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.


View Dockets  
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.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/11/2009
Proceedings: Notice of Withdrawal filed.
PDF:
Date: 02/11/2009
Proceedings: Notice of Withdrawal filed.
PDF:
Date: 02/09/2009
Proceedings: Other
PDF:
Date: 12/12/2008
Proceedings: Petitioner`s Response to Division of Workers Compensation Exceptions filed.
PDF:
Date: 11/07/2008
Proceedings: Recommended Order
PDF:
Date: 11/07/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/07/2008
Proceedings: Recommended Order (hearing held August 13, 2008). CASE CLOSED.
PDF:
Date: 09/15/2008
Proceedings: (Petitioner`s) Proposed Recommended Order filed.
PDF:
Date: 09/12/2008
Proceedings: Department`s Proposed Recommended Order filed.
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.
PDF:
Date: 08/11/2008
Proceedings: Notice of Intent to Amend Exhibit List filed.
PDF:
Date: 08/06/2008
Proceedings: Prehearing Stipulation filed.
PDF:
Date: 07/31/2008
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 07/18/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 07/18/2008
Proceedings: Notice of Hearing (hearing set for August 13, 2008; 10:30 a.m.; Jacksonville, FL).
PDF:
Date: 06/18/2008
Proceedings: Response to Initial Order filed.
PDF:
Date: 06/11/2008
Proceedings: Initial Order.
PDF:
Date: 06/10/2008
Proceedings: Amended Order of Penalty Assessment filed.
PDF:
Date: 06/10/2008
Proceedings: Stop-Work Order filed.
PDF:
Date: 06/10/2008
Proceedings: Petition for Hearing filed.
PDF:
Date: 06/10/2008
Proceedings: Agency referral filed.

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

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Related Florida Statute(s) (6):

Related Florida Rule(s) (2):