09-003391F William R. Sims Roofing, Inc. vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed DOAH Final Order on Thursday, February 4, 2010.

Summary: Although Petitioner was the prevailing small business party in prior case, and the amount requested was reasonable, Respondent's investigators were substantially justified in issuing the SWO and Penalty Assessment initially.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM R. SIMS ROOFING, INC., )

)

Petitioner, )

)

vs. ) Case No. 09-3391F

)

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF WORKERS’ )

COMPENSATION, )

)

Respondent. )

)

FINAL ORDER

This cause came on for formal hearing before Daniel M.

Kilbride, Administrative Law Judge with the Division of

Administrative Hearings, on Petitioner’s Application for an

Award of Attorney’s Fees and Costs, pursuant to Section 57.111,

Florida Statutes (2009), 1 on November 16, 2009, by video

teleconference between Orlando, Florida, and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Patrick John McGinley, Esquire

Law Office of Patrick John McGinley, P.A.

2265 Lee Road, Suite 100

Winter Park, Florida 32789

For Respondent: Timothy L. Newhall, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to recover attorney’s fees

and costs from Respondent, pursuant to Section 57.111, Florida

Statutes, as a result of the appeal being withdrawn in regard to

DOAH Case No. 06-1169.

PRELIMINARY STATEMENT

On December 21, 2004, the Department of Financial Services,

Division of Workers’ Compensation (Respondent), issued and

served Stop-Work Order(SWO) and Order of Penalty Assessment

No. 04-340-D4 and a Request for Production of Business Records

on Petitioner. Petitioner failed to produce business records,

and Respondent imputed a penalty pursuant to Subsection

440.107(7)(e), Florida Statutes. On November 1, 2005,

Respondent again investigated Petitioner at a worksite in

Orlando and determined that the December 21, 2004, SWO was still

in place. Respondent again requested business records from

Petitioner, and based upon the records produced and Respondent’s

determination that Petitioner had worked 10 days in violation of

the December 21, 2004, SWO, Respondent assessed a penalty of

$49,413.18 against Petitioner for failure to secure the payment

of workers’ compensation for its employees.

Petitioner timely requested a formal administrative

hearing, pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes, and the matter was transferred to the Division

of Administrative Hearings (DOAH) and assigned Case No. 06-1169.

A formal evidentiary hearing was held in Orlando on August 6,

2006, and on November 20, 2006, a Recommended Order was entered

by Daniel M. Kilbride, Administrative Law Judge, upholding the

full amount of the assessed penalty. Subsequently, Respondent

entered a Final Order on February 15, 2007, which adopted the

Recommended Order.

Petitioner appealed the Final Order to the Fifth District

Court of Appeal, where the matter was assigned Case

No. 5D07-891. On April 27, 2009, Respondent issued an Order

Releasing SWO, and refunded the portion of the penalty that had

been paid by Petitioner. Petitioner’s appeal was subsequently

dismissed.

On June 19, 2009, Petitioner filed its Petition and

Application for Attorney’s Fees pursuant to Section 57.111,

Florida Statutes, and an evidentiary hearing was conducted on

November 16, 2009. At the hearing, Petitioner presented the

testimony of Robert Cerrone and William R. Sims, and offered

Exhibits 1-6 and Exhibit A. Exhibits 1-6 were received into

evidence, but Respondent’s objection to Petitioner’s Exhibit A

was sustained. Respondent presented no live testimony and

offered Exhibits 1-4, all of which were received into evidence.

A Transcript was filed on November 16, 2009, with proposed

final orders due on January 9, 2010. On January 6, 2010,

Respondent filed a Motion for Extension of Time to Submit

Proposed Final Orders. That motion was granted and both parties

were given until January 15, 2010, to submit proposed final

orders. Both parties filed their Proposed Final Orders on

January 15, 2010, and the proposals have been given careful

consideration in the preparation of this Final Order.

FINDINGS OF FACT

1. Respondent is the state agency responsible for

enforcing the statutory requirement that employers secure the

payment of workers’ compensation for the benefit of their

employees, pursuant to Section 440.107, Florida Statutes.

2. Petitioner is in the business of constructing new and

replacement roofs on residential and commercial structures,

within the construction industry, as defined by Subsection

440.02(8), Florida Statutes, and is a Florida employer over whom

Respondent has jurisdiction to enforce the payment of workers’

compensation premiums for the benefit of Petitioner’s employees.

3. Petitioner appealed Respondent’s February 15, 2007,

Final Order to the Fifth District Court of Appeal, where the

matter was assigned Case No. 5D07-891.

4. After more than a year of appellate litigation, on

April 27, 2009, Respondent issued an Order Releasing SWO, and

refunded the portion of the assessed penalty that Petitioner had

already paid pursuant to a payment agreement schedule. At

Respondent’s request, Petitioner’s appeal was subsequently

dismissed. In its Motion, filed with the Appellate Court,

Respondent stated in pertinent part:

a. On or about December 21, 2004, Appellee

issued and served a stop-work order to

Appellant for failing to secure the payment

of workers’ compensation for the employees

of D&L Trucking, a company it had hired to

remove unused shingles from a roof. A

penalty was subsequently calculated and

assessed for this failure to secure.

b. Appellant challenged the stop-work order

and the penalty, and the matter was heard

before a duly appointed Administrative Law

Judge (ALJ) from the Division of

Administrative Hearings. Neither Appellant

nor Appellee raised the issue that D&L

Trucking’s employees were materialmen and

thus exempt from the definition of

“statutory employee.” The ALJ found that

the employees of D&L Trucking were the

statutory employees of Appellant and issued

a Recommended Order recommending Appellee to

adopt the findings of fact and conclusions

of law contained therein.

c. On or about February 15, 2007, Appellee

filed a Final Order in the underlying case

addressing Appellant’s exceptions to the

ALJ’s Recommended Order, and adopting the

Recommended Order in its entirety.

d. Appellant subsequently filed a timely

Notice of Appeal, appealing Appellee’s Final

Order.

e. On or about April 3, 2009, this Court

issued an opinion in Adams Homes of

Northwest Florida, Inc. v. Cranfill , [7 So.

3d 611] (Fla. 5th DCA 2009) stating that

materialmen were essentially vendees of a

contractor and are excluded from the

definition of “statutory employee,” as

outlined in Section 440.10(1), Florida

Statutes.

f. The ALJ in his Recommended Order for the

underlying case stated, and Appellee adopted

in its Final Order, that workers for whom

Appellee calculated a penalty were being

paid by Appellant to remove unused shingles

from the roof of a worksite. In essence,

these individuals were materialmen and would

qualify as vendees of Appellant. Appellee

designated these individuals as “statutory

employees” and thus assigned a penalty to

Appellant.

g. In light of this Court’s ruling in Adam

Homes , Appellee does not believe it can

ethically or professionally maintain its

defense to this appeal and has withdrawn the

stop-work order issued to Appellant and

rescinded the assessed penalty. All money

paid by Appellant to Appellee up to this

point will thus be refunded to Appellant.

This appeal would thus be rendered moot as

there would no longer be a case or

controversy.

5. On June 19, 2009, Petitioner filed its Petition and

Application for Attorney’s Fees pursuant to Section 57.111,

Florida Statutes with DOAH. The petition was timely filed.

6. The parties filed a Pre-Hearing Stipulation in which

they agreed that the underlying dispute had been resolved in

favor of Petitioner; that Petitioner’s Petition and Application

for Attorney’s Fees had been timely filed, and that the amount

of attorney’s fees sought by Petitioner was reasonable.

7. At the November 16, 2009, evidentiary hearing,

Respondent stipulated that Petitioner met the definition of a

small business party, as set forth in Section 57.111, Florida

Statutes.

8. From the record, it appears that on December 20, 2004,

Hector Vega, a Compliance Investigator with Respondent’s

Division of Workers’ Compensation, received a referral that

Petitioner was re-roofing the Apopka Assembly of God, a church,

located in Apopka, Florida, while in violation of the workers’

compensation coverage requirements of Chapter 440, Florida

Statutes.

9. On December 21, 2004, Investigator Vega traveled to the

Apopka Assembly of God, where he reported that he found five

workers on the roof. His notes indicated that at least some of

those workers appeared to be installing flashing and shingles on

the roof. One of the workers present on the roof, Noel

Maldonado, informed Investigator Vega that he was employed by

Petitioner; that he was being paid by a David Lorenzo for

installing shingles; and that William R. Sims and David Lorenzo

were inspecting the ongoing work. Maldonado also provided

Investigator Vega with the cell phone number for William R.

Sims, Petitioner’s president. After interviewing Maldonado,

Investigator Vega met with Sims at the work site. Sims advised

Investigator Vega that although he personally had an exemption,

Petitioner did not have workers’ compensation coverage for any

of the workers found on the roof. When asked if he had

subcontracted the job of re-roofing the Apopka Assembly of God,

Sims at first advised that he subcontracted it to “David.” When

asked if David was a licensed roofing contractor, Sims then

advised Investigator Vega that David was an employee, not a

subcontractor.

10. Investigator Vega subsequently obtained information

which confirmed Sims’ statement that Petitioner had not secured

the payment of workers’ compensation for the men found on the

roof of the church, and issued a SWO directed to Petitioner.

11. On December 27, 2004, Sims sent accountant Nick

Petrone to speak with Investigator Vega on behalf of Petitioner.

Vega’s report indicates that Petrone advised Investigator Vega

that Sims had hired three workers, one being Noel Maldanado, and

presented photocopied licenses and alien registrations for those

three individuals. Petrone also advised that a fourth

individual was present on the roof for the delivery of roofing

materials. Petitioner did not raise the issue that all of the

men on the roof were materialmen who were working for David

Lorenzo; and did not claim that the workers were exempt from the

requirement that an employer provide workers’ compensation

coverage for its employees.

12. Sims never spoke with Petrone about what Petrone had

discussed with Investigator Vega at their December 27, 2004,

meeting. Sims assumed that the SWO issued on December 21, 2004,

was lifted.

13. On November 1, 2005, Compliance Investigator Robert

Cerrone received a referral that Petitioner was conducting

roofing work at 1905 Curryford Road in Orlando with workers who

were not protected by workers’ compensation insurance as

required by Chapter 440, Florida Statutes.

14. Investigator Cerrone went to the work site at 1905

Curryford Road, where he found six workers repairing the roof of

the home located at that address. Those workers identified

themselves as Jose Lupe Rivas, Cesar Sandoval, Marcos Hernandez,

Cesareo Maravilla, Oscar Mendez, and Gilbran Maravilla, and

advised Investigator Cerrone that they were working for

Petitioner. Investigator Cerrone contacted Sims, who

acknowledged that all six men working on the roof of 1905

Curryford Road were his employees. Sims also advised

Investigator Cerrone that he was providing workers’ compensation

coverage for those employees through Emerald Staffing Services.

15. Investigator Cerrone subsequently spoke with Robert

Szika of Emerald Staffing Services. Szika advised that of the

six employees working on the roof at 1905 Curryford Road, only

Jose Rivas and Marcos Hernandez were laborers provided by

Emerald Staffing Services, and therefore were the only workers

covered by Emerald’s workers’ compensation coverage. The other

four workers had not been supplied by Emerald Staffing Services,

and therefore were not covered by Emerald’s workers’

compensation coverage.

16. Because four of the six workers being utilized by

Petitioner on November 1, 2005, were not covered for workers’

compensation through Emerald Staffing Services’ policy, it

appeared that Petitioner was not in compliance with the coverage

requirements of Chapter 440, Florida Statutes. Investigator

Cerrone was prepared to issue a SWO to Petitioner for these

violations. However, Cerrone checked Respondent’s records and

determined that the SWO issued on December 21, 2004, was still

in effect and that Respondent’s rules prevented Investigator

Cerrone from issuing a second SWO so long as the December 21,

2004, SWO remained open. Therefore, for the purpose of

continuing his investigation, Inspector Cerrone could rely on

Respondent’s records, including Vega’s narrative, and continue

his investigation.

17. Sims wrote and delivered a letter, dated November 10,

2005, to Inspector Cerrone in which he acknowledged that four

workers found on the roof of the Apopka Assembly of God by

Inspector Vega on December 21, 2004, were Petitioner’s

employees, and that Petitioner had not complied with the

requirements of the workers’ compensation law at that time.

18. Sims alleges that he was coerced or tricked into

signing the November 10, 2005, letter. Sims’ testimony in this

regard is not credible.

19. Investigator Cerrone issued a Request for Production

of Business Records for Penalty Assessment directed to

Petitioner on November 16, 2005, requesting records for the

period of December 22, 2001, through December 21, 2004.

Petitioner subsequently produced records to Investigator

Cerrone. Based upon those records, Respondent assessed a

penalty against Petitioner in the amount of $39,413.18, for

failure to secure the payment of workers’ compensation for its

employees. In addition, Respondent determined that Petitioner

had worked ten days in violation of the December 21, 2004, SWO.

Respondent therefore added an additional $10,000.00 to the

penalty, pursuant to Subsection 440.107(7)(c), Florida Statutes,

bringing the total penalty to $49,413.18.

20. Petitioner timely filed a petition requesting a formal

administrative hearing to review the penalty assessed by

Respondent. Petitioner’s hearing request was forwarded to DOAH,

and an evidentiary hearing was held on August 8, 2006. On

November 30, 2009, a Recommended Order was issued by Daniel M.

Kilbride, Administrative Law Judge, finding that Respondent had

proven by clear and convincing evidence that Petitioner had

failed to secure the payment of workers’ compensation, and had

correctly calculated and assessed a penalty in the amount of

$49,413.18. Respondent rendered a Final Order on February 15,

2007, which adopted the findings of fact and conclusions of law

set forth in the Recommended Order.

21. Petitioner timely appealed the February 15, 2007,

Final Order to the Fifth District Court of Appeal.

22. On April 27, 2009, Respondent issued an Order

Releasing SWO, and refunded the portion of the assessed penalty

that Petitioner had already paid pursuant to a payment agreement

schedule. At Respondent’s request, Petitioner’s appeal was

subsequently dismissed.

23. On June 19, 2009, Petitioner filed its Petition and

Application for Attorney’s Fees, with DOAH, pursuant to Section

57.111, Florida Statutes, and this proceeding followed.

CONCLUSIONS OF LAW

24. DOAH has jurisdiction over the parties and the subject

matter of this proceeding pursuant to Section 120.569, and

Subsections 120.57(1), and 57.111(4), Florida Statutes.

25. In proceedings to establish entitlement to an award of

attorney’s fees and costs pursuant to Section 57.111, Florida

Statutes, the initial burden of proof is on the party requesting

the award to establish by a preponderance of the evidence that

it prevailed in the underlying proceeding and that it was a

small business party at the time the disciplinary action was

initiated. Once the party requesting the award has met this

burden, the burden of proof then shifts to the agency to

establish that it was substantially justified in initiating the

underlying action. See Helmy v. Department of Business and

Professional Regulation , 707 So. 2d 366, 368 (Fla. 1st DCA

1998); Department of Professional Regulation, Division of Real

Estate v. Toledo Realty, Inc. and Ramiro Alfert , 549 So. 2d 715,

717 (Fla. 1st DCA 1989).

26. Subsection 57.111(3)(c), Florida Statutes, reads as

follows:

(c) A small business party is a “prevailing

small business party” when:

1. A final judgment or order has been

entered in favor of the small business party

and such judgment or order has not been

reversed on appeal or the time seeking

judicial review of the judgment or order has

expired;

2. A settlement has been obtained by the

small business party which is favorable to

the small business party on the majority of

issues which such party raised during the

course of the proceeding; or

3. The state agency has sought a voluntary

dismissal of its complaint.

27. Respondent has vacated the December 21, 2004, SWO and

has refunded all portions of the penalty paid by Petitioner, and

has stipulated that Petitioner has prevailed within the meaning

of Subsection 57.111(3)(c), Florida Statutes.

28. Subsection 57.111(3)(d), Florida Statutes, reads as

follows:

(d) The term “small business party” means:

1.a. A sole proprietor of an unincorporated

business, including a professional practice,

whose principle office is in this state, who

is domiciled in this state, and whose

business or professional practice has, at

the time the action is initiated by a state

agency, not more than 25 full-time employees

or a net worth of not more that $2 million,

including both personal and business

investments;

b. A partnership or corporation, including

a professional practice, which has its

principal office in this state and has at

the time the action is initiated by a state

agency not more that 25 full-time employees

or a net worth of not more that $2 million;

or

c. An individual whose net worth did not

exceed $2 million at the time the action is

initiated by a state agency when the action

is brought against that individual’s license

to engage in the practice or operation of a

business, profession, or trade; or

2. Any small business party as defined in

subparagraph 1., without regard to the

number of its employees or its net worth, in

any action under s. 72.011 or in any

administrative proceeding under that section

to contest the legality of any assessment of

tax imposed for the sale or use of services

as provided in chapter 212, or interest

thereon, or penalty therefor.

29. Respondent has stipulated that Petitioner meets the

statutory definition of a small business party, so this element

of Petitioner’s fee claim has been established as required by

law.

30. Subsection 57.111(4)(a), Florida Statutes, reads as

follows:

(4)(a) Unless otherwise provided by law, an

award of attorney’s fees and costs shall be

made to a prevailing small business party in

any adjudicatory proceeding or

administrative proceeding pursuant to

chapter 120 initiated by a state agency,

unless the actions of the agency were

substantially justified or special

circumstances exist which would make the

award unjust.

31. A proceeding by a state agency is substantially

justified if it had a reasonable basis in law and fact at the

time it was initiated by a state agency. Fish v. Department of

Health, Board of Dentistry , 825 So. 2d 421 (Fla. 4th DCA 2002).

32. In determining whether Respondent had substantial

justification to issue the December 21, 2004, SWO and assess the

$49,413.18 penalty, the analysis must be limited to the facts

and circumstances known to Respondent at the time the SWO and

the Amended Order of Penalty Assessment were issued. Department

of Health v. Thomas , 890 So. 2d 400, 401 (Fla. 1st DCA 2004);

Department of Health v. Cralle , 852 So. 2d 930, 932 (Fla. 1st

DCA 2003).

33. At the November 16, 2009, evidentiary hearing on

Petitioner’s Petition and Application for Attorney’s Fees

pursuant to Section 57.111, Florida Statutes, Petitioner

introduced the narrative reports of Respondent’s investigators

Hector Vega and Robert Cerrone into evidence. The narrative

reports of Investigator Vega set forth the facts and

circumstances on which Respondent relied on in issuing the

December 21, 2004, SWO.

34. Although the use of hearsay is limited in formal DOAH

evidentiary hearings, see Subsection 120.57(1)(c), Florida

Statutes, the analysis here is not whether or not Inspector

Vega’s Narrative Report is true or correct. The analysis is for

purposes of determining whether Respondent’s investigator was

substantially justified in relying on the Narrative Report and

other records in November of 2005, when he issued a Request for

Production and subsequently issued an Amended Order of Penalty

Assessment. Under the facts of this case, Respondent was

substantially justified. See Department of Professional

Regulation, Division of Real Estate v. Toleda Realty, Inc. ,

supra at 717.

35. In any event, Petitioner’s Exhibit 3 merely

supplements other non-hearsay evidence demonstrating that

Respondent had a substantial basis in law and fact for issuing

the December 21, 2004, SWO. Sims’ letter of November 10, 2005,

supports the conclusion that the men found working by

Investigator Vega on December 21, 2004, were Petitioner’s

employees, and that Petitioner was not in compliance with the

coverage requirements of Chapter 440, Florida Statutes.

36. At the time the SWO was issued, the following facts

and circumstances were known to Respondent:

a. Respondent had received a referral

indicating that Petitioner was doing roofing

work at the Apopka Assembly of God and did

not have the workers’ compensation coverage

required by Chapter 440, Florida Statutes.

b. Upon investigation, a number of men were

found, what appeared to be, installing

flashing and shingles at the Apopka Assembly

of God. One of those workers, Noel

Maldonado, advised Respondent’s investigator

that he was working for Petitioner, was

being paid for installing shingles, and that

Sims was supervising the work. Maldonado

was able to provide Respondent’s

investigator with Sims’ cell phone number.

c. Sims advised Respondent’s investigator

that Petitioner did not have workers’

compensation insurance coverage, a fact that

was independently confirmed by Respondent.

d. Sims advised Respondent’s investigator

that he had subcontracted the roofing work

at the Apopka Assembly of God to “David.”

When asked if David was a licensed roofing

contractor, Sims advised him that David was

an employee.

37. Based upon the information uncovered by Respondent’s

investigation on December 21, 2004, including, but not limited

to, the information provided by Petitioner’s president, William R.

Sims, Respondent was substantially justified in issuing and

serving the SWO on Petitioner.

38. On December 27, 2004, six days after issuance of the

SWO, Petitioner’s authorized representative Nick Petrone met

with Respondent’s investigator. Petrone advised Respondent’s

investigator that Petitioner had hired three of the workers

found working on the roof of the Apopka Assembly of God on

December 21, 2004, including Noel Maldonado. Petrone also

advised Respondent’s investigator that a fourth individual on

the roof, for whom Petrone did not produce documentation, was

connected with the delivery of roofing materials.

39. None of the information provided to Respondent by

Petrone on December 27, 2004, indicated to Respondent that it

had not been substantially justified in issuing the SWO six days

earlier. To the contrary, the information provided by Petrone

reinforces the conclusion that Respondent had been substantially

justified in issuing the SWO.

40. On November 10, 2005, Sims signed and delivered to

Respondent a letter acknowledging that four of the individuals

found working on the roof of the Apopka Assembly of God on

December 21, 2004, were in fact employed by Petitioner, and

that Petitioner had not been in compliance with the coverage

requirements of Chapter 440, Florida Statutes. Sims’

November 10, 2005, letter further reinforces the conclusion that

Respondent was substantially justified in issuing the SWO, and

further provides substantial justification for Respondent’s

subsequent assessment of the $49,413.18 penalty.

41. Respondent had a substantial basis in law and fact for

issuing the December 21, 2004, SWO and issuing the $49,413.18

penalty against Petitioner. Respondent’s actions were,

therefore, substantially justified, pursuant to Subsection

57.111(4)(a), Florida Statutes.

42. On April 27, 2009, Respondent concluded, out of an

abundance of caution, that it should revoke the SWO and refund

the portion of the penalty paid by Petitioner because of the

possibility that at least some of the workers on the roof of the

Apopka Assembly of God on December 21, 2004, were material

suppliers, and therefore not Petitioner’s employees. However,

Respondent’s subsequent decision to discharge the SWO is

irrelevant to the determination that Respondent had a

substantial basis in law and fact for issuing the SWO and

assessing the penalty against Petitioner at the time those

actions were taken. See Department of Health v. Cralle , 852

So. 2d at 932, supra .

43. Further, there is good reason to believe that

Petitioner was not in compliance with the coverage requirements

of Chapter 440, Florida Statutes, on November 1, 2005, and

Respondent’s investigator Robert Cerrone would have been

justified in issuing a SWO to Petitioner on that date.

44. Because Petitioner was working on November 1, 2005,

while in violation of the coverage requirements of Chapter 440,

Florida Statutes, but did not receive a SWO for the sole reason

that it was working in violation of the pending December 21,

2004, SWO, which was subsequently vacated, special circumstances

exist which would make an award of attorney’s fees to Petitioner

pursuant to Section 57.111, Florida Statutes, unjust.

Petitioner’s good fortune in evading sanction for its serial

violations of the coverage requirements of Chapter 440, Florida

Statutes, does not entitle it to recover its attorney’s fees.

45. Petitioner’s Petition and Application for Attorney’s

Fees pursuant to Section 57.111, Florida Statutes, must

therefore be denied.

ORDER

Based on the foregoing findings of fact and conclusions of

law, it is hereby

ORDERED AND ADJUDGED that Petitioner’s Application for an

Award of Attorney’s Fees and Costs, pursuant to Section 57.111,

Florida Statutes, is hereby denied.

DONE AND ORDERED this 4th day of February, 2010 in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 4th day of February, 2010.

ENDNOTE

1/ All statutory references are to Florida Statutes (2009),

unless otherwise noted.

COPIES FURNISHED :

Patrick John McGinley, Esquire

Law Office of Patrick John McGinley, P.A.

2265 Lee Road, Suite 100

Winter Park, Florida 32789

Timothy L. Newhall, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

Julie Jones, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0390

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Benjamin Diamond, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0307

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.