16-001863 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. Fantastic Const. Of Daytona, Inc., A Florida Corporation Status: Closed Recommended Order on Thursday, August 18, 2016.

Summary: Department proved the Respondent failed to provide workers' compensation insurance for certain of its employees, but failed to prove the penalty calculation was correct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF WORKERS'

COMPENSATION,

Petitioner,

vs. Case No. 16 - 1863

FANTASTIC CONST. OF DAYTONA,

INC., A FLORIDA CORPORATION,

Respondent.

_______________________________ /

RECOMMENDED ORDER

A duly - noticed hearing was held in this case on June 13,

2016, via video tele conference with sites in Tallahassee and

Daytona Beach, Florida, before Administrative Law Judge Suzanne

Van Wyk.

APPEARANCES

For P etitioner: Trevor S. Suter, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

For Respondent: Richard W. Hennings, Esquire

Richard W. Hennings, P.A.

205 North Joanna Avenu e

Tavares, Florida 32778 - 3217

STATEMENT OF THE ISSUE S

Whether Fantastic Construction of Daytona, Inc.

(ÐRespondentÑ), failed to secure the payment of workersÓ

compensation coverage for its employees ; and , if so, whether the

Department of Financial Ser vices, Division of WorkersÓ

Compensation ( ÐPetitionerÑ or ÐDepartmentÑ), correctly

calculated the penalty to be assessed against Respondent.

PRELIMINARY STATEMENT

On November 19, 2015, the Department served a Stop - Work

Order and Order of Penalty Assessment (Stop - Work Order) on

Respondent, pursuant to chapter 440, Florida Statutes, for

failing to secure workersÓ compensation for its employees. On

February 18, 2016, the Department served an Amended Order of

Penalty Assessment on Respondent, assessing a penal ty of

$17,119.80.

On March 8, 2016, Respondent requested a hearing to dispute

the penalty calculation. On April 1, 2016, Petitioner referred

this matter to the Division of Administrative Hearings, which

scheduled a final hearing for June 13, 2016.

On Jun e 6, 2016, the Department filed its Unopposed Motion

for Leave to Amend Order of Penalty Assessment. The motion was

granted on June 8, 2016, and the penalty sought was amended to

$9,629.36 as reflected in the Second Amended Order of Penalty

Assessment.

The final hearing commenced as scheduled. Petitioner

presented the testimony of Scott Mohan, Department investigator,

and Sarah Beal, Department penalty auditor. PetitionerÓs

Exhibits P1 through P11 were admitted in evidence.

Respondent presented the te stimony of Foster Coleman,

RespondentÓs president. RespondentÓs Exhibits R1 and R2 were

not admitted at hearing, but were proffered by Respondent.

The one - volume Transcript of the proceedings was filed on

July 6, 2016. Petitioner timely filed a Proposed Recommended

Order, which has been considered by the undersigned in preparing

this Recommended Order. Respondent did not make any post -

hearing filing.

All references to the Florida Statutes herein are to the

2015 version.

FINDING S OF FACT

1. The Depart ment is the state agency charged with

enforcing the requirement of chapter 440, Florida Statutes, that

employers in Florida secure workersÓ compensation coverage for

their employees. § 440.107(3), Fla. Stat.

2. Respondent is a corporation engaged in the construction

industry with headquarters in Daytona Beach, Florida.

3. On November 19, 2015 , the DepartmentÓs compliance

investigator, Scott Mohan, observed five individuals framing a

single - family house at 173 Botefuhr Avenue in Daytona, Florida.

4. Mr. Mohan interviewed the individuals he observed

working at the jobsite and found they were working for

Respondent on lease from Convergence Leasing (ÐConvergenceÑ).

Mr. Mohan contacted Convergence and found that all of the

workers on the jobsite were employ ees of Convergence, except

Scott Barenfanger. Mr. Mohan also confirmed that the workersÓ

compensation policy for Convergence employees was in effect.

5. Mr. Mohan reviewed information in the Coverage and

Compliance Automated System, or CCAS, for Responde nt. CCAS

indicated RespondentÓs workers were covered for workersÓ

compensation by Convergence and that RespondentÓs contract with

Convergence was active.

6. Mr. Mohan also confirmed, through CCAS, that

Foster Coleman, RespondentÓs president, had previous ly obtained

an exemption from the workersÓ compensation requirement, but

that his exemption expired on July 18, 2015.

7. Mr. Mohan then contacted Mr. Coleman via telephone and

informed him that one of the workers on the jobsite was not on

the active emplo yee roster for Convergence, thus Respondent was

not in compliance with the requirement to obtain workersÓ

compensation insurance for its employees.

8. Mr. Coleman reported to the jobsite in response to

Mr. MohanÓs phone call. Mr. Coleman admitted that

Mr. Barenfanger was not on the Convergence employee leasing

roster. Mr. Coleman subsequently obtained an application from

Convergence for Mr. Barenfanger and delivered it to his

residence.

9. Mr. Mohan served Mr. Coleman at the jobsite with a

Stop - Work O rder and a Request for Production of Business Records

for Penalty Assessment Calculation (ÐBRRÑ).

10. In response to the BRR, Respondent provided to the

Department business bank statements, check stubs, copies of

checks, certificates of liability insuranc e for various

suppliers and sub contractors, and an employee leasing roster for

most of the audit period fro m November 20, 2013 , to November 19,

2015. 1/

11. Respondent did not produce any check stubs for

November and December 2013. Mr. Coleman testified, credibly,

that his bookkeeper during that time period did not keep

accurate records. Mr. Coleman did produce his business bank

statements and other records for that time period.

12. Based on the review of initial records received, the

Department calculat ed a penalty of $17,119.80 and issued an

Amended Order of Penalty Assessment in that amount on

February 18, 2016.

13. On March 17, 2016, Respondent supplied the Department

with additional records. Altogether, Respondent submitted over

400 pages of record s to the Department. The majority of the

records are copies of check stubs for checks issued on

RespondentÓs business bank account. The check stubs are in

numerical order from 1349 to 1879, and none are missing. The

check stubs were hand written by Mr. Coleman, who is 78 years

old. Some of his writing on the check stubs is difficult to

discern.

14. On April 4, 2016, following review of additional

records received, the Department issued a Second Amended Order

of Penalty Assessment in the amount of $9,62 9.36.

15. The Department assigned penalty auditor Sarah Beal to

calculate the penalty assessed against Respondent.

Identification of Employees

16. Ms. Beal reviewed the business records produced by

Respondent and identified RespondentÓs uninsured emplo yees first

by filtering out payments made to compliant individuals and

businesses, and payments made for non - labor costs.

17. However, the evidence demonstrated that the Department

included on its penalty calculation worksheet (ÐworksheetÑ)

payments made to individuals who were not RespondentÓs

employees.

18. Neal Noonan is an automobile mechanic. Mr. Noonan was

neither an employee of, nor a subcontractor for, Respondent for

any work performed by Respondent during the audit period.

Mr. Noonan performed repairs on Mr. ColemanÓs personal vehicles

during the audit period. Checks issued to Mr. Noonan during the

audit period were for work performed on Mr. ColemanÓs personal

vehicles.

19. The DepartmentÓs worksheet included a Ð David Locte Ñ

with a period of n oncompliance from June 19, 2014, through

December 31, 2014. The basis for including Mr. Locte as an

employee was a check stub written on December 10, 2014, to a

business name that is almost indiscernible, but closely

resembles ÐLiete & LockeÑ in the amoun t of $100. The memo

reflects that the check was written for Ðarchitect plans.Ñ

20. Mr. Coleman recogniz ed the worksheet entry of

David Locte as pertaining to Davi d Leete, an architect in

Daytona. Mr. Leete has provided architectural services to

Responde nt off and on for roughly five years.

21. Mr. Leete signs and seals plans for, among others, a

draftsman named Dan Langley. Mr. Langley provides drawings and

plans for RespondentÓs projects. When Respondent submits plans

to a local governing body which requires architectural drawings

to accompany permit applications, Mr. Leete reviews and signs

the plans.

22. Mr. Leete was neither an employee of, nor a

subcontractor for, Respondent during the audit period. The

single payment made to Mr. Leete by Respon dent during the audit

period was for professional architectural services rendered.

23. Mr. Langley was neither an employee of, nor a

subcontractor for, Respondent during the audit period. Payments

made to Mr. Langley during the audit period were for

prof essional drafting services rendered.

24. Among the names on the DepartmentÓs worksheet is

R.W. Kicklighter. Mr. Kicklighter is an energy consultant whose

office is located in the same building with Mr. Leete.

Mr. Kicklighter prepares energy calculations , based on

construction plans, to determine the capacit y of heating and

air - conditioning systems needed to serve the planned

construction.

25. Mr. Kicklighter was neither an employee of, nor a

subcontractor for, Respondent during the audit period. Paymen ts

made to Mr. Kicklighter during the audit period were for

professional services rendered.

26. Respondent made a payment of $125 on September 15,

2014, to an entity known as Set Material. Set Material is a

company that rents dumpsters for collection of concrete at

demolition and reconstruction sites. Removal and disposal of

the concrete from the jobsite is included within the rental

price of the dumpster.

27. The Department included on the works h eet an entry for

ÐLet Malereal.Ñ The evidence revealed t he correct name is Set

Material and no evidence was introduced regarding the existence

of a person or entity known as Let Malereal.

28. Set Material was neither an employee of, nor a

subcontractor for, Respondent during the audit period. The

single payme nt made to Set Material during the audit period was

for dumpster rental.

29. The DepartmentÓs worksheet contains an entry for ÐCTCÑ

for the penalty period of January 1, 2014 , through May 1, 2014.

Respondent made a payment to ÐCTCÑ on April 11, 2014, in

c onnection with a job referred to as Ð964 clubhouse.Ñ The

records show Respondent made payments to Gulfeagle Supply,

VernÓs Insulation, John Wood, Bruce Bennett, and Ron Whaley in

connection with the same job.

30. At final hearing, Mr. Coleman had no reco llection what

CTC referred to. Mr. ColemanÓs testimony was the only evidence

introduced regarding identification of CTC. CTC could have been

a vendor of equipment or supplies for the job, just as easily as

an employee.

31. The evidence is insufficient t o support a finding that

CTC was an employee of, or a subcontractor for, Respondent

during the audit period.

32. The check stub for check 1685 does not indicate to

whom the $60 payment was made. The stub reads Ðyo for Doug.Ñ

The Department listed ÐDougÑ as an employee on its worksheet and

included the $60 as wages to ÐDougÑ for purposes of calculating

workersÓ compensation premiums owed.

33. At hearing, Mr. Coleman was unable to recall ever

having employed anyone named Doug, and had no recollection

rega rding the January 7, 2015 , payment.

34. The evidence was insufficient to establish that ÐDougÑ

was either RespondentÓs employee or subcontractor during the

audit period.

35. KenÓs Heating and Air was not an employee of, nor a

subcontractor to, Respondent for any work undertaken by

Respondent during the audit period. KenÓs Heating and Air

conducted repairs on, and maintenance of, Mr. ColemanÓs personal

residence during the audit period. Checks issued to KenÓs

Heating and Air during the audit period were payments for work

performed at Mr. ColemanÓs personal residence.

36. Barry Smith is an electrical contractor. Mr. Smith

was neither an employee of, nor subcontractor to, Respondent for

any work performed by Respondent during the audit period.

Mr. Smith did make repairs to the electrical system at

Mr. ColemanÓs personal residence during the audit period.

Checks issued to Mr. Smith during the audit period were payments

for work performed at Mr. ColemanÓs personal residence.

37. The remaining names listed on the DepartmentÓs penalty

calculation worksheet were accurately included as RespondentÓs

employees. 2/

Calculation of Payroll

38. Mr. ColemanÓs exemption certificate expired on

July 18, 2015, approximately four months shy of the end of the

audit period.

39. Payments made by Respondent to Mr. Coleman during the

time period for which he did not have a valid exemption (the

penalty period) were deemed by the Department as wages paid to

Mr. Coleman by Respondent.

40. RespondentÓs business records show seven checks

written either to Mr. Coleman or to cash during that time period

in the total amount of $3,116.52. The Department included that

amount on the worksheet as wages paid to Mr. Coleman.

41. Check 1873 was written to cash, but the check stub

notes tha t the payment of $1,035.69 was made to Compliance

Matters, RespondentÓs payroll company.

42. Check 1875 was written to cash, but the check stub

notes that the payment of $500 was made to Daytona Landscaping.

43. The evidence does not support a finding th at checks

1873 and 1875 represented wages paid to Mr. Coleman.

44. The correct amount attributable as wages pa i d to

Mr. Coleman during the penalty period is $1,796.52.

45. RespondentÓs employees Tyler Eubler, Brian Karchalla,

Keith Walsh, and John Strobe l, were periodically paid by

Respondent during the audit period in addition to their

paychecks from Convergence. Mr. Coleman testified that the

payments were advances on their wages. He explained that when

working on a job out of town, the crew would arr ive after

Convergence had closed for the day, and Mr. Coleman would pay

them cash and allow them to reimburse him from their paychecks

the following day.

46. Unfortunately for Respondent, the evidence did not

support a finding that these employees reimbur sed Mr. Coleman

for the advances made. The Department correctly determined the

payroll amount attributable to these employees.

47. The Department attri buted $945 in payroll to

ÐJames Sharer.Ñ The Department offered no evidence regarding

how they arrived at the name of James Sharer as RespondentÓs

employee or the basis for the payroll amount.

48. James Shores worked off - and - on for Respondent.

Mr. Coleman recognized the worksheet entry of ÐJames SharerÑ as

a misspelling of Mr. ShoresÓ name.

49. Responde ntÓs records show payments totaling $535 to

Mr. Shores during the audit period.

50. T he correct amount of payroll attributable to

Mr. Shores from Respondent during the audit period is $535 .

51. The Department included wages totaling $10,098.84 to

Mr. Bar enfanger during the period of noncompliance from

November 20, 2013 , to December 31, 2013. The Department imputed

the average weekly wage to Mr. Barenfanger for that period

because, in the DepartmentÓs estimation, Respondent did not

produce records suffici ent to establish payroll for those two

months in 2013. See § 440.107(7)(e), Fla. Stat.

52. The voluminous records produced by Respondent

evidence d not a single payment made to Mr. Barenfanger between

January 2014, and November 19, 2015. Even if Mr. Cole man had

not testified that he did not know or employ Mr. Barenfanger

before November 19, 2015, it would be ludicrous to find that he

worked weekly for Respondent during the last two months of 2013.

Mr. Coleman testified, credibly, that Mr. Barenfanger wor ked the

jobsite for Respondent on November 18 and 19, 2015, but not

prior to those dates.

53. The evidence does not support a finding that the

worksheet entry for Mr. Barenfanger in the amount of $10,098.84

accurately represents wages attributable to Mr. Barenfanger

during the period of noncompliance.

54. The DepartmentÓs worksheet includes an employee by the

name of Ren W. Raly for the period of noncompliance from

Jan uary 1, 2014 , through May 1, 2014, and a Ronnie Whaley for

the period of noncompliance f rom June 19, 2014 through December

31, 2014. Mr. Coleman testified that he never had an employee

by the name of Raly and he assumed the first entry was a

misspelling of Ronnie WhaleyÓs name.

55. Mr. Coleman testified that Ronnie Whaley was a

concrete fin isher and brick layer who did work for Respondent.

Mr. Coleman testified that he submitted to the Department a copy

of Mr. WhaleyÓs ÐworkersÓ comp exempt,Ñ but that they must not

have accepted it.

56. The records submitted to the Department by Respondent

do not contain any exemption certificate for Ronnie Whaley.

57. However, in the records submitted to the Department

from Respondent is a certificate of liability insurance dated

February 25, 2014, showing workersÓ compensation and liability

coverage issu ed to Direct HR Services, Inc., from Alliance

Insurance Solutions, LLC. The certificate plainly states that

coverage is provided for Ð all leased employees, but not

subcontractors, of Ronald Whaley Masonry.Ñ The certificate

shows coverage in effect from F e bruary 1, 2013 , through

February 1, 2015.

58. Petitioner did not challenge the reliability of the

certificate or otherwise object to its admissibility. 3/ In fact,

the document was moved into evidence as PetitionerÓs Exhibit P1.

59. Petitioner offered n o testimony regarding whether the

certificate was insufficient proof of coverage for Mr. Whaley

during the periods of noncompliance listed on the worksheet.

60. The evidence does not support a finding that

Mr. Whaley was an uninsured individual during the periods of

noncompliance. Thus, the wages attributed to Mr. Whaley by the

Department were incorrect.

61. Ms. Beal assigned the class code 5645 Ï Carpentry to the

individuals correctly identified as RespondentÓs uninsured

employees because this code match ed the description of the job

being performed by the workers on the jobsite the day of the

inspection.

62. Ms. Beal correctly utilized the corresponding approved

manual rates for the carpentry classification code and the

related periods of noncompliance t o determine the gross payroll

to the individuals correctly included as RespondentÓs uninsured

employees.

Calculation of Penalty

63. For the employees correctly included as uninsured

employees, Ms. Beal applied the correct approved manual rates

and correct ly utilized the methodology specified in section

440.107(7)(d)1. and Florida Administrative Code Rules 69L - 6.027

and 69L - 6.028 to determine the penalty to be imposed.

64. For the individuals correctly included as uninsured

employees, and for whom the corr ect payroll was calculated, the

correct penalty amount is $2,590.06.

65. The correct penalty for payments made to Mr. Coleman

during the penalty period is $571.81.

66. The correct penalty for payments made to James Shores

is $170.24.

67. The correct tot al penalty to be assessed against

Respondent is $3,332.11.

68. The Department demonstrated by clear and convincing

evidence that Respondent was engaged in the construction

industry in Florida during the audit period and that Respondent

failed to carry wor kersÓ compensation insurance for its

employees at times during the audit period as required by

FloridaÓs workersÓ compensation law.

69. The Department demonstrated by clear and convincing

evidence that Respondent employed the employees named on the

Second Amended Order of Penalty Assessment, with the exception

of KenÓs Heating and Air, CTC, Don Langly, Ren W . Raly, R.W.

Kicklighter, Dave Locte, Let Malereal, Ronnie Whaley, and

ÐDoug.Ñ

70. The Department did not demonstrate by clear and

convincing evidence that it correctly calculated the gross

payroll attributable to Mr. Coleman and Mr. Shores.

71. The Department demonstrated by clear and convincing

evidence that Ms. Beal correctly utilized the methodology

specified in section 440.107(7)(d)1. to determine the

appropriate penalty for each of RespondentÓs uninsured

employees.

72. The Department did not demonstrate by clear and

convincing evidence that the correct penalty is $9,629.36.

73. The evidence demonstrated that the correct penalty to

be assessed ag ainst Respondent for failure to provide workersÓ

compensation insurance for its employees during the audit period

is $3,332.11.

CONCLUSIONS OF LAW

74. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to thi s

proceeding. See §§ 120.569 and 120.57(1), Fla. Stat.

75. Employers are required to secure payment of workersÓ

compensation for their employees unless exempted or excluded.

See §§ 440.10(1)(a) and 440.38(1), Fla. Stat. Strict compliance

with the worke rsÓ compensation law is required by the employer.

See C&L Trucking v. Corbett , 546 So. 2d 1185, 1187 (Fla. 5th DCA

1989).

76. The Department has the burden of proof in this case

and must show by clear and convincing evidence that the employer

violated th e workersÓ compensation law and that the penalty

assessments were correct under the law. See DepÓt of Banking

and Fin. v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

77. In Evans Packing Co. v . Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116 n.5 (Fla. 1st DCA 1989),

the Court defined clear and convincing evidence as follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts t o which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier o f fact the firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429

So. 2d 797, 800 (Fla. 4th DCA 1983).

78. ÐEmployerÑ is defined, in part, as Ðevery person

carrying on any empl oyment.Ñ £ 440.02(16), Fla. Stat.

79. ÐEmploymentÑ means Ðany service performed by an

employee for the person employing him or herÑ and includes,

Ðwith respect to the construction industry, all private

employment in which one or more employees are employ ed by the

same employer.Ñ ££ 440.02(17)(a) and (b)(2), Fla. Stat.

80. ÐEmployeeÑ is defined, in part, as Ðany person who

receives remuneration from an employer for the performance of

any work or service while engaged in any employment under any

appointme nt or contract for hire or apprenticeship, express or

implied, oral or written.Ñ £ 440.02(15)(a), Fla. Stat.

81. The DepartmentÓs evidence as to the employees included

on the worksheet, and amount of payroll attributable to each,

was anything but precise and explicit. Ms. Beal testified that

for the check stubs that were barely legible, she Ðdid [her]

best with the name[s].Ñ The DepartmentÓs worksheet contained

names bearing little resemblance to actual employees of the

company, and included single name s, such as ÐDougÑ and ÐCTCÑ for

which it would be impossible to determine whether workersÓ

compensation coverage existed. 4/

82. Furthermore, the Department provided no testimony

regarding how it arrived at the specific amount of wages for

particular emplo yees included on the worksheet. The undersigned

was forced to wade through a flood of check stubs and bank

statements searching for the evidence to support the total wages

included on the DepartmentÓs worksheet. 5/ Frequently, the

undersigned was unable t o arrive at the same total wages for a

particular employee as that listed on the worksheet.

83. The Department did not prove by clear and convincing

evidence that KenÓs Heating and Air, CTC, Don Langly, R.W.

Kicklighter, Dave Locte, Let Malereal, Ronnie W haley, and ÐDougÑ

were RespondentÓs employees during the audit period.

84. ÐEmployeeÑ also includes Ðany person who is an officer

of a corporation and who performs services for remuneration for

such corporation within this state.Ñ £ 440.02(15)(b),

Fla. S tat. Thus, Mr. Coleman was RespondentÓs employee during

the penalty period.

85. However, the Department did not demonstrate by clear

and convincing evidence that $3,116.52 was the payroll

attributable to Mr. Coleman during the penalty period.

86. Nor d id the Department prove by clear and convincing

evidence that $945 was the correct payroll attributable to

Mr. Shores during the period of noncompliance from January 1,

2015 , through November 19, 2015.

87. With regard to Mr. Barenfanger, the Department d id not

prove by clear and convincing evidence that payroll of

$10,098.84 was attributable to him.

88. Section 440.107(7)(e) provides as follows:

When an employer fails to provide business

records sufficient to enable the department

to determine the emplo yerÓs payroll for the

period requested for the calculation of the

penalty . . . the imputed weekly payroll for

each employee . . . shall be the statewide

average weekly wage . . . multiplied by 1.5.

The Department argues that it correctly imputed the aver age

weekly wage to Mr. Barenfanger because Respondent produced no

pay stubs for November 19 through December 31, 2013.

89. The statutory imputation formula is properly utilized

in cases in which employers have failed to supply records in

response to the DepartmentÓs request or when the records do not

enable the Department to determine payroll.

90. The formula should not have been utilized in this case

where the evidence was contrary to the amount determined

pursuant to the formula. In this case, Mr. Coleman kept and

submitted detailed records, and complied with the DepartmentÓs

requests. The record demonstrates that Mr. Coleman supplied

voluminous records to the Department and engaged in a series of

communications with the DepartmentÓs facilitator to supply the

records required to accurately calculate the penalty.

91. The records were sufficient for the Department to

establish payroll for Mr. Barenfanger, to whom no payments had

been made in either 2014 or 2015. To impute a payroll of over

$10,000 f or two months to an employee who received no

remuneration during the subsequent 22 - month period simply defies

logic.

92. The Department proved by clear and convincing evidence

that Respondent violated the workersÓ compensation insurance law

but not that $ 9,629.36 is the correct penalty to be assessed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Department of Financial Services, Division of WorkersÓ

Compensation, findi ng that Fantastic Construction of Daytona,

Inc., violated the workersÓ compensation insurance law and

assessing a penalty of $3,332.11.

DONE AND ENTERED this 18th day of August , 2016 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of August , 2016 .

ENDNOTE S

1/ The audit period is the two years prior to the date of

inspection. See § 440.107(7), Fla. Stat.

2/ The evidence showed that the worksheet entry for

ÐAllen TracterÑ should be ÐAlle n Campbell,Ñ but Mr. Campbell was

correctly included as an employee for the periods of

noncompliance noted.

3/ At final hearing, Respondent sought to introduce the

identical document as RespondentÓs Exhibit 1. Petitioner

objected on the basis of timelin ess (or, failure to disclose),

which was sustained according to the Order of Pre - hearing

Instructions. Petitioner did not object to the authenticity or

persuasiveness of the document n or did Petitioner address this

evidence in its PRO. The document was p roffered by Respondent.

4/ Overall, the case suffered from a lack of communication

between the Department and Respondent , which the undersigned

cannot help but believe would have resolved many of the issues

without resort to a disputed - fact hearing.

5/ The undersignedÓs task was made no less onerous by the fact

that Respondent did not file a proposed recommended order.

COPIES FURNISHED:

Richard W. Hennings, Esquire

Richard W. Hennings, P.A.

205 North Joanna Avenue

Tavares, Florida 32778 - 3217

Trevor S. Suter, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florid a 32399 - 0390

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

w ill issue the Final Order in this case.