11-005327 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. Tracy B. Hinote, D/B/A, T. H. Plastering Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, December 8, 2011.

FILED

DEC 30 2011 003 5 2 1!

Chief Financial Officer

Docketed by: L£),I;..,t3

CHIEF FINANCIAL REPRESENTING OFFICER

JEFF ATWATER

STATE OF FLORIDA

IN THE MATTER OF:

Case No.: 11-083-1A-WC

TRACY B. HINOTE d/b/a T.H. PLASTERING

-----------_---:/

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, the Amended Orders of

Penalty Assessment, the Request for Administrative Hearing, the withdrawal of Petition, and the

Order Relinquishing Jurisdiction and Closing File, and being otherwise fully advised in the

premises, hereby finds that:

1. On March 14, 2011, 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. 11-083-1A to TRACY B.

HINOTE, D/B/A T.H. PLASTERING.

2. On March 14,2011, the Stop-Work Order and Order of Penalty Assessment was

personally served on TRACY B. HINOTE, D/B/A T.R. PLASTERING. 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 March 28, 2011, the Department issued an Amended Order of Penalty

Assessment in Division of Workers' Compensation Case No. 11-083-1A to TRACY B.

HINOTE, D/B/A T.H. PLASTERING. The Amended Order of Penalty Assessment assessed a

total penalty of$7,590.78 against TRACY B. HINOTE, D/B/A T.H. PLASTERING.

4. On April 6, 2011, the Amended Order of Penalty Assessment was personally

served on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the Amended Order of

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

5. On April 28, 2011, the Department issued a2 nd Amended Order of Penalty

Assessment in Division of Workers' Compensation Case No. 11-083-1A to TRACY B.

HINOTE, D/B/A T.H. PLASTERING. The 2 nd Amended Order of Penalty Assessment assessed

a total penalty of $6,050.69 against TRACY B. HINOTE, D/B/A T.H. PLASTERING.

6. On May 3, 2011, the 2 nd Amended Order of Penalty Assessment was personally

served on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the 2 nd Amended Order

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

7. On April 25, 2011, the Division received from TRACY B. HINOTE, D/B/A T.H.

PLASTERING a request for an administrative hearing. The request for administrative hearing is

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

8. On June 28, 2011, the Department issued a 3rd Amended Order of Penalty

Assessment in Division of Workers' Compensation Case No. 11-083-1A to TRACY B.

HINOTE, D/B/A T.H. PLASTERING. The 3rd Amended Order of Penalty Assessment assessed

a total penalty of$2,618.57 against TRACY B. HINOTE, D/B/A T.H. PLASTERING.

9. On June 29, 2011, the 3rd Amended Order of Penalty Assessment was served by

overnight mail delivery on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the 3rd

Amended Order of Penalty Assessment is attached hereto as "Exhibit E" and incorporated herein

by reference.

1 O. On October 17, 2011, the Petition was forwarded to the Division of

Administrative Hearings and assigned DOAH Case No. 11-5327.

11. On November 23,2011, the Division received from TRACY B. HINOTE, D/B/A

T.H. PLASTERING a withdrawal of the request for administrative hearing. The withdrawal of

request for administrative hearing is attached hereto as "Exhibit F" and incorporated herein by

reference.

12. On December 8, 2011, an Order Relinquishing Jurisdiction and Closing File was

entered in Division of Administrative Hearings Case. No. 11-5327. A copy of the Order

Relinquishing Jurisdiction and Closing File is attached hereto as "Exhibit G" and incorporated

herein 'by reference.

FINDINGS OF FACT

The factual allegations contained in the Stop- Work Order and Order of Penalty

Assessment, the Amended Order of Penalty Assessment, the 2 nd Amended Order of Penalty

Assessment, and the 3rd Amended Order of Penalty Assessment, which are fully incorporated

herein by reference, are hereby adopted as the Department's Findings of Fact in this case.

CONCLUSIONS OF LAW

Based upon the Findings of Fact adopted herein, the Department concludes that TRACY

B. HINOTE, D/B/A T.H. PLASTERING violated the specific statutes and rules alleged in the

Stop- Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment,

the 2 nd Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty

Assessment and hereby adopts the violation(s) charged in the Stop-Work Order and Order of

Penalty Assessment, the Amended Order of Penalty Assessment, the 2 nd Amended Order of

Penalty Assessment, and the 3rd Amended Order of Penalty Assessment as the Conclusions of

Law in this case.

PENALTY IMPOSED

The OrderRelinquishing Jurisdiction and Closing File, 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. TRACY B. HINOTE, D/B/A T.R. PLASTERING shall immediately pay the total

penalty of $2,618.57, in full, to the Department of Financial Services for deposit into the

Workers' Compensation Administration Trust Fund; and

b. TRACY B. HINOTE, D/B/A TH. PLASTERING 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 3 rd Amended Order of Penalty Assessment.

The Department shall not issue an Order releasing the Stop-Work Order and 3 rd Amended

Order of Penalty Assessment until TRACY B. HINOTE, D/B/A T.H. PLASTERING has

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

and has paid a total penalty of$2,618.57 to the Department.

DONE AND ORDERED on this of f)l!.tnrI!!uA , tJ::J( I.

E. Tanner Holloman

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 Julie

Jones, DFS Agency Clerk, Department of Financial Services, Room 612 Larson Building, 200

East Gaines Street, Tallahassee, Florida, 32399-0390 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.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail

.A-

to Tracy B. Hinote, 2635 Finch Circle, Chipley, Florida, 32428, on this 3b day of

.. .... ",,_\\w2

Paige oemaker

Florida Bar No. 143022

Assistant General Counsel

Department of Financial Services

Division of Legal Services

200 E. Gaines Street

Tallahassee, FL 32399-4229

850 413-1606

850 413-1978 (fax)

COPIES FURNISHED TO:

Tracy B. Hinote

2635 Finch Circle

Chipley, Florida, 32428

Robert Borden

103-A Lewis Street

Ft. Walton Beach, Florida 32547

Paige Shoemaker

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-4229

STATE OF r-LORIDA, DEPARTMENT OF FINANCIAL SE:"VICES

DIVISION OF WORKERS' COMPENSATION

EMPLOYER NAME: TRACY B HINOTE DBA TH PLASTERING STOP-WORK ORDER No.: 11-0B3-1A

FEIN: 266676014 ISSUANCE DATE: 3/14/2011

EMPLOYER ADDRESS: 1441 SOUTH BLVD

CITY: CHIPLEY STATE: FL ZIP: 32428

WORKSITE POSTING ADDRESS: 1387 SOUTH BLVD

CITY: CHIPLEY STATE: FL ZIP: 32428

!. r INDUSTRY OF EMPLOYER: • Construction o Non-Construction o Agriculture

,. t:

STOP-WORK ORDER

Pursuant to Section 440.107, F.S., the above-referenced Employer is hereby ORDERED TO CEASE ALL BUSINESS OPERATIONS

FOR ALL WORKSITES IN THE STATE based on the following vlolatlon(s):

o Failure to secure the payment of workers' compensation in violation of sections 440.10(1), 440.38(1), and 440.107(2) F. 5., by:

D failing to obtain coverage that meets the requirements of Chapter 440, F. 5., and the Insurance Code;

D materially understating or concealing payroll;

D materially misrepresenting or concealing employee duties so as to avoid proper classification for premium calculations;

materially misrepresenting or concealing information pertinent to the computation and application of an experience rating

D modification factor. .

D Failure to produce required business records within 5 business days in violation of section 440.107(7)( a), F.S.

D Failure to produce required documents within 3 business days in violation of section 440.05{11), F.S.

THIS STOP-WORK ORDER MAY BE AMENDED TO INCLUDE ADDITIONAL VIOLATIONS AND SHALL REMAIN IN EFFECT UNTIL

THE DIVISION ISSUES AN ORDER RELEASING THE STOP-WORK ORDER FOR ALL WORKSITES.

CONDUCTING ANY BUSINESS OPERATIONS IN VIOLATION OF THIS STOP-WORK ORDER CONSTITUTES A FELONY OF THE

THIRD DEGREE AND A PENALTY OF $1,000.00 PER DAY FOR EACH DAY OF VIOLATION SHALL BE ASSESSED.

ORDER OF PENALTY ASSESSMENT:

A penalty against the Employer is hereby ORDERED in an amount:

o Equal to 1.5 times the amount the employer would have paid in premium when applying approved manual rates to the employer's

payroll during periods for which it failed to secure the payment of workers' compensation required by this chapter within the preceding

3-year period, or $1,000, whichever is greater. Section 440.107(7)(d), F.S.

o Up to $5,000 for each employee who the Employer misclassified as an independent contractor. Sections 440.1 O{ 1 )(f) and

440.107(7){f), F. S.

LIEN NOTICE

Pursuant to Section 440.107(11), F.S., the Department may initiate lien proceedings to collect any penalty due that has not

been paid. In addition, the Department may refer any unpaid penalty that is due to a collection agency for the initiation of

. proceedings to collect the unpaid penalty.

Please see the Notice of Rights on the reserve side that pertains to your rights regarding this action.

CERTIFICATE OF SERVICE

Pursuant to section 440.107(4), F.S., ROBERT BORDEN

served a true copy of this Stop-Work Order: ---------------------------1

0Byposting at the Worksite: DATE:.8-/o/...//' TIME, /tfif:;

0 B y hand delivery: DATE: TIME: .

DBy certified mail: DATE: _ TIME: _ ARTICLE: _

October 2009

EXHIBIT

18

A

NOTICE OF RIGHTS

You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida

Statutes.

To obtain review, you must file a written petition requesting review. If you dispute a material fact contained in this

action, you are entitled to a hearing under Sections 120.569 and 120.57(1), Florida Statutes, at which you may be

represented by counsel, present evjdence and argument on the issue(s), examine witnesses, submit a proposed

recommended order, and file exceptions to the recommended order of the Administrative Law Judge. If you do not

dispute a material fact contained in this action, you are entitled to a hearing under section 120.57(2), Florida'Statutes,

at which you may be represented by counsel, present documentary evidence,' and present a written statement in

opposition to this action.

A petition for a hearing under sections 120.569 and 120.57, Florida Statutes, must conform to Rule 28-106.2015,

,Florida Administrative Code. The petition shall contain a) the name, address, and telephone number, and facsimile

number (if any) of the petitioner; b) the name, address, and telephone number, and facsimile number of the attorney

or qualified.representative of the petitioner (if any) upon whom service of pleadings and other papers shall be made;

c) a statement requesting an administrative hearing identifying those material facts that are in dispute. If there are

none, the petition must so indicate; d) a statement of when the petitioner received notice of the agency action; and e)

a statement including the file number to the agency action.

You must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your

receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial

Services. 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. FAILURE TO FILE A

PETITION WITHIN THE lWENTY-ONE (21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO

ADM'NISTRA TlVE REVIEW OF THE AGENCY ACTION.

Mediation under section 120.573, Florida Statutes, is not available.

ISSUING AGENCY NAME AND ADDRESS

Division of Workers' Compensation, Bureau of Compliance: 103- A lewis St. Fort Walton Beach, Florida 32547

Attn: Robert Borden ,Telephone: [phone]

"

J 8Iluary 3, 2006

Notice of Rights updated 4/1512009

STATE OF r-LORIDA, DEPARTMENT OF FINANCIAL SE:.KVICES

DIVISION OF WORKERS' COMPENSATION

EMPLOYER NAME: TRACY B HINOTE DBA TH PLASTERING STOP-WORK ORDER No.: 11·083·1A

FEIN: 266676014 ISSUANCE DATE: 03/28/2011

EMPLOYER ADDRESS: 1441 SOUTH BLVD

CITY: CHIPLEY STATE: FL ZIP: 32428

AMENDED ORDER OF PENAL TV ASSESSMENT.

The Division of Workers' Compensation issued a Stop-Work Order in this case on 03114/2011. The Stop-Work Order included an Order

of Penalty Assessment that identified the penalties assessable under sections 440.10 and 440.107, F.S. The Division hereby amends

the Order of Penalty Assessment based on the following penalties:

to secure the payment of workers' compensation within the meaning of section 440.107(2), F.S., by:

to obtain coverage that meets the requirements of Chapter 440, F.S., and the Insurance Code;

Dmaterlall y understating or concealing payroll;

Dmaterially misrepresenting or concealing employee duties so as to avoid proper classification for premium calculations;

Dmaterially misrepresenting or concealing infonnation pertinent to the computation and application of an experience rating

modification factor. .

For such violation(s) the Employer is assessed a penalty of $7,590.78 (section 440.107(7)(d), F.S.) as detailed in the attached

PENALTY WORKSHEET, which is incorporated herein by reference;

11;0nducting business operations in violation of the Stop-Work Order as detailed in the attached PENAL TV WORKSHEET, which is

Yncorporated herein by reference, for which the Employer is assessed a penalty of $.00 (section 440.107(7)(c), F.S.);

/Misrepresenting the status of the ernployee(s) as an independent contractor{s), as detailed on the attached PENAL TV WORKSHEET,

4hich is incorporated herein by reference, for which the Employer is assessed a penalty of $.00 (section 440.1 0{1 )(f), F .S. ,).

It is hereby ORDERED that the Employer is assessed a TOTAL PENALTY of $7,590.78.

The penalties assessed herein supersede any penalties previously assessed in this case. The Employer shall pay the TOTAL

PENAL TV by money order or cashier's check, made payable to the DFS·Workers' Compensation Administration Trust Fund.

The Stop-Worn Order issued in this case shall remain in effect until either (a) The Division issues an order releasing the Stop-Work

Order upon finding that the employer has come into compliance with the coverage requirements of the workers' compensation law and

pays the total penalty in full, or (b) The Division issues an Order of Conditional Release From Stop-Work Order pursuant to the

employer coming into compliance with the coverage requirements of the workers' compensation law and entering into a Payment

Agreement Schedule For Periodic Payment of Penalty.

Pursuant to Rule 69L-6.028, Florida Administrative Code, if the Division imputes the employer's payroll, the employer shall have twenty

business days after service of the order assessing the penalty to provide business records sufficient for the Division to determine the

employer's payroll for the period requested in the business records request for the calculation of the penalty. If sufficient business

records are not provided within twenty business days after service of the order assessing the penalty, the calculation of the penalty

imputing the employer's payroll will remain In effect.

LIEN NOTICE

Pursuant to Section 440.1 07(11), F .S., the Department may initiate lien proceedings to collect any penalty due that has not

been paid. In addition, the Department may refer any unpaid penalty that is due to a collection agency for the initiation of

proceedings to collect the unpaid penalty.

,...--------- Please see the Notice of Rights on the reserve side that pertains to your rights regarding this action.

CERTIFICATE OF SERVICE

Pursuant to section 440.107(4), F.S., ROBERT BORDEN

-:-._----------------:-------1

served a true copy of this Amended Order of Penalty Assessment:

0Byhanddelivery: DATE: i/ ... ,-// TIME:,/o1 l. .'

Day certified mail: DATE: TIME: _ ARTICLE:

October 2009

EXHIBIT

20

,6

NOTICE OF RIGHTS

You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida

Statutes. .

To obtain review, you must file a written petrtion requesting review. If you dispute a material fact contained in this

action, you are entitled to a hearing under Sections 120.569 and 120.57(1), Florida Statutes, at which you may.be

represented by counsel, present evidence and argument on the issue(s), examine witnesses, submit a proposed

recommended order, and fUe exceptions to the recommended order of the Administrative Law Judge. If you do not

dispute a material fact contained in this action, you are entitled to a hearing under section 120.57(2), Florida Statutes,

at which you may be represented by counsel. present documentary evidence, and present a written statement in

opposition to this action.

A petition for a hearing under sections 120.569 and 120.57. Florida Statutes, must conform to Rule 28-106.2015,

Florida Administrative Code. The petition shall contain -a) the name, address, and telephone number, and facsimile

number (if any) of the petitioner; b) the name, address, and telephone number, and facsimile number of the attorney

or qualified1epresentative of the petitioner (if any) upon whom service of pleadings and other papers shall be made;

c) a statement requesting an administrative hearing identifying those material facts that are in dispute. If there are

none, the petition must so indicate; d) a statement of when the petitioner received notice of the agency action; and e)

a statement including the file number to the agency action.

I ; ."

You must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your

receipt of this agency action. The petition must be flied with Julie Jones, DFS Agency Clerk, Department of Financial

Services, 612 Larson BUilding, 200 East Gaines Street, Tallahassee, Florida 32399-0390. FAILURE TO FILE A

PETITION WITHIN THE TWENTY-ONE (21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO

ADMINISTRATIVE REVIEW OF THE AGENCY ACTION.

Mediation under.section 120.573, Florida Statutes, is not available.

ISSUING AGENCY NAME AND ADDRESS

Division of Workers' Compensation, Bureau of Compliance: 103- A Lewis Sf. Fort Walton Beach. Florida 32547

Attn: Robert Borden ,Telephone: [phone]

;, January 3. 2006

Notice of Rights updated 4/1512009

r 21

Page 1 of2

State of Florida, Department of Financial Services

Division of Workers' Compensation, Bureau of Compliance

Penalty Worksheet

BUSINESS NAME: TRACY B HINOTE DBA TH PLASTERING DWC Case No. 11-083·1A

Part 1. Penalty for failure to obtain coverage that meets the requirements of Chapter 440. F .S. and the Insurance Code.

00

Employee Name t • MethodOlogyl Calculation ClaR Code w 1 Non-Compliance Period of I Payroll· Gross 00 1 Column 1100 (c) I Manual Approved 00 Rate 1 Premium (d) x (e) 1' Penalty"* (f) x 1.5

... --. .. _ ... _Ji.;;: __ .. t._ .. : __

__ .. .. 79'j

7

L'-HI= i 5445 7125L.71. 1 .. :1 __ .:·]

__ J l:_ .J '=:Oln __ N

18

.... _ J. I 5445 _ r=:1 .. ·ln .71 ..

_n' ,i. .....•..

r"'NGWN PAYE' . 1m'''.... i 5445 ,Q'04I2010; 12131120'0 1'9.755., 197,' 6'j 1.343.3]

. ..__ _. . '.' J_n __ .n... L_ ,' _ . ..:., . ..' _ n__n'_Ln_ . I

TRACY HINOTE 11m""",, . 5445 0'10312011 i 0212812011 'I 3.300., "'j 6.1

___ .. __ _ _ ; .• .. J. . ,._...... . .. _ . ...1 .. 1 ., _._... . .. _ .. __ _. .. ; . . !t.. __ .. ..-J

UNKNOWN ;:: n.':_ .0':'1201'1 02I2W2011

* If the employer has failed to provide business records sufficient to enable the Department lo determine the employer's payroll. payroll shall be

imputed to be the statewide average weekly wage as defined in 9.440.12(2) F.S.multiplied by 1.5, (440.107(7Xe).

- Premium multiplied by statutory factor of 1.5

*- Greater of penalty undef" column (9) or $1000. s440.107(dX1)

; ,", .• :..,. ...... ... - ..... .." ...• ..... -,;'" I,. _., ...... .•.• ••. ..• ' ,.

Page 2 of2

State of Florida, Department of Financial Services

Division of Workers' Compensation, Bureau of Compliance

Penalty Worksheet

BUSINESS NAME: TRACY B HINOTE DBA TH PLASTERING DWC Case No. 11·083·1A

Part 1. Penalty for failure to obtain coverage that meets the requirements of Chapter 440, F .5. and the Insurance Code.

Employee Name I Calculation I Clan (a) I Period (b) of I' Gross (c) I Column (d) (c) I Approved (e) ,. . Premium (I) I Penalty*" (g)

Methodology Code Non.compliance Payroll· 1100 Manual Rate' (d) x (e) (f) x 1.5

rrRACYHIN<)ti:::- ···]itmplitfid="" !="" aww!="" -1[-="" 5445-j'="" •="" 01f0112010="" 1="" i="" 02f11j2010="" :.="" jc.038.18il="" j="" 70.="" 38="" 1="" ;!="" 499.71="" 1[="" 749.57;="">

. . ..._. _.,... ___: .. J. _ ..1 _ _...... .J : .. _ i _ : _......... ! ._. .!

r RACY HINOTE' ; 8 AWW; 'm ..... ! 5445 . '03/0'12011 , • ll3I'412011 i t 2.,....""[ i 23.<6[ ·'1="" '58.,="" l="" 238.2.="">

n'" -! ... !.!. j . • _. ...1... ... .1

EFF

r >OllER B=::.J 5445 :=':12::1 __

rcos==s...... J3;;;J:5 ... M V"l

r EFF NELSON :!!! =."'" i 5445 03/0112011 i 0311412011 I 2·346.1 23.1 •. 71 158., 238.2.,

.......J:' .J _ ...... L ...... J.. ... .. ... ...... ..·.....L .. .....J

Part 1 Penalty Sub·Totals: ... l ..... L_ ..

• If the employer has failed to provide business records sufficient to enable the Department to determine the employer's payroll, payroll shall be

imputed 10 be the statewide average weekly wage as defined In 5.440.12(2) F .S.multiplied by 1.5. (440.107(7)(e).

** Premium multiplied by statutory faclor of 1.5'

**. Greater of penally under column (g) or $1000. s440.107(d)(1)

TOTAL PENALlY for Parts 1. 2. 3. 4. 5: $7,590.78

... .... .... .,..,.;..' .: ..... ... ••••••. -;..(.:· ....

STATE Or- fLORIDA, DEPARTMENT OF FINANCIAL

DIVISION OF WORKERS' COMPENSATION

EMPLOYER NAME: TRACY B HINOTE DBA TH PLASTERING I STOP·WORK ORDER No.: 11-083-1A

FEIN: 266676014 ISSUANCE DATE: 04128/2011

EMPLOYER ADDRESS: 1441 SOUTH BLVD -

CITY: CHIPLEY STATE: FL" ZIP: 32428

"', .....

2nd AMENDED ORDER OF PENALTY ASSESSMENT

The Division of Workers' Compensation issued a Stop-Work Order against the above-referenced Employer on

03114/2011. The Stop-Work Order included an Order of Penalty Assessment that identified the penalties assessable

under sections 440.10 and 440.107, F.S.

Based upon additional records prOVided, the Division hereby amends the Amended Order of Penalty Assessment issued

on 03/28/2011 and assesses the pen a lty{ s) as specified in the Penalty Worksheet, which is attached hereto and made a

part hereof.

It is ORDERED that the Employer Is hereby assessed a TOTAL PENAL TV of $6,050.69.

The penalty(s) assessed herein supersedes any penalty{s) previously assessed in this case. The Employer shall pay the

TOTAL PENALTY by money order or cashier's check, made payable to the DFS-Workers' Compensation Administration

Trust Fund, or enter into a Payment Agreement Schedule for Periodic Payment of Penalty with the Division of Workers'

Compensation.

If the total pe(lalty assessed in the 2nd Amended Order of Penalty Assessment is less than the total penalty assessed in

the Amended Order of Penalty Assessment issued on 03/28/2011, the Division will mail a refund in the amount of the

difference to the Employer.

Pursuant to Rule 69L-6.028, Florida Administrative Code, if the Division imputes the employer's payroll, the employer shall

have twenty business days after service of the order assessing the penalty to provide business records sufficient for the

Division to determine the employer's payroll for the period requested in the business recordsrequest for the calculation of

the penalty. If sufficient business records are not provided within twenty business days after service afthe order

assessing the penalty, the calculation of the penalty imputing the employer's payroll will remain in effect.

LIEN NOTICE

Pursuant to Section 440.107(11), F.S., the Department may initiate lien proceedings t() collect any penalty due that has not

I . been paid. In addition, the Department may refer any unpaid penalty that Is due to a collection agency for the initiation of

t. proceedings to collect the unpaid penalty.

i;i 1'" Please see the Notice of Rights on the reserve side that pertains to your rights regarding this action.

;" CERTIFICATE OF SERVICE

Pursuant to section 440.107(4), F.S., ROBERT BORDEN

served a true copy of this 2nd Amended Order of Penalty Assessment: ..g;

delivery: DATE: ,y3-1/ TIME: 9 _ -A-«l SERVER: , {), A.-

o By certified mail: DATE: TIME: _ ARTICLE: _

October 2009

EXHIBIT

c

NOTICE OF RIGHTS

You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida

Statutes. .

To obtain review, you must file a written petition requesting review. If you dispute a material fact contained in this

action, you are entitled to a hearing under Sections 12Q.569 and 120.57(1), Florida Statutes, at which you may be

represented by counsel, present evidence and argumert on the issue(s), examine witnesses, submit a proposed

recommended order, and file exceptions to the recommended order of the Administrative Law Judge. If you do not

dispute a material fact contained in this action, you are'entltled to a hearing under section 120.57(2), Florida Statutes,

at which you may be represented by counsel, present documentary evidence, and present a written statement in

opposition to this action.

A petition for a hearing under sections 120.569 and 120.57, Florida Statutes, must conform to Rule 28-106.2015,

Florida Administrative Code. The petition shall contain a) the name, address, and telephone humber, and facsimile

number (if any) of the petitioner; b) the name, address, and telephone number, and facsimile number of the attorney

or qualifiedJepresentative of the petitioner (if any) upon whom service of pleadings and other papers shall be made;

c) a statement requesting an administrative hearing identifying those material facts that are in dispute. If there are

none, the petition must so indicate; d) a statement of whc;r. the petitioner received notice of the agency action; and e)

a statement including the fjle number to the agency acti0 r1 .

You must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your

receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial

Services, 612 Larson Building, 200 East Gaines Street: Tallahassee, Florida 32399-0390. FAILURE TO FILE A

PETITION WITHIN THE TWENTY-ONE (21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO

ADMINISTRATIVE REVIEW OF THE AGENCY ACTION.

Mediation under section 120.573, Florida Statutes, is not available.

.' ISSUING AGENCY NAME AND ADDRESS

{. Division of Workers' Compensation, aureau of Compliance: 103- A Lewis Sf. Fort Walton Beach. Florida 32547

t Attn: Robert Borden I Telephone: [phone]

if. iI"

I

r

.

'::: ...

January 3, 2006

Notice of Rights updated 4/1512009

-- ---- ---

Page 1 of 2

State of Florida, Department of Financial Services

Division of Workers' Compensation, Bureau of Compliance

2nd Amended Order Of Penalty Assessment

BUSINESS NAME: TRACY B HINOTE DBA TH PLASTERING DWC Case No. 11-083-1A

TOTAL PENALTY: $6,050.69

Part 1. Penalty for failure to obtain coverage that meets the requirements of Chapter 440, F .S. and the Insurance Code.

Employee Name Calculation Class 00 Period of Gross Column (c) Approved 00 Premium m Penalty··

Methodology Code Non-Compliance Payroll * 1100 Manual Rate. (d) x (e) (f) x 1.5

rrRACY HINOTE I I .) Imputed 5445 03/16/2008 12/31/2008! 4,825.81 • 48.26 9.98 481.621 I 722.43:

........... : .. ..........•.• .J.... , . .. .1... .

5301

_ 71_:1 0

__ 5445 _m009 ...

v 06

r _::: __ 5445 ::::1 ... J_ '. 1 .. :0'1

__ Ji;;:: I 5445 .. :'J

CV HINOTE Ie) 5445 08/03/2010 11/15/2010 {",500.0. 115.00 6.80 782 . ., 1,173.00

l .m ,m,.w .. __ ." .___ N._'__ ""'..;; ,. Records __ w ""c_,Y A • /. cc_ __ ._ ; 'm_' _N' __

UNKNOWN PAYEE =ed 5445 10/04/2010112/31/2010 ! 19,755.32i 197.55 6.80 1,343.36! 2,015.04;

! 'M •• . • ••• ••••••• • •••••••••• .J. .. ..••. w_..". __ .... _ .... ... _._- ._ .. -_ ..... . - .. --J ..... _ ...... .. _ ....

_ ;;;J_ __ 51 :L..:J

57 748

UNKNOWN PAyEE 5445 • 0:':0" : ommo"",o:1"°1 n l 1

* If the employer has failed to provide business records sufficient to enable the Department to determine the employer's payroll, payroll shall be

imputed to be the statewide average weekly wage as defined in s.440.12(2) F.S .. multiplied by 1..5, (440.107(7)(e» ..

** Premium multiplied by statutory factor of 1.5

*** Greater of penalty under column (g) or $1000. s440 .. 107(d)(1)

Page 2 of2

State of Florida, Department of Financial Services

Division of Workers' Compensation, Bureau of Compliance

2nd Amended Order Of Penalty Assessment

BUSINESS NAME: TRACY B HINOTE DBA TH PLASTERING DWC Case No. 11-083-1A

TOTAL PENALTY: $6,050.69

Part 1. Penalty for failure to obtain coverage that meets the requirements of Chapter 440, F.S. and the Insurance Code.

, (a) (b) (c) (d) (e) (f) (g)

Employee Name Calculation Class Period of Gross i Column (c) Approved Premium Penalty-

Methodology Code Non-Compliance Payroll * < 1100="" manual="" rate="" (d)="" x="" (e)="" (f)="" x="">

rrRACY HINOTE It; I 5445 03/01/2011 03/14/2011! 400.00; 4.0C 6.77' 27.081 40.62!

I. Records . . . . . . . .. . .. . ..! . . . . .. . " .. , '.' .. •

J'i OYOW011

C E

e :: =-- J 61

r EFF NELSON I Imp"ted OY0112011 OY1412011 ·uoool .• 41 67 1 I !

'.' .... .. . ....M. M OM n ,. .J Ie Records . M' M 3 <><0. "="" ....="" j="" m.'="" .•••="" ."="" ..="" m="" ....="" ..•="" :="" ..•="" ""="" .....="" ...="" •="" .j="" .....="" ".w.....="" •="" ....="" ,="" .......="">

Part 1 Penalty Sub-Totals: *** I . I 6,050.691

* If the employer has failed to provide business records sufficient to enable the Department to determine the employer's payroll, payroll shall be

imputed to be the statewide average weekly wage as defined in s.440.12(2) F.S.multiplied by 1.5, (440.107(7)(e».

** Premium multiplied by statutory factor of 1.5

*** Greater of penalty under column (g) or $1000. s440.1 07(d)(1)

TOTAL PENALTY for Parts 1. 2. 3. 4. 5: $6.050.69

April 24, 2011 1 i-

1 ( ,'. /.

DFS Agency Clerk

Julie Jones, CP, FRP

Florida Department of Financial Services

200 E. Gaines Street

Tallahassee, FL 32399-0390

In Re: DWC Case No. 11-083-1A

Dear Ms. Jones:

Please allow this correspondence to serve as my written request for an Administrative

Hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes. Upon receiving

the Amended Order of Penalty Assessment and the Penalty Worksheet (on April 6, 2011,

at 12:40 P.M.) and reviewing it, I found several claims presented that were incorrect.

Portions of the records that were presented to Mr. Robert Borden were apparently

misinterpreted and others appeared to be incomplete. The facts from the Penalty

Worksheet that I am disputing in this case are as follows:

1) CLAIM: It is stated that during the time periods of 3/16/2008-6/30/2009 I made

$6,250.81 in labor (broken down in the amounts of$4,825.81 , $712.50, $712.50).

During the above-stated time period, I earned income from a manufacturing business

which did not require that I carry Workman's Compensation on myself.

2) CLAIM: During the time period of 6/21/2010-2/28/2011, there is $16,650 (broken

down in the amounts of$I,850, $11,500 and $3,300) that is stated that I earned in labor

from construction.

During the above-stated time period, withdrawals from my personal account totaling

$16,650 were, in fact, savings that were used as start-up funding for my restaurant.

These monies were obtained through a loan and revenue from the restaurant.

3) CLAIM: During the time period of 10/04/2010-2/28/2011, $30,809 (broken down

into the amounts of$19,755.32 and $11,053.68) it is stated that I earned this amount in

labor.

These were clearly deposits made into our restaurant account by customers through credit

card transactions. The documents showing that the deposits made during this time were

previously presented to Mr. Robert Borden.

FILED

n-rirnant &JVtII'U ... IV.... of Financial . Services

EXHIBIT

IJ8tei

I .. >-l)

4) CLAIM: During the time period of 01/01/2010-03/14/2011, it is stated that I earned

$9,384.24 in labor.

These facts are classified as "imputed" on the Penalty Worksheet (page 2) and I am

unsure as to where these figures actually came from. My income during that time to the

present is through revenue from my restaurant only.

5) CLAIM: It is stated that during the time period of 03/01/2011-03/14/2011, I paid

$7,038.18 in labor costs to Jeff Miller, Jacob Rogers and Jeff Nelson, each receiving

$2,2346.06.

I have presented signed and notarized affidavits to Mr. Robert Borden stating that this

labor cost was actually the responsibility of Jacob Rogers as these gentlemen were

employed by him.

I request the opportunity to present all of the facts and infonnation at an administrative

hearing. Please do nothesitate to contact me if you have questions or need further

information.

Sincerely,

Tracy B. Hinote

1441 S. Boulevard

Chipley, FL 32428

Cell Phone: [phone]

Business Phone: [phone]

No Fax

STATl . FINANC·IA...aRVIOES

C6Mpl;.NS-ATlON

11 .. QOO4A

06),28/2011

1441 .J;JLVO

CITYtCK!I.PbEY stAtE: FL

3rd . -"-". " ,. , '. .". P·ENALTY ASSE'SSMENT - . -, _. ." ,. . -

Iq.l:l RIy.i$ic)h GptT1pensation issued: a stopANork " ..

03/14/201t, .. iri'cluded

undersecttons 44J).1'9 440.107.

B,aseClupo" Pf9Viqe,d, amendS the.Amended

assesses the penalty(s)a$ the Penalty V\\lbrksheetjwhjchis att,aphed

If a TOTAL PENALTY

assessed herein In this case, . The' the

.. qy.money

Try§itFl,!od. QJ enterinlo a Payment Agreement Schedu!efpr f!?eriodic F'ayment:ofPenalty'wlttttne

'. ,

I;f ih the,3ri:l in

03/28/2011, rncaJIi;Jefunqll1 the. amount of the

difference ta the EmplPYeri

CO-de, If tHe Dillislon p.l;Iytpll.

ofIM the r:'e'oalty.

payroll for tHe. q:USines$recQr:ds 'qf

b,LJ.$!IiI;$$:-gay§\\afl'et oUhe order

assessing tnj:t imp.uting Will effect

LIEN NOTJO'E

Pursuant n()t

Inadditio.n, theoepartnteht may to acollecti.on (;)f

. . .

, .. .

Notice. of Rights pe.rtalns toyourtigllts

.. CI:RTlF1CATEOF SI:RVtCE

Pursuant to sectfon 440,107(4). ROBI=RTaOROEN

."......".-,,---,,------------"'------,,---,,----------1

served,a 3rtlArnend¢t/Of.der!;if penalWAssessmeni:

Day. OA:l"lti TIME: __ --;. S.ERYEa.: ........... _

0'8y oer;ti[l$dmail: PATE: tIME.: _ ARTICt.E:: __ --_-_-

EXHIBIT

l:: -

N. .... OTICS , ," .. '.-.-", OF ,- '. '-,-.' ...

You have a right to administrative re"iew'of this action bytlie '1 gO.569 8nd120.57, Plotlda

1{'lIOU diSpute.aml;lteiial facfcQi"itainedin thisaetibn,

you foa underSeclions 12Ct5t$g,anq 1 :lOi57(l),Flprida Whi.qh YoU

and. afg;utileht'ori·tMissue.!s.},

of ttieAdfftiHJSltatfve IfY0tl;

in ,Yo,Y F,lfe; •. Flotida<5tafutas,at may="" be="" repre$ellteg="">

counsel, pteSent"a writtenslatement in oppositiontothisacuon.

,h¢l:'!cing 120,.p,69a:rl'd120 .,5'1t: Florida statutes, 'must;oonfonrrto Florida

¢Q(J;l. pefiJIQJ1 fors h;el:iriI19, YQ!;l'illust;$enttln eitfteraddmpleted

{atiachedlwith ilame:,sddress,.and

ta1ephbneiiiilmber-, and'facsil1l'i1e ryumber(ifaOY) tlult1be.r(shd

n.uiTi1ietpfthe attomE!yor qualified representative ot '. ". -'. . (ifa"I1Y} lJPfilD.

requesting ahadminis . .., h'ea,rlng that at¢ in

di$pute. thE! llidJCEile; d} a sfatemenfofWhel1 the ryotlqe

e) a statemElnf iric!Udfngtlifi ffle; the lftnere are no facts· in dispute, the petition must

So indIcate.

thepetltib.tCf6r heating so that. it isreGelved by wltllin M'E:!!'Ity-pne{21}.cJaY$.ofyour

of this·aSenGyaction .. The petltron. mustbe.fiIedwit!1' Julie,4qlle$,. Finanbilal Services,

612 Latson 8'iJilding, 2'00 SasfGainesStreet, Tallahassee; .

FAILURE TO .. <;>'NE· (21) PAY$ GONSTITUTSSA WAIVER OF YOUR RIGHT

TO ADMINJSTRATIVEREVIEWOF TH,1$ A(;ENOY ACTIQN.

Mel:iil3tion unqefSEl¢tiQn 12QA3.7q, Florida S,tatufes, is not available;

ISSUING A'GENCV NAME AN 11 ADDRESS

OMsiono.f Workers' ---.,.---.,. -_-

Attn: ---.,. -,- __ '. TelephOne: ----

oeloher 2009

t,lj:u:la.tetl· 6I.ag(g(J10

Page'1of2

State. of Floridal,[je .. of Fil)ancial:.Setv.ices

Division Bureau of Com,pliance

BQ$(NI;SS:N,AME:iRACYB Ii'NOTr:: PLASTERING DWC Case No... 14,;OfJa,,1A

.. . .. ......-=JJ

ct1:JpIQy.!!e·Name .. ' ." calculation (;I); 'fbI . '. Gross I'. (d). '1'" ..(e). I'" PremIum; '. . Penally·· '(g)

M$tho,!:lOlogyl Npnt?omplJance ./: 11'110, • :,Manuql Rate (dl:x(e) , {fljx1;S

25.191'"

i.Records

0<4. mmmod';'_tj-l="" 1'$\\="" ""\\="">

I 0<4" r--'="" 7jj"-="" .•="">

. --'QUOO nmmGO! 1425j J

r -1-'mJQ -OI,·eso.PI ,u"jnt "'51 '""pO

'r:ilI'WH'- 115iOOI 6;80,1····

, . . ...•. . . .

rVH'-ie: I 5<4. t-="" ..="" _"="" 1'-"·1="" onl="">

. . .D3n_" [ 0;771 27001'.. • ... 2

r"""'ClE!! . .... 'lI3IIl1l2<1$' ,-"="" 1-="" 40.""'!="" '1="" .'77j="" "'1="">

•. enable;,fhe,DepartJnent,to, payroll shall:be

12(2)F,S;h:\\ulllplied by'L5, (44

by.statUlbtY'f8ctOrOf'1;5

....

'"

)1

Pagec2 of2

State

DiVisiOn ofWotkers'Cornf'ens-atiOn, Btireauof'CompUaltce

Penalty Worksheet

BUSINESS l\\lAIYJ.E: TIY\\PYB HINOTE OSA TH PLASTERING DWC,'Case No. 11-083",1A

r

(a) (b) f.dl .., f'" (f) (9)

Employee; Nilme ;Mathoddlogy' OillculaUon Class Code Periol:l(if Gro$$ Cdl .•. 1100" um .... '. '. Mamial'Rate ;APpro" .. ed PremiUm (d) J(; (Eil Pel"l8!!'Y" (t}x1.5

PACO'B:FU5GERS: . 5:445 03101120.11 r03/14120B 400.00 4,00 6.77 27.08 40:62

()AWW

NEtOOK 400

r !:. - r "-I ' 1 017! 4M2

rpR>S "_0" OtQSr&11 ......... . ·'0"

0'12112011 rl aDOl 20.311 ·00.,

Part1 l1;7.'45,iOI '2,618.51

* to payroil,·payrClJI·.st\\aU·be

li'J,lplo\\ll!lilto be;the.,sfafew1deaverage.weeld, in sA4tl.12(2) by 1)5. (#0.101(7)(e),).

.... Pf,er;rliUhl.l'l1liltipfied;byrstcltlltel)'faotor.of 1.5

*** Gtealerof orStOOD.s440.1 07{d)(1:)

TOTAL PENALTY for Parts 1, 2, 3,4.5:$2.61:8.&7

f.' },

Sheila Sexton

From: [e-mail]

Sent: Wednesday, June 29,20112:16 PM

To: Sheila Sexton

Subject: FedEx Shipment 794919508217 Delivered

This tracking update has been requested by:

Company Name: FL DEPT OF FINANCIAL SERVICES

Name: Sheila Sexton

E-mail: [e-mail]

Our records indicate that the following shipment has been delivered:

Reference: 4343 30 10 000 B2

Ship (p/U) date: Jun 28, 2011

Deli very date: Jun 29, 2011 1:09 PM

Sign for by: Signature not required

Delivery location: LYNN HAVEN, FL

Delivered to: Residence

Service type: FedEx Standard Overnight

Packaging type: FedEx Envelope

Number of pieces: 1

Weight: 0.50 lb.

Special handling/Services: Deliver Weekday

Residential Delivery

Tracking number: 794919508217

Shipper Information Recipient Information

Sheila Sexton Tracy B. Hinote

FL DEPT OF FINANCIAL SERVICES 1441 SOUTH BLVD

200 E Gaines St CHIPLEY

Tallahassee FL

FL US

US 32428

32399

Please do not respond to this message. This email was sent from an unattended

mailbox. This report was generated at approximately 1:15 PM CDT

on 06/29/2011.

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-----Original Message-----

From: Rondia [mailto:[e-mail]]

Sent: Wednesday, November 23, 2011 11:55 AM

To: Julie Jones

Subject: Tracy Hinote

We are no longer in need of a hearing and are in agreement with the final audit

and agree to pay the penalty amount of 2628.57 as stated on the penalty worksheet

received on 6/28/11. Thank you, Tracy Hinote.

EXHIBIT