12-000482 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. Sure Pave Of N.W. Fl, Inc. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, May 1, 2012.

FILED

MAY 21 201l 000482

Chief Financial Officer

Docketed by:

CHIEF FINANCIAL OFFICER

JEFF STATE ATWATER OF FLORIDA

IN THE MATTER OF:

Case No.: 11-211-1A-WC

SURE PAVE OF N.W. FL, INC.,

__________ ------'1

FINAL ORDER

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 request for administrative hearing received from SURE PAVE OF N.W. FL, INC.,

the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty

Assessment, and the 2nd Amended Order of Penalty Assessment, and being otherwise fully

advised in the premises, hereby finds that:

1. On June 27, 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. 11-211-1A to SURE PAVE OF

N.W. FL, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of

Rights wherein SURE PAVE OF N.W. FL, 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,

and must conform to Rule 28-106.2015, Florida Administrative Code.

2. On June 27, 2011, the Stop-Work Order and Order of Penalty Assessment was

served by personal service on SURE PAVE OF N.W. FL, 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 July 5, 2011, SURE PAVE OF N.W. FL, INC. timely filed a request for

administrative hearing with the Department. The petition for administrative review was

forwarded to the Division of Administrative Hearings on February 2, 2012, and the matter was

assigned DOAH Case No. 12-0482. A copy of the petition is attached hereto as "Exhibit B" and

incorporated herein by reference.

4. On July 13, 2011, the Department issued an Amended Order of Penalty

Assessment to SURE PAVE OF N.W. FL, INC. The Amended Order of Penalty Assessment

assessed a total penalty of $44,615.26 against SURE PAVE OF N.W. FL, INC. The Amended

Order of Penalty Assessment included a Notice of Rights wherein SURE PAVE OF N.W. FL,

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, and must conform to Rule 28-106.2015, Florida Administrative Code.

5. On July 16, 2011, the Amended Order of Penalty Assessment was served by

certified mail on SURE PAVE OF N.W. FL, INC. A copy of the Amended Order of Penalty

Assessment is attached hereto as "Exhibit C" and incorporated herein by reference.

6. On February 9, 2012, the Department served by U.S. mail its First Interlocking

Discovery Requests ("discovery requests") which included requests for admissions,

interrogatories, and requests for production on Respondent. Respondent was required to serve its

answers upon the Department within 30 days pursuant to Rules 1.340(a), 1.350(b), and 1.370(a),

Florida Rules of Civil Procedure. However, pursuant to Rule 128-106.103, Florida

Administrative Code, "five days shall be added to the time limits when service has been made by

regular U.S. mail." Therefore, Respondent was required to respond to the discovery on or before

March 15,2012.

7. On March 7, 2012, the Department issued a 2nd Amended Order of Penalty

Assessment to SURE PAVE OF N.W. FL, INC. The 2nd Amended Order of Penalty Assessment

assessed a total penalty of $5,514.83 against SURE PAVE OF N. W. FL, INC.

8. On March 13, 2012, the Department filed an Unopposed Motion to Modify

Charging Documents based on the 2nd Amended Order of Penalty Assessment. The Unopposed

Motion to Modify Charging Documents Assessment requested that the Administrative Law

Judge amend the Charging Documents to reflect the total penalty of $5,514.83 against SURE

PAVE OF N.W. FL, INC.

9. On March 27, 2012, the Administrative Law Judge issued an Order Granting

Unopposed Motion to Modify Charging Documents. A copy of the Order Granting Unopposed

Motion to Modify Charging Documents with the 2nd Amended Order of Penalty Assessment is

attached hereto as "Exhibit D" and incorporated herein by reference.

10. On April 11, 2012, the Department filed an Amended Motion to Compel

Discovery and Continue Final Hearing filed after having not received any answer from

Respondent to the Department's discovery requests.

11. On April 11, 2012, the Administrative Law Judge issued an Order Granting

Amended Motion to Compel Discovery and Continue Final Hearing. The Order Granting

Amended Motion to Compel Discovery and Continue Final Hearing ordered SURE P AVE OF

N.W. FL, INC. to respond to the Department's discovery on or before April 25, 2012 or the file

would be closed and jurisdiction would be relinquished to the Department.

-- l

12. On May 1, 2012, the Administrative Law Judge issued an Order Closing File and

Relinquishing Jurisdiction. A copy of the Order Relinquishing Jurisdiction and Closing File is

attached hereto as "Exhibit E" and incorporated herein by reference.

FINDINGS OF FACT

13. The factual allegations contained in the Stop-Work Order and Order of Penalty

Assessment issued on June 27, 2011, the Amended Order of Penalty Assessment issued on July

13,2011, and the 2nd Amended Order of Penalty Assessment, issued on March 7, 2012, attached

as "Exhibit A", "Exhibit C", and "Exhibit D" respectively, and fully incorporated herein by

reference, are hereby adopted as the Department's Findings of Fact in this case.

CONCLUSIONS OF LAW

14. The Department has jurisdiction over the subject matter of and the parties to this

matter pursuant to Chapter 440, Florida Statutes.

15. Based upon the Findings of Fact adopted herein, the Department concludes that

SURE PAVE OF N.W. FL, INC. violated the specific statutes and rules alleged in the Stop-

Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and

the 2nd Amended Order of Penalty Assessment, and hereby adopts the violation(s) charged in

the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty

Assessment, and the 2nd Amended Order of Penalty Assessment as the Conclusions of Law in

this case.

PENALTY IMPOSED

16. The Order Closing File and Relinquishing Jurisdiction from the Division of

Administrative Hearings, the Stop-Work Order and Order of Penalty Assessment, the Amended

Order of Penalty Assessment, and the 2nd Amended Order of Penalty Assessment taken together

with the Findings of Fact and Conclusions of Law adopted herein, constitute grounds for the

Chief Financial Officer to impose the penalty as set forth herein.

IT IS THEREFORE ORDERED that:

a. SURE PAVE OF N.W. FL, INC. shall immediately pay the total penalty of

$5,514.83 m full to the Department of Financial Services for deposit into the Workers'

Compensation Administration Trust Fund; and

b. SURE PAVE OF N.W. FL, INC. shall immediately cease all business operations

in the State of Florida until such time as the Department issues an order releasing the Stop-Work

Order and Order of Penalty Assessment. The Department shall not issue an Order releasing the

Stop-Work Order and Order of Penalty Assessment until SURE PAVE OF N.W. FL, INC. has

come into compliance with the coverage requirements of Chapter 440, Florida Statues and has

paid a total penalty of$5,514.83 to the Department.

DONE AND ORDERED on this Qfday of __ ' 2012.

E. Tanner Holloman

Director, Workers' Compensation

NOTICE OF RIGHTS

Any party to these proceedings adversely affected by this Order is entitled to seek review

of this Order pursuant to Section 120.68, Florida Statutes, and Florida Rule of Appellate

Procedure 9.110. Review proceedings must be instituted by filing a Notice of Appeal with Julie

Jones, DFS Agency Clerk, Department of Financial Services, Room 612 Larson Building, 200

East Gaines Street, Tallahassee, Florida, 32399-0390 and a copy of the Notice of Appeal, a copy

of this Order and filing fee with the appropriate District Court of Appeal within thirty (30) days

of rendition of this Order.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by

U.S. Mail to the person(s) listed below, on this 21 :>\\- day of_----L.M--=-· =1..1,..----' 2012.

Stefan R. Grow .

Florida Bar No. 0093585

Assistant General Counsel

Department Financial Services,

Division of Legal Services,

Workers' Compensation Section

200 East Gaines Street

Tallahassee, FL 32399-4229

850-413-1606(Phone)

850-413-1978 (Fax)

Copies to:

Scott Riley

Sure Pave ofNW FL, Inc.

P.O. Box 667

Fort Walton, FL 32549