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.
Recommended Order on Friday, November 7, 2008.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8JAMES T. QUINN, d/b/a JAMES )
14QUINN HANDYMANN, )
17)
18Petitioner, )
20)
21vs. ) Case No. 08-2745
26)
27DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS' )
35COMPENSATION, ) )
38) )
40Respondent. )
42RECOMMENDED ORDER
44Pursuant to notice this cause came on for formal proceeding
54and hearing before P. Michael Ruff, a duly-designated
62Administrative Law Judge of the Division of Administrative
70Hearings, in Jacksonville, Florida. The hearing was conducted
78on August 13, 2008. The appearances were as follows:
87APPEARANCES
88For Petitioner: Mark K. Eckels, Esquire
94Boyd & Jenerette, P.A.
98201 North Hogan Street, Suite 400
104Jacksonville, Florida 32202
107For Respondent: Thomas H. Duffy, Esquire
113Department of Financial Services
117200 East Gaines Street, Sixth Floor
123Tallahassee, Florida 32399-4229
126STATEMENT OF THE ISSUES
130The issues to be resolved in this proceeding concern
139whether the Petitioner, in the work of his business or trade,
150operates within the definition of "construction industry" as
158that term is defined in Chapter 440, Florida Statutes (2008),
168and the rules of the Respondent Agency. It therefore must be
179determined whether the Petitioner was required to secure
187workers' compensation coverage or suffer the disputed penalty
195for failure to do so.
200PRELIMINARY STATEMENT
202This proceeding arose when the Department of Financial
210Services, Division of Workers' Compensation (Division), based
217upon its investigation, determined that the above-named
224Petitioner was required to have workers' compensation coverage
232with regard to its sole employee, the Petitioner, James T.
242Quinn. The Petitioner did not have such coverage at the time of
254the inspection and investigation and therefore, a Stop-Work
262Order, Order of Penalty Assessment, and Amended Order of Penalty
272Assessment were issued by the Respondent Agency. The Division
281thus seeks to assess a penalty in the amount of $34,003.03
293through the Amended Order of Penalty Assessment issued on May 8,
3042008.
305The Petitioner contested that initial decision by the
313Division and filed a Petition for Hearing on May 27, 2008. The
325Petitioner contends that he was not performing work or a trade
336within the "construction industry" and therefore was not
344required to have workers' compensation coverage for the one
353employee.
354The proceeding was forwarded to the Division of
362Administrative Hearings and ultimately the undersigned
368Administrative Law Judge. A Notice of Hearing was thereafter
377issued scheduling a Final Hearing for August 13, 2008.
386The cause came on for hearing as noticed. The Division
396presented the testimony of its investigator, Michael Robinson.
404The Division also presented Exhibits one through eight, which
413were admitted into evidence without objection. The Petitioner
421presented the testimony of James T. Quinn, the Petitioner's
430principal. The Petitioner also offered Exhibits one through
438four, which were admitted into evidence without objection.
446Upon concluding the proceeding, the parties requested the
454opportunity to submit proposed recommended orders and elected to
463have the matter transcribed. The Proposed Recommended Orders
471have been considered in the rendition of this Recommended Order.
481FINDINGS OF FACT
4841. The Division is an Agency of the State of Florida
495charged with enforcing the provisions of Chapter 440, Florida
504Statutes, with regard to the regulation of the workers'
513compensation insurance system in the State of Florida. It is
523charged with inspecting and ensuring that employers in the State
533of Florida comply with the relevant provisions of Chapter 440,
543Florida Statutes, and Florida Administrative Code Chapter 69L-6,
551regulating the circumstances under which employers are required
559to have workers' compensation insurance coverage. 1/
5662. The Petitioner is a corporation having its principal
575place of business in Jacksonville, Florida, under the name
"584James T. Quinn Handyman." The business of the Petitioner is
594primarily a "handyman" type business or service in which the
604Petitioner performs all sorts of home repairs, maintenance,
612services including pressure washing, cleaning, organizing, minor
619maintenance duties, and even running errands for homeowners or
628clients. Because of the nature of his business in which home
639repair, home maintenance, and associated painting are of a very
649minor nature, the Petitioner was under the belief that he was
660not actually involved in the construction business or
"668construction industry" and did not require workers'
675compensation coverage. For the same reasons he also believed he
685was not required to have an exemption on record with regard to
697workers' compensation coverage. After the imposition of the
705Stop-Work Order, however, the Petitioner filed for an exemption
714for workers' compensation coverage with the Division, and on
723that exemption listed his trades as being home repair, home
733maintenance, and then painting and pressuring washing. He was
742granted the exemption.
7453. The Petitioner also attempted to secure workers'
753compensation insurance subsequent to the entry of the Stop-Work
762Order. He spoke with a representative of the National Council
772on Compensation Insurance (NCCI) who advised him that, because
781of the nature of his business, he fell within the "Scopes
792Manual" classification code of 9014 which is "maintenance, non-
801construction." This representative advised him that this was a
810classification similar to janitorial work. He indicated his
818belief to the Petitioner that the nature of the Petitioner's
828business was more like an apartment building superintendent and
837that he essentially does any task his clients ask him to do.
8494. The Petitioner does not do any building of structures.
859He does not do land clearing, filling, or excavating preparatory
869to construction of any sort of structure or to alter the
880appearance of land. None of his work results in substantial
890improvements to properties. The Petitioner does not hold
898himself out as a licensed contractor nor is he so licensed. In
910fact, he avoids doing jobs which require the obtaining of
920permits related to any construction or other work. He has
930consistently avoided undertaking jobs involving remodeling of
937structures, whether residences or otherwise, and indeed has
945routinely refused to accept jobs constructing outdoor decks,
953which require permits. He does no roofing, concrete driveway or
963sidewalk work, tree trimming, and he does not paint houses nor
974entire rooms of houses. He has not done roofing work, although
985he has provided occasional clients with an estimate of what a
996roof repair should cost so that clients would know what to
1007expect when they contacted a roofing contractor. He does no new
1018construction and only does very minor repair work to existing
1028structures, usually associated with residences.
10335. The Division classified the Petitioner as a "painter."
1042This stems from the original inspection by Inspector Michael
1051Robinson, who testified for the Division at the hearing. During
1061that inspection and the conversation the Petitioner had with
1070Mr. Robinson, he advised Mr. Robinson that his work did include
1081painting, at least on that day. He never advised Mr. Robinson
1092or the Division that the majority of his work involved painting,
1103either on that job, or generally as to other jobs.
11136. Indeed, some of the work the Petitioner has done, as
1124depicted on Petitioner's Exhibit Three in evidence, does involve
1133painting. He confirmed in his testimony that on the day the
1144Stop-Work Order was imposed by Mr. Robinson that he had engaged
1155in some painting because he had repaired and re-hung shutters on
1166a residence and needed to paint over the repaired area on a
1178shutter.
11797. Mr. Robinson, the Inspector for the Division, testified
1188on its behalf, stating that anyone must secure workers'
1197compensation, if engaged in the "construction industry," meaning
1205a trade coming within the ambit of the construction industry.
1215In lieu of securing such coverage, a person who is an officer of
1228a corporation may file a request for exemption from coverage,
1238which the Petitioner, Mr. Quinn, did. Mr. Robinson noted that
1248the "Scopes Manual" is a manual published by the NCCI, used to
1260describe specific trades. The trades described in the manual
1269are given a designation number and an explanation of what each
1280trade consists of under each designation number or code. That
1290manual is relied upon to describe various trades by the
1300insurance industry and also by the Division. In fact, the
1310Division has adopted the Scopes Manual classification codes by
1319rule in Florida Administrative Code Rule 69L-6.021.
13268. Mr. Robinson noted that the Petitioner was engaged in
1336painting, in his belief, and because painting is designated as a
1347construction code under Code 5474, he concluded that the
1356Petitioner operated within the definition of a construction
1364trade or the construction industry. He would also designate
1373someone observed repairing or replacing wood in a structure as
1383being within the definition of a member of the construction
1393industry under the classification of carpentry, if that were the
1403case. Mr. Robinson believes that if the Petitioner's work
1412consisted of mostly odd jobs, involving such things as hanging
1422ceiling fans, cleaning up debris, cleaning out garages, and
1431other odd jobs then such jobs would have various classification
1441codes, most of which would not be within the construction
1451industry. Mr. Robinson explained that if he or other inspectors
1461encountered people working at two different occupations on a
1470job, then they would consider the nature of the job or jobs
1482being done, or work being done, and take the "highest class code
1494for the work they are performing," inasmuch as that method is
1505used for classification of trades or jobs by the insurance
1515industry. He indicated in his testimony that if any part of the
1527work is considered to be construction, then that person is
1537considered to be a member working in the construction industry
1547and must obtain workers' compensation coverage if there are one
1557or more employees employed by the entity involved.
15659. The Petitioner, Mr. Quinn, compiled a list of jobs he
1576has performed over several years. While the list may not be
1587exhaustive, it has been shown to be a representative sample of
1598the various tasks the Petitioner has performed over the years.
1608The list was admitted into evidence as Petitioner's Exhibit
1617Three. It reveals that the Petitioner has engaged in a number
1628of job duties for his clients, most of which do not involve
1640painting. The list includes such things as retrieving a boat
1650trailer and a replacing a flat tire on the trailer for a client,
1663transplanting two boxwood plants, installing a rope hand-rail on
1672a dock, installing an ice maker, organizing a workshop, cleaning
1682a poolroom, filling in dog holes, signing for Federal Express
1692packages, installing a flat screen television, replacing ceiling
1700tile, assembling a swing set, replacing a doorbell button,
1709setting up a child's telescope, replacing a garage door spring,
1719replacing a kitchen faucet, replacing a garbage disposal,
1727repairing a bicycle, installing signs, pressure washing a pool
1736deck, setting up a DVD player, re-arranging furniture,
1744assembling a basket ball hoop, cleaning wood paneling,
1752installing curtains, fixing a leaky faucet, replacing lighting
1760fixtures and lights, repairing two French doors that included
1769filling-in dog scratches and then painting over the marks. This
1779last task is perhaps illustrative of the manner in which
1789painting represents a minor portion of the duties performed by
1799the Petitioner in the typical jobs he performs as a handyman or
"1811odd job" worker. The painting was only incidental to repairing
1821the scratches made by a family dog and simply involving painting
1832over the marks so that the repaired area would properly blend
1843with the other painted portions of the door.
185110. When the Petitioner inquired of a representative of
1860NCCI about the need to obtain workers' compensation insurance
1869coverage, the representative advised him that he more closely
1878resembled a Scopes Manual class code 9014. That code 9014 was
1889admitted into evidence as Petitioner's Exhibit Four. The NCCI
1898representative advised the Petitioner that Code 9014 describes
1906janitorial type services or duties and that the Petitioner's
1915occupation or jobs seemed more appropriate to that endeavor and
1925that thus he did not appear to need workers' compensation
1935insurance coverage.
193711. Mr. Robinson the Inspector for the Division, was not
1947familiar with that class code of the Scopes Manual. Code 9014
1958provides:
1959Code 9014 is assigned to insureds primarily
1966engaged in providing janitorial services for
1972others. See Codes 9000 and 9001 in Florida.
1980Janitorial Services are defined as keeping
1986and doing cleaning and engaging in various
1993types of maintenance and minor repair work
2000for upkeep of a building. Stated
2006differently, a risk qualifies as a
2012janitorial service if the risk engages
2018exclusively in cleaning a building or
2024performs maintenance or minor repair
2029operations in addition to cleaning a
2035building. These maintenances or minor
2040repair operations may include, but are not
2047limited to, painting, cleaning windows,
2052changing light bulbs, assisting occupants
2057with the placement of furniture, replacing
2063glass panes, clearing drains, and cleaning
2069carpets.
2070This class code thus includes in its definition the act of
2081painting. Mr. Robinson confirmed in his testimony that this
2090class code is not listed in the list of class codes identified
2102by the Division as those making up the definition of
"2112construction industry." See Fla. Admin. Code R. 69L-6.201.
2120Thus, not all occupations involving painting have been
2128identified by the Division as being construction trades or come
2138within the definition of "construction industry." If the
2146Petitioner is not a member or participant in the construction
2156industry, then he does not have to have workers' compensation
2166coverage, because he does not have a sufficient number of
2176employees to apply the requirement for coverage as it is imposed
2187by Sub-section 440.02(17)(b)2., Florida Statutes, for non-
2194construction services, trades, or industries.
219912. Although the job or profession of "painter" would be
2209within the definition of "construction industry" or would be a
2219construction trade, the persuasive evidence shows the Petitioner
2227is not a painter by trade or profession, nor does he hold
2239himself out as a painter. Merely because some repair jobs
2249include incidental painting, does not render him a painter,
2258thereby causing him to become part of or be engaged in the
"2270construction industry." In fact, there is an at least
2279informally recognized industry or occupation of "handyman" in
2287the Jacksonville vicinity, as recognized by the yellow page
2296listing for "handyman services" in the Jacksonville area
2304telephone directory, an example of which was admitted into
2313evidence as Petitioner's Exhibit One.
231813. Even if the Petitioner does not qualify as a
"2328janitorial service" for purposes of the above-referenced code
23369014, if one interprets that code to require the necessity of
2347both performing maintenance or minor repairs, in addition to
2356cleaning a building, the fact remains that the persuasive
2365evidence in this case does not demonstrate that the Petitioner
2375was engaged and functioning as a "painter" or member of the
2386painting occupation. He thus was not engaged in the
"2395construction industry." Aside from the issue of engagement in
2404painting as a purported participant in the construction
2412industry, the evidence referenced-above and findings of fact,
2420concerning the actual functions the Petitioner performs in his
2429business, do not persuasively establish that he is engaged in
2439the construction industry, as defined by the Scopes Manual
2448categories and rules referenced above, and relied upon by the
2458Division.
245914. The Respondent contends, in advancing its thesis that
2468the Petitioner's essential business is that of a painter in the
2479construction industry, that the Petitioner spent "thousands of
2487dollars" on paint or painting-related materials. In fact, the
2496evidence shows that the Petitioner purchased $4,228.88 dollars
2505worth of paint or paint-related materials at Brittan's Paint
2514Store, the only place the evidence shows he purchased any paint.
2525It is interesting that the majority of the paint so purchased
2536($2,408.68 worth) was used for one apparent job at Lakeshore
2547Baptist Church during the three-year investigatory period,
2554specifically from June 30, 2007, through March 20, 2008. The
2564bank-related records in evidence show these expenditures for
2572paint attributable to the church and also show two one-hundred
2582dollar checks issued on the Petitioner's account to that church.
2592Further, the evidence in the form of the "spread sheet" or cash
2604flow records for 2007, shows a $7,120.00 dollar "charitable
2614contribution" for that year, without identifying the recipient.
262215. There is no direct evidence showing remuneration to
2631the Petitioner for any work done for the church, painting or
2642otherwise, for 2007 and 2008. That lack of evidence coupled
2652with the evidence that two one-hundred dollar checks were paid
2662to the church by the Petitioner, or the Petitioner's wife, and
2673the fact that a $7,120.00 dollar charitable contribution was
2683made during that year, raises the possibility that the job may
2694not have been done for profit or remuneration to the Petitioner,
2705and thus that it does not constitute engagement in the
2715construction industry as a for-profit activity. ( See §
2724440.02(8), Fla. Stat.) The point is that it has not been
2735established by persuasive evidence that these paint purchases
2743were made for the primary purpose of engaging in the
2753construction industry as a painter or painting business. The
2762details regarding the use made of this purchased paint and the
2773nature and scope of any work done at the church were not
2785developed on direct or cross-examination. One could just as
2794easily infer that the painting work for the church was done by
2806the Petitioner as a contribution to the church with which he may
2818have been affiliated as a member, or even as an employee. In
2830any event, it was not clearly and convincingly established that
2840he was engaged in the construction industry with regard to the
2851painting in terms of the use made of these paint purchases from
2863Britton's Paint Store.
286616. There were other, more minor purchases of paint from
2876Britton's Paint Store shown in the bank records, which did not
2887indicate how they were used or for which client. Some could
2898have been merely for personal use. Three purchases were for
"2908Dave" and three noted on the memo line on the check were for
"2921dry storage." There were 22 of these "non-church" paint
2930purchases. Only four were for more than $100.00. This
2939indicates a pattern of mostly small paint material purchases
2948which fits the Petitioner's business as being that of repairman
2958or handyman and not as a professional painter. These purchases
2968were made over a period of almost 14 months.
297717. In light of the lack of inquiry of the Petitioner, on
2989direct and cross-examination, about the details of the uses and
2999purposes of these paint material purchases, it was not
3008established by persuasive evidence that these paint purchases
3016were "for-profit," as a painting trade or business, nor that
3026they represent evidence that painting was other than an
3035incidental activity or minor part of the Petitioner's "handyman"
3044work. The totality of the evidence of his type of work does not
3057show that painting was a major part of it or other than an
3070intermittent activity. It was thus not established that the
3079paint purchases represent engagement in the "construction
3086industry" as a for-profit painting activity.
3092CONCLUSIONS OF LAW
309518. The Division of Administrative Hearings has
3102jurisdiction of the subject matter of and the parties to this
3113proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
312019. Pursuant to Sections 440.10 and 440.38, Florida
3128Statutes, employers, as defined in Section 440.02, Florida
3136Statutes, must secure the payment of workers' compensation for
3145employees. All persons receiving remuneration working for an
3153Certain corporate officers can become exempt from coverage
3161requirements of Chapter 440, Florida Statutes, but those in the
3171construction industry must affirmatively make that election and
317920. Section 440.107, Florida Statutes, mandates compliance
3186with the coverage requirements of the workers' compensation law
3195and provides for their enforcement. It provides, in relevant
3204part:
3205(2) For the purposes of this section,
3212'securing the payment of workers'
3217compensation' means obtaining coverage that
3222meets the requirements of this chapter and
3229the Florida Insurance Code . . .
3236Section 440.107 also sets forth the duties and powers of the
3247Department to enforce compliance with the workers' compensation
3255coverage requirement. Section 440.107(3)(g), authorizes the
3261Department to issue Stop-Work Orders and Penalty Assessment
3269Orders in its enforcement of workers' compensation coverage
3277requirements. In light of the above findings of fact,
3286preponderant, persuasive evidence has not been adduced to
3294establish that the Petitioner was an employer in the
3303construction industry as contended by the Agency. It has thus
3313not been established that a violation of Sections 440.10 and
3323440.38, Florida Statutes, for the period from April 23, 2005,
3333through April 23, 2008, has occurred.
333921. "Employer" is defined as "every person carrying on any
3349employment." § 440.02(16)(a), Fla. Stat. "Employment" in the
3357construction industry includes "all private employment in which
3365one or more employees are employed by the same employer."
3375§ 440.02(17)(a)2., Fla. Stat. The employer in this case is the
3386corporation domiciled in Jacksonville known as James T. Quinn,
3395Handyman, Inc.
339722. Section 440.02(8), Florida Statutes, defines
"3403construction industry" as "for-profit activities involving any
3410building, clearing, filling, excavation, or substantial
3416improvement in the size or use of any structure or the
3427appearance of any land." Section 440.02(8), provides "[t]he
3435division may, by rule, establish standard industrial
3442classification codes and definitions thereof which meet the
3450criteria of the term 'construction industry' as set forth in
3460this section." In furtherance of this statutory authority the
3469Division of Workers' Compensation has promulgated Florida
3476Administrative Code Rule 69L-6.021, which adopts the definition
3484found in the Scopes Manual. Fla. Admin. Code R. 69L-6.021(2).
349423. Florida Administrative Code Rule 69L-6.021(1), lists
3501the workplace operations that fall within the statutory
3509definition of "construction industry" and includes "painting,"
3516using the Scopes Manual definition under its classification code
35255474. The Scopes Manual definition of classification code 5474
3534is a general painting classification which "contemplates
3541exterior and interior painting of residential or commercial
3549structures that are constructed of wood, concrete, stone or
3558combination thereof regardless of height." "Surface preparation
3565and other work incidental to the painting process" are also
3575contemplated by this classification code.
358024. If Petitioner Quinn was engaged in the construction
3589industry then he would constitute an employer if he had at least
3601one employee. § 440.02(17)(b)2., Fla. Stat. Petitioner Quinn
3609did have one employee on April 23, 2008, Mr. Quinn, himself.
3620Its payroll records show that the employee did receive
3629remuneration for work performed during a three year
3637investigation period between April 23, 2005 and April 23, 2008.
3647Therefore, if the Petitioner were engaged in the construction
3656industry he would be required to secure the payment of workers'
3667compensation for his employee.
367125. Section 440.107(7)(a), Florida Statutes, states in
3678relevant part:
3680Whenever the department determines that an
3686employer who is required to secure the
3693payment to his or her employees of the
3701compensation provided for by this chapter
3707has failed to secure the payment of workers'
3715compensation required by this chapter . . .
3723such failure shall be deemed to be an
3731immediate serious danger to public health,
3737safety, or welfare sufficient to justify
3743service by the department of a stop-work
3750order on the employer, requiring the
3756cessation of all business operations. If
3762the department makes such a determination,
3768the department shall issue a stop-work order
3775within 72 hours.
377826. Section 440.107, Florida Statutes, states with regard
3786to assessment of penalties, as follows:
3792(7)(d)1. In addition to any penalty, stop-
3799work order, or injunction the department
3805shall assess against any employer who has
3812failed to secure the payment of compensation
3819as required by this chapter a penalty equal
3827to 1.5 times the amount the employer would
3835have paid in premium when applying approved
3842manual rates to the employers payroll during
3849periods for which it failed to secure the
3857payment of workers' compensation required by
3863this chapter within the preceding three-year
3869period or $1,000 dollars, whichever is
3876greater.
387727. The Department is thus statutorily obligated to use an
3887established formula to calculate penalty. It would be justified
3896in penalizing the Petitioner an amount equal to one and one-half
3907times the workers' compensation premiums it would have evaded
3916during a three year period preceding the commencement of the
3926investigation on April 23, 2008, had the Petitioner been an
3936employer engaged in the construction industry.
394228. The methodology for calculating the penalty is
3950mandated by Florida Administrative Code Rule 69L-6.027. It
3958adopts a penalty calculation worksheet. Analysis of the
3966worksheet shows that an essential calculation is to establish
3975the premium that should have been paid. The premium is equal to
3987one-one hundredth of each employee's pay, i.e. the gross
3996payroll, which is then multiplied by an established rate based
4006on the risk of injury (the approved manual rate). The evidence
4017shows that the Department correctly calculated the payroll and,
4026based on its own rule, the penalty to assess against the
4037Petitioner, if the Petitioner were liable to secure workers'
4046compensation coverage based upon being an employer in the
4055construction industry.
405729. The Respondent contends that the Petitioner engages in
4066activities such as painting and carpentry which should be
4075considered to be in the construction industry, according to the
4085Scopes Manual. The Respondent references the list of jobs the
4095Petitioner introduced into evidence showing such things as
4103glazing windows, installing counter tops, repairing dog
4110scratches, sanding two French doors, reinstalling a sink,
4118assembling two chandeliers, installing attic access stairs, and
4126repairing a faucet as being evidence of performing jobs that are
4137characteristic of the construction industry. The Respondent
4144concedes, however, in its Proposed Recommended Order that such
4153activities would be part of the construction trades or industry
" 4163depending on the extent of the work ."
417130. The Petitioner, however, showed through his testimony
4179and Exhibit Three that a majority of his work duties do not
4191involve construction-type trade work. Thus, he performs such
4199tasks, as referenced in the above findings of fact, involving
4209assembly of a child swing set, cleaning a pool, installing a
4220rope railing, cleaning a carpet, cleaning out and organizing
4229garages, running various errands, etc. The vast majority of his
4239duties do not involve construction industry trades such as
4248carpentry, painting or electrical work. Even Mr. Robinson,
4256testifying for the Respondent, acknowledged that the hanging of
4265ceiling fans does not constitute a construction trade or
4274electrical work. The point is that even the Respondent has
4284acknowledged that the extent to which such construction trade
4293type work is done has a direct bearing on whether or not the
4306Petitioner's duties in his business are to be considered
"4315construction industry."
431731. The greater weight of the credible, persuasive
4325evidence shows that construction type work, such as painting, as
4335primarily contended in this case, or even carpentry or very
4345minor electrical work, was not of sufficient volume, type or
4355importance as to support a determination that the Petitioner's
4364job duties and business activities occur within the construction
4373industry.
437432. While the Petitioner attempted to establish that
4382Scopes Category 9014, involving janitorial service, most
4389directly and relevantly applied to his business, it has not been
4400established that in the course of his duties he routinely cleans
4411a building or structure in conjunction with his performance of
4421minor repair and maintenance duties, etc. Thus the evidence
4430does not clearly show that his work activities fit into the 9014
"4442janitorial service" category in the Scopes Manual. Whether or
4451not that is the case, it does not obviate the showing by the
4464Petitioner that his activities do not come within the ambit of
4475the construction trade or the construction industry and the lack
4485of persuasive proof by the Respondent that they do. 2/
449533. In summary, the evidence and testimony adduced by the
4505Petitioner is persuasive, credible, and of greater weight in
4514showing that Mr. Quinn, the Petitioner, was not engaged in the
4525construction industry at times pertinent hereto, most
4532particularly April 23, 2008, and during the three-year
4540investigatory period referenced above. Therefore, he was not
4548liable for nor required to have workers' compensation coverage.
4557Because the Department has not demonstrated that the Petitioner
4566was engaged in the construction trades or industry it should not
4577impose any penalty on James T. Quinn, d/b/a James Quinn
4587Handyman, the Petitioner herein.
4591RECOMMENDATION
4592Having considered the foregoing Findings of Fact,
4599Conclusions of Law, the evidence of record, the candor and
4609demeanor of the witnesses, and the pleadings and arguments of
4619the parties, it is, therefore,
4624RECOMMENDED that a final order be entered by the Department
4634of Financial Services finding that James T. Quinn, d/b/a James
4644Quinn Handyman was not required to secure payment of workers'
4654compensation for any employee or employees and was not in
4664violation of Sections 440.10(1)(a) and 440.38(1), Florida
4671Statutes, during the times and circumstances pertinent to this
4680proceeding. No penalty against said Petitioner should be
4688assessed.
4689DONE AND ENTERED this 7th day of November, 2008, in
4699Tallahassee, Leon County, Florida.
4703S
4704___________________________________
4705P. MICHAEL RUFF
4708Administrative Law Judge
4711Division of Administrative Hearings
4715The DeSoto Building
47181230 Apalachee Parkway
4721Tallahassee, Florida 32399-3060
4724(850) 488-9675 SUNCOM 278-9675
4728Fax Filing (850) 921-6847
4732www.doah.state.fl.us
4733Filed with Clerk of the
4738Division of Administrative Hearings
4742this 7th day of November, 2008.
4748ENDNOTES
47491/ §§ 440.02, 440.10, 440.38, and 440.107, Fla. Stat.
47582/ The undersigned is mindful of the Respondent's argument that
4768the Petitioner's testimony describing his contact with a
4776representative of NCCI and his research into the documents from
4786the "Florida Insurance Research Library" references hearsay and
4794cannot be considered, even though no objection to the testimony
4804or exhibit (Petitioner's Exhibit Two) was asserted. ( See Harris
4814v. Game and Fresh Water Fish Commission , 495 So. 2d 806, 809
4826(Fla. 1st DCA 1986). The undersigned, however, has considered
4835neither the use of that documentation from the "Florida
4844Insurance Research Library" nor the hearsay statements of the
4853representative of NCCI, with whom the Petitioner apparently
4861conferred concerning his status as to whether his job duties
4871required workers' compensation coverage, as the basis for any
4880finding of fact. Rather, the findings of fact were based on the
4892documents in evidence which qualified as competent evidence in
4901terms of the hearsay standards of Chapter 90, Florida Statutes,
4911and the Petitioner's and to some extent Mr. Robinson's own
4921testimony. The above-referenced two hearsay sources, even
4928though the Respondent did not object to the same, have only been
4940considered as corroborative hearsay of the Petitioner's
4947testimony and other evidence, as countenanced by Section
4955120.57(1)(c), Florida Statutes. They were not used in their own
4965right to support fact finding.
4970COPIES FURNISHED :
4973Mark K. Eckels, Esquire
4977Boyd & Jenerette, P.A.
4981201 North Hogan Street, Suite 400
4987Jacksonville, Florida 32202
4990Thomas H. Duffy, Esquire
4994Department of Financial Services
4998200 East Gaines Street, Sixth Floor
5004Tallahassee, Florida 32399-4229
5007Honorable Alex Sink
5010Chief Financial Officer
5013Department of Financial Regulation
5017The Capitol, Plaza Level ll
5022Tallahassee, Florida 32399-0300
5025Daniel Sumner, General Counsel
5029Department of Financial Regulation
5033The Capitol, Plaza Level 11
5038Tallahassee, Florida 32399-0307
5041NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
5047All parties have the right to submit written exceptions within
505715 days from the date of this Recommended Order. Any exceptions
5068to this Recommended Order should be filed with the agency that
5079will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 12/12/2008
- Proceedings: Petitioner`s Response to Division of Workers Compensation Exceptions filed.
- PDF:
- Date: 11/07/2008
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 08/28/2008
- Proceedings: Transcript filed.
- PDF:
- Date: 08/15/2008
- Proceedings: Petitioner`s Notice of Filing Exhibits Post-hearing (exhibits not available for viewing) filed.
- Date: 08/13/2008
- Proceedings: CASE STATUS: Hearing Held.
Case Information
- Judge:
- P. MICHAEL RUFF
- Date Filed:
- 06/10/2008
- Date Assignment:
- 06/11/2008
- Last Docket Entry:
- 02/11/2009
- Location:
- Jacksonville, Florida
- District:
- Northern
Counsels
-
Thomas H. Duffy, Esquire
Address of Record -
Mark K Eckels, Esquire
Address of Record