03-000928 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. Berisford Champagnie Status: Closed Recommended Order on Thursday, December 4, 2003.

Summary: Petitioner established that Respondent was a statutory employer with employees at the pertinent times, without having secured workers` compensation coverage as required by statutory authority. Recommended that fines sought by the Agency be assessed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF WORKERS' )

COMPENSATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0928

)

BERISFORD CHAMPAGNIE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding

before P. Michael Ruff duly - designated Administrative Law Judge

in Ocala, Florida, on July 30, 2003. The appearances were as

follows:

APPEARANCES

For Petiti oner: John M. Iriye, Esquire

Department of Financial Services

Division of Workers' Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

For Respondent: Berisford Champagnie, pro se

15508 Southwest 34th Avenue

Ocala, Florida 34473

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Respondent failed to abide by the coverage

requirements of the Florida Workers' Compensation Law embodied

in Chapter 440, Florida Statute s, by not obtaining a workers'

compensation insurance policy and whether the Petitioner

properly assessed a penalty against the Respondent pursuant to

Section 440.107, Florida Statutes.

PRELIMINARY STATEMENT

This cause arose under the Workers' Compensatio n Law,

Chapter 440, Florida Statutes, whereby the Department of

Financial Services, Division of Workers' Compensation

(Department/Petitioner) seeks to enforce the statutory

requirement that employers secure the payment of workers'

compensation for their em ployees. The Petitioner has issued a

"stop work order" alleging that Berisford Champagnie

(Respondent) failed to secure the payment of workers'

compensation for his employees.

The cause arose on December 18, 2002, when William

Pangrass, an investigator for the Department observed several

workers hanging "drywall" on a residential construction site.

Two of the men identified the Respondent as their employer. The

Respondent had not secured the payment of workers' compensation

for those men who asserted they were his employees. The

investigator, Mr. Pangrass, issued a Stop Work and Penalty

Assessment Order on that occasion, which directed the Respondent

to cease business operations and assessed a minimum payment of

$1,100.00, which is $100.00 under Secti on 440.107(5), Florida

Statutes, and a $1,000.00 under Section 440.107(7), Florida

Statutes. The Respondent elected to contest that initial

decision and filed a "Petition for Review." The Petition was

referred to the Division of Administrative Hearings a nd to the

undersigned administrative law judge.

The cause came on for hearing as noticed. The Respondent

appeared without counsel and represented himself. During the

hearing the Petitioner introduced the testimony of William

Pangrass, its investigator, and 10 exhibits, which were admitted

into evidence. The Respondent introduced his own testimony and

12 exhibits, admitted into evidence. The parties were given an

extended period to submit proposed recommended orders following

the filing of the transcri pt, which was filed October 2, 2003.

The Proposed Recommended Order filed by the Petitioner was

timely filed and has been considered in the rendition of this

Recommended Order.

FINDINGS OF FACT

1. Investigator Pangrass conducted a random inspection of

a construction site at 9 Pecan Drive Pass, Ocala, Florida, on

December 18, 2002. On that occasion he observed several people

working, hanging drywall. Investigator Pangrass spoke to one of

the workers, Daniel Maloney, and asked him, to identify his

employ er. Daniel Maloney identified the Respondent as his

employer. When Maloney identified him the Respondent was only

10 feet away and the noise level at the site was such that the

Respondent could hear himself being identified as the employer.

The Responde nt did not then deny that he was Daniel Maloney's

employer. Daniel Maloney stated he had worked for the

Respondent full - time for two months and was paid by the hour.

The Respondent told Mr. Pangrass he was unable to complete the

work at the job without a dditional labor. Mr. Maloney assisted

the Respondent by "hanging the ceiling." The Respondent offered

a hearsay statement of Mr. Maloney, wherein he stated, "I am the

employee." The Respondent confirmed that he had a prior

employment relationship with D aniel Maloney and that Daniel

Maloney wanted to work with the Respondent.

2. Another worker observed by Mr. Pangrass, Desmond Neil,

told Investigator Pangrass that he worked for the Respondent

part - time and was paid by the hour. The Respondent had used the

services of Desmond Neil on prior occasions and stated "we do a

job for Holiday the day before." The Respondent told Mr.

Pangrass that he was trying to get workers' compensation for

Desmond Neil. The Respondent made a statement against his own

intere st and said he "re - hired" Desmond Neil because Neil could

not get a workers' compensation exemption. The Respondent's use

of the word "re - hired" is significant because in a prior

compliance matter the Respondent had employed Desmond Neil and

agreed to ter minate Desmond Neil's employment. The Respondent

in testimony, changed his version of the facts and said that he

re - hired Desmond Neil, but that Neil worked for Charles Brandon.

3. Investigator Pangrass interviewed the Respondent.

During this intervi ew the Respondent stated he had labor

expenses connected with his business. He testified he was paid

by Holiday Builders and then in turn paid Desmond Neil and

Daniel Maloney.

4. Charles Brandon did not employ or was not the sole

employer of Desmond Nei l or Daniel Maloney on December 18, 2002.

Investigator Pangrass contacted Mr. Brandon, who stated he knew

the Respondent was going to hire helpers. Mr. Brandon was not

at the job - site to direct Desmond Neil or Daniel Maloney and

could only be reached by phone.

5. The Petitioner's evidence that the Respondent was the

employer of Desmond Neil and Daniel Maloney on December 18,

2002, instead of Mr. Brandon or some other person or entity, is

the most persuasive and is accepted. The Respondent offered

confl icting evidence regarding who provided money to Desmond

Neil and Daniel Maloney. The Respondent offered a hearsay

statement of Daniel Maloney that Holiday Builders was Daniel

Maloney's employer. The Respondent said that when Holiday

Builders pays him (th e Respondent) he then pays his employees.

The Respondent changed his testimony, however, and then said

Charles Brandon gave him checks to give to the employees.

(Implying that they were Brandon's employees in this version of

his story.)

6. The Responde nt submitted a signed statement to the

Petitioner indicating that he had no employees between 1999 and

2002, in evidence as Petitioner's Exhibit 10 - B. The Respondent

recognized the signature on that statement as being his own, but

professed not to remembe r who wrote it or what it said. The

Respondent, however, did admit to having at least one employee

in 2001, directly contradicting his own statement. The

Respondent also testified that the only times he used Desmond

Neil's services were the two times Inv estigator Pangrass stopped

by the Respondent's job sites. It is a trifle too coincidental

that the only two times the investigator visited the job sites

were the only times when the Respondent purportedly used the

services of Desmond Neil. This is especi ally the case since

Desmond Neil's testimony and even that of the Respondent himself

tend to contradict that statement. Finally, the Respondent

admitted that he did not have a workers' compensation policy for

any employees.

7. In summary, the evidence adduced by the Petitioner is

deemed more consistent and credible and is accepted. It was

thus demonstrated that the Respondent had one or more employees

at the times pertinent hereto.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

juri sdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla.Stat. (2002).

9. Employers are required to secure payment of

compensation for their employees. §§ 440.10(1)(a) and

440.38(1), Fla. Stat. (2002).

10. "Em ployer" is defined in part as, "every person

carrying out employment." § 440.02(15), Fla. Stat. (2002).

"Employment . . . means any service performed by an employee for

the purpose of employing him or her," and, "with respect to the

construction industry , [includes] all private employment in

which one or more employees are employed by the same employer."

§ 440.02(16)(a) and (b)(2), Fla. Stat. (2002).

11. "Employee" means, "any person who is engaged in any

employment under any appointment or contract for hire or

apprenticeship, express or implied, oral or written, whether

lawfully or unlawfully employed." § 440.02(14)(a), Fla. Stat.

(2002).

12. The Petitioner is required to assess $100.00 per day

for each day an employer was out of compliance with the W orkers'

Compensation Law. § 440.107(5), Fla. Stat. (2002). In

addition, an employer who fails to secure payment of

compensation is subject to a penalty of, "[t]wice the amount the

employer would have paid during the periods it illegally failed

to secure payment of compensation in the preceding 3 - year period

based on the employer's payroll during the preceding 3 - year

period; or

. . . [o]ne thousand dollars, whichever is greater."

§ 440.107(7)(a) and (b), Fla. Stat. (2002).

13. The Petitioner has th e burden of proving by a

preponderance of the evidence that an employer violated the

Workers' Compensation Law and that the penalty assessments were

correct under the law. Department of Labor and Employment

Security, Division of Workers' Compensation v. G enesis

Plastering, Inc. , DOAH No. 00 - 3749 (Recommended Order Para. 32)

(Adopted by Final Order May 24, 2001); Department of Labor and

Employment Security, Division of Workers' Compensation v. Bobby

Cox, Sr., d/b/a CH Well Drilling , DOAH No. 99 - 3854 (Recomm ended

Order Para. 34) (adopted in part by a Final Order June 8, 2000).

14. The Petitioner has established by a preponderance of

the evidence that the Respondent was an employer in the

construction industry on December 18, 2002, and that the

Respondent fai led to abide by the coverage requirement of the

workers' compensation law. §§ 440.10(1) and .38(1), Fla. Stat.

(2002). Thus the Respondent should cease operations in

accordance with the Stop Work and Penalty Assessment Order until

such time as he secures workers' compensation coverage and the

Respondent should pay the penalty sought by the Petitioner in

the amount of $1,100.00 in accordance with Sections 440.107(5)

and 440.107(7), Florida Statutes (2002).

RECOMMENDATION

Having considered the foregoing Fin dings 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, Divis ion of Workers'

Compensation directing that the Respondent stop work and cease

his operations until such time as he secures workers'

compensation coverage for employees and directing that the

Respondent pay a penalty in the amount of $1,100.00.

DONE AND EN TERED this 4th day of December, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkwa y

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 4th day of December, 2003.

COPIES FURNISHED :

John M. Iriye, Esquire

Department of Financial Services

Division of Workers' Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

Berisford Champagnie

15508 Southwest 34th Avenue

Ocala, Florida 34473

Honorable Tom Gallagher

C hief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Mark Casteel, General Counsel

Department of Financial Services

The Capitol, Level 11

Tallahassee, Florida 32399 - 0300

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

will issue the Final Order in this case.