11-002561 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. Farthing Motor Sports, D/B/A Star Drywall, Inc. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, August 10, 2011.

FILED

AUG 29 2011 003 1 5 2

Chief Financial Officer CHIEF FINANCIAL OFFICER

Docketed JEFF ATWATER

STAfE OF FLORIDA

IN THE MATTER OF:

FARTHING MOTOR SPORTS, d/b/a

STAR DRYWALL, INC. Case Number: 09-190-D3-WC

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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 4 th Amended Order of

Penalty Assessment served in Division of Workers' Compensation Case No. 09-190-D3, and

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

1. On July 14,2009, 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. 09-190-D3 to Farthing Motor

Sports, d/b/a Star Drywall, Inc. (Farthing). The Stop-Work Order and Order of Penalty

Assessment included a Notice of rights wherein Farthing 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 July 16, 2009, the Stop-Work Order and Order of Penalty Assessment was

served on Farthing via certified mail. A copy ofthe Stop-Work Order and Order of Penalty

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

3. On July 27,2009, Farthing timely filed a Petition for formal administrative

hearing pursuant to Section 120.57(1), Florida Statutes. The Petition was subsequently

forwarded to the Division of Administrative Hearings on May 18,2011 and was assigned Case

No. 11-2561.

4. On September 18,2009, the Department issued an Amended Order of Penalty

Assessment to Farthing in Case No. 09-190-D3. The Amended Order of Penalty Assessment

assessed a total penalty of $228,409.49 against Farthing. The Amended Order of Penalty

Assessment included a Notice of Rights wherein Farthing 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.

5. The Amended Order of Penalty Assessment was served on Farthing by personal

service on September 22, 2009. A copy of the Amended Order of Penalty Assessment is

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

6. The Department subsequently issued a2 nd Amended Order of Penalty Assessment

and a3 rd Amended Order of Penalty Assessment to Farthing. On January 26, 2010, the

Department issued a4 th Amended Order of Penalty Assessment to Farthing in Case No. 09-190­

D3 which lowered the assessed penalty to $82,807.83.

7. The 4 th Amended Order of Penalty Assessment was served on Farthing through its

counsel on March 17,2010. A copy of the 4 th Amended Order of Penalty Assessment is attached

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

8. On June 13,2011, the Department served its First Interlocking Discovery

Requests on Farthing in DOAH Case No. 11-2561. Farthing's Responses to the Department's

First Interlocking Discovery Requests were due on or before July 13, 2011.

9. On July 15,2011, the Department filed its Motion to Compel Responses to First

Interlocking Discovery Requests. On July 15,2011, Administrative Law Judge Claude B.

Arrington entered an Order Granting Motion to Compel, directing Farthing to respond to the

Department's First Interlocking Discovery Requests within 10 days. A copy of the Order

Granting Motion to Compel is attached hereto as "Exhibit D."

10. On July 27,2011, the Department filed a Motion to Deem Matters Admitted and

to Relinquish Jurisdiction Pursuant to Section 120.57(1), Florida Statutes, based upon Farthing's

failure to respond to the Department's First Interlocking Discovery Responses. On August 10,

2011, Administrative Law Judge Arrington entered an Order Closing File, relinquishing

jurisdiction to the Department. A copy of the Order Closing File is attached hereto as "Exhibit

E."

FINDINGS OF FACT

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

issued on July 14,2009, and the 4 th Amended Order of Penalty Assessment issued on January 26,

2010, 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

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

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

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

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

PENALTY IMPOSED

13. The Order Closing File, wherein Administrative Law Judge Arrington closed the

Division of Administrative Hearing's file and relinquished jurisdiction to the Department, taken

together with the Findings of Fact and Conclusions of Law adopted herein, constitute grounds

for the Chief Financial Officer to impose the penalty as set forth herein.

IT IS THEREFORE ORDERED that:

a) Farthing shall immediately pay the total penalty of $82,807.83 in full to the

Department of Financial Services for deposit into the Workers' Compensation Administration

Trust Fund.

(b) Farthing shall cease all business activities in the State of Florida until such

time as the Department issues an order releasing the Stop-Work Order and Order of Penalty

Assessment and the 4 th Amended Order of Penalty Assessment. The Department shall not issue

an order releasing the Stop-Work Order and Order of Penalty Assessment and the 4 th Amended

Order of Penalty Assessment until such time as Farthing has paid the penalty of$82,807.83 and

come into compliance with the coverage requirements of Chapter 440, Florida Statutes.

DONE AND ORDERED this day of Au8!<»>.f , 2011.

E. Tanner Holloman

Director, Division of Workers'

Compensation

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NOTICE OF RIGHTS

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

ofthis 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 of the Notice of Appeal, a copy of this Order and filing fee with the

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

Copies furnished to:

Dustin Farthing

Farthing Motor Sports, d/b/a Star Drywall, Inc.

3300 Cobb Parkway, Suite 17

Acworth, GA 30101-8350

Timothy L. Newhall

Assistant General Counsel

Department of Financial Services

200 E. Gaines Street

Tallahassee, FL 32399-4229