04-001174 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. Hernandez Enterprises Status: Closed Recommended Order on Monday, October 3, 2005.

Summary: Petitioner filed a Stop Work Order on the theory that employess of two subcontractors were Respondent`s employees. The subcontractors showed workers` compensation insurance. Recommend that the Order be lifted, no penalties assessed, and the money repaid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF )

WORKERS' COMPENSATION, )

)

Petitioner, )

)

vs. ) Case N o. 04 - 1174

)

HERNANDEZ ENTERPRISES, )

)

R espondent . )

_____________________________ )

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on August 16, 2005, in Jacksonville,

Florida.

APPEARANCES

For Petitioner: Joe Thomps on, Esquire

Colin Roop n arine, Esquire

Department of Financial Services

Division of Workers' Compensation

200 East Gaines Street

Tallahassee, Florida 32399

For Respondent: H. Leon Holbrook, Esquire

Holbrook, Akel, C old, Stiefel

& Ray, P.A.

One Independent Drive, Suite 2301

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent complied with Sections

440.10 and 440.38, Florida Statutes, with regard to workers '

compe nsation insurance for his subcontractors , and if not, the

appropriate amount of penalty that should be assessed.

PRELIMINARY STATEMENT

Respondent , Hernandez Enterprises, Inc. , (Hernandez , Inc. ),

is a dry wall , painting, and stucco contractor in the

Jackso nville, Florida , area. Hernandez was served a Stop Work

Order on February 26, 2004, by the Division of Workers'

Compensation (Division), based , in part, on the Division's

assertion that Hernandez, Inc. , was employing two subcontractors

who allegedly did n ot have valid workers ' compensation insurance

in place.

In response to the Stop Work Order, Hernandez , Inc. , file d

a Petition for Formal Hearing. On April 7, 2004, the Division

forwarded Hernandez , Inc. 's , Petition for Hearing to the

Division of Administr ative Hearings . Subsequent to the Petition

for Hearing , the alleged penalty assessment was recalculated and

at the time of the hearing the amount alleged was $157,794.49.

Numerous motions for continuances were filed and granted,

with the concurrence of th e parties. Eventually the case was

set for hearing on August 16, 2005, and was heard on that date.

At the hearing, the Division presented the testimony of

Katina Johnson and the D ivision ' s Exhibit Nos. 1 through 22 were

accepted into evidence. The Divis ion also submitted the

deposition testimony of William D. Hager (Mr. Hager) , an expert

in the field of workers' compensation which was accepted into

evidence. Hernandez, Inc. , presented the testimony of George

Hernandez, the principal of Hernandez, Inc., and Mi chael Sapourn

(Mr. Sapourn) , who testified as an expert in the field of

workers' compensation insurance . He also presented the

testimony of Jonathan Sallas, who addressed the calculation of

the penalty assessment in the Amended Order of Penalty

Asse ssment. Hernandez, Inc., also offered Exhibit Nos. 1

through 7 into evi dence, and they were accepted.

The two - volume Transcript was filed on August 23, 2005.

After the hearing, Petitioner and Respondent timely filed

Proposed Recommended Orders on Septemb er 16, 2005. They were

considered in the preparation of this Recommended Order .

References to statutes are to Florida Statutes (200 3 )

unless otherwise noted.

FINDINGS OF FACT

1. Hernandez, Inc., is a contractor based in the

Jacksonville, Florida ar ea , and is in the business of install ing

dry wall, among other construction related activities .

2. The Department of Financial Services is the state

agency responsible for enforcing the Workers' Compensation Law.

T his duty is delegated to t he Division of Workers' Compensation.

3. On February 5, 2004, Hernandez, Inc., was engaged in

installing drywall in the Bennett Federal Building in

Jacksonville, Florida. Hernandez, Inc. , was a subcontractor for

Skanska, Inc., who was the general contractor for th e building.

Hernandez, Inc. , was accomplishing the installation of drywall

by using two subcontractors, GIO & Sons (GIO), of Norfolk,

Virginia , and U&M Contractors , Inc. , (U&M) , of Charlotte, North

Carolina. Hernandez, Inc. , was also using its own person nel,

who were leased from Matrix, Inc. , an employee leasing company.

4. Prior to contracting with GIO and U&M, Hernandez, Inc. ,

asked for and received ACORD certificates of insurance , which on

their face indicated that the subcontractors had bot h liabili ty

coverage and workers' compensation coverage. It is the practice

of Hernandez, Inc. , to ensure that certificates of insurance are

provided by subcontractors and the office staff of Hernandez,

Inc. , tracks the certificates so that they are kept current.

5. Since the beginning of 2001, Hernandez, Inc. , has

received approximately 310 certificates of insurance from

subcontractors. These certificates listed Hernandez, Inc. , as

the certificate holder. Though most of the producers and

insureds on these cer tificates are from Florida, a substantial

number are from other states. Hernandez, Inc., relied on the

certificates as evidence that the subcontractor ' s workers were

covered by workers' compensation insur ance. Hernandez, Inc. ,

has relied on certificates of insurance for more than twenty

years and , with the exception of this case, has never known an

instance where the underlying policy was invalid.

6 . On February 5, 2004, Katina Johnson, an investigator

with the Division, made a routine visit to the Benne tt Federal

Building with another investigator. She observed personnel from

Hernandez, Inc., and its subcontractors, installing dry wall.

7 . On February 5, 2004, Ms. Johnson determined that

Hernandez, Inc., also had a contract to install dry wall as a

su bcontractor participating in the construction of the Mayport

BEQ. L. C. Gaskins Company was the general contractor engaged

in the construction of the Mayport BEQ . U&M worked at both the

Bennett Federal Building site and the Mayport BEQ site as a

subcontr actor of Hernandez, Inc.

8 . Ms. Johnson issued a Stop Work Order on February 26 ,

2004, to Hernandez, Inc. , GIO , and U&M . By the Stop Work Order,

Hernandez, Inc. , was charged with failure to ensure that

workers' compensation meeting the requirements of C hapter 440,

Florida Statutes, and the Florida Insurance Code, was in place

for GIO and U&M. The Stop Work Order indicated that the penalty

amount assessed against Respondent would be subject to amendment

based on further information provided by Hernandez, Inc.,

including the provision of business records.

9 . An Amended Order of Penalty Assessment dated March 19,

2004, was served on Hernandez, Inc. , which referenced the Stop

Work Order of February 26, 2004. The Amended Order of Penalty

Assessment was in t he amount of $157,794.49. T he Amended Order

of Penalty Assessment reached back to September 29, 2003.

10 . An Amended Order of Penalty Assessment dated March 22,

2004, was served on GIO. This Amended Order of Penalty

Assessment was in the amount of $107 ,885.71. An Amended Order

of Penalty Assessment with a March 2004 date (the day is

obscured on the document by a "filed" stamp) , was served on U&M .

This Amended Order of Penalty Assessment was in the amount of

$51,779.50. The sum of these numbers is $15 9,665.21. However,

the parties agreed at the hearing that the amount being sought

by the Division was $157,794.49 , which represented the total for

GIO and U&M.

11 . Hernandez, Inc.'s , employees leased from Matrix were

covered by workers' compensation insu rance through a policy held

by Matrix. The Matrix policy did not cover the employees of GIO

and U&M.

12 . Although Skanska, Inc. , and L. C. Gaskins Company had

workers' compensation insurance in force, their policies did not

cover the workers used by Her nandez, Inc., or the employees of

GIO or U&M.

13 . GIO and U&M employees w ere considered by the Division

to be "statutory employees" of Hernandez, Inc., for purposes of

the Workers' Compensation Law. This meant, according to the

Division, that Hernandez, Inc., was required to ensure that the

employees of GIO and U&M would receive benefits under the

Workers' Compensation Law if a qualifying event occurred , unless

the subcontractors had workers ' compensation insurance policies

in force that satisfied the Di vision .

14 . GIO had a policy of workers' compensation insurance

evidenced by an ACORD certificate of liability insurance for the

period December 3, 2002, until December 3, 2003. The policy was

produced by Salzberg Insurance Agency in Norfolk, Virgini a. It

listed Hernandez as the certificate holder. The policy was

issued by Maryland Casualty Company, a subsidiary of the Zurich

American Insurance Company. Th e s e compan ies are admitted

carriers in Florida.

15 . The Classification of Operations page of this policy

indicated class code 5022, masonry work. GIO employers were

installing drywall during times pertinent. Rates for drywall

installation are substantially higher than for masonry work. In

the policy section titled "Other States Insurance," Flo rida is

not mentioned.

16 . William D. Hager, an expert witness, reviewed the

certificate of insurance and the policy supporting the

certificate. Mr. Hager is a highly qualified expert in

insurance and workers' compensation coverage. Among other

qualific ations, he is an attorney and a former member of the

National Association of Insurance Commissioners by virtue of his

position as Insurance Commissioner for the State of Iowa.

He concluded that this policy did not conform to the

requirements of Chapter 44 0 because the policy was Virginia

based and did not apply Florida rates, rules, and class codes.

17. Mr. Sapourn, testified as an expert witness.

Mr. Sapourn has a degree from the University of Virginia in

economics with high distinction and a juris d octorate from

Georgetown. He is a certified insurance counselor and owned an

insurance agency in the District of Columbia area. As an

insurance agent he has issued tens of thousands certificates of

insurance and written hundreds of workers' compensation

policies. Mr. Sapourn , opined that this certificate represented

workers' compensation coverage that complied with Chapter 440,

Florida Statutes.

18. Upon consideration of the testimony of the experts,

and upon an examination of the documents, it is con cluded that

the policy represented by the certificate of insurance for the

period December 3, 2002, to December 3, 2003, did not comply

with the requirements of Chapter 440.

1 9 . Subsequently, someone forged an ACORD certificate of

liability insurance , whi ch indicated that it was produced by

Salzberg Insurance Agency , and that indicated that GIO was

covered from December 4, 2003, until December 4, 2004. The

forged certificate was presented to Hernandez, Inc. , upon the

expiration of the policy addressed abo ve . It was accepted by

Hernandez , Inc. , and considered to be a valid certificate.

20 . Both of the experts pointed out that with their

practiced eye they could easily determine that the certificate

was a forgery. However, there was no evidence that Mr.

Hernandez, or his employees, had training in forgery

detection. Accordingly, it was reasonable for them to accept

the certificate as valid.

2 1 . U&M presented Hernandez, Inc. , with an ACORD

certificate which indicated insurance coverage from October 24,

2003, until October 24, 2004. The producer was Insur - A - Car

Commercial Division of Charlotte, North Carolina. The insurer

was The St. Paul , an admitted carrier in Florida. T he insured

was U &M. The certificate holder was Hernandez Enterprises,

Inc.

22 . William D. Hager reviewed the certificate of insurance

and the policy supporting the certificate.

23 . He noted that The St. Paul policy upon which the

certificate was based did not apply in Florida because U&M was

not working temporarily in Florida and because it included a

policy endorsement that stated: "The policy does not cover work

conducted at or from 3952 Atlantic BLVD #D - 12 Jacksonville, FL

32207." U&M's mailing address in Jacksonville was 3952 Atlantic

Boulevard, Suite D - 12.

24 . The in formation page of the policy, at Part 3.A.

states that Part One applies to North Carolina. Part 3.C.,

Other States Insurance states that Part 3 of the policy applies

to the states listed, and then refers to the "residual market

limited other states insura nce." Mr. Hager testified that the

policy did not indicate compliance with C hapter 440, because the

policy is North Carolina based, applies only North Carolina

rates, and does not provide Florida coverage.

25. Mr. Sapourn , on the other hand, opined that the policy

provided workers' compensation that complied with Chapter 440.

Although it is possible that a worker who was injured during

times pertinent may have received benefits, it is clear that the

policy did not comply with the requirements of Chapter 440.

26. The Division instituted a Stop Work Order against U&M

and sought to impose penalties upon it for failure to comply

with Chapter 440 for offenses committed at the exact times and

places alleged in this case. U&M demanded a hearing and was

provi ded one.

27. In a R ecommended O rder entered April 7, 2005, an

Administrative Law Judge recommended that the Division enter a

final order affirming the Stop Work Order and assessing a

penalty in the amount of $51,779.50. See Department of

Financial Serv ices, Division of Workers' Compensation v s . U and

M Contractors, Inc. , Case No. 04 - 3041 (DOAH April 7, 2005) . The

recommendation was adopted in toto by the Department of

Financial Services on April 27, 2005. See In the Matter of: U

and M Contractors, Inc . , Case No. 75537 - 05 WC (DFS April 27,

2005).

28. The evidence taken as a whole demonstrates that U&M

did not have workers' compensation coverage in Florida that

complied with the requirements of Chapter 440 , during times

pertinent .

29. Mr. Sapourn tes tified that the theory behind ACORD

certificates of insurance is that they provide a uniform

document upon which business people may rely. This testimony is

accepted as credible.

30. In order to continue working on a project not

addressed by the Stop Wo rk Order, Hernandez, Inc. , entered into

and agreement with the Division which provided for partial

payments of the penalty in the amount of $46,694.03. This

payment was made with the understanding of both parties that

payment was not an admission of liabi lity.

CONCLUSIONS OF LAW

3 1 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

3 2 . Administrative fines are penal in nature. Department

of Banking and Fin ance, Division of Securities and Investor

Protection v s . Osborne Stern, Inc. , 670 So. 2d 932 (Fla. 1996).

Pursuant to the c ourt's reasoning therein, it is concluded that

Petitioner bears the burden of proof herein by clear and

convincing evidence. Accord Triple M Enterprises Inc., v s .

Department of Financial Services, Division of Workers'

Compensation , Case N o. 04 - 2524 ( DOAH January 13, 2005), and

Department of Financial Services, Division of Workers'

Compensation v s . U and M Contractors, Inc. , Case N o. 0 4 - 3041

( DOAH April 7, 2005) , adopted in toto in, In the Matter of: U

and M Contractors, Inc. , Case No. 75537 - 05 - WC (DFS April 27,

2005).

3 3 . The Division argues in its Proposed Recommended Order

that the subcontractors became employees of Hernandez, Inc. , by

operation of Section 440.10(1) . In particular, the Division

asserts that Subsection (1)(a) means that the employees of a

subcontractor employed by a general contractor, are exactly like

the employees of the general contractor , and therefore the

gener al contract or must secure workers' compensation for his own

employees and those of his subcontractors.

3 4 . Section 440.10(1) provides in pertinent part as

follows:

(1)(a) Every employer coming within the

provisions of this chapter shall be liable

for, an d shall secure, the payment to his or

her employees, or any physician, surgeon, or

pharmacist providing services under the

provisions of s. 440.13 , of the compensation

payable under ss. 440.13 , 440.15 , and

440.16 . Any contractor or subcontractor who

engages in any public or private

construction in the state shall secure and

maintain compensation for his or her

employees under this chapter as provided in

s. 440.38 .

(b) In case a contractor sublets any part

or parts of his o r her contract work to a

subcontractor or subcontractors, all of the

employees of such contractor and

subcontractor or subcontractors engaged on

such contract work shall be deemed to be

employed in one and the same business or

establishment, and the contra ctor shall be

liable for, and shall secure, the payment of

compensation to all such employees, except

to employees of a subcontractor who has

secured such payment.

(c) A contractor shall require a

subcontractor to provide evidence of

workers' compensatio n insurance. A

subcontractor who is a corporation and has

an officer who elects to be exempt as

permitted under this chapter shall provide a

copy of his or her certificate of exemption

to the contractor.

(d)1. If a contractor becomes liable for

the pay ment of compensation to the employees

of a subcontractor who has failed to secure

such payment in violation of s. 440.38 , the

contractor or other third - party payor shall

be entitled to recover from the

subcontractor all benefits paid or payable

plus interest unless the contractor and

subcontractor have agreed in writing that

the contractor will provi de coverage.

3 5 . Section 440.38 provides in pertinent part as follows:

(1) Every employer shall secure the payment

of compensation under this chapter:

(a) By insuring and keeping insured the

payment of such compensation with any stock

company or mutua l company or association or

exchange, authorized to do business in the

state;

* * *

(7) Any employer who meets the requirements

of subsection (1) through a policy of

insurance issued outside of this state must

at all times, with respect to all employees

working in this state, maintain the required

coverage under a Florida endorsement using

Florida rates and rules pursuant to payroll

reporting that accurately reflects the work

performed in this state by such employees.

3 6 . As was noted in Triple M Enter prises , supra , a

contractor, including a contractor whose base is in another

state, must secure workers' compensation coverage under a

Florida endorsement using Florida rates and rules pursuant to

payroll reporting that accurately reflects the work perform ed in

this state by such employees. This is a reasonable requirement

which should be strictly construed against the employer. This

is because the employer deals directly with his or her insurance

agent and can easily ensure that compliance with Section

4 40.38(7) is had. See also Department of Labor and Employment

Security, Division of Workers' Compensation v s . Eastern

Personnel Services, Inc. , Case N o. 99 - 2048 (DOAH October 12,

1999) .

3 7 . The statutory scheme, when addressing the employment

of a subcont ractor , is different . In the case where a

subcontractor is employed, two possible scenarios are

contemplated by Section 440.10(1)(b). Either the contractor

secures workers' compensation coverage that satisfies Section

440.38(7) for the employees of the s ubcontractor or the

contractor must contract with subcontractors who have obtained

their own workers' compensation coverage.

3 8 . A contractor cannot escape responsibility for the

provision of workers' compensation insurance by claiming that

the contracto r's employees are subcontractors, when they are

not. See Department of Financial Services, Division of Workers'

Compensation v s . Retrospec Painting & Reconstruction, Inc. , Case

No. 03 - 4014 (DOAH February 4, 2004) , adopted in toto in, In the

Matter of : Re trospec Painting & Reconstruction, Inc. , Case N o.

71818 - 03 - WC (DFS April 9, 2004) , Department of Financial

Services, Division of Workers' Compensation v s . Susie Riopelle ,

Case N o. 03 - 1757 (DOAH January 16, 2004) , adopted in toto in, In

the Matter of: Susi e Riopelle; Case No. 7 4322 - 04 - WC (DFS April

27, 2005), and Orlando Sentinel v s . Chow , 652 So. 2d 982 ( Fla.

1st DCA 1995). In this case, GIO and U&M were indisputably

independent contractors.

3 9 . If the contractor contracts with a subcontractor who

obtai ns its own workers' compensation coverage, the contractor

has a duty under Section 440.10(1)(c) to ensure that the

subcontractor provides "evidence of workers' compensation

insurance." Typically, and in this case, the "evidence"

obtained is a certificate of insurance. A certificate of

insurance is not a policy of insurance and does not contain the

sort of detail found in an insurance policy.

40 . Certificates of insurance are commonly used to

represent coverage which is evidenced in its particulars by an

actual policy or master policy. Certificates of insurance , for

example, were considered to be evidence of insurance in a group

life policy in Equitable Live Assurance Society of the United

States v. Wagoner , 269 So. 2d 747 ( Fla. 4th DCA 1972); evidence

o f an automobile policy in Avis Rent A Car and I.T.T. Hamilton

Life Insurance Company , 318 So. 2d 565 (Fla. 4th DCA 1975); and

evidence of mortgage guarantee insurance in Federal Deposit

Insurance Corporation v. Verex Assurance, Inc. , 645 So. 2d 427

(Fla. 1 994).

41 . The practice of reliance on the face of a certificate

of insurance by a contractor who has been presented with a

purportedly valid certificate of insurance, has been addressed

by the courts within the context of Section 440.10, Florida

Statutes . In Criterion Leasing Group v. Gulf Coast Plastering &

Drywall , 582 So. 2d 799, 801 (Fla. 1st DCA 1991), the court

found that an insurance company should have reasonably expected

that a contractor would rely on a certificate of insurance

presented to tha t contractor:

We find that it was foreseeable to Hartford

that Evans Blount would use the certificate

of insurance as proof of workers'

compensation coverage. First . . . [t]he

certificate of insurance listed both

Criterion and Evans Blount as coinsureds.

The certificate was presented to Gulf Coast

as proof of workers' compensation coverage.

Second, Section 440.10(1), Florida Statutes,

requires a general contractor to provide

workers' compensation coverage for a

subcontractor's employees except when th e

subcontractor already has obtained coverage.

Therefore, Hartford should have reasonably

expected that Gulf Coast would rely on the

certificate of insurance naming Evans Blount

as a coinsured. This promise of coverage

induced Gulf Coast to subcontract w ith Evans

Blount.

See also LaCroix Construction Company v. Bush , 471 So 2d 134,

136 (Fla. 1st DCA 1985) . In LaCroix the court found that

subcontractor relied on general contractor's representation that

it carried workers' compensation coverage for all e mployees who

were not covered by subcontracting and changed his position to

his detriment by continuing to work without procuring

appropriate insurance coverage.

4 2 . Reliance on a certificate of insurance as proof of

coverage is permissible unless there is extant a question as to

its validity. To require a contractor to evaluate the

underlying policy held by a subcontractor is not contemplated by

the statutory scheme. Bearing in mind that two experts in this

case had diametrically opposed opinions with regard to whether

or not the policies at issue in this case complied with Chapter

440, the Florida Legislature in its wisdom declined to require

Florida contractors to have a well - developed expertise in

insurance policy analysis.

4 3 . Section 440.107, Flo rida Statutes, authorizes the

Division to issue s top w ork orders and penalty assessment orders

in its enforcement of workers' compensation coverage

requirements. The method used to make the calculation of the

penalty is not at issue here. At issue is wh ether the Division

is authorized under the law to impose the penalty it imposed

upon Hernandez, Inc.

4 4 . When the Division issued the Stop Work Order on

Hernandez, Inc., it did so because it determined that Hernandez

was the "employer" for purposes of wor kers' compensation

coverage. When the Division issued the Stop Work Order on GIO

and U&M, it did so because it determined GIO and U&M were the

"employers" for purposes of workers' compensation coverage. The

Division has defined Hernandez and GIO as being the "employer"

of the identical employees working at the same work site earning

the identical dollars. Likewise, the Division has defined

Hernandez and U&M as being the "employer" of the identical

employees working at the same work site earning the ident ical

dollars. There is nothing in the statutes cited by the Division

that authorizes the Division to define two businesses as the

employer of the same employees or that requires an employee to

be covered by two employers.

4 5 . Florida Administrative Code Rule 69L - 6.019, addressing

policies and endorsements covering employees engaged in work in

Florida, was adopted in June 2004 and amended in November 2004.

This rule addresses the requirement that workers' compensation

policies utilize Florida class codes , rates, rules , and manuals

that are in compliance with and approved under the provisions of

Chapter 440.

4 6 . This rule was adopted after the events giving rise to

this case. It is specific and comprehensive in setting out the

requirements of a workers ' compensation policy deemed adequate

under Chapter 440. It is notable that it did not address the

assertion made by the Division in this case that a contractor is

required to provide workers' compensation coverage for the

employees of its subcontractors. The Division did not avail

itself of the opportunity to state in the rule that a contractor

must guarantee that a subcontractor's policy of workers'

compensation insurance complies with Chapter 440 .

4 7 . In any event , Hernandez, Inc. , complied with the p lain

and ordinary meaning of Subsection 440.10(1)(c), Florida

Statutes, by requiring its subcontractors, GIO and U&M, to

provide evidence of workers' compensation insurance, and should

not be penalized because of the failures of GIO and U&M to

obtain prope r insurance or because of the fraud perpetrated by

GIO. See Department of Financial Services, Division of Workers'

Compensation v s . AFS, LLC , Case N o. 05 - 0958 (DOAH August 26,

2005).

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED

1. That the Division rescind the Stop Work Order issued

February 26, 2004, and

2. T hat the Division rescind the Amended Order of Penalty

Assessment dated March 19, 2004, and

3 . T hat the Department refund to Hernandez, Inc., the

amo unt of $46,694.03, which was paid to obtain a release from

the improvidently issued Stop Work Order of February 26, 2004.

DONE AND ENTERED this 3 rd day of October , 2005, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3 rd day of October , 2005 .

COPIES FURNISHED :

Joe Thompson, Esquire

Colin Roopnarine, Esquire

Department of Financial Services

Division of Workers' Compensation

200 East Gaines Street

Tallahassee, Florida 32399

H. Leon Holbrook, Esquire

Holbrook, Akel, Cold, Stiefel & Ray, P.A.

One Independent Drive, Suite 2301

Jacksonville, Florida 32202

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Carlos G. Muñiz, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0307

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended O rder. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.