Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes and the rules promulgated pursuant thereto. The Respondent, Patricia Sue Shelley, is now and was at all times material hereto a licensed real estate salesperson in the State of Florida having been issued license number 0454282 in accordance with Chapter 475, Florida Statutes. The last license issued was effective 3/10/92, with a home address of 2413 Euston Road, Winter Park, Florida 32789-3416. From July 9, 1990 to December 5, 1990, the Respondent was licensed as a real estate salesperson with Don Gallagher, Inc. t/a The Prudential Gallagher Properties (Petitioner's Exhibit #4). Her status was property manager. While employed as the property manager the Respondent collected $1,450 in rental funds during November and December 1990, but failed to deliver the rental funds to her employing broker. The Respondent and the broker had an ongoing commission dispute and the Respondent kept the $1,450 because she felt that the broker owed her the money. On December 7, 1990, the Respondent delivered a check from her personal account in the amount of $1,450, to the broker notated: "$ rent for Curry Ford and Dover Circle". These were properties being managed by the broker. (Petitioner's Exhibit #1). On December 8, 1990, the broker deposited the Respondent's check into escrow, but the check was returned annotated: "payment stopped do not redeposit." (Petitioner's Exhibit #2). On December 17, 1990, employing broker Don Gallagher sent the Respondent a demand letter, but the Respondent refused to deliver the trust funds to Don Gallagher. (Petitioner's Exhibit #3). Petitioner's husband recommended that she keep the rental money and get with Don Gallagher about the commission. He later recommended that she just give the money back and is not sure why she did not. She has been under a physician's care for manic depression for about 1 1/2 years. Ms. Shelley's license record includes no other alleged violations or discipline.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a Final Order be entered, finding Patricia Sue Shelley violated Sections 475.25(1)(e) and (k), F.S., suspending her license for two years, with the condition that the suspension be lifted anytime after 90 days, if restitution of $1,450 is made to her former employer/broker. After suspension is lifted, Respondent should be placed on probation for one year under such conditions as may be appropriate, including participation in continuing education courses regarding the handling of deposits and other funds received in trust. DONE and ENTERED this 29th day of October, 1992, at Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1992. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Patricia Sue Shelley, pro se 2413 Euston Road Winter Park, FL 32789-3416 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900
The Issue Whether Respondents violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers' compensation coverage, as alleged in the Stop-Work Orders, and, if so, what penalty is appropriate.
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. Respondents are gas station/convenience stores located in South Florida. Northlake was created by Nazma Akter on May 6, 2014. MB was created by Ms. Akter on March 23, 2010. Congress Valero was created by Muhammad Saadat on July 21, 2011. Hena was created by Ms. Akter and Abu Ahsan on December 14, 2011. Hayma was created by Ms. Akter on December 14, 2011. Blue Heron was created by Ms. Akter on August 4, 2009. At all times relevant hereto, Respondents were duly-licensed to conduct business in the state of Florida. On February 2, 2015, the Department's Compliance Investigator Robert Feehrer, began a workers' compensation compliance investigation of Gardenia, LLC. Investigator Feehrer called the number listed for Gardenia, LLC, and was provided with a corporate office address. On February 10, 2015, upon arrival at Gardenia, LLC's, corporate office located at 165 US Highway 1, North Palm Beach, Florida, 33408, Investigator Feehrer spoke with Operations Manager Mohammad Hossain. Mr. Hossain stated that Gardenia, LLC, was a paper corporation and existed only for the purpose of paying unemployment taxes on the "six stores." Mr. Hossain went on to provide Investigator Feehrer with a list of Respondents and names of the employees that worked at each store. As an employee of Gardenia, LLC, and Respondents, Mr. Hossain's statements are party opponent admissions and bind Respondents. Lee v. Dep't of Health & Rehab. Servs., 698 So. 2d 1194, 1200 (Fla. 1997). With Mr. Hossain's statements and the list of Respondents' employees, Investigator Feehrer then consulted the Division of Corporations website, www.sunbiz.org, and confirmed that Respondents were current, active Florida companies. Investigator Feehrer then consulted the Department's Coverage and Compliance Automated System ("CCAS") for proof of workers' compensation coverage and exemptions associated with Respondents. Investigator Feehrer's CCAS search revealed that Respondents had no workers' compensation policies and no exemptions. On February 24, 2015, Investigator Feehrer conducted site visits at each of the six stores. Ms. Akter and Mr. Hossain accompanied Investigator Feehrer during these site visits. At all times material hereto, Ms. Akter was a corporate officer or managing member of each of the six Respondents. Muhammed Saadat and Abu Ahsan were corporate officers or managing members of Congress Valero, Hena, and Blue Heron. Kazi Ahamed was a corporate officer or managing member of Congress Valero and Hayma. Kazi Haider and Mohammed Haque were managing members of Hayma. All received compensation from the companies with which they were involved. Although Investigator Feehrer only personally observed one employee working at each location during his site visits, the payroll records revealed that at least four employees (including corporate officers or managing members without exemptions) received compensation for work at each location during the relevant period. Investigator Feehrer required additional information to determine compliance, and with Respondents' permission, contacted Respondents' accountant. Investigator Feehrer met with the accountant at least two times to obtain relevant information prior to March 30, 2015. Upon Ms. Akter's authorization, the accountant provided tax returns and payroll information for Respondents' employees. Information from Ms. Akter and Mr. Hossain also confirmed the specific employees at each of the six stores during the period of March 30, 2013, through March 30, 2015. On March 30, 2015, based on his findings, Investigator Feehrer served six Stop-Work Orders and Orders of Penalty Assessment. The Stop-Work Orders were personally served on Ms. Akter. Mr. Hossain was present as well and confirmed the lists of employees for each of the six stores were accurate. In April 2015, the Department assigned Penalty Auditor Christopher Richardson to calculate the six penalties assessed against Respondents. Respondent provided tax returns for the audit period and payroll transaction details were provided, as well as general ledgers/breakdowns, noting the employees for each Respondent company. Based on Investigator Feehrer's observations of the six stores on February 24, 2015, Auditor Richardson used the classification code 8061 listed in the Scopes® Manual, which has been adopted by the Department through Florida Administrative Code Rule 69L-6.021(1). Classification code 8061 applies to employees of gasoline stations with convenience stores. Classification codes are four-digit codes assigned to various occupations by the National Council on Compensation Insurance to assist in the calculation of workers' compensation insurance premiums. In the penalty assessment, Auditor Richardson applied the corresponding approved manual rate for classification code 8061 for the related periods of non-compliance. The corresponding approved manual rate was correctly utilized using the methodology specified in section 440.107(7)(d)1. and rule 69L-6.027 to determine the final penalties. The Department correctly determined Respondents' gross payroll pursuant to the procedures required by section 440.107(7)(d) and rule 69L-6.027. On January 14, 2016, the Department served the six Amended Orders of Penalty Assessment on Respondents, assessing penalties of $1,367.06 for Northlake, $9,687.00 for MB, $12,651.42 for Congress Valero, $18,508.88 for Hena, $7,257.48 for Hayma, and $4,031.60 for Blue Heron. The Department has demonstrated by clear and convincing evidence that Respondents were engaged in the gasoline station, self-service/convenience store industry in Florida during the periods of noncompliance; that Respondents failed to secure the payment of workers' compensation for their employees, as required by Florida's Workers' Compensation Law; and that the Department correctly utilized the methodology specified in section 440.107(7)(d)1. to determine the appropriate penalties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a consolidated final order upholding the Stop-Work Orders and the Amended Orders of Penalty Assessment in the amounts of $1,367.06 for Northlake Mobile Enterprises, Inc.; $9,687.00 for MB Food and Beverage, Inc.; $12,651.42 for Congress Valero, Inc.; $18,508.88 for Hena Enterprises, Inc.; $7,257.48 for Hayma Enterprises, Inc.; and $4,031.60 for Blue Heron BP, Inc. DONE AND ENTERED this 16th day of June, 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 16th day of June, 2016.
The Issue The issue in this case is whether Respondent, Pro Quality Enterprises, LLC (“Pro Quality”), should have a penalty assessed against it by Petitioner, Department of Financial Services, Division of Workers’ Compensation (the “Department”), for failure to have workers’ compensation insurance in place, and, if so, the amount of such penalty or assessment.
Findings Of Fact The Department is the State agency responsible for, inter alia, insuring that all businesses operating in this State have workers’ compensation insurance coverage. Pro Quality is a duly-formed and validly-existing limited liability company in the State of Florida. The company was formed on April 23, 2012, for the purpose of conducting any and all lawful business. At the time of its formation, Gabor Albok and Jaco Kotze were the named managers of the company. Mr. Albok was also the registered agent. Mr. Albok created the company when he first came to the United States from his native Hungary. He envisioned using the entity for some business purpose, i.e., perhaps shipping automobiles back to Europe. When that venture did not pan out, Mr. Albok came up with the idea of being a referral source for businesses engaged in the construction industry, e.g., painters, carpenters, lawn services, roofers, etc. On January 14, 2014, Jose Bird, a compliance investigator with the Department, conducted an investigation at 47 Lake Walk, Palm Coast, Florida. Upon arrival at the site at around 11:30 a.m., Mr. Bird saw a person (later identified as Mr. Albok) “doing touch-up work” with a paint brush and then cleaning the brush. Mr. Bird approached Mr. Albok, identified himself as an investigator for the Department, and asked Mr. Albok to identify himself. Mr. Albok complied with the request, including the name of his company, Pro Quality. Mr. Albok did not attempt to hide from the investigator or avoid his questions; he was fully cooperative at all times. Mr. Bird then asked Mr. Albok to provide proof of identity, so Mr. Albok went to his car to retrieve his wallet. At that time he realized he had left his wallet somewhere, so he hurriedly left in his car to return to the 7-11 store he had visited that morning to see if they had his wallet. Meanwhile, Mr. Bird used the information he had received from Mr. Albok to begin his investigation as to whether Pro Quality had workers’ compensation insurance coverage required by someone in the painting business. He found that it did not have such coverage after checking the Department’s compliance and coverage automated system. Mr. Bird, operating under the assumption that Mr. Albok was a painter, provided his findings to his supervisor and was directed to issue an SWO and request for business records. He prepared the documents and they were sent via certified mail to Mr. Albok at his address of record. Mr. Albok responded by providing such business records as he could locate, but maintained that he did not have workers’ compensation insurance coverage because he was not engaged in an activity that required such insurance. Specifically, Mr. Albok explained that he was not a painter, had never been a painter, had never employed a painter in his business, and could not understand why the Department thought otherwise. Mr. Albok was not engaged in any construction-related business. Pro Quality was a company that attempted to help persons building a new home to find professionals who might assist in the development and maintenance of the new home. Pro Quality would then get a referral fee from the companies if they were hired. He was not an employee of any of the companies and performed no services for them nor were the professionals he referred employees of Pro Quality. At the time Mr. Bird arrived at the work site in Palm Coast, Mr. Albok was talking to a painter at the house who he had referred to the homeowner. He touched up a spot on a windowsill and was helping the painter clean his brushes as they talked. He had wiped a brush on the windowsill and was bending down to spray it off as he talked. He had not been painting and the painter was not under his employ, nor was he under the painter’s employ. Mr. Albok’s testimony was credible and is accepted as true. The Department did not provide any evidence to refute Mr. Albok’s assertions in this matter. Mr. Bird’s short observation and minimal inquiry to Mr. Albok was insufficient to establish that Mr. Albok was a painter working at the job site. The Department nonetheless found that Pro Quality was engaged in the business of painting, issued a penalty assessment based on that presumption, and calculated a penalty of $20,727.38, later reduced to $15,215.68. Based upon the determination that Mr. Albok and Pro Quality were not engaged in the business of painting (or other work requiring workers’ compensation insurance), there is no basis for calculating a penalty assessment or imposing a penalty against the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rescinding the Stop-Work Order entered against Pro Quality Enterprises, LLC, and all penalties assessed therefrom. DONE AND ENTERED this 4th day of August, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2016.
The Issue Whether Petitioner is entitled to a legal expense insurance agent's license.
Findings Of Fact On October 17, 2001, Petitioner applied for licensure as a legal expense insurance agent. On December 20, 2001, the Department denied Petitioner's application for licensure based upon his unfitness and untrustworthiness due to Petitioner's guilty plea to conspiracy to engage in racketeering, for conduct which occurred while he was a sitting circuit court judge and which was related to his judicial duties. Petitioner had fully disclosed the plea and the details of the crime in his application to the Department. Petitioner received a juris doctorate degree in 1975 and a master's in criminal law in 1977. After being admitted to the Florida Bar, Petitioner worked as an assistant state attorney, as an associate with a private firm, as a practitioner in his own law firm, and finally was elected to a judgeship at the county court level. Petitioner served two years as a county court judge. In 1988, Petitioner was elected to the circuit court. As such, Petitioner was required to read, know, and abide by the Code of Judicial Conduct. He swore to uphold the Code of Judicial Conduct and voluntarily assumed an office that encompassed the highest level of responsibility and fiduciary duty to the public found in any public office in the United States of America. Petitioner was assigned to the criminal law division of the circuit court. Petitioner knowingly took bribes while he was a sitting circuit court judge. Because Petitioner was in debt, he approached an attorney named Raymond Takiff for a loan. Petitioner admitted that Mr. Takiff agreed to give him money in exchange for Petitioner's helping him out some time in the future. At that time, Mr. Takiff was being used by the Federal Bureau of Investigations (FBI) to set up an undercover bribery investigation. In return for Mr. Takiff's financial help, Petitioner ruled in favor of Mr. Takiff and ordered the return of some property that was the subject matter of one of the false criminal/forfeiture cases used by the FBI in their investigation. Petitioner knowingly helped Mr. Takiff establish a group of judges who would also take bribes. Petitioner stated that he introduced Mr. Takiff to ten other judges and that these instructions included Petitioner's saying that Mr. Takiff was trustworthy, that he could make it worth their while, and convincing the judges that Mr. Takiff was not working for the government. Petitioner continued to be involved in the on-going scheme to bribe multiple judges. One of the judges who received money from Mr. Takiff proceeded to send a portion of this bribe back to Respondent. Petitioner ultimately received $88,000.00 from Mr. Takiff in exchange for actions such as ruling for Mr. Takiff in one case and for knowingly establishing Mr. Takiff with other judges in an attempt to perpetuate the bribery scheme. Petitioner also accepted money from friends in exchange for setting them up with some appointments. Eventually, Petitioner was caught and arrested by the FBI. Petitioner agreed to help the FBI in the on-going investigation and multiple trials stemming from the FBI sting operation. As a result of the aforementioned acts on April 9, 1992, Petitioner pled guilty to conspiracy to engage in racketeering in Federal District Court in the Southern District of Florida and was sentenced to 12 years and seven months in federal prison. Petitioner's actions violated the fiduciary duty he had voluntarily assumed upon becoming a circuit court judge, and by introducing other judges to Mr. Takiff, he was promoting and causing a continuous and increasing breach of the judiciary's fiduciary duty to the public. The offense for which Petitioner was convicted did not have any relation either directly or indirectly upon the insurance business. Petitioner was disbarred on September 26, 1991. While in prison, Petitioner continued to live up to his agreement to help the FBI in the prosecution of criminal cases stemming from the sting operation, even though he did not have to, and was in grave danger because of his continued help. Petitioner had numerous threats made on his life, including contracts to kill him. Petitioner was nearly beaten to death in the attempted execution of one of the contracts on his life. He continued to help the FBI and felt it was one way to make up for his absolute breach of conscience and faith in committing the crime for which he was imprisoned. Subsequent to an unusual Rule 35 hearing held on June 9, 1995, Petitioner's sentence was shortened to five years' incarceration followed by three years' supervised release. The Rule 35 hearing was unusual in that the FBI agents and prosecutors were strongly in favor of Petitioner's release from prison and testified in his favor. Petitioner has completed his supervision and has since tried to pick up the pieces of his life. As a result of his conduct, Petitioner lost everything--family, friends, reputation and property. He clearly has learned the value of integrity and trustworthiness. He helps in various community organizations and serves as a mentor to others who might follow a less than trustworthy life. Petitioner had his civil rights, except the specific authority to possess or own a firearm, restored by the Office of Executive Clemency on August 31, 2002. Petitioner did not lie, mislead, or attempt to conceal in any way his past felony conviction. Petitioner has shown remarkable achievements in rehabilitating himself. Multiple witnesses testified as to his many deeds and rehabilitative achievements in ameliorating his admitted misdeeds in the face of actual death threats and brutal physical attacks resulting in severe and permanent bodily injury. Given this rehabilitation, Petitioner is entitled to be licensed as a legal expense insurance agent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That a final order be entered granting Petitioner's application for licensure as a legal expense agent in the State of Florida. DONE AND ENTERED this 2nd day of December, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 2nd day of December, 2002. COPIES FURNISHED: John R. Forbes, Esquire 8825 Perimeter Park Boulevard Suite 102 Jacksonville, Florida 32216 Matthew A. Nowels, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
Findings Of Fact On December 11, 1974 Rule 12A-1.32 F.A.C. became effective following notice (Exhibit 6) that numerous sections of the Revenue Code were being revised and that a public hearing on the revisions was being held by the Governor and Cabinet. At the time this rule became effective, rulemaking was governed by 120.041 F.S. and the procedure required in that section (which was replaced by 120.54 F.S. on January 1, 1975) was followed. Section 120.011 F.S., also repealed on January 1, 1975, provided that no rule enacted pursuant to Chapter 120 could be retroactive unless expressly so stated. Assessments against Petitioner resulting from the audit taken in 1975 covered the period January 1, 1973 to November 30, 1975. Petitioner's and Intervenor's business is "data conversion contracts and projects" by way of keypunching, key verifying, typing, key tape, key disk, and direct computer entry, or a combination depending on relative efficiencies and machine availability, with or without computer printed reports. More specifically, Petitioner's business of data conversion is the conversion of data from the written or spoken word or symbol into a communication medium (card, tape, disk, paper tape, paper, and direct to computer) through personal services. In connection therewith from time to time Petitioner purchases custom computer systems and programs. In essence, Petitioner converts data received from his customers into a form that can be placed in a computer and thereafter retrieved for such purposes as the customer may desire. In performing this function Petitioner uses paper tape, punch cards, magnetic tape, key tapes, keypunch, typewritten sheets, telephone lines, and other means of transmitting the information or data direct to the computer. The latter methods have been referred to as third generation computer software as the data is transmitted through a cathode ray tube by the operator direct to the computer rather than by means of cards, tape, or other tangible property on which the data is placed for transmission into the computer. The computer program in its operating environment is a product of human intelligence reduced to binary pulses, which are interpreted by the computer machinery to cause human knowledge to be transposed into desired and meaningful output. The basic issue to be resolved is the nature of computer software. Computer hardware refers to the tangible parts of the computer itself while software denotes the information loaded into the computer and the directions given to the computer as to what to do and upon what command. In its assessment Respondent has demanded payment for sales tax involving software processed and sold by Petitioner and Intervenors transmitted on punched cards, paper tape, and typed sheets. Respondent abated the assessment involving magnetic tapes because the tape was owned by Respondent and returned to him when the data superimposed thereon had been stored in the computer. Respondent does not assess sales taxes for computer information supplied to the customer unless tangible property on which the data is superimposed is used and which tangible property is not reusable because of the changes to the tangible property produced when the information or data was placed thereon. Since the magnetic tape was returned to Petitioner in a reusable state and title was never transferred to the customer, Respondent abated the assessment for sales taxes resulting in sale of software via magnetic tape. Similarly Respondent does not claim sales taxes are due when data is fed direct to the computer as no tangible property is transferred. However, when the identical data is transmitted to the computer by means of punched cards, paper tape or other tangible property which is physically changed by the addition of the intelligible data, sales taxes are collected pursuant to Rule 12A-1.32(4) and (7) F.A.C. The tangible property on which the data is superimposed has a value of less than five percent of the total sales price charged for the services. The same type of service is performed by Petitioner whether the data is ultimately entered into the computer by punched cards, magnetic tape, or direct.
The Issue The issue is whether Respondent violated Section 475.25(1)(e) and (1)(m), Florida Statutes (2003),1 and Florida Administrative Code Rule 61J2-2.027(2), and if so, what discipline should be imposed.
Findings Of Fact Respondent is a licensed real estate sales associate. She was licensed in 2003. Her license number is 3061179. Respondent was working for Weichert Realty in the Orlando area at the time of the final hearing. She started working for that firm in October 2006, and prior to that, she “did not do a whole lot with [her] license as far as practicing real estate.” Respondent filled out and submitted her license application over the Internet. She submitted a signed notarized statement dated January 15, 2003, attesting that she answered the questions in the application “completely and truthfully to the best of [her] knowledge.” She also submitted a fingerprint card. The evidence clearly and convincingly establishes that there were at least three material misstatements and omissions in Respondent’s license application. First, Respondent did not provide a Social Security number (SSN) in her license application. The SSN that she subsequently provided to the Division, 378-72-0704, was incorrect. Respondent testified that her SSN is 378-62-0704. That is the SSN listed for Respondent in the driver’s license records maintained by the Florida Department of Highway Safety and Motor Vehicles (DHSMV). There is evidence suggesting that Respondent’s SSN may actually be 380-80-3178, but the evidence is not clear and convincing on that point.3 The document on which Respondent provided the incorrect SSN was not offered into evidence by the Division. Respondent denied providing an incorrect SSN, and she testified that if she did provide an incorrect SSN, it must have been typographical error. Second, the only name listed for Respondent in her license application was Yolanda Orr, which was Respondent’s married name and her legal name at the time she submitted her application. Respondent answered “no” to the question that asked whether she has ever “used, been known as or called by another name (example - maiden name . . .) or alias other than the name singed to the application.” (Emphasis supplied.) Respondent’s maiden name is Yolanda Small. She used that name until July 1998, when she was married. She was divorced in February 2006, and she is again using her maiden name. Respondent currently has two valid forms of identification issued by DHSMV: a Florida driver’s license in the name of Yolanda D. Small (No. S540-964-67-7491) and a Florida identification card in the name of Yolanda D. Orr (No. O600-964-57-7490). The driver’s license was issued in March 2006,4 and expires in July 2010; the identification card was issued in August 2002, and expires in July 2007. The birth date listed on the driver’s license is July 9, 1967, whereas the birth date listed on the identification card is July 9, 1957. Respondent testified that her middle name is Daniella, not Denise. She further testified that she has never used the name Yolanda Denise Orr. In response to a request to the state court in Michigan for records relating to Respondent, the Division was provided documentation of multiple traffic offenses committed in Flint, Michigan in 1999 and 2001 by Yolanda Denise Orr, as well as documentation of criminal offenses committed in Michigan by Yolanda Daniella Orr and Yolanda Danielle Orr. The traffic records do not list the defendant’s Social Security number, but the birth date listed in the records matches Respondent’s birth date. Respondent’s testimony that the traffic offenses did not involve her was not persuasive, nor was her claim there must be multiple Yolanda Orr’s in Flint, Michigan, with the same birth date as hers. Respondent admitted to being in Flint, Michigan at the time of the traffic offenses, and she admitted that she drove a Ford vehicle at the time of the ticket that was issued to Yolanda Denise Orr in October 2001 while driving a Ford. Moreover, the Michigan driver’s license number of Yolanda Denise Orr contained in the traffic records -- O600961139544 -- is identical (except for one number) to the Michigan driver’s license number -- O600961135544 -- that Respondent surrendered to DHSMV when she first applied for a Florida driver’s license. The evidence is clear and convincing that the Yolanda Denise Orr referred to in the traffic records is Respondent, and that Respondent failed to disclose that name (and her maiden name, Yolanda Small) in her license application. Third, Respondent only disclosed one criminal offense in response to the question in the application that asked whether she had “ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) . . . .” The criminal offense that Respondent disclosed was, according to the application, a 1987 offense in Louisiana which Respondent “used the wrong social security number” when “filling out [her] financial aid papers for the first time.” There is no evidence that Respondent was prosecuted for such an offense in Louisiana. Respondent was, however, prosecuted in federal court in Michigan in 1993 for using a false SSN on two separate student loan applications. Those offenses were prosecuted as part of an indictment that also included four counts of filing fraudulent tax returns with the Internal Revenue Service and two counts of using a false SSN on tax returns. In February 1995, Respondent pled guilty to one count of filing a fraudulent tax return, one count of using a false SSN on a tax return, and one count of using a false SSN on student loan applications. The other counts of the indictment were dismissed as part of her plea agreement. In September 1995, Respondent was adjudicated guilty of the offenses to which she pled guilty and was sentenced to six months in federal prison, followed by three years of probation. She was also required to pay restitution in the amount of $8,177 to the Internal Revenue Service and restitution in the amount of $2,761 to the U.S. Department of Education. Respondent testified that “the whole reason the [federal] case came about” was that she filed a tax return not knowing that one had already been filed on her behalf by H&R Block; that the investigation into the “double” filing of the tax return led to the charge involving the “student loan application that had the wrong social security number on it”; and that it was her understanding that the offenses related to the student loan application submitted to Grambling State University, not any colleges in Michigan. Respondent’s testimony regarding the circumstances giving rise to the federal offenses was not credible because, among other things, she was charged with filing false tax returns on three separate occasions -- in 1990, 1991, and 1992 - - not just one time. The background check conducted on Respondent based upon the fingerprint card that she submitted as part of her license application identified two additional criminal offenses that Respondent did not disclose in her application. The first undisclosed offense was a 1990 felony retail fraud offense prosecuted in state court in Michigan. Respondent pled guilty to the offense and was sentenced to one year of probation. The record does not reflect the circumstances surrounding the retail fraud offense, but Respondent described it as “basically a petty theft.” The second undisclosed offense was a 1991 bad check charge, which was also prosecuted in state court in Michigan. The case was not resolved until February 2001 because, according to Respondent, it involved a check she wrote prior to leaving for college and she was unaware that that a case was pending against her until she returned to Michigan after college. Respondent was required to disclose criminal traffic offenses in her license applications; she was not required to disclose traffic offenses such as “parking, speeding, inspection, or traffic signal violations.” The traffic records suggest that several of the offenses may have been criminal in nature (e.g., driving with a suspended license), but the evidence was not clear and convincing on that issue.5 Respondent testified that she did not disclose the state court offenses because she did not remember them at the time she submitted her license application. She testified that she considered the federal offenses to be related and that she thought that disclosing one of the offenses was adequate since the other offenses were related and prosecuted together. Respondent’s explanation as to why she did not disclose all of her federal offenses is not entirely unreasonable under the circumstances. The offenses were all prosecuted in a single criminal proceeding and, even though they involved offenses committed in Michigan between 1990 and 1992 (rather than in Louisiana in 1987), they did involve use of an incorrect SSN on a student loan application. Respondent’s explanation as to why she did not disclose the offenses prosecuted in state court was not plausible. It is understandable that Respondent might not recall all of the details of the retail fraud offense since it occurred more than 10 years before the date of her application, but her testimony that she did not even remember the existence of the offense at the time she filled out her application was not credible or reasonable. Respondent’s testimony that she did not remember the bad check offense at the time she filled out her license application was even less credible because the court records related to that offense reflect that the case was not finally resolved until February 2001, which only two years prior to the date of Respondent’s license application. Respondent testified that she was told by a Division employee that she did not need to disclose all of the counts of the federal case because the related offenses would be discovered as part of the background screening based upon the fingerprint card submitted by Respondent. Respondent offered no evidence to corroborate her unpersuasive, self-serving testimony on this point. Respondent testified that she was directed by the same Division employee to provide a supplemental letter to the Division explaining the federal offenses, and that she did so. However, there is no record of what, if anything, Respondent submitted to the Division. Respondent’s application did not go to the Florida Real Estate Commission (Commission) for approval even though a criminal history was disclosed in the application. The Commission policy in effect at the time authorized the Division to approve such applications on a case-by-case basis. The policy did not require an applicant such as Respondent to appear before the Commission, as is the case under current Commission policy. Respondent did not present any evidence of mitigation at the final hearing. However, in her post-hearing filing, she stated, “I am a single mother, and as such, I rely on my real estate business as my only source of income.”
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order that: finds Respondent guilty of violating Section 475.25(1)(m), Florida Statutes (Count I of the Administrative Complaint); finds Respondent guilty of violating Florida Administrative Code Rule 61J2-2.027(2) and, hence, Section 475.25(1)(e), Florida Statutes (Count II of the Administrative Complaint); revokes Respondent’s license; and imposes an administrative fine of $1,000 or the Division’s investigative costs, whichever is less. DONE AND ENTERED this 19th day of February, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of February, 2007.
The Issue The issue is whether Petitioner's Stop-Work Order and Amended Order of Penalty Assessment are lawful.
Findings Of Fact The Division of Workers' Compensation (Division) is a component of the Department. The Department is a state agency charged with the administration of portions of the "Workers' Compensation Law." Among the Division's duties is enforcing the statutory requirement that employers secure the payment of workers' compensation coverage for the benefit of their employees and corporate officers who are required to be covered. William Pangrass is an investigator for the Division. Specifically, Mr. Pangrass works in the Bureau of Compliance in the Division's office in Ocala, Florida. In that capacity, Mr. Pangrass was doing a routine compliance check on July 10, 2008, at the premises located at 2942 Northwest 144th Terrace in Gainesville, Florida. There was new construction on the site. Mr. Pangrass saw two men talking to one another and going about the site and concluded they were involved in the construction. He went inside and saw a third man on a ladder located in the interior of the house being built. The third man was finishing drywall. The activities observed by Mr. Pangrass were construction industry activities as defined and classified by Florida Administrative Code Rule 69L-6.021. This Rule adopts the SCOPES Manual of the National Council on Compensation Insurance (NCCI). One of the three men identified himself as Mike Hill, the principal of Hill, Inc. Mr. Pangrass inquired into Mr. Hill's workers' compensation status. Mr. Hill provided an expired exemption card. Inquiry as to the other two men revealed that one, Mr. Beauregard, had an expired exemption card and the other, Mr. Petrokowski, had no exemption at all. Mr. Pangrass verified that Mr. Hill was not covered by a policy of workers' compensation insurance and did not have an exemption from coverage, by using the Coverage and Compliance Automated System (CCAS) website. He also reviewed the Florida Department of State, Division of Corporations' website to verify the status of Hill, Inc. Mr. Pangrass learned that Hill, Inc., had no workers' compensation coverage. Furthermore, it was verified that Mr. Hill, who was eligible for an exemption, had not obtained an exemption when his previous exemption expired on June 29, 2008. After consulting with higher authority, Mr. Pangrass issued a Stop-Work Order and served it on July 10, 2008. He also served Mr. Hill with a Request for Business Records for Penalty Assessment Calculation. Mr. Hill responded with records as requested. The records consisted of bank statements and copies of checks signed by Mike Hill on behalf of Hill, Inc., and a statement by Mr. Hill that he had earned $2,571.91 during the period June 30, 2008, through July 10, 2008. It was Mr. Hill's duty to obtain an exemption from the Department, and he failed in that duty. Undoubtedly, the failure was due to an oversight on his part. Although one may be eligible for an exemption, as Mr. Hill was, the exemption does not occur absent an applicant satisfying the Department's documentary requirements, and Mr. Hill did not. Because he was out of compliance from June 30, 2008, until July 10, 2008, Hill, Inc., employed a person without insuring that the person was covered or exempt. The records provided were the sourced documents for an Amended Order of Penalty Assessment prepared by Mr. Pangrass and served on Mr. Hill on July 21, 2008. This document listed names of purported employees or subcontractors, as determined from the business records. They were Mike Beauregard; Daryl Miller, LLC; Fred Atkins; Ashley's Top Shop; and Mike Hill. A Penalty Worksheet was used to calculate the penalties. On the Penalty Worksheet, the five people or entities were assigned NCCI class codes as discussed in paragraph 4, above. Thereafter, the periods of noncompliance were set forth, followed by the payroll for the period. The payroll for each person or entity was divided by 100, and the result was multiplied by the manual rate for the class to determine the premium that should have been paid. Thereafter, the premium was multiplied by 1.5, which is the statutory penalty. This resulted in a total penalty for Hill, Inc., of $1,447.13 It was determined that Hill, Inc., made payments to Mr. Beauregard, who had no exemption, and that Mr. Beauregard paid Mr. Petrokowski, who had no workers' compensation coverage. They were properly included on the Penalty Worksheet. With regard to Fred Atkins, none of the records provided to Mr. Pangrass indicate a $250.00 payment to anyone named Fred Atkins. Mr. Pangrass could not explain from where he derived the name Fred Atkins and could not document any payment to him by Hill, Inc. The $41.70 on the Penalty Worksheet attributable to the Fred Atkins entry should be deducted from the total penalty. Daryl Miller, LLC, appeared twice on the Penalty Worksheet, because it was assumed that the entity was engaged in floor covering and the approved manual rate for floor covering increased. However, there is nothing in the business records introduced into evidence to support any payment to Daryl Miller, LLC, either on June 20, 2007, or between September 26, 2006, and November 16, 2006, as appears on the Penalty Worksheet. There is a check in evidence with a payee of Daryl Floor Covering in the amount of $2,140.00, and dated June 27, 2008. Mr. Hill's unrebutted testimony was that Daryl Miller, LLC, an entity without workers' compensation coverage, and Daryl Floor Covering, a company with workers' compensation coverage, are totally different entities. The lack of evidentiary support for payments to Daryl Miller, LLC, requires that the portion of the penalty attributable to that entity, in the amount of $593.10, be deducted from the amount calculated by Mr. Pangrass. With regard to Ashley's Top Shop, Mr. Hill's unrebutted testimony was that Ashley's Top Shop was a fabricator of counter tops. Mr. Hill stated that he would typically take a pattern to Ashley's Top Shop and that a countertop would be made from it. Thereafter, Mr. Hill testified that he obtained the countertop and installed it. This procedure is a retail sale as opposed to a contractor-subcontractor or employment relationship. The portion of the penalty attributable to Ashley's Top Shop in the amount of $151.61, should be deducted from the amount calculated by Mr. Pangrass. It is therefore demonstrated by the evidence of record that the correctly calculated penalty is $660.72. Mr. Hill paid the assessment of $1,447.13, and properly applied for an exemption. The exemption was granted, and on July 21, 2008, Mr. Hill received an Order of Release from Stop-Work Order, and Amended Order of Penalty Assessment. On that date, he also signed a statement that he had terminated all subcontractors and employees who were not in compliance with the workers' compensation law and that he will not hire anyone unless in compliance with the workers' compensation law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order requiring Hill, Inc., to pay a penalty of $660.72, and to refund any amounts paid by Hill, Inc., in excess of that amount. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 15th day of December, 2008. COPIES FURNISHED: Douglas D. Dolan, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Michael C. Hill Mike Hill Construction, Inc. 9650 Northeast 136th Court Williston, Florida 32696 Justin H. Faulkner, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
