The Issue The issue in this case is whether Elite Restoration and Construction, LLC (Respondent), violated the provisions of chapter 440, Florida Statutes,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 is the appropriate penalty.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and corporate officers. Respondent is an active Florida corporation that was formed on August 28, 2009, with a principal address of 7185 West Village Drive, Homosassa, Florida 34446. Respondent was engaged in business operations in the state of Florida during the entire period of November 2, 2014, to November 1, 2016. Brian Johnson (Respondent’s owner or Mr. Johnson) is Respondent's sole shareholder, owning 100 percent of the stock. The Department's investigator, Michael Robinson, commenced a random worksite compliance investigation on November 1, 2016, at a gas station at 970 Atlantic Boulevard, Jacksonville, Florida 32225. He observed Respondent's owner, Mr. Johnson, and three others, Tim Neeld, Derrick Windier, and James Ingash, painting a metal canopy covering the gas pumps. Mr. Johnson told the investigator that his company, Elite Restoration & Construction, LLC, was a subcontractor for Aluminum Plus of DeLand, Florida. By searching the Division's Coverage and Compliance Automated System, the investigator determined that Brian Johnson obtained a workers' compensation exemption on October 12, 2016, or 20 days prior to the investigation, and further determined that an employee leasing contract previously held by Respondent terminated on January 15, 2015, which is more than nine months prior to the investigation. Mr. Johnson confirmed that Respondent had an exemption for himself, effective October 12, 2016, but did not have any workers' compensation insurance for its employees. On November 1, 2016, after consulting with a supervisor, the Department's investigator issued the Stop-Work Order, which was posted at Respondent's worksite and personally served upon Respondent’s owner. On the same day, the investigator also personally served the Request for Production, which requested business records to determine Respondent's payroll during the two-year penalty period proscribed by section 440.107(7)(d)1., which in this case is from November 2, 2014, to November 1, 2016. The Request for Production explicitly states that the requested records must be provided within 10 business days from receipt of the request. Respondent obtained an Agreed Order of Conditional Release from the Stop-Work Order on November 8, 2016, by terminating the three workers observed during the compliance investigation who did not have workers’ compensation coverage and paying the Department a $1,000 down payment toward the penalty that would be calculated in this case. Respondent produced business records for penalty calculation on November 17, 2016, and February 28, 2017, which is beyond the 10-day time period required by the Request for Production.2/ The Department's penalty auditor, Lynne Murcia, used those records to calculate a $21,475.30 penalty for failing to comply with the workers' compensation insurance requirements of chapter 440. On April 20, 2017, when Respondent’s owner came to the Department’s Jacksonville office, he was personally served with the Amended Penalty and advised of his right to seek administrative review of the Stop-Work Order and Amended Penalty. Mr. Johnson filed a petition for hearing on behalf of Respondent on May 5, 2017, stating that the penalty calculated was wrong because it included income earned in states other than Florida. Respondent produced additional business records on May 17, August 21, and August 31, 2017, for the purpose of demonstrating that a portion of his company’s payroll was derived from work completed at worksites outside of Florida, and arguing that the out-of-state payroll should not be included in the penalty calculation. The invoices showed $182,056.78 in total income, consisting of $77,268 from 14 jobs in Florida, and $104,788.60 for 14 jobs outside of the State of Florida. Upon initial review, the Department’s auditor declined to make any adjustments because the invoices did not provide information showing earnings of specific employees for jobs outside of Florida. Thereafter, Mr. Johnson produced additional records that allowed the Department’s auditor to trace out-of-state employment to transactions in Respondent’s general ledger. The Department's auditor reviewed Respondent's additional records and removed out-of-state payroll and per diem payments. In accordance with that review, the Department issued the 2nd Amended Penalty which reduced the penalty to $16,671.14. The 2nd Amended Penalty also reduced the 2016 payroll attributed to Respondent's owner. Respondent was an "employer" in the state of Florida, as that term is defined in section 440.02(16), from November 2, 2014, to November 1, 2016. Respondent did not secure the payment of workers' compensation insurance coverage, nor have others secured the payment of workers' compensation insurance coverage for the employees listed on the penalty worksheet of the 2nd Amended Penalty during the periods of noncompliance listed on the penalty worksheet. None of the employees listed on the penalty worksheet of the 2nd Amended Penalty had a valid Florida workers' compensation coverage exemption during the periods of noncompliance listed on the penalty worksheet. In the past, Respondent had an employee leasing contract with Southeast Personnel Leasing, Inc. That contract was terminated on January 15, 2015, due to the leasing company’s concerns about out-of-state employment that would not be covered by the leasing company's workers' compensation insurance. None of the employees listed on the penalty worksheet of the 2nd Amended Penalty were "independent contractors" as that term is defined in section 440.02(15)(d)1. None of the employees listed on the penalty worksheet of the 2nd Amended Penalty were employees of a temporary labor company. Employees on the penalty worksheet of the 2nd Amended Penalty are correctly classified under Class Code 5474, painting, as defined in the "Scopes Manual" published by the National Council on Compensation Insurance, Inc. (NCCI), and adopted in Florida Administrative Code Rule 69L-6.021(2)(jj). The approved manual rates used in the penalty worksheet of the 2nd Amended Penalty, as defined by the NCCI Scopes Manual and adopted by the Office of Insurance Regulation, are the correct manual rates for the corresponding periods of noncompliance listed on the penalty worksheet. In calculating the 2nd Amended Penalty, the Department’s auditor used the worksheet required by rule 69L-6.027, along with Respondent’s bank statements, check images, general ledger, and tax returns filed with the Internal Revenue Service. The auditor capped Respondent’s owner’s pay for that portion of 2014 falling within the penalty period because his salary and dividend totaling $73,484 in 2014 exceeded the statewide average of $862.51 per week or $44,850.52 per year. She also adjusted the period of noncompliance for Mr. Johnson, pursuant to rule 69L-6.028(2), because he obtained an exemption from Florida’s Workers’ Compensation Law on October 12, 2016. The auditor explained that she used Respondent’s tax returns for 2014 and 2015 because she believed they were the most reliable indication of salaries and wages, officer compensation, and payroll for outside services and subcontractors. She further explained that she used Respondent’s tax returns and general ledger as the most accurate sources for determining payroll for 2016. The auditor’s explanation is reasonable and credited. Mr. Johnson questioned the auditor’s method of determining payroll and offered alternative methods using spreadsheets he created to identify what he called “member draws” and other summaries. The invoices provided by Respondent to the Department, however, do not match the summaries; and Respondent’s method of determining payroll, when compared to the method utilized by the Department, is not accurate or reliable. The auditor’s method reflected in the 2nd Amended Penalty appropriately applied approved manual rates corresponding to Class Code 5474, painting, to determine the evaded workers’ compensation insurance premium. Then, the evaded premium was properly multiplied by two in accordance with section 440.107(7)(d)1.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order, consistent with this Recommended Order, upholding the Stop-Work Order and imposing the penalty set forth in the 2nd Amended Order of Penalty Assessment against Elite Restoration and Construction, LLC. DONE AND ENTERED this 20th day of February, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2018.
The Issue The issues in this case are whether Respondent, Doherty Home Repair, Inc., failed to obtain workers’ compensation coverage that meets the requirements of chapter 440, Florida statutes (2017); and, if so, whether the penalty assessed in the 2nd Amended Order of Penalty Assessment was properly calculated.
Findings Of Fact Based on the evidence and stipulated facts, the undersigned makes the following Findings of Fact: Respondent was actively involved in business operations in the state of Florida during the period of January 22, 2014, through January 21, 2016, inclusively. Respondent received the Stop-Work Order and Order of Penalty Assessment from the Department on January 21, 2016. Respondent received the Request for Production of Business Records for Penalty Assessment Calculation from the Department on February 10, 2016. Respondent was an "employer," as defined in chapter 440, throughout the penalty period. Respondent received the Amended Order of Penalty Assessment from the Department on March 10, 2016. Respondent received the 2nd Amended Order of Penalty Assessment from the Department on July 5, 2016. All of the individuals listed on the penalty worksheet of the 2nd Amended Order of Penalty Assessment were "employees" of Respondent during the periods of noncompliance listed on the penalty worksheet of the Amended Order of Penalty Assessment. None of the individuals listed on the penalty worksheet of the 2nd Amended Order of Penalty Assessment had a valid Florida workers’ compensation coverage exemption at any time during the periods of noncompliance listed on the penalty worksheet of the Amended Order of Penalty Assessment. Respondent did not secure the payment of workers’ compensation insurance coverage, nor have others secured the payment of workers’ compensation insurance coverage, for any of the individuals named on the penalty worksheet of the 2nd Amended Order of Penalty Assessment during the periods of noncompliance listed on the penalty worksheet of the 2nd Amended Order of Penalty Assessment. None of the individuals listed on the penalty worksheet of the 2nd Amended Order of Penalty Assessment were "independent contractors" hired by Respondent for any portion of the periods of noncompliance listed on the penalty worksheet. Wages or salaries were paid by Respondent to its employees listed on the penalty worksheet of the 2nd Amended Order of Penalty Assessment, whether continuously or not, during the corresponding periods of noncompliance listed on the penalty worksheet of the 2nd Amended Order of Penalty Assessment. The Request for Production of Business Records for Penalty Assessment Calculation was served on Respondent on April 2, 2016. Respondent failed to provide all of the required business records for the period requested in the Request for Production of Business Records for Penalty Assessment Calculation. The employees on the penalty worksheet of the 2nd Amended Order of Penalty Assessment are classified under the correct class codes, as defined by the National Council on Compensation Insurance, Inc. ("NCCI"), "Scopes® Manual." The approved manual rates used on the penalty worksheet of the 2nd Amended Order of Penalty Assessment, as defined by the NCCI Scopes® Manual, are the correct manual rates for the corresponding periods of noncompliance listed on the penalty worksheets. Doherty Home Repair, Inc., is Respondent’s correct legal name. The Department is the state agency charged with the responsibility to investigate and enforce the workers’ compensation insurance coverage laws in the state under chapter 440 and to ensure that employers secure workers’ compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent is a private company providing general construction and home repair services. It maintained its primary business records on a computer during the relevant time periods. Ryan Doherty testified that his work computers were stolen during a "break in" at his office. 2/ However, he had possession of the computers containing most of his business records, for one to one and one-half months after the date the original Stop-Work Order was issued. Respondent did provide 2014 tax and other business records to the Department for purposes of (1) investigating alleged violations of the workers’ compensation insurance coverage laws and (2) calculating a penalty. Byron Fichs Active Electric3/ was included in the records provided by Respondent as an employee, for purposes of a penalty calculation. The period of noncompliance was January 23, 2014, through December 31, 2014. Pet. Ex. 6, p. 19. Gross payroll for the audit period for Byron Fichs Active Electric was determined based upon records provided by Respondent and totaled $4,342.27. Pet. Ex. 6, p. 19. Information contained in Respondent’s U.S. Income Tax Return for 2014 indicated that Respondent paid a total of $640,100.00 in labor-related expenses for 2014. Pet. Ex. 10, p. 62. That amount was broken down into essentially two categories in 2014--Subcontractors and Specific employees. Subcontractors: $535,980.00 of the labor-related expenses was for sub-contractors. Pet. Ex. 10, p. 62. Specific Employees: $104,120.00 of the total labor- expenses ($640,100.00) was attributable to specific employees. Pet. Ex. 10, p. 66, Overflow Statement. However, only $503,674.364/ was included by the Department as Gross Payroll for subcontractors in 2014 on the worksheet for purposes of a penalty calculation. Pet. Ex. 6, p. 19. Tax records for 2014 indicated payments totaling $104,120.00 were made to Seth Anthony, Shawn Bronson, Joseph Horucth, Mark Lucas, John Concepcion, Jordan Beene, James Stift, and Jerry Brunnell. Pet. Ex. 10, p. 66. Due to the payments indicated on the tax and business records, the individuals listed above were included as employees for purposes of penalty calculation. Pet. Ex. 6, p. 19. The amounts in the 2014 tax records were prorated to determine gross payroll for each individual for purposes of penalty calculation. The period of noncompliance for each person was January 23, 2014, through December 31, 2014. Pet. Ex. 6, p. 19. Mr. Doherty was listed as an employee for purposes of penalty calculation. The gross wage attributed to Mr. Doherty in 2014 was based upon the average weekly wage ("AWW"), since the records based on income were more than the AWW. Pet. Ex. 6, p. 19. Mr. Doherty’s period of noncompliance during the year 2014 was April 19, 2014, through December 31, 2014. Pet. Ex. 6, p. 19. Significantly, payroll for the remainder of the penalty audit period (January 1, 2015, through December 31, 2015, and January 1, 2016, through January 21, 2016) was imputed by the Department because it properly determined that Respondent did not provide adequate business records to determine Respondent’s actual payroll.5/ Pet. Ex. 6, pp. 19-20. The four employees that were found working on the job site on the day the Stop-Work Order was issued, as well as Mr. Doherty, a corporate officer, were included by the Department as employees for purposes of imputing payroll and calculating the penalty for the remainder of the audit period, January 1, 2015, through January 21, 2016. Pet. Ex. 6, p. 19. The four employees are identified in Respondent’s business records as Dave Mason, Dan, Erick, and Joe. Pet. Ex. 6, p. 19. Based upon the records provided for the period of January 23, 2014, through December 31, 2014, and the imputed payroll established for the period of January 1, 2015, through January 21, 2016, a penalty of $244,964.44 was calculated. Pet. Ex. 6, p. 19. As a result, a 2nd Amended Order of Penalty Assessment was issued assessing a total penalty of $244,964.44. Pet. Ex. 6, pp. 16-17. After the 2nd Amended Order of Penalty Assessment was issued, Respondent provided the Department with a "massive" amount of additional business records. The actual date of delivery of these additional records to the Department was not clear. Nonetheless, it was clear that it was on a date after the 2nd Amended Order of Penalty Assessment was issued. These business records, despite being voluminous, were incomplete, and the Department’s penalty auditor, if required, would have been unable to calculate or recalculate a penalty based on the records delivered by Respondent after the 2nd Amended Order of Penalty Assessment was issued. A large amount of timesheets for various workers were also received after the issuance of the 2nd Amended Order of Penalty Assessment, but again they were incomplete; and there were no wages associated with any of the timesheets, no hourly rates were stated, and no total amount paid to the employees for the week was listed.6/
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Financial Services, Division of Workers' Compensation, enter a final order finding that Respondent, Doherty Home Repair, Inc., violated the workers’ compensation laws by failing to secure and maintain required workers’ compensation insurance for its employees, and impose a penalty of $244,964.44. DONE AND ENTERED this 27th day of December, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 27th day of December, 2017.
The Issue The issues in this proceeding are whether Respondent, Matt’s Quality Painting, Inc. ("Respondent"), failed to abide by the coverage requirements of the Workers' Compensation Law, chapter 440, Florida Statutes, by not obtaining workers' compensation insurance for its employees; and whether Petitioner properly assessed a penalty against 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(3), Fla. Stat. Respondent operates a painting business located in Jacksonville, and is therefore engaged in the construction industry. On April 28, 2016, the Department's compliance investigator, Michael Robinson, observed three individuals painting the exterior of a residence in the Hidden Hills subdivision of Jacksonville. Mr. Robinson approached one of the painters, an individual later identified as Ismet "Matt" Rapi, who told Mr. Robinson that he was the owner of the business. Mr. Rapi told Mr. Robinson that the other two men on the job were his employees. Mr. Rapi stated that he was exempt from the workers' compensation coverage requirements, but his two employees were not covered. Mr. Robinson researched the database maintained by the Department of State, Division of Corporations (accessible at www.sunbiz.org) and learned that Matt’s Quality Painting, Inc., was an active corporation and that Mr. Rapi was the sole corporate officer. Mr. Robinson consulted the Department's Coverage and Compliance Automated System ("CCAS") database, which lists the workers' compensation insurance policy information for each business as provided by the insurance companies, as well as any workers' compensation exemptions for corporate officers. CCAS indicated that Mr. Rapi had an active exemption but that Respondent did not have a workers' compensation insurance policy or an employee leasing policy for its two employees, neither of whom was exempt. Mr. Robinson concluded that Respondent had failed to secure workers' compensation insurance coverage that met the requirements of chapter 440. Mr. Robinson therefore issued an SWO to Respondent on April 28, 2016, and personally served the SWO on Mr. Rapi on the same date. Also on April 28, 2016, Mr. Robinson served Respondent with the Request for Production of Business Records for Penalty Assessment Calculation. The purpose of this request was to obtain the business records necessary to determine the appropriate penalty to be assessed against Respondent for violating the coverage requirements of chapter 440. Because section 440.107(7)(d)1. provides that the Department's assessment of a penalty covers the preceding two-year period, the request for production asked for Respondent's business records from April 29, 2014, through April 28, 2016. If an employer fails to produce business records sufficient to allow for the calculation of the appropriate penalty, the Department must calculate the applicable penalty by imputing the employer's payroll using the statewide average weekly wage for the type of work performed by the employee and multiplying that payroll by two. The statewide average wage is derived by use of the occupation classification codes established by the proprietary Scopes Manual developed by the National Council on Compensation Insurance, Inc. ("NCCI"). The Scopes Manual has been adopted by reference in Florida Administrative Code Rule 69L-6.031(6). For Respondent's employees, Mr. Robinson applied the occupation classification code 5474, for painting. Fla. Admin. Code R. 69L-6.031(6)(b)9. The Department's Amended Order, assessing an imputed penalty in the amount of $46,692.64 against Respondent, was issued on June 23, 2016, and served on Mr. Rapi by hand on June 28, 2016. Following service of the Amended Order, Respondent supplied the Department with additional business records sufficient for the Department to calculate a penalty. The Department assigned penalty audit supervisor, Anita Proano, to recalculate and approve the penalty assessed against Respondent. Ms. Proano reviewed the business records produced by Respondent and identified Respondent's uninsured payroll. Payments to Mr. Rapi were not included in the penalty because he had an active exemption. Respondent's penalty period was less than two years because Respondent’s record included a prior SWO.1/ Ms. Proano identified numerous cash withdrawals in Respondent's business records. Based on the lack of business records and receipts to validate the cash expenses, Ms. Proano included 80 percent of the cash withdrawals as uninsured labor in assessing the penalty, pursuant to rule 69L-6.035(1)(k). Ms. Proano consulted the classification codes listed in the Scopes Manual and confirmed that Respondent’s employees should be assigned class code 5474. Ms. Proano then utilized the corresponding approved manual rates for that classification code and the related periods of non-compliance. Ms. Proano applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7)(d)l. and rules 69L-6.027, 69L-6.028, and 69L-6.035, to determine the penalty of $22,282.46. The Department issued the Second Amended Order on November 8, 2016, lowering the penalty assessment to $22,282.46. The Department utilized the correct occupation classification code for the two employees. The Department correctly utilized the procedure set forth by section 440.107(7)(d) and (e), and the penalty calculation worksheet incorporated by reference into rule 69L- 6.027(1), to calculate the penalty assessed against Respondent by the Second Amended Order.
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 $22,282.46 against Matt’s Quality Painting, Inc. DONE AND ENTERED this 24th day of May, 2017, 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 24th day of May, 2017.
The Issue The issue is whether Respondent willfully has failed or refused to file a CE Form 1, Statement of Financial Interests (Form 1), for 2015, in violation of section 112.3145(8)(c), Florida Statutes (2018).
Findings Of Fact Respondent is presently employed by Miami-Dade County as a Purchasing Specialist in the Water and Sewer Department. She has worked for Miami-Dade County continuously since 1997 when she was hired as a clerical worker in the Water and Sewer Department. She assumed procurement duties when she earned a promotion in 2006 to her present position. In 2011, changes in internal operations in the Water and Sewer Department resulted in the assignment to Respondent of spending authority of up to $25,000, and Respondent has filed Forms 1, evidently without litigation, for 2011, 2012, 2013, 2014, and 2016. In her job, Respondent routinely documents whether county vendors have performed their contractual obligations. When a vendor fails to perform, Respondent contacts the vendor in an attempt to secure performance. If the vendor's nonperformance persists, Respondent places the vendor on probation. Prior to her employment with Miami-Dade County, Respondent worked for 17 years as a clerical worker with AT&T. By May 15, 2016, the Commission transmitted to the Miami-Dade County Supervisor of Elections a list of persons, including Respondent, who were required to file a Form 1 for 2015 by the deadline of July 1, 2016. On February 26, March 25, and April 22, 2016, the Supervisor of Elections emailed Respondent reminders to file timely her 2015 Form 1, and Respondent received each of these email reminders. On May 27, 2016, the Supervisor of Elections mailed Respondent a detailed letter reminding her of the obligation to file a Form 1 by July 1, supplying the necessary form, and indicating how to file the completed form. Respondent received this letter. Respondent testified that, in the spring of 2016, she was under considerable stress from a marital separation that had commenced when her husband had moved out of the marital home in February 2015. Undoubtedly, Respondent was distraught over the prospect of the failure of a marriage of 35 years' duration, but she timely filed her 2014 Form 1 shortly after the separation had taken place. Three factors are important for determining whether Respondent's failure to file from July 2, 2016, through August 30, 2017, was willful. First, Respondent's employment history includes many years of clerical work and 12 years of managing contracts for the Water and Sewer Department. Clearly, Respondent understands the importance of paperwork, knows how to complete and file forms, and recognizes that there are consequences for failing to file completed forms timely. Second, Respondent had filed four Forms 1 for the four years preceding 2015, so she was well aware of her annual duty to file this financial disclosure and of the general timeframe for when the form was due. Third, the Commission and Respondent's Supervisor of Elections showered Respondent with notices to file the 2015 Form 1. In addition to the above-noted communications prior to July 1, on July 29, 2016, the Supervisor of Elections mailed Respondent, by certified mail, a detailed letter advising that she was delinquent in filing a Form 1, but could file within a grace period that ended on September 1, 2016. This letter warns that a fine of $25 per day, up to $1500, would begin to accrue if the form is not filed by September 1 and, if Respondent fails to file the form within 60 days after the expiration of the grace period on September 1, "you will also be subject to penalties provided in Florida Statute 112.317." Respondent received this delinquency notice. On August 17, 2016, the Commission issued a courtesy notice, in the form of a bright orange postcard, advising Respondent that the grace period for filing the 2015 Form 1 would expire on September 1, 2016, and warning that she would accrue a fine of $25 per day (Automatic Fine) until she filed the form or accrued a total of $1500 in fines (Maximum Automatic Fine). On September 7, 2016, the Commission sent a courtesy letter advising Respondent that the grace period had expired on September 1, and the Automatic Fine was accruing and would continue to accrue until it reached the Maximum Automatic Fine. Respondent received these courtesy communications. On March 2, 2017, the Commission issued to Respondent a Notice of Assessment of Automatic Fine, which is the Maximum Automatic Fine. The notice advises how to appeal the Maximum Automatic Fine and even identifies acceptable grounds for setting aside the fine. The notice concludes that, if Respondent failed to appeal or pay the Maximum Automatic Fine within 30 days, a default order would be issued that could refer the matter to a collection agency or her employer for withholding a portion of her salary until the fine was paid. The notice also warns that the Commission could impose "[a]n additional civil penalty . . . if . . . a complaint is filed against you pursuant to Section 112.324, Florida Statutes." Respondent received this notice. On May 23, 2017, the Commission issued a Final Notice of Assessment of Automatic Fine for Failure to Timely File Form 1, Statement of Financial Interests. This letter advises that Respondent had waived her right to appeal the Maximum Automatic Fine and restates the rights of the Commission to obtain payment of the fine. Respondent received this notice. On August 2, 2017, the Commission issued a Notification of Issuance of Default Final Order advising Respondent that, if she failed to pay the Maximum Automatic Fine by September 7, 2017, the Commission would refer the matter to a collection agency. This letter warns that a failure to pay or arrange to pay the fine by the deadline would result in a copy of the Default Final Order being sent to Respondent's agency head. Respondent received this notice. On August 31, 2017, Respondent filed her 2015 and 2016 Forms 1. Based on the above-cited facts, Respondent's failure to file the 2015 Form 1 from July 2, 2016, through August 30, 2017, was intentional and, thus, willful. Addressing solely the collection of the Maximum Automatic Fine, on September 7, 2017, the Commission sent Respondent a letter stating that a recent statutory change required the Commission to notify her agency head to implement withholding from her salary. On October 11, 2017, the Commission sent a letter to the Finance Manager of the Miami-Dade County Finance Department. The letter states that, "[t]o timely resolve this matter," which refers to the Maximum Automatic Fine, the Commission requested that the manager withhold a portion of Respondent's salary and remit it to the Commission. The Finance Manager implemented salary withholding, typically $174.11 per month, as of November 6, 2017, and the Commission received the final payment on March 6, 2018, for a total of $1500. None of Respondent's Forms 1 for the years 2011 through 2016 discloses financial interests above the disclosure thresholds. At this point, as she explained tearfully at the hearing, Respondent is merely trying to keep her job so she can work a few more years and retire with a pension on which she can live.
Recommendation It is RECOMMENDED that the Commission enter a final order dismissing the Order Finding Probable Cause and this section 112.3145(8)(c) proceeding. DONE AND ENTERED this 8th day of October, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 8th day of October, 2018.
Findings Of Fact The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on April 1, 2011, and the Amended Order of Penalty Assessment issued on April 19, 2011, 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 Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On April 1, 2011, 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. 11-110-1A to LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, 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 Section 120.569 and 120.57, Florida Statutes. 2. On April 1, 2011, the Stop-Work Order and Order of Penalty Assessment was personally served on LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, 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 April 19, 2011, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-110-1A to LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. The Amended Order of Penalty Assessment assessed a total penalty of $12,985.36 against LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. 4. On April 29, 2011, the Amended Order of Penalty Assessment was. personally served on LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC failed to answer the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes.
