08-003078 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. Jesus Sosa, D/B/A Jesus Sosa Corp. Status: Closed Recommended Order on Wednesday, December 10, 2008.

Summary: Petitioner showed that Respondent failed to secure adequate workers` compensation insurance and that Respondent`s records were inadeqaute to determine payroll. However, the penalty needs to be recalculated to reflect demonstrated dates of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF WORKERS’ )

COMPENSATION, )

)

Petitioner, )

)

vs. ) Case No. 08-3078

)

JESUS SOSA, d/b/a JESUS SOSA )

CORP., )

)

Respondent. )

)

RECOMMENDED ORDER

On October 14, 2008, a duly-noticed hearing was conducted by

means of video teleconferencing with sites in Tallahassee and

Jacksonville, Florida, by Lisa Shearer Nelson, Administrative Law

Judge.

APPEARANCES

For Petitioner: Thomas H. Duffy, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-4299

For Respondent: Seth Schwartz, Esquire

The Schwartz Law Group, P.A.

10365 Hood Road, Suite 105

Jacksonville, Florida 32257

STATEMENT OF THE ISSUE

Whether Respondent has committed the acts alleged in the Amended Order of Penalty Assessment and Stop Work Order and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case arose with the issuance of a Stop Work Order and,

thereafter, an Amended Order of Penalty Assessment by the

Department of Financial Services, Division of Workers'

Compensation (Department or Agency) against Jesus Sosa, d/b/a

Jesus Sosa Corp. (Sosa). Sosa filed an Amended Petition to Set

Aside Stop Work Order and Petition to Strike Amended Order of

Penalty Assessment, and Petition for Temporary Release from Stop

Work Order (request for hearing). On June 24, 2008, the request

for hearing was referred to the Division of Administrative

Hearings for assignment of an administrative law judge.

Hearing was originally noticed for August 15, 2008. At the

request of both parties, the case was continued and rescheduled

for September 19, 2008. The Department's second request for a

continuance was granted and the case was rescheduled a second

time for October 14, 2008. At the hearing conducted that date,

the Department presented the testimony of two witnesses, and the

Department's Exhibits numbered 1-13 were admitted into evidence.

Respondent presented the testimony of two witnesses and presented

no exhibits.

The proceedings were recorded and a transcript was filed

with the Division October 29, 2008. The Department's Unopposed

Motion for Extension was granted, and the parties were afforded

until November 17, 2008, to file post-hearing submissions. Both

parties timely filed Proposed Recommended Orders, which have been

carefully considered in the preparation of this Recommended

Order. The style of the case is changed to reflect the burden of

proof. All references are to the 2007 version of the Florida

Statutes, unless otherwise indicated.

FINDINGS OF FACT

1. The Division of Workers' Compensation is the state

agency responsible for enforcing the statutory requirement that

employers secure the payment of workers' compensation for the

benefit of their employees.

2. Lucio Cabrera is a workers' compensation compliance

investigator for the Department. On April 1, 2008, he visited a

work site in Jacksonville where 16 men were working on a multi-

family apartment complex. Mr. Cabrera spoke to the workers and

asked several questions designed to determine for whom the men

worked and whether they were covered by workers' compensation

insurance.

3. At the time of the site visit, Mr. Cabrera prepared a

Field Interview Worksheet, upon which he recorded the names and

other information regarding the men seen at the work site. He

also created a separate document, which he requested the men to

sign. The people present at the worksite on the day in question

were Jose Sosa Santibanez, Alvaro Gaona, Edegun Gonzalez, Pablo

Rodriguez, Jose Antonio Chavez, Jose Manuel Camacho, Crisoforo

Chavez, Vicente Urbina Arreola, Francisco Zapata, Maximino

Sanchez Simon, Francisco Javier Ortiz, Juan Rodriguez, Homero

Moreno Martinez, Pascual Castillo Moreno, Luis Manuel Rodrigues

and Cipriano Patino Zabaleta. 1/

4. The men worked for Jesus Sosa Corp. Present at the job

site was the company representative, Jesus Sosa Santibanez

(Sosa). The company provided workers' compensation coverage

through an employee leasing company, Convergence Employee

Leasing, Inc. (Convergence). However, Sosa also paid the

employees additional funds directly, for which no workers'

compensation coverage was obtained.

5. Cabrera was able to confirm that while coverage was

provided through Convergence, there was no separate coverage for

the portion of salary provided directly by Sosa, and Sosa had not

filed for an exemption from coverage as an owner or director of

Jesus Sosa Corp.

6. On April 2, 2008, Mr. Cabrera served Mr. Sosa with a

Request for Production of Business Records, which requested that

Sosa provide certain enumerated business records for the period

"12/22/08 through 3/21/08." Clearly, this request means to

convey that records from December 22, 2007, through March 21,

2008, were to be supplied. The request specified that the

records should be supplied within five business days, which would

have made the responses due on or before April 9, 2008.

7. On April 1 and April 7, 2008, the Department received

records related to the relationship between Convergence and Jesus

Sosa Corp., including a copy of the employee leasing contract,

timecard verification reports for the period requested, a list of

employees and their listed hire dates for purposes of payroll by

Convergence. On April 17 and 29, 2008, additional records were

produced, including a copy of Jesus Sosa's business license from

the City of Jacksonville and copies of check stubs dating from

December 27, 2007, through March 21, 2008.

8. On April 30, 2008, a Stop-Work Order was issued against

Jesus Sosa, d/b/a Jesus Sosa Corp., a dissolved Florida

corporation, requiring that Sosa and the company cease all

business operations for all worksites in the state for failure to

secure the payment of workers' compensation. The Stop-Work Order

was served on counsel for Mr. Sosa by hand delivery May 1, 2008.

9. On May 1, 2008, Mr. Cabrera also provided to counsel for

Mr. Sosa, a second Request for Production of Business Records for

the period of February 17, 2006, through April 30, 2008, for the

purpose of enabling the Department to determine the appropriate

penalty for violation of the provisions of Section 440.07,

Florida Statutes. Like the prior request, records were to be

produced within five business days.

10. Although not entirely clear when they were received,

sometime in May 2008, additional records in the form of a

handwritten disbursement ledger were provided to the Department.

However, no records such as traditional payroll records, tax

records, quarterly earnings reports or certificates of exemption

were received. The check stubs for the additional period of time

requested could not be located.

11. Mr. Sosa admitted freely that he paid additional

amounts to his employees over and above what they were paid

through his arrangement with Convergence. He insisted that

employees were paid this additional compensation by check and not

by cash. There is no admissible, credible evidence to refute

this assertion, and Mr. Sosa's testimony is credited.

12. The Department decided that the records provided were

insufficient to determine the payroll for the company.

Accordingly, the Department decided that salary would be imputed,

based upon the statewide average weekly wage as defined in

Section 440.12(2), Florida Statutes, multiplied by 1.5.

13. The Department entered an Amended Order of Penalty

Assessment on May 27, 2008. The Amended Order of Penalty

Assessment assessed a penalty of $909,941.76.

14. There are two aspects of imputing payroll relevant to

these proceedings. First, whether there was sufficient

information to determine the amount that would be considered

salary for the employees involved, and second, the duration of

their employment by Sosa.

15. Sosa appeared in this hearing with the assistance of an

interpreter. Clearly, he is more comfortable communicating in

Spanish than he is in English. Although the investigator spoke

Spanish to the individuals at the worksite, neither the Stop Work

Order nor the Requests for Production of Business Records are in

Spanish. 2/ Mr. Sosa admitted that his records were disorganized

and in some respects incomplete. However, he indicated that he

provided what records he had in his possession.

16. The Convergence records provided indicate that a

contract was entered into between Sosa and Convergence on

October 15, 2007, and payments for workers compensation were made

on behalf of relevant employees from that date forward for the

period records were originally requested. The Convergence

records also include an employee roster with hire dates for each

employee.

17. For the requested time period prior to December 22,

2007, Sosa provided a handwritten disbursement record. The

record includes four columns: 1) the date; 2) the payee; 3) what

appear to be reimbursement amounts for items such as gas, rent,

tools, etc.; and 4) what appears to be a total amount provided to

the payee.

18. It would be difficult from the information provided to

determine how much salary each employee was paid. Based on the

admissible evidence provided, imputation of salary was

appropriate based on the statewide average weekly wage for

framing.

19. The Department imputed salary for each employee from

February 17, 2006. It determined that the period of employment

for each employee could not be determined from the records

provided, and therefore, imputed salary for all sixteen men from

the date of incorporation.

20. Sosa testified that many of his employees were hired

not long before the site visit because he had received more work

framing out the buildings of an apartment complex. In the normal

course of business, he would not have sufficient work for so many

employees. His testimony is consistent with the increase in the

number of employees covered by Convergence over the period of

time Convergence records were provided, and is credited.

21. A careful comparison of the Convergence records, the

check stubs and the handwritten ledger give a fairly consistent

indication of how long each employee worked for Mr. Sosa. The

Department had sufficient information to determine the length of

employment for each person listed as being present April 1, 2008.

While there are some variations in spelling for some names

provided, it is sufficiently clear to be able to determine who is

being referenced.

22. Jose Sosa Santibanez ran the company. Although he

testified that he did not actually perform any work for a few

months after incorporating the company, there are no records to

support his assertion, and he provided no actual "start date."

Therefore, it is appropriate to impute salary for Mr. Sosa for

the full period beginning February 17, 2006.

23. The list provided to the Department by counsel for

Respondent indicated that Alvaro Gaona (also spelled Garna) was

hired June 16, 2006. The earliest record of payment to Mr. Gaona

was October 14, 2006. Payments were made on his behalf by

Convergence since October 15, 2007. For the purpose of imputing

salary, Goana's start date should be listed as June 16, 2006.

24. Edegun Gonzalez (also listed as Edeon Gonzales) was

listed as being hired November 2, 2007. The earliest record on

the disbursement ledger for him is November 2, 2007, and

Convergence lists his hire date as November 8, 2007. For the

purpose of imputing salary, Edegun Gonzalez' start date should be

listed as November 2, 2007.

25. Pablo Rodriguez was listed as being hired November 2,

2007. The earliest record related to Pablo Rodriguez on the

disbursement ledger is also November 2, 2007. The hire date

listed by Convergence is March 10, 2008. For the purpose of

imputing salary, Pablo Rodriguez’s start date is November 2,

2007.

26. José Chavez is listed as being hired November 30, 2007.

The earliest record of payment to José Chavez in the disbursement

ledger is November 30, 2007. Convergence lists his hire date as

November 8, 2007. For the purpose of imputing salary, José

Chavez' start date is November 8, 2007.

27. José Manuel Camacho (also spelled Clamacho) is listed

as beginning employment November 30, 2007. The earliest record

of payment to Camacho is November 30, 2007. Convergence lists

his hire date as December 10, 2007. For the purpose of imputing

salary, Camacho's start date is November 30, 2007.

28. Crisoforo Chavez is listed as being hired September 28,

2007, and the earliest record of payment to him is also

September 28, 2007. Convergence lists his hire date as

November 8, 2007. For the purpose of imputing salary, Crisoforo

Chavez' start date is September 28, 2007.

29. Vicente Urbina Arreola is listed as being hired

February 29, 2008. The earliest record of any payment to him is

also February 29, 2008. Convergence lists his hire date as

March 10, 2008. For the purpose of imputing salary, Urbina's

start date is February 29, 2008.

30. Francisco Zapata is listed as being hired February 29,

2008. The earliest record of any payment to him is also

February 29, 2008. Convergence lists his hire date as March 10,

2008. For the purpose of imputing salary, Zapata's start date is

February 29, 2008.

31. Maximino Sanchez Simon listed as being hired

February 29, 2008. The earliest record of any payment to him is

also February 29, 2008. Convergence lists his hire date as

March 10, 2008. For the purpose of imputing salary, Maximino

Sanchez' start date is February 29, 2008.

32. Francisco Javier Ortiz is listed as being hired

March 7, 2008. The earliest record of any payment to him is also

March 7, 2008. Convergence lists his hire date as March 10,

2008. For the purpose of imputing salary, Ortiz' start date is

March 7, 2008.

33. Luis Manuel Rodrigues is listed as being hired March 7,

2008. The earliest record of any payment to him is March 14,

2008. Convergence lists his hire date as March 10, 2008. For

the purpose of imputing salary, Luis Rodrigues' start date is

March 7, 2008.

34. Juan Rodriguez is listed as being hired March 7, 2008.

The earliest record of any payment to him is also March 7, 2008.

Convergence lists his hire date as March 10, 2008. For the

purpose of imputing salary, Juan Rodriguez’s start date is

March 7, 2008.

35. Homero Moreno Martinez is listed as being hired

March 7, 2008, and the earliest record of payment to him is also

March 7, 2008. Convergence lists his hire date as March 10,

2008. For the purpose of imputing salary, Homero Martinez’s

start date is March 7, 2008.

36. Pascual Castillo Moreno is listed in Petitioner’s

Exhibit 12 as being hired April 11, 2008. There is no record of

any payments to him in the check stubs or disbursement ledger.

Convergence lists his start date as March 10, 2008, and payments

were made on his behalf. The listed start date in Exhibit 12 is

in error, as Mr. Moreno was present at the work site on April 1,

2008. However, because there is no admissible evidence of

additional payments to him, there is no basis for imputing salary

for Pascual Castillo Moreno.

37. Cipriano Patino Zabaleta is also listed in Exhibit 12

as being hired April 11. 2008. There is no record of any

payments to him in the check stubs or disbursement ledger.

Convergence lists his start date as March 10, 2008, and payments

were made on his behalf. Like Moreno, Cipriano Zabeleta was

present on April 1, 2008, and was covered by Convergence at that

time. Inasmuch as there is no admissible evidence of additional

payments to him, there is no basis for imputing salary for

Mr. Zabaleta.

38. The Department imputed salary for all 16 employees

through April 30, 2008. Records were requested through April 30,

2008, and no additional records beyond March 22, 2008, were

provided. However, Sosa admitted that the men were employed

through April 25, 2008. Imputation of salary for the employees

for which imputation of salary is appropriate should be

calculated through April 30, 2008.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2008).

40. The Department is seeking an administrative fine.

Because administrative fines are penal in nature, the Department

is required to prove by clear and convincing evidence that

Mr. Sosa failed to provide his employees with workers'

compensation insurance coverage. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Sterne, Inc. , 670 So. 2d 932, 935 (Fla. 1996); 2 Friends,

Inc. d/b/a La Paz Mexican Grill v. Department of Financial

Services, Division of Workers' Compensation , Case No. 07-2041

(DOAH July 30, 2008). The Department in its Proposed Recommended

Order acknowledged this burden of proof.

41. The following provisions of the Florida Statutes are

relevant to the resolution of this case:

440.015 Legislative Intent.-- It is the

intent of the Legislature that the Workers’

Compensation Law be interpreted so as to

assure the quick and efficient delivery of

disability and medical benefits to an injured

worker and to facilitate the worker's return

to gainful reemployment at a reasonable cost

to the employer. It is the specific intent

of the Legislature that workers' compensation

cases shall be decided on their merits. . . .

It is the intent of the Legislature to ensure

the prompt delivery of benefits to the

injured worker. Therefore, an efficient and

self-executing system must be created which

is not an economic or administrative burden.

The department, agency, the Office of

Insurance Regulation, the Department of

Education and the Division of Administrative

Hearings shall administer the Workers’

Compensation law in a manner which

facilitates the self-execution of the system

and the process of ensuring a prompt and

cost-effective delivery of payments.

(Emphasis supplied).

440.107 Department powers to enforce employer

compliance with coverage requirements.--

(2) For the purpose of this section,

"securing the payment of workers’

compensation" means obtaining coverage that

meets the requirements of this chapter and

the Florida Insurance Code. However, if at

any time an employer materially understates

or conceals payroll, materially misrepresents

or conceals employee duties so as to avoid

proper classification for premium

calculations, or materially misrepresents or

conceals information pertinent to the

computation and application of an experience

rating modification factor, such employer

shall be deemed to have failed to secure

payment of workers' compensation and shall be

subject to the sanctions set forth in this

section. . . .

* * *

(7)(a) 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 the 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. . . .

* * *

(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 employer's payroll during the

periods for which it failed to secure the

payment of workers' compensation required by

this chapter within the preceding 3-year

period or $1,000, whichever is greater .

* * *

(e) When an employer fails to provide

business records sufficient to enable the

Department to determine the employer's

payroll for the period requested for the

calculation of the penalty provided in

paragraph (d) , for penalty calculation

purposes, the imputed weekly payroll for each

employee, corporate office, sole proprietor,

or partner shall be the statewide average

weekly wage as defined in s. 440.12(2)

multiplied by 1.5. (Emphasis supplied.)

42. An "employer" is defined as "every person carrying on

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

means any service performed by an employee for the person

employing him or her." § 440.02(17)(a), Fla. Stat. "Employee

means any person who receives remuneration from an employer for

the performance of any work or service while engaged in any

employment . . . ." § 440.02(15)(a), Fla. Stat.

43. Jesus Sosa Corp. is an "employer" as defined by Section

440.02(16)(a), Florida Statutes, and the 16 individuals at the

worksite April 1, 2008, are "employees."

44. In this case, there is no dispute that Sosa provided

workers' compensation coverage by means of an employee leasing

company, Convergence, for the period beginning October 15, 2007,

through March 22, 2008. However, there is also no dispute that

in addition to the salaries paid through Convergence, some

employees were paid additional amounts directly by Mr. Sosa. No

workers' compensation coverage was secured for the portion of

salary paid directly by Mr. Sosa.

45. Having demonstrated that Mr. Sosa violated the

provisions of Section 440.107, Florida Statutes, the question

becomes one of penalty. The parties' views on this issue are

disparate: the Department takes the position that it must impute

salary from the date of incorporation for all sixteen employees

and that there is no recognition of the workers' compensation

premiums actually paid. The Respondent takes the view that it

provided sufficient records to determine actual payments for

Jesus Sosa Corp.

46. In determining whether sufficient records were provided

to the Department, Sosa's records have been compared to those

required to be provided by Florida Administrative Code Rule

69L-6.015. This rule requires, among other things, that each

employer maintain records that show each day, month and year, or

pay period that each employee was employed; how much was paid to

each employee, including the number of hours worked for hourly

employees; all checks, Form 1099s, W-2 Wage and Tax Statements

for all employees; all employment and unemployment reports filed

pursuant to Florida law; tax records; account records and

disbursement records. Clearly, the records provided by Sosa fall

woefully short of this requirement.

47. While the disbursement records and checks provided show

amounts paid to some of the employees, the records are not clear

enough to determine what portion of the funds paid would be

considered salary. Given the nature of the documents provided,

imputation of salary was appropriate.

48. Imputation of salary for the entire time the company

was in existence, however, is another matter. Section

440.107(7)(d)1., Florida Statutes, provides that the penalty to

be imposed will be equal to "1.5 times the amount the employer

would have paid in premium . . . for the periods for which it

failed to secure the payment of workers' compensation required by

this chapter within the preceding 3-year period . . . ."

Subsection 440.107(e), provides for imputation of payroll "when

the employer fails to provide business records sufficient to

enable the department to determine the employer's payroll for the

period requested for the calculation of the penalty provided in

clearly requires that the Department must first demonstrate the

periods for which Sosa failed to secure the payment of workers'

compensation. Clearly, in a penal proceeding such as this one,

the Department must show that the individuals it claims were not

covered were actually employed. The Department's interpretation

of the statute assumes that Section 440.107(7)(d)1. states that

the penalty will be imposed for a three-year period, as opposed

to the demonstrated failure within that period. Such an

interpretation is both contrary to the plain language of the

statute and contrary to the stated legislative intent expressed

in Section 440.015, Florida Statutes, mandating that the system

must not be an economic or administrative burden.

49. The Department relies on the First District Court of

Appeal's decision in Twin City Roofing Construction Specialists,

Inc. v. State, Department of Financial Services , 969 So. 2d 563,

566 (Fla. 1st DCA 2007), wherein the court stated, "When, as

here, an employer refuses to provide business records, the

Division is required to impute the missing payroll for the period

requested in order to assess the penalty." Twin City is

distinguishable for two reasons. First, there was evidence

presented regarding the employment status of the employees of the

company, and Twin City admitted that "for the time period" those

individuals were employees of the company. Here, there was no

such admission. While it was admitted that the 16 individuals

were employees on April 1, 2008, Sosa disputed that they were

employees for the entire period at issue. The greater weight of

the evidence presented indicates that no one other than Sosa and

Gaona was employed for the entire period, and most were employed

for a much shorter period of time.

50. Second, in Twin City , the employer did not submit any

records. Here, Sosa submitted what records he had, but the

records submitted were inadequate to determine payroll. They

were, however, adequate to determine length of employment. As

recounted in the Findings of Fact, a simple comparison of the

roster of employees at the jobsite with the check stubs,

Convergence records and disbursement records, provides a fairly

reliable basis from which to determine each man's length of

employment. While there are minor variations in the spellings of

some names, their identities are fairly clear. Giving the

Department the benefit of the longest period of employment in

each case, the lengths of employment for each employee are listed

in the Findings of Fact. There is no competent evidence upon

which to find that all 16 men were employed since February 2006.

51. Finally, there is the issue of whether any credit

should be given based upon the payments made through Convergence.

There appears to be no question that, to the extent their salary

was paid through Convergence, there was some workers'

compensation coverage for the workers during the period

identified in the Convergence documentation, i.e., October 15,

2007 through March 22, 2008. At hearing, the Department

indicated that this was "irrelevant" because the penalty was

imputed.

52. The undersigned has carefully reviewed the rules of the

Department to determine if it had any rules expressly addressing

dual employment. It does not appear to have such a rule, and

Section 440.107 likewise does not address the issue. It neither

authorizes nor prohibits giving credit for the amounts paid.

However, Florida Administrative Code Rule 69L-6.035, which

identifies matters to be considered in determining payroll for

the purposes of calculating penalty, specifically includes wages

or salaries paid to employees by or on behalf of an employer.

Fla. Admin. Code R. 69L-6.035(1)(a), (b). This definition would

include payments made to employees by Convergence. Likewise,

Section 440.107(7)(b), Florida Statutes, allows for the use of

payment schedules to address penalty. Although imputation of

salary is clearly appropriate in this case, it violates any sense

of fairness to refuse to recognize the amount that was actually

paid through Convergence. It also violates the legislative

directive in Section 440.015, Florida Statutes, that the workers’

compensation system not be an economic burden. Sosa should be

penalized for failing to meet his workers’ compensation premium

responsibilities. However, to the extent applicable, his

attempts to comply at least in part, should be taken into

account.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered that finds Jesus Sosa, d/b/a

Jesus Sosa Corp., is guilty of failing to secure workers'

compensation insurance as required by Chapter 440, Florida

Statutes; recalculates the penalty in light of the dates of

employment reflected in the Findings of Fact; and gives credit

against the final penalty calculation for the amount paid in

workers' compensation premium through Convergence.

DONE AND ENTERED this 10th day of December, 2008, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of December, 2008.

ENDNOTES

1/ Respondent objected to the hearsay nature of Petitioner’s

Exhibits 1, 5 and 6. The workers present at the jobsite did not

testify in these proceedings, and any statements attributed to

them are hearsay. The only basis for which these exhibits have

been used is to identify the names of the people at the jobsite.

2/ The undersigned is not implying that the documents are in any

way required to be in Spanish. Further, Sosa was represented by

counsel in these proceedings who clearly understands what needed

to be provided. However, it is possible that Respondent did not

totally understand all of the instructions provided to him.

COPIES FURNISHED:

Thomas H. Duffy, Esquire

Department of Financial Services

200 East Gaines Street, Sixth Floor

Tallahassee, Florida 32399-4229

Seth Schwartz, Esquire

The Schwartz Law Group, P.A.

10365 Hood Road, Suite 105

Jacksonville, Florida 32257

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel

Department of Financial Services

The Capital, 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.