08-002745 James T. Quinn, D/B/A James Quinn Handyman vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed Recommended Order on Friday, November 7, 2008.

Summary: Respondent did not prove that Petitioner`s handyman business was a "construction trade or industry" as defined in statue and rule-adopted manual. Therefore, no workers` compensation coverage is required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES T. QUINN, d/b/a JAMES )

QUINN HANDYMANN, )

)

Petitioner, )

)

vs. ) Case No. 08-2745

)

DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS' )

COMPENSATION, ) )

) )

Respondent. )

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding

and hearing before P. Michael Ruff, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings, in Jacksonville, Florida. The hearing was conducted

on August 13, 2008. The appearances were as follows:

APPEARANCES

For Petitioner: Mark K. Eckels, Esquire

Boyd & Jenerette, P.A.

201 North Hogan Street, Suite 400

Jacksonville, Florida 32202

For Respondent: Thomas H. Duffy, Esquire

Department of Financial Services

200 East Gaines Street, Sixth Floor

Tallahassee, Florida 32399-4229

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Petitioner, in the work of his business or trade,

operates within the definition of "construction industry" as

that term is defined in Chapter 440, Florida Statutes (2008),

and the rules of the Respondent Agency. It therefore must be

determined whether the Petitioner was required to secure

workers' compensation coverage or suffer the disputed penalty

for failure to do so.

PRELIMINARY STATEMENT

This proceeding arose when the Department of Financial

Services, Division of Workers' Compensation (Division), based

upon its investigation, determined that the above-named

Petitioner was required to have workers' compensation coverage

with regard to its sole employee, the Petitioner, James T.

Quinn. The Petitioner did not have such coverage at the time of

the inspection and investigation and therefore, a Stop-Work

Order, Order of Penalty Assessment, and Amended Order of Penalty

Assessment were issued by the Respondent Agency. The Division

thus seeks to assess a penalty in the amount of $34,003.03

through the Amended Order of Penalty Assessment issued on May 8,

2008.

The Petitioner contested that initial decision by the

Division and filed a Petition for Hearing on May 27, 2008. The

Petitioner contends that he was not performing work or a trade

within the "construction industry" and therefore was not

required to have workers' compensation coverage for the one

employee.

The proceeding was forwarded to the Division of

Administrative Hearings and ultimately the undersigned

Administrative Law Judge. A Notice of Hearing was thereafter

issued scheduling a Final Hearing for August 13, 2008.

The cause came on for hearing as noticed. The Division

presented the testimony of its investigator, Michael Robinson.

The Division also presented Exhibits one through eight, which

were admitted into evidence without objection. The Petitioner

presented the testimony of James T. Quinn, the Petitioner's

principal. The Petitioner also offered Exhibits one through

four, which were admitted into evidence without objection.

Upon concluding the proceeding, the parties requested the

opportunity to submit proposed recommended orders and elected to

have the matter transcribed. The Proposed Recommended Orders

have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Division is an Agency of the State of Florida

charged with enforcing the provisions of Chapter 440, Florida

Statutes, with regard to the regulation of the workers'

compensation insurance system in the State of Florida. It is

charged with inspecting and ensuring that employers in the State

of Florida comply with the relevant provisions of Chapter 440,

Florida Statutes, and Florida Administrative Code Chapter 69L-6,

regulating the circumstances under which employers are required

to have workers' compensation insurance coverage. 1/

2. The Petitioner is a corporation having its principal

place of business in Jacksonville, Florida, under the name

"James T. Quinn Handyman." The business of the Petitioner is

primarily a "handyman" type business or service in which the

Petitioner performs all sorts of home repairs, maintenance,

services including pressure washing, cleaning, organizing, minor

maintenance duties, and even running errands for homeowners or

clients. Because of the nature of his business in which home

repair, home maintenance, and associated painting are of a very

minor nature, the Petitioner was under the belief that he was

not actually involved in the construction business or

"construction industry" and did not require workers'

compensation coverage. For the same reasons he also believed he

was not required to have an exemption on record with regard to

workers' compensation coverage. After the imposition of the

Stop-Work Order, however, the Petitioner filed for an exemption

for workers' compensation coverage with the Division, and on

that exemption listed his trades as being home repair, home

maintenance, and then painting and pressuring washing. He was

granted the exemption.

3. The Petitioner also attempted to secure workers'

compensation insurance subsequent to the entry of the Stop-Work

Order. He spoke with a representative of the National Council

on Compensation Insurance (NCCI) who advised him that, because

of the nature of his business, he fell within the "Scopes

Manual" classification code of 9014 which is "maintenance, non-

construction." This representative advised him that this was a

classification similar to janitorial work. He indicated his

belief to the Petitioner that the nature of the Petitioner's

business was more like an apartment building superintendent and

that he essentially does any task his clients ask him to do.

4. The Petitioner does not do any building of structures.

He does not do land clearing, filling, or excavating preparatory

to construction of any sort of structure or to alter the

appearance of land. None of his work results in substantial

improvements to properties. The Petitioner does not hold

himself out as a licensed contractor nor is he so licensed. In

fact, he avoids doing jobs which require the obtaining of

permits related to any construction or other work. He has

consistently avoided undertaking jobs involving remodeling of

structures, whether residences or otherwise, and indeed has

routinely refused to accept jobs constructing outdoor decks,

which require permits. He does no roofing, concrete driveway or

sidewalk work, tree trimming, and he does not paint houses nor

entire rooms of houses. He has not done roofing work, although

he has provided occasional clients with an estimate of what a

roof repair should cost so that clients would know what to

expect when they contacted a roofing contractor. He does no new

construction and only does very minor repair work to existing

structures, usually associated with residences.

5. The Division classified the Petitioner as a "painter."

This stems from the original inspection by Inspector Michael

Robinson, who testified for the Division at the hearing. During

that inspection and the conversation the Petitioner had with

Mr. Robinson, he advised Mr. Robinson that his work did include

painting, at least on that day. He never advised Mr. Robinson

or the Division that the majority of his work involved painting,

either on that job, or generally as to other jobs.

6. Indeed, some of the work the Petitioner has done, as

depicted on Petitioner's Exhibit Three in evidence, does involve

painting. He confirmed in his testimony that on the day the

Stop-Work Order was imposed by Mr. Robinson that he had engaged

in some painting because he had repaired and re-hung shutters on

a residence and needed to paint over the repaired area on a

shutter.

7. Mr. Robinson, the Inspector for the Division, testified

on its behalf, stating that anyone must secure workers'

compensation, if engaged in the "construction industry," meaning

a trade coming within the ambit of the construction industry.

In lieu of securing such coverage, a person who is an officer of

a corporation may file a request for exemption from coverage,

which the Petitioner, Mr. Quinn, did. Mr. Robinson noted that

the "Scopes Manual" is a manual published by the NCCI, used to

describe specific trades. The trades described in the manual

are given a designation number and an explanation of what each

trade consists of under each designation number or code. That

manual is relied upon to describe various trades by the

insurance industry and also by the Division. In fact, the

Division has adopted the Scopes Manual classification codes by

rule in Florida Administrative Code Rule 69L-6.021.

8. Mr. Robinson noted that the Petitioner was engaged in

painting, in his belief, and because painting is designated as a

construction code under Code 5474, he concluded that the

Petitioner operated within the definition of a construction

trade or the construction industry. He would also designate

someone observed repairing or replacing wood in a structure as

being within the definition of a member of the construction

industry under the classification of carpentry, if that were the

case. Mr. Robinson believes that if the Petitioner's work

consisted of mostly odd jobs, involving such things as hanging

ceiling fans, cleaning up debris, cleaning out garages, and

other odd jobs then such jobs would have various classification

codes, most of which would not be within the construction

industry. Mr. Robinson explained that if he or other inspectors

encountered people working at two different occupations on a

job, then they would consider the nature of the job or jobs

being done, or work being done, and take the "highest class code

for the work they are performing," inasmuch as that method is

used for classification of trades or jobs by the insurance

industry. He indicated in his testimony that if any part of the

work is considered to be construction, then that person is

considered to be a member working in the construction industry

and must obtain workers' compensation coverage if there are one

or more employees employed by the entity involved.

9. The Petitioner, Mr. Quinn, compiled a list of jobs he

has performed over several years. While the list may not be

exhaustive, it has been shown to be a representative sample of

the various tasks the Petitioner has performed over the years.

The list was admitted into evidence as Petitioner's Exhibit

Three. It reveals that the Petitioner has engaged in a number

of job duties for his clients, most of which do not involve

painting. The list includes such things as retrieving a boat

trailer and a replacing a flat tire on the trailer for a client,

transplanting two boxwood plants, installing a rope hand-rail on

a dock, installing an ice maker, organizing a workshop, cleaning

a poolroom, filling in dog holes, signing for Federal Express

packages, installing a flat screen television, replacing ceiling

tile, assembling a swing set, replacing a doorbell button,

setting up a child's telescope, replacing a garage door spring,

replacing a kitchen faucet, replacing a garbage disposal,

repairing a bicycle, installing signs, pressure washing a pool

deck, setting up a DVD player, re-arranging furniture,

assembling a basket ball hoop, cleaning wood paneling,

installing curtains, fixing a leaky faucet, replacing lighting

fixtures and lights, repairing two French doors that included

filling-in dog scratches and then painting over the marks. This

last task is perhaps illustrative of the manner in which

painting represents a minor portion of the duties performed by

the Petitioner in the typical jobs he performs as a handyman or

"odd job" worker. The painting was only incidental to repairing

the scratches made by a family dog and simply involving painting

over the marks so that the repaired area would properly blend

with the other painted portions of the door.

10. When the Petitioner inquired of a representative of

NCCI about the need to obtain workers' compensation insurance

coverage, the representative advised him that he more closely

resembled a Scopes Manual class code 9014. That code 9014 was

admitted into evidence as Petitioner's Exhibit Four. The NCCI

representative advised the Petitioner that Code 9014 describes

janitorial type services or duties and that the Petitioner's

occupation or jobs seemed more appropriate to that endeavor and

that thus he did not appear to need workers' compensation

insurance coverage.

11. Mr. Robinson the Inspector for the Division, was not

familiar with that class code of the Scopes Manual. Code 9014

provides:

Code 9014 is assigned to insureds primarily

engaged in providing janitorial services for

others. See Codes 9000 and 9001 in Florida.

Janitorial Services are defined as keeping

and doing cleaning and engaging in various

types of maintenance and minor repair work

for upkeep of a building. Stated

differently, a risk qualifies as a

janitorial service if the risk engages

exclusively in cleaning a building or

performs maintenance or minor repair

operations in addition to cleaning a

building. These maintenances or minor

repair operations may include, but are not

limited to, painting, cleaning windows,

changing light bulbs, assisting occupants

with the placement of furniture, replacing

glass panes, clearing drains, and cleaning

carpets.

This class code thus includes in its definition the act of

painting. Mr. Robinson confirmed in his testimony that this

class code is not listed in the list of class codes identified

by the Division as those making up the definition of

"construction industry." See Fla. Admin. Code R. 69L-6.201.

Thus, not all occupations involving painting have been

identified by the Division as being construction trades or come

within the definition of "construction industry." If the

Petitioner is not a member or participant in the construction

industry, then he does not have to have workers' compensation

coverage, because he does not have a sufficient number of

employees to apply the requirement for coverage as it is imposed

by Sub-section 440.02(17)(b)2., Florida Statutes, for non-

construction services, trades, or industries.

12. Although the job or profession of "painter" would be

within the definition of "construction industry" or would be a

construction trade, the persuasive evidence shows the Petitioner

is not a painter by trade or profession, nor does he hold

himself out as a painter. Merely because some repair jobs

include incidental painting, does not render him a painter,

thereby causing him to become part of or be engaged in the

"construction industry." In fact, there is an at least

informally recognized industry or occupation of "handyman" in

the Jacksonville vicinity, as recognized by the yellow page

listing for "handyman services" in the Jacksonville area

telephone directory, an example of which was admitted into

evidence as Petitioner's Exhibit One.

13. Even if the Petitioner does not qualify as a

"janitorial service" for purposes of the above-referenced code

9014, if one interprets that code to require the necessity of

both performing maintenance or minor repairs, in addition to

cleaning a building, the fact remains that the persuasive

evidence in this case does not demonstrate that the Petitioner

was engaged and functioning as a "painter" or member of the

painting occupation. He thus was not engaged in the

"construction industry." Aside from the issue of engagement in

painting as a purported participant in the construction

industry, the evidence referenced-above and findings of fact,

concerning the actual functions the Petitioner performs in his

business, do not persuasively establish that he is engaged in

the construction industry, as defined by the Scopes Manual

categories and rules referenced above, and relied upon by the

Division.

14. The Respondent contends, in advancing its thesis that

the Petitioner's essential business is that of a painter in the

construction industry, that the Petitioner spent "thousands of

dollars" on paint or painting-related materials. In fact, the

evidence shows that the Petitioner purchased $4,228.88 dollars

worth of paint or paint-related materials at Brittan's Paint

Store, the only place the evidence shows he purchased any paint.

It is interesting that the majority of the paint so purchased

($2,408.68 worth) was used for one apparent job at Lakeshore

Baptist Church during the three-year investigatory period,

specifically from June 30, 2007, through March 20, 2008. The

bank-related records in evidence show these expenditures for

paint attributable to the church and also show two one-hundred

dollar checks issued on the Petitioner's account to that church.

Further, the evidence in the form of the "spread sheet" or cash

flow records for 2007, shows a $7,120.00 dollar "charitable

contribution" for that year, without identifying the recipient.

15. There is no direct evidence showing remuneration to

the Petitioner for any work done for the church, painting or

otherwise, for 2007 and 2008. That lack of evidence coupled

with the evidence that two one-hundred dollar checks were paid

to the church by the Petitioner, or the Petitioner's wife, and

the fact that a $7,120.00 dollar charitable contribution was

made during that year, raises the possibility that the job may

not have been done for profit or remuneration to the Petitioner,

and thus that it does not constitute engagement in the

construction industry as a for-profit activity. ( See §

440.02(8), Fla. Stat.) The point is that it has not been

established by persuasive evidence that these paint purchases

were made for the primary purpose of engaging in the

construction industry as a painter or painting business. The

details regarding the use made of this purchased paint and the

nature and scope of any work done at the church were not

developed on direct or cross-examination. One could just as

easily infer that the painting work for the church was done by

the Petitioner as a contribution to the church with which he may

have been affiliated as a member, or even as an employee. In

any event, it was not clearly and convincingly established that

he was engaged in the construction industry with regard to the

painting in terms of the use made of these paint purchases from

Britton's Paint Store.

16. There were other, more minor purchases of paint from

Britton's Paint Store shown in the bank records, which did not

indicate how they were used or for which client. Some could

have been merely for personal use. Three purchases were for

"Dave" and three noted on the memo line on the check were for

"dry storage." There were 22 of these "non-church" paint

purchases. Only four were for more than $100.00. This

indicates a pattern of mostly small paint material purchases

which fits the Petitioner's business as being that of repairman

or handyman and not as a professional painter. These purchases

were made over a period of almost 14 months.

17. In light of the lack of inquiry of the Petitioner, on

direct and cross-examination, about the details of the uses and

purposes of these paint material purchases, it was not

established by persuasive evidence that these paint purchases

were "for-profit," as a painting trade or business, nor that

they represent evidence that painting was other than an

incidental activity or minor part of the Petitioner's "handyman"

work. The totality of the evidence of his type of work does not

show that painting was a major part of it or other than an

intermittent activity. It was thus not established that the

paint purchases represent engagement in the "construction

industry" as a for-profit painting activity.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

19. Pursuant to Sections 440.10 and 440.38, Florida

Statutes, employers, as defined in Section 440.02, Florida

Statutes, must secure the payment of workers' compensation for

employees. All persons receiving remuneration working for an

Certain corporate officers can become exempt from coverage

requirements of Chapter 440, Florida Statutes, but those in the

construction industry must affirmatively make that election and

20. Section 440.107, Florida Statutes, mandates compliance

with the coverage requirements of the workers' compensation law

and provides for their enforcement. It provides, in relevant

part:

(2) For the purposes of this section,

'securing the payment of workers'

compensation' means obtaining coverage that

meets the requirements of this chapter and

the Florida Insurance Code . . .

Section 440.107 also sets forth the duties and powers of the

Department to enforce compliance with the workers' compensation

coverage requirement. Section 440.107(3)(g), authorizes the

Department to issue Stop-Work Orders and Penalty Assessment

Orders in its enforcement of workers' compensation coverage

requirements. In light of the above findings of fact,

preponderant, persuasive evidence has not been adduced to

establish that the Petitioner was an employer in the

construction industry as contended by the Agency. It has thus

not been established that a violation of Sections 440.10 and

440.38, Florida Statutes, for the period from April 23, 2005,

through April 23, 2008, has occurred.

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

employment." § 440.02(16)(a), Fla. Stat. "Employment" in the

construction industry includes "all private employment in which

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

§ 440.02(17)(a)2., Fla. Stat. The employer in this case is the

corporation domiciled in Jacksonville known as James T. Quinn,

Handyman, Inc.

22. Section 440.02(8), Florida Statutes, defines

"construction industry" as "for-profit activities involving any

building, clearing, filling, excavation, or substantial

improvement in the size or use of any structure or the

appearance of any land." Section 440.02(8), provides "[t]he

division may, by rule, establish standard industrial

classification codes and definitions thereof which meet the

criteria of the term 'construction industry' as set forth in

this section." In furtherance of this statutory authority the

Division of Workers' Compensation has promulgated Florida

Administrative Code Rule 69L-6.021, which adopts the definition

found in the Scopes Manual. Fla. Admin. Code R. 69L-6.021(2).

23. Florida Administrative Code Rule 69L-6.021(1), lists

the workplace operations that fall within the statutory

definition of "construction industry" and includes "painting,"

using the Scopes Manual definition under its classification code

5474. The Scopes Manual definition of classification code 5474

is a general painting classification which "contemplates

exterior and interior painting of residential or commercial

structures that are constructed of wood, concrete, stone or

combination thereof regardless of height." "Surface preparation

and other work incidental to the painting process" are also

contemplated by this classification code.

24. If Petitioner Quinn was engaged in the construction

industry then he would constitute an employer if he had at least

one employee. § 440.02(17)(b)2., Fla. Stat. Petitioner Quinn

did have one employee on April 23, 2008, Mr. Quinn, himself.

Its payroll records show that the employee did receive

remuneration for work performed during a three year

investigation period between April 23, 2005 and April 23, 2008.

Therefore, if the Petitioner were engaged in the construction

industry he would be required to secure the payment of workers'

compensation for his employee.

25. Section 440.107(7)(a), Florida Statutes, states in

relevant 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 . . .

such failure shall be deemed to be 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. If

the department makes such a determination,

the department shall issue a stop-work order

within 72 hours.

26. Section 440.107, Florida Statutes, states with regard

to assessment of penalties, as follows:

(7)(d)1. In addition to any penalty, stop-

work order, or injunction the department

shall assess against any employer who has

failed to secure the payment of compensation

as required by this chapter a penalty equal

to 1.5 times the amount the employer would

have paid in premium when applying approved

manual rates to the employers payroll during

periods for which it failed to secure the

payment of workers' compensation required by

this chapter within the preceding three-year

period or $1,000 dollars, whichever is

greater.

27. The Department is thus statutorily obligated to use an

established formula to calculate penalty. It would be justified

in penalizing the Petitioner an amount equal to one and one-half

times the workers' compensation premiums it would have evaded

during a three year period preceding the commencement of the

investigation on April 23, 2008, had the Petitioner been an

employer engaged in the construction industry.

28. The methodology for calculating the penalty is

mandated by Florida Administrative Code Rule 69L-6.027. It

adopts a penalty calculation worksheet. Analysis of the

worksheet shows that an essential calculation is to establish

the premium that should have been paid. The premium is equal to

one-one hundredth of each employee's pay, i.e. the gross

payroll, which is then multiplied by an established rate based

on the risk of injury (the approved manual rate). The evidence

shows that the Department correctly calculated the payroll and,

based on its own rule, the penalty to assess against the

Petitioner, if the Petitioner were liable to secure workers'

compensation coverage based upon being an employer in the

construction industry.

29. The Respondent contends that the Petitioner engages in

activities such as painting and carpentry which should be

considered to be in the construction industry, according to the

Scopes Manual. The Respondent references the list of jobs the

Petitioner introduced into evidence showing such things as

glazing windows, installing counter tops, repairing dog

scratches, sanding two French doors, reinstalling a sink,

assembling two chandeliers, installing attic access stairs, and

repairing a faucet as being evidence of performing jobs that are

characteristic of the construction industry. The Respondent

concedes, however, in its Proposed Recommended Order that such

activities would be part of the construction trades or industry

" depending on the extent of the work ."

30. The Petitioner, however, showed through his testimony

and Exhibit Three that a majority of his work duties do not

involve construction-type trade work. Thus, he performs such

tasks, as referenced in the above findings of fact, involving

assembly of a child swing set, cleaning a pool, installing a

rope railing, cleaning a carpet, cleaning out and organizing

garages, running various errands, etc. The vast majority of his

duties do not involve construction industry trades such as

carpentry, painting or electrical work. Even Mr. Robinson,

testifying for the Respondent, acknowledged that the hanging of

ceiling fans does not constitute a construction trade or

electrical work. The point is that even the Respondent has

acknowledged that the extent to which such construction trade

type work is done has a direct bearing on whether or not the

Petitioner's duties in his business are to be considered

"construction industry."

31. The greater weight of the credible, persuasive

evidence shows that construction type work, such as painting, as

primarily contended in this case, or even carpentry or very

minor electrical work, was not of sufficient volume, type or

importance as to support a determination that the Petitioner's

job duties and business activities occur within the construction

industry.

32. While the Petitioner attempted to establish that

Scopes Category 9014, involving janitorial service, most

directly and relevantly applied to his business, it has not been

established that in the course of his duties he routinely cleans

a building or structure in conjunction with his performance of

minor repair and maintenance duties, etc. Thus the evidence

does not clearly show that his work activities fit into the 9014

"janitorial service" category in the Scopes Manual. Whether or

not that is the case, it does not obviate the showing by the

Petitioner that his activities do not come within the ambit of

the construction trade or the construction industry and the lack

of persuasive proof by the Respondent that they do. 2/

33. In summary, the evidence and testimony adduced by the

Petitioner is persuasive, credible, and of greater weight in

showing that Mr. Quinn, the Petitioner, was not engaged in the

construction industry at times pertinent hereto, most

particularly April 23, 2008, and during the three-year

investigatory period referenced above. Therefore, he was not

liable for nor required to have workers' compensation coverage.

Because the Department has not demonstrated that the Petitioner

was engaged in the construction trades or industry it should not

impose any penalty on James T. Quinn, d/b/a James Quinn

Handyman, the Petitioner herein.

RECOMMENDATION

Having considered the foregoing Findings 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 finding that James T. Quinn, d/b/a James

Quinn Handyman was not required to secure payment of workers'

compensation for any employee or employees and was not in

violation of Sections 440.10(1)(a) and 440.38(1), Florida

Statutes, during the times and circumstances pertinent to this

proceeding. No penalty against said Petitioner should be

assessed.

DONE AND ENTERED this 7th day of November, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 7th day of November, 2008.

ENDNOTES

1/ §§ 440.02, 440.10, 440.38, and 440.107, Fla. Stat.

2/ The undersigned is mindful of the Respondent's argument that

the Petitioner's testimony describing his contact with a

representative of NCCI and his research into the documents from

the "Florida Insurance Research Library" references hearsay and

cannot be considered, even though no objection to the testimony

or exhibit (Petitioner's Exhibit Two) was asserted. ( See Harris

v. Game and Fresh Water Fish Commission , 495 So. 2d 806, 809

(Fla. 1st DCA 1986). The undersigned, however, has considered

neither the use of that documentation from the "Florida

Insurance Research Library" nor the hearsay statements of the

representative of NCCI, with whom the Petitioner apparently

conferred concerning his status as to whether his job duties

required workers' compensation coverage, as the basis for any

finding of fact. Rather, the findings of fact were based on the

documents in evidence which qualified as competent evidence in

terms of the hearsay standards of Chapter 90, Florida Statutes,

and the Petitioner's and to some extent Mr. Robinson's own

testimony. The above-referenced two hearsay sources, even

though the Respondent did not object to the same, have only been

considered as corroborative hearsay of the Petitioner's

testimony and other evidence, as countenanced by Section

120.57(1)(c), Florida Statutes. They were not used in their own

right to support fact finding.

COPIES FURNISHED :

Mark K. Eckels, Esquire

Boyd & Jenerette, P.A.

201 North Hogan Street, Suite 400

Jacksonville, Florida 32202

Thomas H. Duffy, Esquire

Department of Financial Services

200 East Gaines Street, Sixth Floor

Tallahassee, Florida 32399-4229

Honorable Alex Sink

Chief Financial Officer

Department of Financial Regulation

The Capitol, Plaza Level ll

Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel

Department of Financial Regulation

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 Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.