38 against Respondent. On August 10, 2009, Respondent entered into a payment agreement with the Division. Respondent provided the Division a $7,480.00 cashier's check and agreed to pay the remainder of the assessed penalty in monthly installments. As a result, Petitioner issued an Order of Conditional Release for Nobel to operate. On March 3, 2010, Respondent supplied an employee list with position descriptions to Petitioner. After reviewing the document, Petitioner changed some employee class codes to indicate a lower rate for some occupations and recalculated the penalty amount owed with the new class codes. For the recalculation, Petitioner's penalty calculator, Russell Gray, used the following calculation from the penalty worksheet: (a) Respondent's total gross payroll from June 10, 2006, through June 9, 2009, was $1,010,001.32; (b) the total workers' compensation premium that Respondent should have paid for its employees during the relevant time period was $45,483.96; and (c) the premium was multiplied by the statutory factor of 1.5 resulting in a penalty assessment in the amount of $68,224.81. The new calculation superseded the Amended Order and a Second Amended Order of Penalty Assessment was issued March 3, 2010, reducing Respondent's penalty to $68,224.81.1 During the hearing, Respondent admitted not having workers' compensation coverage for his employees. He said, "Yes, you're right I needed to have workers' compensation but as I said . . . I never knew that I needed to have workers' compensation . . . I'm here to ask for forgiveness."
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, issue a final order affirming the Stop Work Order and Second Amended Order of Penalty Assessment in the amount of $68,224.81. DONE AND ENTERED this 20th day of April, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 20th day of April, 2010.
The Issue Whether Fantastic Construction of Daytona, Inc. (“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 (“Petitioner” or “Department”), correctly calculated the penalty to be assessed against Respondent.
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 coverage for their employees. § 440.107(3), Fla. Stat. Respondent is a corporation engaged in the construction industry with headquarters in Daytona Beach, Florida. On November 19, 2015, the Department’s compliance investigator, Scott Mohan, observed five individuals framing a single-family house at 173 Botefuhr Avenue in Daytona, Florida. Mr. Mohan interviewed the individuals he observed working at the jobsite and found they were working for Respondent on lease from Convergence Leasing (“Convergence”). Mr. Mohan contacted Convergence and found that all of the workers on the jobsite were employees of Convergence, except Scott Barenfanger. Mr. Mohan also confirmed that the workers’ compensation policy for Convergence employees was in effect. Mr. Mohan reviewed information in the Coverage and Compliance Automated System, or CCAS, for Respondent. CCAS indicated Respondent’s workers were covered for workers’ compensation by Convergence and that Respondent’s contract with Convergence was active. Mr. Mohan also confirmed, through CCAS, that Foster Coleman, Respondent’s president, had previously obtained an exemption from the workers’ compensation requirement, but that his exemption expired on July 18, 2015. Mr. Mohan then contacted Mr. Coleman via telephone and informed him that one of the workers on the jobsite was not on the active employee roster for Convergence, thus Respondent was not in compliance with the requirement to obtain workers’ compensation insurance for its employees. Mr. Coleman reported to the jobsite in response to Mr. Mohan’s phone call. Mr. Coleman admitted that Mr. Barenfanger was not on the Convergence employee leasing roster. Mr. Coleman subsequently obtained an application from Convergence for Mr. Barenfanger and delivered it to his residence. Mr. Mohan served Mr. Coleman at the jobsite with a Stop-Work Order and a Request for Production of Business Records for Penalty Assessment Calculation (“BRR”). In response to the BRR, Respondent provided to the Department business bank statements, check stubs, copies of checks, certificates of liability insurance for various suppliers and subcontractors, and an employee leasing roster for most of the audit period from November 20, 2013, to November 19, 2015.1/ Respondent did not produce any check stubs for November and December 2013. Mr. Coleman testified, credibly, that his bookkeeper during that time period did not keep accurate records. Mr. Coleman did produce his business bank statements and other records for that time period. Based on the review of initial records received, the Department calculated a penalty of $17,119.80 and issued an Amended Order of Penalty Assessment in that amount on February 18, 2016. On March 17, 2016, Respondent supplied the Department with additional records. Altogether, Respondent submitted over 400 pages of records to the Department. The majority of the records are copies of check stubs for checks issued on Respondent’s business bank account. The check stubs are in numerical order from 1349 to 1879, and none are missing. The check stubs were hand written by Mr. Coleman, who is 78 years old. Some of his writing on the check stubs is difficult to discern. On April 4, 2016, following review of additional records received, the Department issued a Second Amended Order of Penalty Assessment in the amount of $9,629.36. The Department assigned penalty auditor Sarah Beal to calculate the penalty assessed against Respondent. Identification of Employees Ms. Beal reviewed the business records produced by Respondent and identified Respondent’s uninsured employees first by filtering out payments made to compliant individuals and businesses, and payments made for non-labor costs. However, the evidence demonstrated that the Department included on its penalty calculation worksheet (“worksheet”) payments made to individuals who were not Respondent’s employees. Neal Noonan is an automobile mechanic. Mr. Noonan was neither an employee of, nor a subcontractor for, Respondent for any work performed by Respondent during the audit period. Mr. Noonan performed repairs on Mr. Coleman’s personal vehicles during the audit period. Checks issued to Mr. Noonan during the audit period were for work performed on Mr. Coleman’s personal vehicles. The Department’s worksheet included a “David Locte” with a period of noncompliance from June 19, 2014, through December 31, 2014. The basis for including Mr. Locte as an employee was a check stub written on December 10, 2014, to a business name that is almost indiscernible, but closely resembles “Liete & Locke” in the amount of $100. The memo reflects that the check was written for “architect plans.” Mr. Coleman recognized the worksheet entry of David Locte as pertaining to David Leete, an architect in Daytona. Mr. Leete has provided architectural services to Respondent off and on for roughly five years. Mr. Leete signs and seals plans for, among others, a draftsman named Dan Langley. Mr. Langley provides drawings and plans for Respondent’s projects. When Respondent submits plans to a local governing body which requires architectural drawings to accompany permit applications, Mr. Leete reviews and signs the plans. Mr. Leete was neither an employee of, nor a subcontractor for, Respondent during the audit period. The single payment made to Mr. Leete by Respondent during the audit period was for professional architectural services rendered. Mr. Langley was neither an employee of, nor a subcontractor for, Respondent during the audit period. Payments made to Mr. Langley during the audit period were for professional drafting services rendered. Among the names on the Department’s worksheet is R.W. Kicklighter. Mr. Kicklighter is an energy consultant whose office is located in the same building with Mr. Leete. Mr. Kicklighter prepares energy calculations, based on construction plans, to determine the capacity of heating and air-conditioning systems needed to serve the planned construction. Mr. Kicklighter was neither an employee of, nor a subcontractor for, Respondent during the audit period. Payments made to Mr. Kicklighter during the audit period were for professional services rendered. Respondent made a payment of $125 on September 15, 2014, to an entity known as Set Material. Set Material is a company that rents dumpsters for collection of concrete at demolition and reconstruction sites. Removal and disposal of the concrete from the jobsite is included within the rental price of the dumpster. The Department included on the worksheet an entry for “Let Malereal.” The evidence revealed the correct name is Set Material and no evidence was introduced regarding the existence of a person or entity known as Let Malereal. Set Material was neither an employee of, nor a subcontractor for, Respondent during the audit period. The single payment made to Set Material during the audit period was for dumpster rental. The Department’s worksheet contains an entry for “CTC” for the penalty period of January 1, 2014, through May 1, 2014. Respondent made a payment to “CTC” on April 11, 2014, in connection with a job referred to as “964 clubhouse.” The records show Respondent made payments to Gulfeagle Supply, Vern’s Insulation, John Wood, Bruce Bennett, and Ron Whaley in connection with the same job. At final hearing, Mr. Coleman had no recollection what CTC referred to. Mr. Coleman’s testimony was the only evidence introduced regarding identification of CTC. CTC could have been a vendor of equipment or supplies for the job, just as easily as an employee. The evidence is insufficient to support a finding that CTC was an employee of, or a subcontractor for, Respondent during the audit period. The check stub for check 1685 does not indicate to whom the $60 payment was made. The stub reads “yo for Doug.” The Department listed “Doug” as an employee on its worksheet and included the $60 as wages to “Doug” for purposes of calculating workers’ compensation premiums owed. At hearing, Mr. Coleman was unable to recall ever having employed anyone named Doug, and had no recollection regarding the January 7, 2015, payment. The evidence was insufficient to establish that “Doug” was either Respondent’s employee or subcontractor during the audit period. Ken’s Heating and Air was not an employee of, nor a subcontractor to, Respondent for any work undertaken by Respondent during the audit period. Ken’s Heating and Air conducted repairs on, and maintenance of, Mr. Coleman’s personal residence during the audit period. Checks issued to Ken’s Heating and Air during the audit period were payments for work performed at Mr. Coleman’s personal residence. Barry Smith is an electrical contractor. Mr. Smith was neither an employee of, nor subcontractor to, Respondent for any work performed by Respondent during the audit period. Mr. Smith did make repairs to the electrical system at Mr. Coleman’s personal residence during the audit period. Checks issued to Mr. Smith during the audit period were payments for work performed at Mr. Coleman’s personal residence. The remaining names listed on the Department’s penalty calculation worksheet were accurately included as Respondent’s employees.2/ Calculation of Payroll Mr. Coleman’s exemption certificate expired on July 18, 2015, approximately four months shy of the end of the audit period. Payments made by Respondent to Mr. Coleman during the time period for which he did not have a valid exemption (the penalty period) were deemed by the Department as wages paid to Mr. Coleman by Respondent. Respondent’s business records show seven checks written either to Mr. Coleman or to cash during that time period in the total amount of $3,116.52. The Department included that amount on the worksheet as wages paid to Mr. Coleman. Check 1873 was written to cash, but the check stub notes that the payment of $1,035.69 was made to Compliance Matters, Respondent’s payroll company. Check 1875 was written to cash, but the check stub notes that the payment of $500 was made to Daytona Landscaping. The evidence does not support a finding that checks 1873 and 1875 represented wages paid to Mr. Coleman. The correct amount attributable as wages paid to Mr. Coleman during the penalty period is $1,796.52. Respondent’s employees Tyler Eubler, Brian Karchalla, Keith Walsh, and John Strobel, were periodically paid by Respondent during the audit period in addition to their paychecks from Convergence. Mr. Coleman testified that the payments were advances on their wages. He explained that when working on a job out of town, the crew would arrive after Convergence had closed for the day, and Mr. Coleman would pay them cash and allow them to reimburse him from their paychecks the following day. Unfortunately for Respondent, the evidence did not support a finding that these employees reimbursed Mr. Coleman for the advances made. The Department correctly determined the payroll amount attributable to these employees. The Department attributed $945 in payroll to “James Sharer.” The Department offered no evidence regarding how they arrived at the name of James Sharer as Respondent’s employee or the basis for the payroll amount. James Shores worked off-and-on for Respondent. Mr. Coleman recognized the worksheet entry of “James Sharer” as a misspelling of Mr. Shores’ name. Respondent’s records show payments totaling $535 to Mr. Shores during the audit period. The correct amount of payroll attributable to Mr. Shores from Respondent during the audit period is $535. The Department included wages totaling $10,098.84 to Mr. Barenfanger during the period of noncompliance from November 20, 2013, to December 31, 2013. The Department imputed the average weekly wage to Mr. Barenfanger for that period because, in the Department’s estimation, Respondent did not produce records sufficient to establish payroll for those two months in 2013. See § 440.107(7)(e), Fla. Stat. The voluminous records produced by Respondent evidenced not a single payment made to Mr. Barenfanger between January 2014, and November 19, 2015. Even if Mr. Coleman had not testified that he did not know or employ Mr. Barenfanger before November 19, 2015, it would be ludicrous to find that he worked weekly for Respondent during the last two months of 2013. Mr. Coleman testified, credibly, that Mr. Barenfanger worked the jobsite for Respondent on November 18 and 19, 2015, but not prior to those dates. The evidence does not support a finding that the worksheet entry for Mr. Barenfanger in the amount of $10,098.84 accurately represents wages attributable to Mr. Barenfanger during the period of noncompliance. The Department’s worksheet includes an employee by the name of Ren W. Raly for the period of noncompliance from January 1, 2014, through May 1, 2014, and a Ronnie Whaley for the period of noncompliance from June 19, 2014 through December 31, 2014. Mr. Coleman testified that he never had an employee by the name of Raly and he assumed the first entry was a misspelling of Ronnie Whaley’s name. Mr. Coleman testified that Ronnie Whaley was a concrete finisher and brick layer who did work for Respondent. Mr. Coleman testified that he submitted to the Department a copy of Mr. Whaley’s “workers’ comp exempt,” but that they must not have accepted it. The records submitted to the Department by Respondent do not contain any exemption certificate for Ronnie Whaley. However, in the records submitted to the Department from Respondent is a certificate of liability insurance dated February 25, 2014, showing workers’ compensation and liability coverage issued to Direct HR Services, Inc., from Alliance Insurance Solutions, LLC. The certificate plainly states that coverage is provided for “all leased employees, but not subcontractors, of Ronald Whaley Masonry.” The certificate shows coverage in effect from February 1, 2013, through February 1, 2015. Petitioner did not challenge the reliability of the certificate or otherwise object to its admissibility.3/ In fact, the document was moved into evidence as Petitioner’s Exhibit P1. Petitioner offered no testimony regarding whether the certificate was insufficient proof of coverage for Mr. Whaley during the periods of noncompliance listed on the worksheet. The evidence does not support a finding that Mr. Whaley was an uninsured individual during the periods of noncompliance. Thus, the wages attributed to Mr. Whaley by the Department were incorrect. Ms. Beal assigned the class code 5645—Carpentry to the individuals correctly identified as Respondent’s uninsured employees because this code matched the description of the job being performed by the workers on the jobsite the day of the inspection. Ms. Beal correctly utilized the corresponding approved manual rates for the carpentry classification code and the related periods of noncompliance to determine the gross payroll to the individuals correctly included as Respondent’s uninsured employees. Calculation of Penalty For the employees correctly included as uninsured employees, Ms. Beal applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7)(d)1. and Florida Administrative Code Rules 69L-6.027 and 69L-6.028 to determine the penalty to be imposed. For the individuals correctly included as uninsured employees, and for whom the correct payroll was calculated, the correct penalty amount is $2,590.06. The correct penalty for payments made to Mr. Coleman during the penalty period is $571.81. The correct penalty for payments made to James Shores is $170.24. The correct total penalty to be assessed against Respondent is $3,332.11. The Department demonstrated by clear and convincing evidence that Respondent was engaged in the construction industry in Florida during the audit period and that Respondent failed to carry workers’ compensation insurance for its employees at times during the audit period as required by Florida’s workers’ compensation law. The Department demonstrated by clear and convincing evidence that Respondent employed the employees named on the Second Amended Order of Penalty Assessment, with the exception of Ken’s Heating and Air, CTC, Don Langly, Ren W. Raly, R.W. Kicklighter, Dave Locte, Let Malereal, Ronnie Whaley, and “Doug.” The Department did not demonstrate by clear and convincing evidence that it correctly calculated the gross payroll attributable to Mr. Coleman and Mr. Shores. The Department demonstrated by clear and convincing evidence that Ms. Beal correctly utilized the methodology specified in section 440.107(7)(d)1. to determine the appropriate penalty for each of Respondent’s uninsured employees. The Department did not demonstrate by clear and convincing evidence that the correct penalty is $9,629.36. The evidence demonstrated that the correct penalty to be assessed against Respondent for failure to provide workers’ compensation insurance for its employees during the audit period is $3,332.11.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers’ Compensation, finding that Fantastic Construction of Daytona, Inc., violated the workers’ compensation insurance law and assessing a penalty of $3,332.11. DONE AND ENTERED this 18th day of August, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 18th day of August, 2016.
Findings Of Fact 12. The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on February 17 2009, and the Third Amended Order of Penalty Assessment issued on September 4, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the Third Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-042-D7, and being otherwise fully advised in the premises, hereby finds that: 1. On February 17, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-042-D7 to ROYMO, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of rights wherein ROYMO, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On February 17, 2009, the Stop-Work Order and Order of Penalty Assessment was served via personal service on ROYMO, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On February 25, 2009, the Department issued an Amended Order of Penalty Assessment to ROYMO, INC. in Case No. 09-042-D7. The Amended Order of Penalty Assessment assessed a total penalty of $61,692.98 against ROYMO, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein ROYMO, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. The Amended Order of Penalty Assessment was served on ROYMO, INC. by personal service on February 25, 2009. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On March 10, 2009, ROYMO, INC. filed a timely Petition for a formal administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 09- 1388. 6. On September 4, 2009, the Department issued a Third Amended Order of Penalty Assessment to ROYMO, INC. in Case No. 09-042-D7. The Third Amended Order of Penalty Assessment assessed a total penalty of $29,911.26 against ROYMO, INC. The Third Amended Order of Penalty Assessment was served on ROYMO, INC. through the Division of Administrative Hearings. A copy of the Third Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On November 6, 2009, ROYMO, INC. filed a Notice of Voluntary Dismissal in DOAH Case No. 09-1388. A copy of the Notice of Voluntary Dismissal filed by ROYMO, INC. is attached hereto as “Exhibit D.” 8. On November 9, 2009 Administrative Law Judge Daniel M. Kilbride entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the November 9, 2009 Order Closing File is attached hereto as “Exhibit E.”
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure payment of workers’ compensation coverage, as alleged in the Second Amended Order of Penalty Assessment; and, if so, the appropriate penalty.
Findings Of Fact Jurisdiction The Department is the state agency responsible for enforcing the requirement of chapter 440 that employers in Florida secure workers’ compensation coverage for their employees and corporate officers, pursuant to section 440.107. Patrick Hoffman was the owner and sole corporate officer for American. At all times material to this proceeding, American sold materials for window screens, patio sliding doors, screws, and spline screening; and it provided window and screen installation services. Investigation On June 29, 2016, the Department commenced an investigation following the observation of Patrick Hoffman and Timothy Barnett (also known as Adam Barnett) performing window installation services at a residential property. Kent Howe, an investigator in the Department’s compliance division, conducted an investigation regarding American’s operation of its business without proper workers’ compensation coverage. On June 29, 2016, Mr. Howe personally served a Stop-Work Order requiring American to cease all business operations and Order of Penalty Assessment on Mr. Hoffman. On June 29, 2016, Mr. Howe also served Mr. Hoffman with a Request for Production of Business Records for Penalty Calculation, requesting records to enable the Department to calculate the appropriate penalty for the period of June 30, 2014, through June 29, 2016. On June 30, 2016, the Department issued a conditional release from the Stop-Work Order. The conditional release required Respondent to pay $1,000, and agree to pay the penalty assessment within 28 days after the penalty calculation. American paid the $1,000 payment but it disputed the calculated penalty amount. An employer is required to maintain workers’ compensation coverage for employees unless there is an exemption from coverage. In the construction industry, a company must maintain coverage if it employs one or more persons. In the non-construction industry, a company is required to maintain coverage if it employs three or more persons. A contractor serving as a corporate officer in the construction industry may obtain an exemption from coverage requirements. See § 440.05, Fla. Stat. A contractor must demonstrate compliance with the workers’ compensation requirements or produce a copy of an employee leasing agreement or exemption for each employee. If an employee is a subcontractor without their own workers’ compensation coverage or an exemption, the individual is considered an employee of the contractor. American did not dispute that Timothy Barnett and Roger Wilson were employees of the company. American also did not dispute that it did not have workers’ compensation coverage for the employees as required by chapter 440. As a corporate officer, Mr. Hoffman elected to be exempted from workers’ compensation coverage. Penalty Calculation The Department assigned Eunika Jackson, a Department penalty auditor, to calculate the appropriate penalty for American. Ms. Jackson conducts penalty audits for construction and non-construction employers. Ms. Jackson testified that workers’ compensation coverage penalties are calculated based on a statutory formula in which the auditor calculates two-times the amount of the insurance premium the employer would have paid for each employee over the two-year period preceding the Stop-Work Order. The two-year period is commonly referred to as the look-back period. The penalty calculation is based on the employer’s payroll, the classification code for the industry of operation during the audit period, and the manual rate assigned to that classification code. To determine the appropriate code, the auditor uses the classification code in the Scopes® Manual, which has been adopted by Petitioner through Florida Administrative Code Rules 69L-6.021 and 69L-6.031. Ms. Jackson used business records Mr. Hoffman provided to determine the appropriate industry code and the penalty amount for each employee. Ms. Jackson reviewed bank statements to determine the gross payroll paid to Mr. Wilson and Mr. Barnett during the two-year non-compliance period. The records demonstrated that Roger Wilson received payment during the period of June 30, 2014, through December 31, 2015. Timothy (Adam) Barnett received payment during the period of January 1, 2015, through June 29, 2016. Ms. Jackson determined that American operated in the construction industry and initially assigned each employee a classification code of 5102. On August 11, 2016, the Department issued the Amended Order that assessed a total penalty of $10,785.04. The Amended Order was personally served on Mr. Hoffman on August 16, 2016. In response to the Amended Order, Respondent disputed the classification code assigned to Mr. Wilson. Mr. Hoffman testified that Mr. Wilson did not perform construction work, but rather worked as a retail employee selling merchandise in the store front. Mr. Hoffman further testified that contractors purchased items at American for use in their businesses. Mr. Hoffman’s description of Mr. Wilson’s job responsibilities and description of merchandise sold at American clearly demonstrates that Mr. Wilson did not perform construction work. Ms. Jackson correctly determined that the classification code 8018, which applies to retail and wholesale salespersons, was the appropriate code for Mr. Wilson. The classification code change resulted in a manual rate reduction and a reduced assessment applied to Mr. Wilson. On November 18, 2016, the Department filed a Motion for Leave to Amend Order of Penalty Assessment, which the undersigned granted. The Second Amended Order reduced the penalty assessment to $6,818.00. During the hearing, American continued to dispute the calculation of the penalty for Mr. Hoffman because he maintained an exemption as a corporate officer. The Department ultimately agreed to remove Mr. Hoffman from the penalty assessment worksheet and reduced the penalty assessment to $6,764.96. At hearing, there was no dispute regarding the penalty assessment related to Mr. Barnett. However, Respondent argued in the post-hearing statement for the first time that Timothy Barnett had an exemption. There was no evidence to support Respondent’s assertion. Therefore, Ms. Jackson correctly included payment to Mr. Barnett as payroll for purposes of calculating the penalty. Regarding Mr. Wilson, Mr. Hoffman argued that Mr. Wilson had an exemption from workers’ compensation coverage when he began working for American.1/ However, Mr. Hoffman could not produce a copy of the exemption and Mr. Wilson was not present at the hearing for testimony. Ms. Jackson conducted research using the Coverage Compliance Automated System (“CCAS”), a database used by the Department to maintain information regarding workers’ compensation policies, employee leasing plans, and exemptions for employees. Ms. Jackson found no record of an exemption for Mr. Wilson in CCAS. While Ms. Jackson did not exhaust all efforts to locate an exemption for Mr. Wilson, it was American’s burden to produce evidence of an exemption. Mr. Hoffman’s testimony with nothing more was insufficient to demonstrate that Mr. Wilson had an exemption and as such, Ms. Jackson appropriately included payments to Mr. Wilson as payroll to calculate the penalty. The calculation of the penalty for Mr. Wilson in the amount of $2,784.58 is correct. However, the penalty calculation for Mr. Barnett is incorrect. The amount should be $3,872.27. Therefore, the amount of the penalty should be reduced to $6,656.85. Ultimate Findings of Fact American was actively involved in business operations within the construction industry during the audit period of June 30, 2014, through June 29, 2016. Based upon the description of American’s business and the duties performed, Mr. Wilson was properly classified with a code 8018. Ms. Jackson used the correct manual rates and methodology to determine the appropriate penalty.
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, American Aluminum Concepts, Inc., violated the requirement in chapter 440, by failing to secure workers’ compensation coverage for its employees; and Imposing a total penalty assessment of $6,656.85. DONE AND ENTERED this 16th day of December, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 December, 2016.
The Issue The issue is whether the Stop-Work Order and Order of Penalty Assessment entered by Petitioner on July 15, 2009, and subsequently amended twice, should be upheld.
Findings Of Fact Petitioner is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of compensation for their employees who suffer work-related injuries. Respondent, on July 15, 2009, was operating in the construction industry as a for-profit corporation, with an active status. On July 15, 2009, Petitioner's investigator, John Wheeler, investigated Respondent for compliance with the Florida Workers' Compensation Law at 36 East Burgess Road, Pensacola, Florida 32504 (hereinafter "worksite") during a random inspection. On July 15, 2009, at the worksite, Petitioner's investigator interviewed and recorded the names of four individuals performing a roofing job as Benjamin H. Bell, Christopher T. Bell, Willie Lanier, and Curtis Jenkins. Utilizing the Scopes Manual published by the National Council on Compensation Insurance and adopted by Florida Administrative Code Rule 69L-6.021 as guidance, Petitioner's investigator determined that roofing is within the construction industry and assigned the appropriate class code (5551) to the activities being performed at the worksite. Petitioner's investigator determined that both Benjamin and Christopher Bell were officers of Respondent corporation, and had hired Mr. Lanier and Mr. Jenkins to work the roofing job with them. Petitioner's investigator, using the Department of Financial Services' Coverage and Compliance Automated System (CCAS), determined that while both Benjamin and Christopher Bell had valid Certificates of Election to be exempt from Florida Workers' Compensation Law, neither Mr. Lanier nor Mr. Jenkins had similar certificates of exemption. Using the CCAS, Petitioner's investigator was unable to locate proof of insurance securing the payment of workers' compensation coverage by Respondent that would cover Mr. Lanier or Mr. Jenkins for the job at issue. On July 15, 2009, Petitioner's investigator issued a Stop-Work Order and Order of Penalty Assessment to Petitioner for failure to meet the requirements of Chapter 440, Florida Statutes, and the Florida Insurance Code. The Order required Respondent to cease all business operations and assessed a penalty equal to 1.5 times the amount the employer would have paid in premium when applying the approved manual rates to the employer's payroll during periods for which it failed to secure the payment of workers' compensation against Respondent for the preceding three-year period, pursuant to Subsection 440.107(7)(d), Florida Statutes. On July 15, 2009, Petitioner's investigator issued to Respondent a Division of Workers' Compensation Request for Production of Business Records for Penalty Assessment Calculation (hereinafter "Request"). Respondent responded to the Request and provided Petitioner's investigator with the requested records on July 21, 2009. On August 6, 2009, Petitioner issued an Amended Order of Penalty Assessment assessing a new penalty of $48,689.27 against Respondent, based on Respondent's business records. On November 20, 2009, Petitioner issued a Second Amended Order of Penalty Assessment reducing Respondent's penalty to $10,492.94. Petitioner's investigator issued the Second Amended Order of Penalty Assessment after having learned from Respondent that many of the amounts considered for the penalty in the Amended Penalty Assessment should not be deemed payroll for uncovered or non-exempt workers. The roofing job at issue at 36 Burgess Road, resulted from a verbal contract entered into between Benjamin and Christopher Bell, on behalf of Respondent, and Larry Scapecchi, a Florida-certified roofing and general contractor. Respondent's president, Mr. Baehr, was not aware of the verbal contract entered into by Respondent's vice presidents, Benjamin and Christopher Bell, to perform the roofing job that gave rise to this proceeding. Mr. Baehr did not authorize the contract into which Benjamin and Christopher Bell entered. In his 30 years in the construction business, Mr. Baehr had never entered into a verbal contract to perform construction work. All of contracts for construction jobs were written. Benjamin and Christopher Bell, as officers of Respondent corporation, had real or apparent authority to enter into the contract for the roofing job, and Mr. Larry Scapecchi entered into the contract with them based upon his good-faith belief in their authority to contract on behalf of the corporation. Benjamin and Christopher Bell, on behalf of Respondent, allowed two workers, Willie Lanier and Curtis Jenkins, to be employed on the Burgess Road roofing job who were neither exempt from the requirements of Florida's Workers' Compensation Law nor covered by a policy of workers' compensation insurance for the work they were performing in Pensacola, Florida. In response to Petitioner's Request for Production of Documents, since no payroll information was supplied by Respondent to Petitioner for the two workers, Willie Lanier and Curtis Jenkins, their salary had to be imputed based upon the two days they were found to be performing roofing work at the worksite. The remainder of the salary used in calculating the penalty to be assessed was based upon the payroll records for non-exempt and non-covered employees from January 2007 until the date of the inspection, July 15, 2009. The premium due was calculated by multiplying one percent of the gross payroll times the approved manual rate which resulted in the amount of $6,995.28. The penalty was then determined by multiplying the amount of premium due by 1.5, resulting in the final penalty due of $10,492.92. Based upon the payroll records produced by Respondent in response to Petitioner's request, a penalty in the amount of $10,492.92 is due to Petitioner. This amount is $0.02 less than the amount calculated by Petitioner and may be the result of rounding errors.
Recommendation Based on the findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order that adopts the Stop-Work Order and Second Amended Order of Penalty Assessment assessing a penalty of $10,492.92. DONE AND ENTERED this 9th day of December, 2009, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2009. COPIES FURNISHED: Timothy L. Newhall, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 John Baehr Carolina Realty and Development Company, Inc. 608 Sheppard Drive Pensacola, Florida 32507 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal 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
The Issue The issues in this case are whether Respondents violated the provisions of chapter 440, Florida Statutes (2013),1/ by failing to secure the payment of workers’ compensation as alleged in the Stop-Work Order and Second Amended Order of Penalty Assessment, and, if so, what penalty is appropriate.
Findings Of Fact Petitioner, Department of Financial Services, Division of Workers’ Compensation (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. Ms. Angelia Brown has been a compliance investigator with the Department since 2007. On July 25, 2013, Investigator Brown conducted a site visit to a residential structure at 606 Orby Street, Pensacola, Florida. She observed three men performing roofing work on a detached two-car garage. One of the men showed her a job “ticket” indicating he was a “leased” laborer from Action Labor, an employee leasing company specializing in daily labor. Neither of the other men showed her tickets. Investigator Brown said that Mr. Robert Reed told her he was working for Mr. Michael Cribbs and that he had been on the site for a couple of days, but did not have a job ticket from Action Labor at that time. She testified that Mr. James Kingry told her he had not discussed pay with Mr. Cribbs, but that he did expect to be paid. Investigator Brown examined the information on the permit board at the job site and determined that a permit had been issued to Michael Cribbs Construction of Pensacola, Inc., and that the permit was active. Based upon the information provided by the three men, Investigator Brown checked workers’ compensation information by accessing the Coverage and Compliance Automated System (CCAS) maintained by the Department. The database indicated no workers’ compensation coverage in effect for Mr. Cribbs or for Michael Cribbs Construction of Pensacola, Inc. CCAS further showed that Mr. Cribbs, as president of Michael Cribbs Construction of Pensacola, Inc., had an exemption on file, but that this exemption had lapsed from March 8, 2012, through July 15, 2012. Investigator Brown called Action Labor and was informed that only Mr. Louis Sampson was “on ticket” for the day; that there was no active or current ticket for Mr. Reed, although he had been on ticket in the past; and that there were no records at all on Mr. Kingry. There was clear and convincing evidence that Respondents had periodically “leased” employees from Action Labor, including evidence that Mr. Sampson was employed by Action Labor and was working at the Orby Street site on July 25, 2013. Investigator Brown next contacted Mr. Cribbs. She told him that she was at the Orby Street site and explained the reason she was there. Mr. Cribbs told her that Mr. Sampson and Mr. Reed were “covered” and that Mr. Kingry was his former business partner of 20 years and was not being paid. Investigator Brown told Mr. Cribbs that Mr. Reed was not on an Action Labor ticket. Mr. Cribbs replied that he had a ticket for Mr. Reed and that he would look for it. Investigator Brown accessed the Department of State, Division of Corporations’ website. That database indicated that Michael Cribbs Construction of Pensacola, Inc., was inactive, and that it had been dissolved on September 28, 2012, for failure to file an annual report. Based upon her investigation, Investigator Brown concluded that Mr. Reed and Mr. Kingry were employees of Michael Cribbs, d/b/a Michael Cribbs Construction of Pensacola, Inc., a dissolved Florida corporation, and were not covered by workers’ compensation. She contacted her supervisor. Respondents received a Stop-Work Order and Order of Penalty Assessment from the Department on July 25, 2013. Respondents received a Request for Production of Business Records for Penalty Assessment Calculation from the Department on July 25, 2013. It requested records for the three- year period from July 26, 2010, through July 25, 2013. In response to the Request for Production of Business Records, Mr. Cribbs provided some records to the Department’s Pensacola Office. He did not provide business records sufficient to enable the Department to determine payroll for the calculation of a penalty, however. There was clear and convincing evidence that Mr. Cribbs had operated in the construction industry as a corporate officer of Michael Cribbs Construction of Pensacola, Inc. Mr. Phillip Sley is a penalty calculator employed by the Department. He reviewed the business records that had been provided by Respondents, including insurance policies, bank statements, exemption documents, and some payroll documents, and calculated a penalty. Respondents received an Amended Order of Penalty Assessment from the Department on August 6, 2013. It assessed a penalty for failure to secure workers’ compensation coverage based upon imputed wages for Mr. Reed and Mr. Kingry for almost all of the three-year period and imputed wages for Mr. Cribbs for the period of March 8, 2012, through July 15, 2012, when his exemption had lapsed. Mr. Cribbs subsequently provided some additional documents, including tax returns and bank images, but these were still insufficient to fully determine the payroll. Mr. Sley re- calculated a penalty based in part upon documents that were provided and in part on imputed information. Records provided by Respondents indicate that Michael Cribbs Construction of Pensacola, Inc., was an employer for periods from July 26, 2010, until its dissolution on September 28, 2012. Mr. Cribbs, as a sole proprietor, was an employer from September 29, 2012, until the site visit on July 25, 2013. The assessed penalty amount was reduced for Mr. Reed and Mr. Kingry, but additional penalties were assessed for six other individuals, based upon payments to them on various dates from September 2, 2010, through December 31, 2012. There was clear and convincing evidence at hearing that these six individuals were employees of Michael Cribbs Construction of Pensacola, Inc., and Mr. Cribbs. The new assessment represented a net reduction in the overall penalty. Respondents requested an administrative hearing, which was conducted on July 2, 2014. A motion to adopt the Second Amended Order of Penalty Assessment, consistent with the Department’s latest calculations, was granted. At hearing, Mr. Cribbs testified that the owners of the house at the Orby Street site had been paying a framing crew, but when he checked on them they had framed the garage roof incorrectly, so he fired them. The framing work being done on the detached garage at the Orby Street site was for-profit activity involving building and substantial improvement in the size and use of the residential structures at that location. There was clear and convincing evidence that the work was activity within the construction industry. Mr. Cribbs testified that, after firing the framing crew, he asked Mr. Reed to come to the job because he had worked with Mr. Reed before through Action Labor and that Mr. Reed “seemed to know what he was doing.” He testified that he told Mr. Reed to call in to Action Labor. He also testified that he had a ticket for Mr. Reed and that he considered Mr. Reed to be an employee of Action Labor. He acknowledged that Mr. Reed failed to call in to Action Labor. Mr. Reed was an employee of Respondents, as defined in section 440.02, Florida Statutes, on July 25, 2013. Mr. Cribbs testified that Mr. Kingry was a good friend he had known since they met in 1979 while doing framing work. He testified that they had been partners through the years, that their wives were best friends, and that they fished together. He said that he had used Mr. Kingry--who earlier had his own company and exemption--as a subcontractor on a few jobs when construction was booming after hurricane Ivan in 2004. He testified that they had not worked together at all since that time. Mr. Cribbs testified that his mother had been in and out of the emergency room and hospital with lung and brain cancer. He said he called Mr. Kingry from the hospital and asked him to go by the Orby Street job just to make sure that Mr. Reed knew what he was doing in cutting in the roof. He said he wasn’t expecting Mr. Kingry to do any work because he knew that Mr. Kingry had an injured knee, and only expected him to be at the site for “maybe 30 minutes.” Mr. Cribbs testified that there was no expectation that Mr. Kingry was going to be paid for going out there and that Mr. Kingry never asked him about pay. Mr. Kingry was engaged in construction activity on the roof on July 25, 2013. There was insufficient evidence at hearing to refute Mr. Cribbs’s testimony or otherwise demonstrate that Mr. Kingry was paid for his work, however. There was insufficient evidence to show that Mr. Kingry had been an employee of Mr. Cribbs or Michael Cribbs Construction of Pensacola, Inc., on July 25, 2013, or at any time during the preceding three years. Mr. Cribbs further testified at hearing that he had maintained all of the records he was required to have, but that most of them had been destroyed. He testified that, when he was married, he had kept the records in his house, but that, after he was divorced, he moved into a rental property and kept the records in some filing cabinets in a shed out back. Mr. Cribbs testified that about two years ago someone broke the lock on the shed, stole the filing cabinets, and left the papers strewn on the dirt floor of the shed. Mr. Cribbs said that shortly afterwards it rained heavily and flooded. He said that none of the records could be salvaged. This would have been about July 2012, near the time when Mr. Cribbs renewed his expired exemption. Mr. Cribbs admitted that he did not file a police report on the stolen file cabinets. Mr. Cribbs said he went to his bank to get copies of some records, but that, for portions of the three-year period, he did not have a bank account. Investigator Brown testified that she had checked job sites of Mr. Cribbs or Michael Cribbs Construction of Pensacola, Inc., on two earlier occasions and that no violations were found. The first time, it was determined that workers at the site were being paid directly by the homeowners and that Mr. Cribbs’s exemption was in place, so everything was in compliance. The second time, the Department received a complaint. There was an active permit, but, at the time of the site visit, all work had been completed. Respondents were engaged in construction industry business operations in the state of Florida during the periods of September 2, 2010, through December 31, 2010, and August 17, 2012, through December 31, 2012. Mr. Cribbs was engaged in construction industry business operations at the Orby Street site on July 25, 2013. Mr. Reed was an “employee” of Mr. Cribbs, as defined in section 440.02, on July 25, 2013. Respondents did not secure the payment of workers’ compensation insurance coverage for Mr. Reed on July 25, 2013. Neither Mr. Reed nor Mr. Kingry held valid workers’ compensation exemptions during the period of July 26, 2010, through July 25, 2013. Mr. Cribbs did not possess an exemption during the period of March 8, 2012, through July 15, 2012. None of the employees listed in the penalty worksheet of the Second Amended Order of Penalty Assessment can be classified as an independent contractor, as defined in section 440.02(15)(d)1. The class codes, manual rates, and average weekly wages identified on the penalty worksheet of the Second Amended Order of Penalty Assessment are correct to the extent a penalty is due.
Recommendation Upon consideration of the above 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 Respondents violated the requirement in chapter 440, Florida Statutes, to secure workers’ compensation coverage, and imposing a total penalty assessment of $30,529.96. DONE AND ENTERED this 22nd day of August, 2014, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 22nd day of August, 2014.
The Issue Whether Respondent, Tony Williams Drywall and Plastering, Inc., failed to comply with the coverage requirements of the Workers' Compensation Law, chapter 440, Florida Statutes, by not obtaining workers' compensation insurance for its employees and, if so, what penalty should be assessed against Respondent pursuant to section 440.107.
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. Tony Williams Drywall and Plastering, Inc., (Respondent or Williams Drywall) is a corporation based in Tallahassee, Florida, first incorporated on August 18, 1999. Williams Drywall is engaged in the construction industry, operating as a drywall installation and repair business with a principal office located at 8513 Raquel Lane in Tallahassee. Tony Williams is the sole owner, registered agent and president of Williams Drywall. On or about October 30, 2014, Williams Drywall was hired by Bill Davis, a general contractor, to make drywall repairs at 2069 North Monroe Street in Tallahassee (the job site). Williams Drywall hired Viper Enterprises, LLC, (Viper) for the job. Viper is a company owned and operated by Joseph Johnson, whom Mr. Williams described as a friend. Mr. Williams deemed the job as simple and expected to pay Viper about $200. On October 30, 2014, Department Investigator Betty Fuentes arrived at the job site and encountered Mr. Johnson. Ms. Fuentes inquired regarding Mr. Johnson’s workers’ compensation compliance.1/ Although Mr. Johnson, as corporate officer of Viper, had been exempt from the requirement to obtain workers’ compensation insurance, pursuant to section 440.05(3), Florida Statutes, the exemption expired after September 10, 2014. As of October 30, 2014, Mr. Johnson had not effectively renewed his exemption. Mr. Johnson called Mr. Williams from the job site on October 30, 2014, to inform Mr. Williams of the events that transpired at the job site. Through this telephone call, Mr. Williams learned that Ms. Fuentes had issued a stop-work order at the job site. Mr. Williams also spoke with Ms. Fuentes by phone from the job site on October 30, 2014, and Ms. Fuentes asked Mr. Williams for his corporate records as part of her investigation. Mr. Williams met directly with Ms. Fuentes in the late afternoon of October 30, 2014. During the meeting, Ms. Fuentes hand-delivered to Mr. Williams a Stop Work Order for Specific Worksite Only (Stop Work Order). The Stop Work Order required Williams Drywall to cease all business operations at the job site for failure to secure workers’ compensation insurance coverage for its employees. The Stop Work Order included an Order of Penalty Assessment in the amount of two times the amount Williams Drywall would have paid in premium when applying the approval manual wage rates to Williams Drywall’s employee payroll during periods for which it failed to secure payment of workers’ compensation insurance within the preceding two-year period. During the meeting, Mr. Williams provided to Ms. Fuentes corporate records and workers’ compensation information for Williams Drywall. Ms. Fuentes also requested from Mr. Williams payroll records for the preceding two-year period. Mr. Williams disputed that his payroll records for the preceding two-year period were relevant. Mr. Williams testified that he offered to provide his payroll records for the two-week time period during which Mr. Johnson’s exemption had lapsed. Mr. Williams insisted that the October 30, 2014, drywall job was the only job for which he hired Mr. Johnson between September 11, 2014, and October 30, 2014. Mr. Williams did not provide any payroll records for Williams Drywall to Ms. Fuentes or any other representative of the Department. Andrew Moskowitz was assigned to calculate the appropriate penalty to be assessed against Williams Drywall by the Department. Penalties for workers’ compensation insurance violations are based on doubling the amount of evaded insurance premiums for periods during which the employer failed to secure workers’ compensation coverage within the two-year period preceding the Stop Work Order. § 440.107(7)(d), Fla. Stat. The applicable period of noncompliance for Williams Drywall was September 11, 2014, the date Mr. Johnson’s exemption lapsed, through October 30, 2014, the date the Stop Work Order was issued. 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.2/ In the penalty assessment calculation, Mr. Moskowitz 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 Florida Administrative Code 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.” Mr. Moskowitz applied NCCI Class Code 5480, titled “Plastering NOC [Not Otherwise Classified] and Drivers,” which applies to specialty contractors engaged in interior plastering. Mr. Moskowitz used the approved manual rates corresponding to Class Code 5840 for the period of non-compliance to calculate the penalty. On December 14, 2014, the Department issued an Amended Order of Penalty Assessment in the amount of $2,105.50, based upon an imputation of wages to Mr. Johnson, the only employee of Williams Drywall known to the Department for the period of noncompliance. The evidence produced at the hearing established that Mr. Moskowitz utilized the correct class codes, average weekly wages, and manual rates in his calculation of the Amended Order of Penalty Assessment. The Department has demonstrated by clear and convincing evidence that Williams Drywall was in violation of the workers' compensation coverage requirements of chapter 440. Joseph Johnson was an employee of Williams Drywall 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 by Mr. Moskowitz, through the use of the approved manual rates and the penalty calculation worksheet adopted by the Department in Florida Administrative Code Rule 69L-6.027.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, assessing a penalty of $2,105.50 against Tony Williams Drywall and Plastering, Inc. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 June, 2015.
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 2nd Amended Order of Penalty Assessment, and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency responsible for the enforcement of the workers’ compensation insurance coverage requirements established in chapter 440, Florida Statutes (2014).1/ On March 6, 2006, the Florida Department of State, Division of Corporations, issued articles of corporation to Respondent. Respondent’s address of record is 4441 Radio Avenue, Sanford, Florida 32773. Respondent’s mailing address is 3779 Eagle Preserve Point, Sanford, Florida 32773. On October 22, 2014, Investigator Etheredge conducted a random workers' compensation compliance check at 107 East Circle Drive, New Smyrna Beach, Florida 32169. During the course of the compliance check, Investigator Etheredge observed Matthew Nobles supervising William Boling, who was operating a miter saw, and James Clogston, Jr., who was moving construction materials to the house. These individuals were building a deck on the house in question. Upon questioning by Investigator Etheredge, Matthew Nobles advised that William Boling and James Clogston both worked as employees for Respondent. Matthew Nobles further advised that workers’ compensation exemptions were in effect for himself and James Clogston. Matthew Nobles also informed investigator Etheredge that Respondent did not have a workers' compensation policy. Armed with this information, Investigator Etheredge returned to his vehicle and searched the corporate database of the Florida Department of State, Division of Corporations. The search revealed that Respondent's corporate officers are Matthew S. Nobles, Timothy J. Nobles, and James Clogston. Investigator Etheredge then consulted the Coverage and Compliance Automated System (CCAS). CCAS is the workers’ compensation compliance database for the State of Florida. Through CCAS, insurance companies and employee leasing companies submit to the State insurance information regarding new policies, amendments to existing policies, and cancellations of policies. CCAS also lists any exemptions currently or previously held by any member of a registered company.2/ According to Investigator Etheredge, in reviewing the CCAS database, he did not locate a workers' compensation policy or employee leasing notice for Respondent. CCAS did show, however, that Matthew Nobles had a then-current exemption for the period June 19, 2014, through June 19, 2016. Prior to this exemption, CCAS also showed that Matthew Nobles had an exemption for the period April 3, 2012, through April 3, 2014. CCAS showed that Timothy Nobles had an exemption for the period March 18, 2014, through October 24, 2014. For James Clogston, Jr., CCAS showed an exemption for the period December 10, 2013, through December 10, 2015. Finally, for William E. Boling, CCAS showed an exemption for the period December 10, 2013, through March 17, 2014. On October 22, 2014, William Boling was neither covered by a workers’ compensation policy, nor exempt from being covered by the same. Accordingly, on October 22, 2014, the Department issued to Respondent a Stop-Work Order and a written request for copies of Respondent’s business/payroll records for the two-year period covering October 23, 2012, through October 22, 2014. In response to the Department’s request for business records, Respondent provided approximately a year’s worth of payroll records for the period October 25, 2013, through October 15, 2014. These payroll records are sufficiently detailed, as reflected in the summary of payroll records (Ex. 6), so as to allow the Department to calculate Respondent’s weekly payroll for this period with respect to all employees and corporate officers other than William Boling. Florida Administrative Code Rule 69L-6.028(2) provides as follows: The employer’s period of non-compliance shall be either the same as the time period requested in the business records request for the calculation of penalty or an alternative period of non-compliance as determined by the department, whichever is less. The department shall determine an alternative period of non-compliance by obtaining records from other sources, including, but not limited to, the Department of State, Division of Corporations, the Department of Business and Professional Regulation, licensing offices, building permitting offices and contracts, that evidence a period of non- compliance different than the time period requested in the business records request for the calculation of penalty. For purposes of this rule, “non-compliance” means the employer’s failure to secure the payment of workers’ compensation pursuant to Chapter 440, F.S. (emphasis added). The payroll records provided by Respondent to the Department establish October 25, 2013, through October 22, 2014, as Respondent’s period of non-compliance. The Department failed to offer other evidence sufficient to establish a period of non- compliance commencing prior to October 25, 2013. However, since Respondent did not provide payroll records for the period October 16, 2014, through October 22, 2014, wages for this period shall be imputed for each of Respondent’s employees and corporate officers, as appropriate. Accordingly, Respondent’s penalty shall be calculated based on the above-established period of non- compliance. In support of its 2nd Amended Order of Penalty Assessment, the Department prepared a penalty calculation worksheet showing a total penalty owed of $61,175.36. While the evidence does establish that a penalty amount is owed, the evidence does not support the total penalty amount claimed by the Department. As previously noted, CCAS, as to William Boling, showed an exemption for the period December 10, 2013, through March 17, 2014. The evidence also established that Mr. Boling was observed operating a miter saw at the referenced job site on October 22, 2014. Given that Mr. Boling’s exemption expired on March 17, 2014, and that he was observed working for Respondent on October 22, 2014, Mr. Boling’s wages should be imputed for the period March 18, 2014, through October 22, 2014. The penalty calculation worksheet correctly reflects a penalty, based on imputed wages, in the amount of $539.58 for Mr. Boling for the period October 16, 2014, through October 22, 2014. The worksheet fails, however, to calculate a penalty for Mr. Boling based on imputed wages for the period March 18, 2014, through October 15, 2014. Furthermore, the worksheet entries for Mr. Boling showing penalties totaling $21,940.16 are not supported by the evidence as these penalty entries are based on imputed wages for a time not within the period of Respondent’s non-compliance. The entry on the penalty calculation worksheet for Timothy Nobles and Matthew Nobles correctly reflects a total penalty of $1,217.92 and $1,004.02, respectively, based on information gleaned from Respondent’s payroll records. The penalty calculation worksheet entries for Harold Nobles showing penalties totaling $13,106.38 are not supported by the evidence as these penalty entries are based on imputed wages for a time not within the period of Respondent’s non-compliance. As previously noted, James Clogston had an exemption for the period December 10, 2013, through December 10, 2015. There is no evidence establishing that Mr. Clogston had a business relationship with Respondent prior to the effective date of his exemption. The penalty calculation worksheet entries for James Clogston showing penalties totaling $21,940.16 are not supported by the evidence as these penalty entries are based on imputed wages for a time not within the period of Respondent’s non-compliance. The penalty calculation worksheet for the other listed employees (Messrs. Lisk, Knudsen, Taylor, Pingerin, Farrar and Donat (collectively referred to as “other employees”)) correctly reflects penalties totaling $1,427.14 based on information gleaned from Respondent’s payroll records. Auditor Ruzzo was assigned by the Department to calculate the penalty owed by Respondent. Auditor Ruzzo consulted the classification codes listed in the Scopes® Manual, which has been incorporated by reference into the Department’s rules. Fla. Admin. Code R. 69L-6.021 and 69L-6.031. The classification codes are four-digit numbers assigned to occupations by the National Council on Compensation Insurance, Inc. (NCCI), to assist in the calculation of workers' compensation insurance premiums. Auditor Ruzzo correctly assigned to Mr. Boling, and the other corporate officers and employees listed on the penalty calculation worksheet, NCCI class code 5654, which is for the area of carpentry. Auditor Ruzzo utilized the appropriate formula in calculating the penalty owed by Respondent for failing to secure the payment of worker’s compensation during the determined period of non-compliance.
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 finding that Respondent, Nobles Quality Services, LLC, violated the provisions of chapter 440 by failing to secure the payment of workers’ compensation and assessing against Respondent a penalty in an amount consistent with the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 9th day of December, 2015 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 9th day of December, 2015.
