09-000340 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. Wainwright Construction And Roofing, Inc. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, October 12, 2011.

FILED

003318

OCT 25 2011

Chief Financial Officer

Docketed by: _ CHIEF FINANCIAL OFFICER

JEFF ATWATER

STATE OF FLORIDA

IN THE MATTER OF:

Case Number: 08-291-D1-WC

WAINWRIGHT CONSTRUCTION AND

ROOFING, INC.

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FINAL ORDER

THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial

Officer of the State of Florida, or his designee, having considered the record in this case,

including the Stop-Work Order and Order of Penalty Assessment and the 4th Amended Order of

Penalty Assessment served in Division of Workers' Compensation Case No. 08-291-D1, and

being otherwise fully advised in the premises, hereby finds that:

1. On October 28,2008, the Department of Financial Services, Division of Workers'

Compensation (hereinafter "Department") issued a Stop-Work Order and Order of Penalty

Assessment in Division of Workers' Compensation Case No. 08-291-D1 to Wainwright

Construction and Roofing, Inc. (Wainwright). The Stop-Work Order and Order of Penalty

Assessment included a Notice of Rights wherein Wainwright was advised that any request for an

administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty

Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and

Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes.

2. On November 3, 2008, the Stop-Work Order and Order of Penalty Assessment

was served via certified mail on Wainwright. A copy of the Stop-Work Order and Order of

Penalty Assessment is attached hereto as "Exhibit A" and incorporated herein by reference.

3. On December 2, 2008, the Department issued an Amended Stop-Work Order to

Wainwright. The Amended Stop-Work Order included a Notice of Rights wherein Wainwright

was advised that any request for an administrative proceeding to chellenge or contest the

Amended Stop-Work Order must be filed within twenty-one (21) days of receipt of the Amended

Stop-Work Order in accordance with Sections 120.569 and 120.57, Florida Statutes.

4. The Amended Stop-Work Order was served on Wainwright by certified mailon

December 8, 2008. A copy of the Amended Stop-Work Order is attached hereto as "Exhibit B"

and incorporated herein by reference.

5. On December 2, 2008, the Department issued an Amended Order of Penalty

Assessment to Wainwright in Case No. 08-291-Dl. The Amended Order of Penalty Assessment

assessed a total penalty of$77,189.76 against Wainwright. The Amended Order of Penalty

Assessment included a Notice of Rights wherein Wainwright was advised that any request for an

administrative proceeding to challenge or contest the Amended Order of Penalty Assessment

must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty

Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes.

6. The Amended Order of Penalty Assessment was served on Wainwright by

certified mail on December 8, 2008. A copy of the Amended Order of Penalty Assessment is

attached hereto as "Exhibit C" and incorporated herein by reference.

7. On December 24,2008, Wainwright filed a timely Petition for a formal

administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The

Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 09­

0340.

8. On October 6,2011, the Department issued a 4th Amended Order of Penalty

Assessment to Wainwright in Case No. 08-291-Dl. The 4th Amended Order of Penalty

Assessment assessed a total penalty of$I,OOO.OO against Wainwright. The 4th Amended Order

of Penalty Assessment was served on Wainwright through the Division of Administrative

Hearings. A copy of the 4th Amended Order of Penalty Assessment is attached hereto as

"Exhibit D" and is incorporated herein by reference.

9. On October 11,2011, Wainwright and the Department entered into a settlement

agreement pursuant to which Wainwright agreed to pay the penalty assessed in the 4 th Amended

Order of Penalty Assessment, and accordingly, on October 11,2011, the Department filed a

Notice of Settlement in DOAH Case No. 09-0340. A copy of the Notice of Settlement filed by

the Department is attached hereto as "Exhibit E."

10. On October 12,2011, Administrative Law Judge Lawrence P. Stevenson entered

an Order Closing File, relinquishing jurisdiction to the Department. A copy of the October 12,

2011 Order Closing File is attached hereto as "Exhibit F."

FINDINGS OF FACT

11. The factual allegations in the Stop-Work Order and Order of Penalty Assessment

issued on October 28,2008, and the 4th Amended Order of Penalty Assessment issued on

October 6, 2011, which are fully incorporated herein by reference, are hereby adopted as the

Department's Findings of Fact in this case.

CONCLUSIONS OF LAW

12. Based on the Findings of Fact adopted herein, the Department concludes that

Wainwright violated the specific statues and rules alleged in the Stop-Work Order and Order of

Penalty Assessment and the 4th Amended Order of Penalty Assessment, and hereby adopts

the violations charged in the Stop-Work Order and Order of Penalty Assessment and the 4th

Amended Order of Penalty Assessment as the Conclusions of Law in this case.

PENALTY IMPOSED

13. The Notice of Settlement and resulting Order Closing File, wherein Wainwright

no longer contested the 4th Amended Order of Penalty Assessment pursuant to Sections 120.569

and 120.57, Florida Statutes, taken together with the Findings of Fact and Conclusions of Law

adopted herein, constitute grounds for the Chief Financial Officer to impose the penalty and

order the cessation of business operations as set forth herein.

IT IS THEREFORE . ORDERED that:

a) Wainwright shall immediately pay the total penalty of$l,OOO.OO in full to the

Department for deposit into the Workers' Compensation Administration Trust Fund, and

demonstrate compliance with the coverage requirements of Chapter 440, Florida Statutes,

pursuant to Section 440.l07(7)(a), Florida Statutes, based upon its violation of the workers'

compensation coverage requirements contained in Chapter 440, Florida Statutes.

b) Wainwright shall immediately cease all business operations in the State of Florida

until such time as the Department issues an Order Releasing the Stop-Work Order and Order of

Penalty Assessment. The Department shall not issue an Order Releasing the Stop-Work Order

and Order of Penalty Assessment until Wainwright has come into compliance with the coverage

requirements of Chapter 440, Florida Statutes, and has paid the total penalty of $1,000.00 to the

Department.

DONE AND ORDERED this of Oato!U}\\ ,2011.

f!:?'/2 c-'-------­

Director, Workers' Compensation

NOTICE OF RIGHTS

Any party to these proceedings adversely affected by this Order is entitled to seek review

of this Order pursuant to Section 120.68, Florida Statutes, and Florida Rule of Appellate

Procedure 9.110. Review proceedings must be instituted by filing a Notice of Appeal with the

Agency Clerk at Room 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida,

32399-0333 and a copy ofthe Notice of Appeal, a copy of this Order and filing fee with the

appropriate District Court of Appeal within thirty (30) days of rendition ofthis Order.

Copies furnished to:

Ryan J. Peters, Esq.

The Law Offices of Ryan J. Peters

106 East Howard Street

Live Oak, Florida 32064-3027

Timothy L. Newhall, Esq.

Assistant General Counsel

Department of Financial Services

200 E. Gaines Street

Tallahassee, FL 32399-4229