94-002187 City Of Moore Haven vs. Division Of Retirement Status: Closed Recommended Order on Thursday, July 21, 1994.

Summary: City Dockmaster is independent contractor, but city must make retirement contributions because he holds other regularly scheduled position with city.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF MOORE HAVEN, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2187

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Ft.

Myers, Florida, on July 5, 1994, before Robert E. Meale, Hearing Officer of the

Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows:

For Petitioner: Steven A. Ramunni

Watkins & Ramunni, P.A.

Post Office Box 250

LaBelle, Florida 33935

For Respondent: Jodi B. Jennings

Assistant Division Attorney

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is liable for retirement

contributions on compensation paid Thaddeus Kmiecik in his capacity as city

dockmaster.

PRELIMINARY STATEMENT

By letter dated March 7, 1994, Respondent determined that Petitioner was

liable for retirement contributions to the State-Administered Retirement System

for compensation paid Thaddeus Kmiecik in his capacity as city dockmaster.

By petition dated March 30, 1994, Petitioner challenged the determination

and requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence

one exhibit. Respondent called one witness and offered into evidence three

exhibits. All exhibits were admitted.

No transcript was ordered. Respondent filed a proposed recommended order,

and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. The City of Moore Haven is located west of Lake Okeechobee alongside a

waterway that connects Stuart on the east coast with Ft. Myers on the west

coast. Petitioner maintains docks that boaters may use overnight, provided they

pay a docking fee. A dockmaster supervises the dock and collects the docking

fee from boaters.

2. Petitioner's first dockmaster served without compensation. Whenever he

became ill or went out of town, he asked Petitioner to hire someone to replace

him.

3. Pursuant to Ordinance No. 156, which went into effect in 1982,

Petitioner hired replacements for the first dockmaster. Ordinance No. 156

provides that specified docking fees shall be paid by all boats docking at the

city docks between the hours of 6:00 pm and 8:00 am or at other times, if the

boat remains docked over three hours. However, the ordinance allows the

dockmaster to enter into special contracts with commercial users, subject to the

approval of City Commission.

4. Ordinance No. 156 states that the City Commission shall appoint one or

more persons as dockmaster, who shall "check all boats at the City dock both

evening and morning of each day." The ordinance requires the dockmaster to

record all relevant information about the boat in a log. The ordinance states

that the dockmaster is "responsible seven days a week for the collection of

dockage fees, giv[ing] a receipt from a numbered book, and giv[ing] copies of

all receipts to the City Clerk each working day." The dockmaster must also tell

the City Clerk if the docks need repairs or maintenance. The dockmaster is also

required to assume at least certain responsibilities of the City Manager if the

position is vacant.

5. The health of the original dockmaster deteriorated and it became

necessary to hire someone else to collect the fees. By agreement between the

original dockmaster and the person doing the collections, the dockmaster allowed

the collector to retain a percentage of the docking fees collected. The

remainder evidently was remitted to Petitioner.

6. When the original dockmaster died, Petitioner hired Thaddeus Kmiecik as

the new dockmaster. The agreement between Petitioner and Mr. Kmiecik requires

that he answer directly to the City Commission. He is to ensure that the

docking fees are collected and all money taken directly to City Hall. Boaters

needing reservations call Mr. Kmiecik at home.

7. Mr. Kmiecik is responsible for his own expenses, but he earns a

commission, payable monthly, of 20 percent of the collected docking fees. From

1986 through 1993, Petitioner has filed IRS Forms 1099, showing that Mr. Kmiecik

has received the following "nonemployee compensation": 1986--$1936.52; 1987--

$2324.83; 1988

1992--$3457.50; and 1993--$2621.08.

8. The arrangement between Petitioner and Mr. Kmiecik is fairly loose. He

has never received any training, except how to complete the receipt book, which

is provided by Petitioner. He has never received any orders as to how to

perform his job, except that he is to ensure that the docks are checked nightly

for boats and that all docking fees are promptly remitted to Petitioner. Mr.

Kmiecik does not check the docks in the morning, and the City Commission has

never insisted that he do so, even though the ordinance so requires.

9. Mr. Kmiecik has attended only one City Commission meeting and has never

reported anything to the City Commission. He can hire anyone whom he chooses to

help him or perform the services when he is out of town or otherwise

unavailable. He may supplement his income from the docks by performing other

services, such as taking boaters to the airport, and he retains all compensation

for such additional services.

10. Although not required to do so, Mr. Kmiecik sometimes wears a city

uniform when he appears at the docks. But this is the uniform for his fulltime

job at Petitioner's water plant. Other persons checking the boats at night do

not have a uniform.

11. Petitioner is a participating local agency in the State-Administered

Retirement System. Petitioner makes retirement contributions on Mr. Kmiecik's

pay for his work at the water plant in recognition of the fact that this

position is a regularly established position under the State-Administered

Retirement System. However, Petitioner has always treated Mr. Kmiecik as an

independent contractor for his work as dockmaster and has thus made no

retirement contributions for his dockmaster compensation.

12. The record is silent as to when Mr. Kmiecik first became employed with

Petitioner in the water plant and whether he has been continuously so employed.

On June 3, 1993, Petitioner answered a questionnaire acknowledging that Mr.

Kmiecik worked at the city water plant also. Based on the record, June 3, 1993,

is the earliest date on which Mr. Kmiecik worked at the city water plant.

13. By letter dated January 21, 1994, Respondent informed Petitioner that

Mr. Kmiecik was an employee when performing dockmaster services and demanded

retroactive retirement contributions from the unspecified date of his employment

in that position. By letter dated January 25, 1994, Petitioner supplied

additional information and requested further review of this decision.

14. By letter dated March 7, 1994, Respondent advised Petitioner that

Respondent had determined that Mr. Kmiecik was performing the services of

dockmaster in an employer-employee relationship, rather than an independent

contractor relationship. The letter adds that Mr. Kmiecik is filling a

"regularly established position" as an operator of the water plant and is

"performing additional duties" as the dockmaster. Petitioner requested a formal

hearing on the issue.

15. Based on the relevant law, Mr. Kmiecik is an independent contractor

with respect to his dockmaster services.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties. Section 120.57(1), Florida Statutes. (All

references to Sections are to Florida Statutes. All references to Rules are to

the Florida Administrative Code.)

17. Rule 60S-6.001(33) provides that an "independent contractor" is

an individual who is not subject to the

control and direction of the employer for

whom work is being performed, with respect

not only to what shall be done but to how it

shall be done. If the employer has the right

to exert such control, an employee-employer

relationship exists and the person is an

employee and not an independent contractor.

The Division has adopted the following

factors as guidelines to aid in determining

whether an individual is an employee or an

independent contractor. The weight given

each factor is not always the same and varies

depending on the particular situation.

1. Instructions: An employee must comply

with instructions from his employer about

when, where, and how to work. The

instructions may be oral or may be in the

form of manuals or written procedures which

show how the desired result is to be

accomplished. Even if no actual

instructions are given, the control factor

is present if the employer has the right to

give instructions.

aining: An employee is trained to

perform services in a particular manner. This

is relevant when the skills and experience

which would be used as an independent

contractor were gained as a result of previous

employment. Independent contractors

ordinarily use their own methods and receive no

training from the purchasers of their services.

3. Integration: An employee's services are

integrated into the business operations because

the services are critical and essential to the

success or continuation of an agency's

progress/operation. This shows that the

employee is subject to direction and control.

4. Services Rendered Personally: An

employee renders services personally. This

shows that the employer is interested in the

methods as well as the results. Lack of

employer control may be indicated when a

person has the right to hire a substitute

without the employer's knowledge or approval.

5. Hiring Assistants: An employee works for

an employer who hires, supervises, and pays

assistants. An independent contractor hires,

supervises, and pays assistants under a

contract that requires him or her to provide

materials and labor and to be responsible only

for the result.

6. Continuing Relationship: An employee has

a continuing relationship with an employer.

A continuing relationship may exist where work

is performed at frequently recurring, although

irregular intervals.

7. Set Hours of Work: An employee usually

has set hours of work established by an

employer. An independent contractor is the

master of his or her own time and works on

his own schedule.

8. Full-time or Part-time Work: An employee

may work either full-time or part- time for an

employer. Full-time does not necessarily mean

an 8-hour day or a 5 or 6- day week. Its

meanings may vary with the intent of the

parties, the nature of the occupation and

customs in the locality. These conditions

should be considered in defining "full-time."

An independent contractor can work when and

for whom he or she chooses.

9. Work Done on Premises: An employee works

on the premises of an employer, or works on a

route or at a location designated by an

employer. The performance of work on the

employer's premises is not controlling in

itself; however, it does imply that the

employer has control over the employee. Work

performed off the employer's premises does

indicate some freedom from control; however,

it does not in itself mean the worker is not

an employee.

10. Order or Sequence of Services: An

employee generally performs services in the

order or sequence set by an employer. This

shows that the employee is subject to

direction and control of the employer.

11. Reports: An employee submits oral or

written reports to an employer. This shows

that the employee must account to the employer

for his or her actions.

12. Payments: An employee is usually paid

by the hour, week, or month. An independent

contractor is paid periodically (usually a

percent of the total payment) by the job or

on a straight commission.

13. Expenses: An employee's business and/or

travel expenses are paid for by an employer.

This shows that the employer is in a position

to control expenses, and, therefore, the

employee is subject to regulations and control.

14. Tools and Materials: An employee is

furnished significant tools, materials, and

other equipment by an employer. An

independent contractor usually provides his

own tools, material, etc.

15. Investment: An employee is usually

furnished the necessary facilities. An

independent contractor has a significant

investment in the facilities he or she uses in

performing services for someone else.

16. Profit or Loss: An employee performs

the services for an agreed upon wage and is

not in a position to realize a profit or

suffer a loss as a result of his services. An

independent contractor can make a profit or

suffer a loss. Profit or loss implies the use

of capital by the individual in an independent

business of his own.

17. Works for More than One Person or Firm:

An employee usually works for one organization.

However, a person may work for a number of

people or organizations and still be an

employee of one or all of them. An independent

contractor provides his or her services to two

or more unrelated persons or firms at the same

time.

18. Offers Services to General Public: An

independent contractor makes his or her

services available to the general public.

This can be dome in a number of ways: Having

his/her own office and assistants, hanging

out a "shingle," holding business licenses,

having listings in business directories and

telephone directories, and advertising in

newspapers, trade journals, etc.

19. Right to Terminate Employment: An

employee can be fired by an employer. An

independent contractor cannot be fired so

long as he or she produces a result that meets

the specifications of the contract. An

independent contractor can be terminated, but

usually he will be entitled to damages for

expenses incurred, lost profit, etc.

20. Right to Quit: An employee can quit

his or her job at any time without incurring

liability. An independent contractor usually

agrees to complete a specific job and is

responsible for its satisfactory completion,

or is legally obligated to make good for

failure to complete it.

18. Respondent has asserted that Mr. Kmiecik's compensation as dockmaster

requires retirement contributions from Petitioner to the State-Administered

System. Therefore, Respondent has the burden of proof. However, the

determination of Mr. Kmiecik's status as an independent contractor is not

dependent upon the allocation of the burden of proof.

19. The evidence is unconvincing that the dockmaster is an employee of

Petitioner. Petitioner does not control the dockmaster and does not generally

spell out how the dockmaster is to perform his duties. Petitioner supplies a

receipt book and requires that the receipts be completed. Petitioner expects

the dock to be checked each evening, but that much is necessary to ensure that

docked boats pay the fee. Petitioner has not insisted upon recurring checks

through the evening and into the next morning. Petitioner has given the

dockmaster the discretion to make special deals with commercial users, subject

to City Commission review. In fact, the dockmaster has performed his services

for years without ever reporting to the City Commission.

20. The dockmaster receives no training from Petitioner. His services

stand alone and are not integrated into larger business operations of

Petitioner. Mr. Kmiecik often does not personally provide the services, nor is

he expected to. He may and does hire assistants; when he does so, it is

without any prior approval of Petitioner, and Mr. Kmiecik is responsible for

their payment. The dockmaster receives a commission, absorbs his own expenses,

and is free to make additional arrangements with boaters.

21. The dockmaster lacks a couple of important characteristics of an

independent contractor. He does not invest in his enterprise nor in any tools

or equipment, except possibly his own telephone. There was no indication

whether Mr. Kmiecik maintains a home office. The remaining factors are either

inapplicable or, at most, mildly favorable to Respondent's position. On

balance, though, the factors more strongly suggest that the dockmaster is not an

employee of Petitioner.

22. Although the position of dockmaster involves an independent contractor

rather than an employee, and thus is not subject to the State-Administered

Retirement System, Mr. Kmiecik presently holds a regularly established position

with Petitioner as a water plant operator. Rule 60S-1.004(4)(c)1 states:

A member filling a regularly established

position who performs additional duties for

the same employer is considered to be

filling a regularly established position for

the total employment and the employer shall

make the required retirement contributions.

23. Despite the fact that the dockmaster is an independent contractor, the

compensation paid to Mr. Kmiecik is therefore subject to the State-Administered

Retirement System because Mr. Kmiecik holds a fulltime regularly established

position with Petitioner and, as dockmaster, is performing parttime additional

duties. However, the retroactivity of Petitioner's liability is limited to June

3, 1993, which is the earliest point in the record of Mr. Kmiecik's employment

at the city water plant.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Division of Retirement enter a final order requiring

the City of Moore Haven to pay retirement contributions with respect to the

compensation paid Mr. Kmiecik for services as a dockmaster, retroactive to June

3, 1993.

ENTERED on July 21, 1994, in Tallahassee, Florida.

___________________________________

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

on July 21, 1994.

APPENDIX

Rulings on Respondent's Proposed Findings

1: adopted or adopted in substance.

2-3: rejected as subordinate.

4-10: adopted or adopted in substance.

11: adopted or adopted in substance, but only to the minimal extent of the

use of the receipt books.

12-18: adopted or adopted in substance.

COPIES FURNISHED

Steven A. Ramunni

Watkins & Ramunni, P.A.

P.O. Box 250

LaBelle, FL 33935

Jodi B. Jennings

Assistant Division Attorney

Division of Retirement

Cedars Executive Center, Bldg C

2639 North Monroe St.

Tallahassee, FL 32399-1560

William H. Lindner, Secretary

Department of Management Services

Knight Building, Suite 307

Koger Executive Center

2737 Centerview Drive

Tallahassee, FL 32399-0950

Paul A. Rowell, General Counsel

Department of Management Services

Knight Building, Suite 312

Koger Executive Center

2737 Centerview Drive

Tallahassee, FL 32399-0950

A. J. McMullian, III, Director

Division of Retirement

Department of Management Services

Cedars Executive Center, Bldg. C

2639 N. Monroe St.

Tallahassee, FL 32399-1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF MOORE HAVEN,

Petitioner,

DOR CASE NO. DMS-DOR94-06

vs. CASE NO. 94-2187

DIVISION OF RETIREMENT,

Respondent.

__________________________/

FINAL ORDER

This matter was heard in Fort Myers, Florida on July 5, 1994, before Robert

E. Meale, a duly designated Hearing Officer of the Division of Administrative

Hearings. Petitioner did not file proposed findings of fact and conclusions of

law. Respondent filed proposed findings of fact and conclusions of law.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Steven A. Ramunni

Watkins & Ramunni, P.A.

Post Office Box 250

LaBelle, Florida 33935

For Respondent: Jodi B. Jennings

Assistant Division Attorney

Division of Retirement

Cedars Executive Center, Bldg. C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

A Recommended Order was issued n July 21, 1994. A copy of the Recommended

Order is attached hereto, incorporated by reference and made part of this Final

Order as an exhibit. Neither party filed exceptions to the Recommended Order.

After consideration of all matters of record in this case, the Recommended

Order and the exhibits introduced at the hearing, the Division of Retirement now

enters its Final Order.

FINDINGS OF FACT

The Division of Retirement hereby adopts and incorporates the Findings of

Fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

1. The Division of Retirement has jurisdiction of the parties to and the

subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1993).

2. Section 120.57(1)(b)(10) of the Florida Statutes (1993) provides, in

pertinent part:

The agency may adopt the recommended

order as the final order of the agency.

The agency in its final order may reject

or modify the conclusions of law and

interpretation of administrative rules in

the recommended order. .

3. Chapter 121 of the Florida Statutes established the Florida Retirement

System in 1970. The Division of Retirement, pursuant to Section 121.031(1),

Florida Statutes (1993) is authorized to implement rules for the efficient

administration of the system.

4. The rules of the Division of Retirement contain a definition of

independent contractor. "Independent contractor" is defined at Rule 60S-

6.001(33) of the Florida Administrative Code, which provides:

INDEPENDENT CONTRACTOR -- Means an

individual who is not subject to the

control and discretion of the employer,

for whom the work is being performed,

with respect not only to what shall be

done but to how it shall be done. If the

employer has the right to exert such

control, an employee-employer

relationship exists and the person is an

employee and not an independent

contractor. The Division has adopted the

following factors as guidelines to aid in

determining whether an individual is an

employee or an independent contractor.

The weight given each factor is not

always the same and varies depending on

the particular situation.

The rule provides twenty criteria to be considered in determining whether

an individual is an independent contractor:

a. Instructions

baining

c. Integration

d. Services rendered personally

e. Hiring assistants

f. Continuing relationship

g. Set hours of work

h. Full-time or part-time work

i. Work done on premises

j. Order or sequence of services

k. Reports -

l. Payments

m. Expenses

n. Tools and materials

o. Investments

p. Profit or loss

q. Works for more than one person or firm

r. Offers services to general public

s. Right to terminate employment

t. Right to quit

5. The determination of whether an individual is an employee or an

independent contractor depends not only upon the statements of the parties but

upon all the circumstances of their dealings with each other, Cantor v. Cochran,

184 So.2d 173 (Fla. 1966), with the most important element being the right of

the employer to maintain control over the individual. Messer v. Dept. of Labor

and Emplovment, 500 So.2d 220, 221 (Fla. 5th DCA 1988).

6. Applying the foregoing criteria to the present case, the following

conclusions are reached:

a. Instructions -- Some instructions were given to Mr. Kmiecik by the

City. The City Clerk provided instructions to Mr. Kmiecik regarding how to

manage the receipt book. Additional instructions on keeping the receipt book

are contained within Ordinance No. 156 itself. The ordinance further provided

that boats are to be checked in the morning and evening each day. The City did

not instruct Mr. Kmiecik on how often to check boats between his scheduled

hours. This factor has aspects of both an employee and an independent

contractor.

baining -- The City provided no formal training to Mr. Kmiecik. This

factor is indicative of an independent contractor relationship.

c. Integration -- The fact that the dockmaster position is established by

city ordinance is an indication that the position is essential to the operation

of the City. In practice, however, the City oversees this position in a loose

manner, providing a minimum of direction to Mr. Kmiecik. This indicates that

Mr. Kmiecik's duties are not controlled by the City, and that the position is

not of critical importance to the City. His services are not entirely

integrated into the business operations of the City. This factor suggests an

independent contractor relationship.

d. Services rendered personally -- Mr. Kmiecik is not required to render

services personally but may hire individuals to perform dockmaster duties in his

place. This factor is strongly indicative of an independent contractor.

e. Hiring assistants -- Mr. Kmiecik hires and pays assistants himself.

This factor is strongly indicative of an independent contractor.

f. Continuing relationship -- Mr. Kmiecik has a continuing relationship

with the City. He was not hired to perform dockmaster duties for a limited

period of time. The length of this relationship is characteristic of an

employee.

g. Set hours of work -- The ordinance provides that Mr. Kmiecik is to

perform as dockmaster between the hours of 6:00 p.m. and 8:00 a.m. However,

the City does not require Mr. Kmiecik to check on boats at specific intervals

during these scheduled hours. This factor has elements of both an employee and

an independent contractor.

h. Full-time or part-time work -- This factor has little weight in an

analysis of this case because both full and part time employees are compulsory

members of the Florida Retirement System.

i. Work done on premises -- Mr. Kmiecik performs dockmaster services at

the City docks. This factor is more characteristic of an employee.

j. Order or sequence of services -- The City requires Mr. Kmiecik to

maintain a receipt book and to remit the fees he collects to the City.

Otherwise, the City does not direct the order or sequence of services Mr.

Kmiecik provides. This factor is more characteristic of an independent

contractor.

k. Reports -- Mr. Kmiecik has never reported to the City Commission and is

not required to report on a regular basis to the City. Mr. Kmiecik has the

discretion to enter into special contracts with commercial users subject to

review by the City Commission. This factor is more indicative of an independent

contractor.

l. Payments -- Mr. Kmiecik is paid a commission of twenty percent of the

fees he collects as dockmaster. He is not paid a salary. This factor is

strongly indicative of an independent contractor relationship.

m. Expenses -- The City furnishes Mr. Kmiecik the receipt books. Mr.

Kmiecik pays his own-expenses. This factor is more indicative of an independent

contractor.

n. Tools and materials -- The City furnishes the receipt books. Mr.

Kmiecik does not furnish tools and materials, except possibly his own telephone.

This factor is more indicative of an employee.

o. Investment -- Mr. Kmiecik has no investment in the City. The lack of

investment is more indicative of an employee.

p. Profit or loss -- Mr. Kmiecik is not in a position to realize a profit

or suffer a loss. This factor is strongly indicative of an employee/employer

relationship.

q. Works for more than one person or firm -- Mr. Kmiecik does not have his

own business and works only for the City. This factor is more indicative of an

employee.

r. Offers services to the general public -- Mr. Kmiecik does not advertise

or otherwise offer his services to the general public. Mr. Kmiecik is allowed,

however, to perform additional services for boaters, such as taking them to the

airport, and to retain any compensation for these additional services. This

factor has aspects of both an employee and an independent contractor.

s. Right to terminate employment -- The City can terminate Mr. Kmiecik

without incurring liability. This factor is more indicative of an employee.

t. Right to quit -- Mr. Kmiecik can quit without incurring liability.

This factor is more indicative of an employee.

7. Mr. Kmiecik's duties as dockmaster have some characteristics of an

employee. He has no investment in the City; is not able to suffer a profit or

loss; and can quit or be terminated without liability being incurred. However,

the weight of the evidence indicates that the City does not maintain control

over Mr. Kmiecik; he is not required to perform services personally; hires and

pays assistants himself; and maintains control over the order of services he

provides. It is therefore concluded that Mr. Kmiecik is an independent

contractor with respect to the dockmaster duties he performs for the City of

Moore Haven.

8. A member filling a regularly established position who performs

additional duties as an employee for the same employer must be reported for

purposes of retirement.

Rule 60S-1.004(4)(c)l., Florida Administrative Code, provides:

1. A member filling a regularly

established position who performs

additional duties for the same employer

is considered to be filling a regularly

established position for the total

employment and the employer shall make

the required retirement contributions.

(Emphasis added).

9. Because Mr. Kmiecik is an independent contractor with respect to his

dockmaster duties, his dockmaster duties cannot be considered "employment," and

consequently no retirement contributions are due from the City for the duties

Mr. Kmiecik performs as dockmaster.

THEREFORE, based upon the foregoing, it is

ORDERED AND DIRECTED that Mr. Kmiecik is an independent contractor with

respect to his duties as dockmaster with the City of Moore Haven, and no

retirement contributions are due for his dockmaster duties.

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL

ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO

SECTION 120.68 OF THE FLORIDA STATUTES. REVIEW

PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF

APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL

WITH THE AGENCY CLERK OF THE DIVISION OF

RETIREMENT, AND A SECOND COPY, ACCOMPANIED BY THE

FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT

COURT OF APPEAL, FIRST DISTRICT, OR WITH THE

DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT

THERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST

BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER

TO BE REVIEWED.

DONE AND ORDERED this 26th day of September, 1994, at Tallahassee, Leon

County, Florida.

____________________________________

A. J. McMULLIAN III

State Retirement Director

Division of Retirement

FILED WITH THE CLERK OF THE DIVISION

OF RETIREMENT THIS 26th DAY OF

SEPTEMBER, 1994.

COPIES FURNISHED:

Steven A. Ramunni, Esquire

Watkins & Ramunni, P.A.

P.O. Box 250

LaBelle, Florida 33935

Robert E. Meale

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Clerk

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Jodi B. Jennings

Assistant Division Attorney

Division of Retirement

Cedars Executive Center

2639 North Monroe Street

Building C

Tallahassee, Florida 32399-1560