06-001169 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. William R. Sims Roofing, Inc. Status: Closed Recommended Order on Thursday, November 30, 2006.

Summary: Petitioner failed to secure workers` compensation insurance and coverage for its employees, in addition to the violation of the Stop Work Order. Recommend a fine of $49,413.18.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF WORKERS ' )

COMPENSATION , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1169

)

WILLIAM R. SIMS ROOFING, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, this case was held before Daniel M.

Kilbride, Administrative Law Judge (ALJ) of the Division of

Administrative Hearings, on August 8, 2006, in Orlando , Florida.

APPEARANCES

For Petitioner: Col in M. Roopnarine, Esquire

Department of Financial Services

Division of Workers ' Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

For Respondent: P atrick John McGinley, Esquire

Law Office of Patrick John McGinley, P.A.

2265 Lee Road, Suite 100

Winter Park, Florida 32789

STATEMENT OF THE ISSUE S

Whether Respondent properly secured the payment of workers '

compensation insurance coverage, as delineated by Subsection

440.107(2), Florida Statutes (200 5 ), 1 and, if not, what penalty

for such failure is warranted.

Whether Respondent conducted business operations in

violation of a stop - work ord er , and, if so, what is the correct

penalty for such violation, pursuant to Subsection

440.107(7)(c), Florida Statutes.

PRELIMINARY STATEMENT

On December 21, 2004, Petitioner issued and served Stop

Work Order and Order of Penalty Assessment N o. 04 - 340 - D4 ( " Stop

Work Order " ) to Respondent, alleging that Respondent failed to

abide by the requirements of the Workers ' Compensation Law, by

failing to secure the payment of workers ' compensation in

violation of S ubs ection 440.107(2), Fl orida Stat utes . The Order

r equired Respondent to cease all business operations. An

Amended Order of Penalty Assessment ( " Amended Order " ) was issued

and served on Respondent on December 19, 2005, assess ing a

penalty in the total amount of $49,413.18, due in part to

Respondent ' s fail ure to cease all business operations. The

Order requiring Respondent to cease all business operations

remained in effect with the issuance of the A mended Order .

Respondent timely requested an administrative hearing by

petition . O n April 3, 2006, this ma tter was referred to th e

Division of Administrative Hearings ( " DOAH " ) for a formal

hearing .

Following discovery and two continuances, which were

requested by the parties , t he final hearing was conducted on

August 8, 2006. Petitioner presented the testimon y of two

witnesses, Investigator Robert Cerrone and Darlene Talley of

Orange County. Petitioner ' s Exhibits 1 through 18 were offered

and received into evidence , including the deposition testimony

of Michael Minneck and Robert Szika . Respondent presented the

testimony of one witness, William Sims , and Respondent ' s

Exhibit 1 w as offered and received into evidence. The

two - volume Transcript of the hearing was filed with DOAH on

September 19, 2006.

Petitioner timely filed its P roposed R ecommended O rder

(PRO ) on September 28, 2006. Respondent filed its PRO on

October 9, 2006. Both parties ' proposals have been considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

enforcing the statutory r equirement that employers secure the

payment of workers ' compensation for the benefit of their

employees. § 440.107, Fla. Stat.

2. Respondent is a corporation domiciled in Florida and

engaged in the business of roofing, which is a construction

activity.

3 . On December 21, 2004, Petitioner ' s investigator, Hector

Vega, visited 951 North Park Avenue, Apopka, Florida, the site

of a church, on a referral from his supervisor.

4 . Five men were observed engaged in roofing work.

William Sims, Respondent ' s presi dent, agreed to meet at the

worksite.

5 . Sims, upon inquiry, informed Petitioner ' s investigator

that he had not secured the payment of workers ' compensation for

the workers. However, Sims testified that for Respondent to

re - roof the Apopka Church of G od, Sims had to calculate the

amount of roofing shingles needed, which proved to be difficult

due to the architecture of the church ' s specialty roof. The

amount of shingles needed for the job was overestimated in order

to avoid running out of shingles dur ing the job. As of

December 21, 2004, the Apopka Church of God roofing job was

done, so Respondent sold the extra, unused shingles to D&L

Trucking, owned and operated by David Lorenzo, who was paying

the five men found working on the roof on December 21, 2004.

6. A check of Petitioner's Compliance and Coverage

Automated System ("CCAS") database, which contains information

on all workers' compensation insurance policy information from

the carrier to an insured, determined that Respondent did not

have a Sta te of Florida workers' compensation insurance policy

to provide workers' compensation coverage of the five workers.

7 . Chapter 440, Florida Statutes, allows an individual to

apply for an election to be exempt from workers' compensation

benefits. Only the named individual on the application is

exempt from carrying workers' compensation insurance coverage.

8 . Petitioner, which maintains a database of all workers'

compensation exemptions in the State of Florida, found a

current, valid exemption only for Wil liam R. Sims in

December 2004.

9. On December 21, 2004, Petitioner issued and served on

Respondent a s top - w ork o rder for failing to obtain coverage that

meets the requirements of Chapter 440, Florida Statutes, and the

Insurance Code. Also at that time, a Request for Production of

Business Records was issued to Respondent.

10. Employers employing workers on job sites in Florida

are required to keep business records that enable Petitioner to

determine whether the employer is in compliance with the

workers ' compensation law. At the time the S top W ork O rder was

issued, and pursuant to Subsection 440.107(5), Florida Statutes,

Petitioner had in effect Florida Administrative Code

Rule 69L - 6.015 , which requires employers to maintain certain

business records . Respondent failed to comply with the Request

for Production.

11. Florida law requires that an employer who has

employees engaged in work in Florida must obtain a Florida

workers' compensation policy or endorsement for such employees

which utilizes Florida class codes, rates, rules, and manuals

that are in compliance with the provisions of Chapter 440,

Florida Statutes, as well as the Florida Insurance Code. See

§ 440.10(1)(g), Fla. Stat. Florida Administrative Code

Rule 69L - 6.019(2) requires that in orde r for an employer to

comply with Subsections 440.10(1)(g) and 440.38(7), Florida

Statutes, any policy or endorsement used by an employer to prove

the fact of workers' compensation coverage for employees engaged

in Florida work must be issued by an insurer that holds a valid

certificate of authority in the State of Florida.

12. Subsections 440.107(3) and 440.107(7)(a), Florida

Statutes, authorize Petitioner to issue stop - work orders to

employers unable to provide proof of workers' compensation

coverage. Fa ilure to provide such proof is deemed "an immediate

serious danger to public health, safety, or welfare . . . . "

§ 440.107(7)(a), Fla. Stat.

1 3 . Following the follow - up efforts by Sims that extended

until February 2005 , Respondent believed that the Stop Work

Order had been lifted by February 2005.

1 4 . Later in 200 5 , after Sims understood the Stop Work

Order to be lifted, he pulled some permits from Orange County.

The permits were called "a permit to work" and this supported,

in Sims' mind, the conclusio n that the Stop Work Order had been

lifted.

1 5 . On November 1, 2005, Petitioner received a referral to

investigate Respondent. Petitioner's investigator visited

Respondent's worksite on November 1, 2005, and observed six men

engaged in roofing work. Sim s, upon inquiry, informed the

investigator that he secured the payment of workers'

compensation coverage for the workers through Emerald Staffing

Services, an employee leasing company.

1 6 . Chapter 468, Part XI, Florida Statutes, governs

employee leasing c ompanies.

1 7 . Respondent contracted with Emerald Staffing for its

services in October 2005 and became the client company of

Emerald Staffing. Respondent paid invoices for its employees,

thus indicating that it was engaged in business activities in

Octo ber 2005 and November 2005.

1 8 . On November 2, 2005, Petitioner issued a Request for

Production of Business Records to Respondent. The request was

for business records from December 21, 2004, through November 2,

2005.

1 9 . Respondent remained under the b elief that the Stop

Work Order had been lifted until Sims was approached by

Petitioner's inspector, Robert Cerrone, on November 4 or 5,

2005, and was told by Cerrone that Respondent was still under

the Stop Work Order. Respondent thereafter stopped workin g at

Cerrone's request.

20 . Although Respondent asserts it did not know the Stop

Work Order was in place between December 21, 2004, and

December 19, 2005, and therefore Respondent believed it

appropriate to continue working during that time, Sims testif ied

there was a health problem in his immediate family that slowed

down his business from working in 2005. His wife was diagnosed

with cancer, and this made him very distracted from work.

Although Sims pulled a few permits in 2005, he reviewed all

those permits in his testimony, and it became clear to him that

all those permits were for work previously done during the

hectic clean - up from the hurricanes . T his testimony is not

credible.

21 . Respondent acknowledges the issuance and receipt of

the S top W or k O rder, but alleges in its petition that the S top

W ork O rder should never have been issued because the men at the

worksite were not performing roofing work. On November 10,

2005, however, Sims provided a statement to Petitioner's

investigator wherein he admitted to having employed four

individuals on December 21, 2004, without securing the payment

of workers' compensation for any of them.

22 . However, Respondent admitted, through its president,

by letter, dated November 10, 2005, and signed in the pres ence

of Cerrone that four of the persons observed on the Apopka

Church of God work site on December 21, 2004, were Petitioner ' s

employees and they were not covered by workers ' compensation

insurance.

23 . Sims ' testimony that he was forced to sign the lett er

or that he was tricked or mislead into signing it , is not

credible.

24 . From the evidence presented, the four identified men

found on the roof of the Apopka Church of God on December 21,

2004, were the employees of Respondent, and Respondent had not

co mplied with the requirements of the workers ' compensation law.

2 5 . Therefore, the Stop Work Order was not erroneously

issued against Respondent on December 21, 2004.

26 . After learning from Cerrone that the Stop Work Order

was in place, Respondent worked with Petitioner to come into

compliance and agreed to the Order of Conditional Release from

Stop - Work Order that Cerrone signed on December 19, 200 5, under

it, Respondent has been making payments to Petitioner to satisfy

the penalty Petitioner has levied against Respondent.

27 . On November 16, 2005, Petitioner issued a Request for

Production of Business Records for Penalty Assessment, in which

Petitioner requested business records from Respondent for the

period of December 21, 20 01, through December 21, 2 004.

2 8 . Respondent complied with the records requests and

provided Petitioner with tax ledgers and documents for the years

2002 thr ough 2004, along with permits.

2 9 . Subsection 440.107(7)(c), Fl orid a Stat utes , provides:

" The department shall assess a p enalty of $1,000 per day against

an employer for each day that the employer conducts business

operations that are in violation of a stop - work order. "

30 . D ocumentation specifically showed Respondent was

engaged in business acti vities after December 21, 20 04. The

Orange County building department records indicate that a number

of roofing permits that had been pulled by Respondent after

December 21, 200 4 , the date the S top W ork O rder was issued.

31 . Sims also stated that he was aware of the need to pull

pe rmits as part of his job as a roofer in Orange County,

Florida . He alluded at the hearing that Orange County should

have informed him of the existing S top W ork O rder.

3 2 . Darlene Elaine Talley, c ontractor c ertification

c oordinator with the Orange County building department ,

testified that Respondent, through Sims, pulled a number of

permits after December 21, 200 4 . Some of the permits were

pulled for work performed prior to December 21, 200 4 .

3 3 . Although Respondent alleges that much of the actual

roo fing work was done prior to pulling permits and , thus , prior

to the issuance of the S top W ork O rder, the act of pulling a

permit is considered " conducting business operations, " which is

prohibited by S ubsection 440.107(7)(c), Florida Stat utes , when a

stop - work order is in effect.

3 4 . A - 1 Construction ( " A - 1 " ), a Georgia company, performed

roofing services for Respondent in Orlando, Florida , from

September 2004 to November 2004, and was paid remuneration for

th o se services.

3 5 . Although Respondent sought to prove that A - 1 had

Florida workers ' compensation coverage through its Georgia

workers ' compensation and should not be included in the penalty

calculation , t he credible evidence showed that Georgia workers '

compensation coverage , with Key Risk , did not e xtend to Florida ,

nor did A - 1 purchase extra Florida coverage.

3 6 . S ubs ection 440.10(1)(c), Fl orida Stat utes , states,

" A contractor shall require a subcontractor to provide evidence

of workers ' compensation insurance. "

3 7 . Respondent did not request ev idence of workers '

compensation coverage from A - 1 , and Respondent w as not aware

whether A - 1 ' s Florida workers ' compensation coverage was

purchased or not .

3 8 . Under the Workers ' Compensation Law in effect during

the penalty period, a subcontractor becomes an " employee " if the

subcontractor has not validly elected an exemption as permitted

by Chapter 440, Fl orida Stat utes , or has not otherwise secured

the payment of compensation coverage as a subcontractor.

§ 440.02(15)(c)2., Fla. Stat.

39 . T he entities l isted on the Amended Order ' s penalty

worksheet , including the employees of A - 1, were Respondent ' s

employees during the relevant period, all of whom Respondent

paid, and all of whom had neither valid workers ' compensation

exemptions nor w orkers ' compensatio n coverage.

4 0 . To determine the number of days that Respondent was in

violation of the S top W ork O rder, the payroll records for

Respondent were obtained from Emerald Staffing , and the permits

pulled by Respondent were gathered . The investigator further

discussed the matter with Respondent to determine the number of

days Respondent worked in violation of the S top W ork O rder.

4 1 . It is determined that Respondent worked for 10 days in

violation of the S top W ork O rder.

4 2 . Utilizing the records provided , i n evidence , the

penalty is calculated for Respondent by assigning a class code

to the type of work utilizing the SCOPES Manual, multiplying the

class code ' s assigned approved manual rate with the wages paid

to the employee per one hundred dollars, and then multiplying

all by 1.5.

4 3 . T he penalty for violation of the S top W ork O rder is

$1 , 000.00 per day for each day of violation, which for 10 days

amount s to $10,000.00 .

4 4 . The Amended Order , which assessed a penalty of

$49,413.18, was personally served on Respondent on December 19,

2005 . Sims was not personally calculated into the penalty

because he had a current valid wo rkers ' compensation exemption.

On December 19, 2005, Respondent entered into a Payment

Agreement Schedule for Periodic Payment of Penal ty and was

issued an Order of Conditional Release from Stop - Work Order by

Petitioner . Respondent made a down payment of 10 percent of the

assessed penalty ; provided proof of compliance with Ch apter 440,

Fl orida Stat utes , by securing the payment of workers '

compensation through Emerald Staffing ; and agreed to pay the

remaining penalty in 60 equal monthly payment installments.

CONCLUSIONS OF LAW

4 5 . DOAH has jurisdiction pursuant to Sections 120.569 and

440.107 , and Subsection 120.57(1), Florida Statutes.

4 6 . The parties received proper notice of the

administrative hearing. Petitioner has the burden of proof in

this case and must show by clear and convincing evidence that

Respondent violated the Workers ' Compensation Law during the

relevant period and th at the penalty assessments are correct.

Department of Banking and Finance Division of Securities and

Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996).

4 7 . Pursuant to S ections 440.10 and 440.38, Florida

Stat utes , every " employer " is required to secure the payment of

workers ' compensation for the benefit of its employees unless

exempted or excluded under Chapter 440, Fl orida Stat utes .

Strict compliance with the Workers ' Compensation Law is,

therefore, required of the employer. See C&L Trucking v.

Corbitt , 546 So. 2d 1185, 1187 (Fla. 5th DCA 1989).

4 8 . Subsection 440.10(1), Florida Statutes, provides in

pertinent part:

(1)(a) Every employer coming within the

provisions of this chapter shall be liable

for, and shall secure, the pay ment 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 pri vate

construction in the state shall secure and

maintain compensation for his or her

employees under this chapter as provided in

s. 440.38 .

49 . " Employer " is defined as " every person carrying on any

employment . . . " § 440.02(16), Fla. Stat. " Employme nt . . .

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(17)( a)

and (b)2., Fla. Stat.

5 0 . " Employee " is defined in Subsection 440.02(15),

Florida Statutes, in pertinent part:

(a) " Employee " means any person who

receives remuneration from an employer for

the performance of any work or service while

engaged in any e mployment under any

appointment or contract for hire or

apprenticeship, express or implied, oral or

written, whether lawfully or unlawfully

employed. . . .

5 1 . An employer who elects to secure the payment of

workers ' compensation by obtaining a commercia l insurance policy

must assure that the policy comports with Florida law.

5 2 . In pertinent part, the statutes germane to the issue

in this case specify as follows:

Subject to s. 440.38, any employer who has

employees engaged in work in this state

shall ob tain a Florida policy or endorsement

for such employees which utilizes Florida

class codes, rates, rules, and manuals that

are in compliance with and approved under

the provisions of this chapter and the

Florida Insurance Code.

See § 440.10(1)(g), Fla. St at.

5 3 . Subsection 440.38(7), Florida Statutes, provides in

relevant part as follows:

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 wor king

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.

5 4 . S ubs ection 440.10(1)(b), Fl orida S tat utes , states:

(b) In case a contractor sublets any part

or parts of his or 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 contractor 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.

5 5 . Section 4 68.520, Fl orida Stat utes , which deals with

employee leasing companies , states in part :

Defi nitions. -- As used in this part:

(4) " Employee leasing " means an

arrangement whereby a leasing company

assigns its employees to a client and

allocates the direct ion of and control over

the leased employees between the leasing

company and the client . . .

(5) " Employee leasing company " means a

sole proprietorship, partnership,

corporation, or other form of business

entity engaged in employee leasing.

(6) " C lient company " means a person or

entity which contracts with an employee

leasing company and is provided employees

pursuant to that contract.

5 6 . Fl orida Admin istrative Code Rule 69L - 6.015 states in

relevant part:

In order for the Division to determine t hat

an employer is in compliance with the

provisions of Chapter 440, F.S., every

business entity conducting business within

the state of Florida shall maintain for the

immediately preceding three year period true

and accurate records. Such business records

shall include original documentation of the

following, or copies, when originals are not

in the possession of or under the control of

the business entity:

(1) All workers ' compensation insurance

policies of the business entity, and all

endorsements, n otices of cancellation,

nonrenewal, or reinstatement of such

policies.

* * *

(3) Records indicating for every pay

period a description of work performed and

amount of pay or description of other

remuneration paid or owed to each person by

the busi ness entity, such as time sheets,

time cards, attendance records, earnings

records, payroll summaries, payroll

journals, ledgers or registers, daily logs

or schedules, time and materials listings.

(4) All contracts entered into with a

professional empl oyer organization (PEO) or

employee leasing company, temporary labor

company, payroll or business record keeping

company. If such services are not pursuant

to a written contract, written documentation

including the name, business address,

telephone number , and FEIN or social

security number of all principals if an FEIN

is not held, of each such PEO, temporary

labor company, payroll or business record

keeping company; and

(a) For every contract with a PEO: a

payroll ledger for each pay period during

the contract period identifying each worker

by name, address, home telephone number, and

social security number or documentation

showing that the worker was eligible for

employment in the United States during the

contract for his/her services, and a

descripti on of work performed during each

pay period by each worker, and the amount

paid each pay period to each worker. A

business entity may maintain such records or

contract for their maintenance by the PEO to

which the records pertain.

* * *

(6) All ch eck ledgers and bank statements

for checking, savings, credit union, or any

other bank accounts established by the

business entity or on its behalf; and

(7) All federal income tax forms prepared

by or on behalf of the business and all

State of Florida, Division of Unemployment

Compensation UCT - 6 forms and any other forms

or reports prepared by the business or on

its behalf for filing with the Florida

Division of Unemployment Compensation.

5 7 . A - 1 admittedly did not comply with the requirement in

S ubs e ction 440.38(7), Fl orida Stat utes, and by operation of

S ubs ection 440.10(1)(b), Fl orida Stat utes , its employees became

the statutory employees of Respondent , and Respondent failed to

secure the payment of workers ' compensation.

5 8 . Florida Administrativ e Code Rule 69L - 6.019(3) and (4)

provides as follows:

Policies and Endorsements Covering Employees

Engaged in Work in Florida.

* * *

(3) In order to comply with Section s

440.10(1)(g) and 440.38(7), F .S. , for any

workers ' compensation policy or end orsement

presented by an employer as proof of

workers ' compensation coverage for employees

engaged in work in this state:

(a) The policy information page (NCCI

form number WC 00 00 01 A) must list

"Florida" in Item 3.A. and use Florida

approved classifi cation codes, rates, and

estimated payroll in Item 4.

(b) The policy information page

endorsement (NCCI form number WC 89 06 00 B)

must list "Florida" in Item 3.A. and use

Florida approved classification codes,

rates, and estimated payroll in Item 4.

(4) A workers' compensation policy that

lists "Florida" in Item 3.C. of the policy

information page (NCCI form number WC 00 00

01 A) does not meet the requirements of

Sections 440.10(1)(g) and 440.38(7), F.S.,

and is not valid proof of workers'

compensati on coverage for employees engaged

in work in this state.

59 . A - 1 did not secure the payment of workers '

compensation through its carrier, Key Risk, that was compliant

with the Laws of Florida. By not maintaining State of Florida

workers ' compensation co verage, the employees of A - 1 became the

statutory employees of Respondent.

6 0 . S ubs ection 440.107(7)(a), Fl orida Stat utes , provides

in part :

Whenever the department determines that an

employer who is required to secure the

payment to his or her employees of the

compensation provided for by this chapter

has failed to secure the payment of workers '

compensation required by this chapter or to

produce the required business records under

subsection (5) within 5 business days after

receipt of the written request of the

department, such failure shall be deemed an

immediate serious danger to public health,

safety, or welfare sufficient to justify

service by the department of a stop - work

order on the employer, requiring the

cessation of all business operations . . . .

The order shall remain in effect until the

department issues an order releasing the

stop - work order upon a finding that the

employer has come into compliance with the

coverage requirements of this chapter and

has paid any penalty assessed under this

se ction. The department may issue an order

of conditional release from a stop - work

order to an employer upon a finding that the

employer has complied with coverage

requirements of this chapter and has agreed

to remit periodic payments of the penalty

pursuan t to a payment agreement schedule

with the department. ( e mphasis added)

6 1 . Respondent continue d its business operations for a

period of 10 days when it pulled permits either retroactively

for work done prior to obtaining permits, or for work to be

perf ormed at a future date . Respondent was , thus , in violation

of S ubs ection 440.107(7)(a), Fl orid a Stat utes , and Petitioner

proper ly assess ed a penalty of $1 , 000 per day for 10 days ,

pursuant to S ubs ection 440.107(7)(c), Fl orid a Stat utes.

6 2 . The penalty included days worked by Respondent in

violation of the S top W ork O rder, prior to Respondent entering

into a Payment Agreement Schedule for Periodic Payment of

Penalty and obtaining an Order of Conditional Release from

Stop - Work Order from the Department.

6 3 . Respondent also utilized the services of an employee

leasing company to provide payroll and to secure workers '

compensation for his employees, in violation of the S top W ork

O rder.

6 4 . Petitioner was under no obligation to inform Orange

County that a stop - work order was in effect against Respondent,

nor was Orange County under an obligation to investigate whether

a stop - work order was in effect against Respondent.

6 5 . Petitioner satisfied its burden of proving that

Respondent failed to secure the paym ent of workers '

compensation , as that term is defined in S ubs ection 440.107(2),

Fl orida Stat utes , and correctly assessed the penalty prescribed

in S ubs ection s 440.107 (7)(c) and 440.107(7) (d) , Fl orida

Stat utes , for such failure , and for operating in violati on of

the S top W ork O rder.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, it is

RE COMMENDED that Petitioner enter a f inal o rder that adopts

the Stop Work Order and Order of Penalty Assessment and the

Amended Order of Penalty Assessmen t ; and that assesse s a penalty

of $49,413.18.

DONE AND ENTERED this 30 th day of November , 2006 , in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 30 th of November , 2006 .

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(200 5 ), unless otherwise indicated.

COPIES FURNISHED :

Colin M. Roopnarine, Esquire

Department of Financial Services

Division of Workers ' Compensation

200 East Gaines Street

Tallahassee, Flo rida 32399 - 4229

Patrick John McGinley, Esquire

Law Office of Patrick John McGinley, P.A.

2265 Lee Road, Suite 100

Winter Park, Florida 32789

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Ta llahassee, 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 wi thin

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.