13-000865 Amerisure Mutual Insurance Company vs. Department Of Financial Services, Division Of Workers&Apos; Compensation
 Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Tuesday, May 12, 2015.


View Dockets  
Summary: Petitioner entitled to reinstatement of credits toward future assessments due to workers' compensation trust funds. Two agency statements meet the definition of rule pursuant to section 120.52(16), Florida Statutes.

1FILED

2FEB 13 2014

5....

6...,

7Docketed by CHIEF JEFF FINA,,,"CIAL ATWATER OFFICER GJ

16STATE OF FLORIDA " -

20-J I

22AMERISURE MUTUAL INSURANCE -0 ::c m

28COMPANY, ­ .. o

32Petitioner.

33v. DOAH Case No. 13-0865

38DFS Case No. 1304l1-12-WC

42STATE OF FLORIDA DEPARTMENT

46OF FINANCIAL SERVICES, DIVISION

50OF WORKERS' COMPENSATION,

53Respondent

54-------------_./

55FINAL ORDER

57On November 15, 2013, a Recommended Order was issued by the Division of

70Administrative Hearings in the above-captioned matter; a copy is attached as Exhibit A. On

84December 2,2013, exceptions to the Recommended Order were filed by the Respondent

97Division of Workers' Compensation ("the Division"). No exceptions were filed by Petitioner

111Amerisure Mutual Insurance Company ("Amerisure"). In order to take final agency action in

126this matter, the Department has reviewed the entire evidentiary record as well as the

140Recommended Order and exceptions. Based on this review, the Department concludes as

152follows:

153This case hinges on a legal question of first impression in Florida: whether Section

167215.26, Florida Statutes, authorizes the Chief Financial Officer to approve a "refund" from the

181State Treasury of more money than a workers' compensation carrier was ever obligated to pay as

197its annual assessments to support the administration of Chapter 440, Florida Statutes. This

210questionoccurs at the intersection of two independent duties belonging to the Chief Financial

223Officer under Florida law. The answer to the question requires that these duties be considered in

239pari materia to hannoniously implement the law.

246The Effect of the Division's Non-Assessment of Amerisure in 2009

256First, as the statutory head of the Department of Financial Services, the Chief Financial

270Officer is obligated to implement and administer the provisions of Chapter 440, Florida Statutes,

284that create the State's complex programs for the protection of injured workers. In particular, in

299the context of this case, Section 440.51, Florida Statutes, requires the Chief Financial Officer,

313acting through the Division, to implement an equitable system to fund the administration of

327Chapter 440 by means of prorated annual assessments of the workers' compensation insurance

340carriers and self-insurance funds that provide the State-mandated coverage for Florida's workers.

352Separate annual assessments are levied by the Division for the benefit of the Workers

366Compensation Administration Trust Fund ("the WCATF") established by Section 440.50,

378Florida Statutes, see Section 440.51(4), Fla. Stat.; and for the benefit of the Special Disability

393Trust Fund ("the SDTF") established by Section 440.49(9)(a), Florida Statutes, see Section

407440.49(9)(b), Fla. Stat. The Recommended Order's findings of fact as to the assessment system

421are found at Exhibit A, pp. 4-8, para. 2-13.

430Second, in his constitutional capacity as the State's chief fiscal officer, the Chief

443Financial Officer is obligated to administer the repayment by the State of funds paid into the

459State Treasury through error. Under Section 215.26(1), Florida Statutes, the Chief Financial

471Officer is authorized to

475[r]efund to the person who paid same, or his or her heirs, personal representatives, or

490assigns, any moneys paid into the State Treasury which constitute:

500(a) An overpayment of any tax, license, or account due;

510(b) A payment where no tax, license, or account is due; and

522(c) Any payment made into the State Treasury in error.

532By rule, the Chief Financial Officer has delegated the decision whether to authorize a requested

547refund to the state entity "vested by law with the responsibility for the collection of any tax,

564license, or account due." In this case, the entity with the responsibility to make the

579determination of whether a refund was due was the Division.

589In the Notice of Intent to deny Amerisure's refund claim, the Division of Workers'

603Compensation addressed the issue of whether Amerisure was entitled to a refund as follows:

617Amerisure seeks payment of monies from the WCATF and SDTF based upon negative

630net premiums for calendar year 2009. Amerisure had no assessment base in calendar year

6442009, paid no assessments into the WCATF or SDTF for calendar year 2009, and as a

660result is not entitled to a refund of any monies fTom the State Treasmy.

674The Recommended Order basically ignored this simple truth that is the crux of this case. There

690is no dispute that Amerisme did not, in fact, pay any assessments for calendar year 2009 that

707could be refunded to it. Nevertheless, the Recommended Order erroneously concludes that the

720Department was not only obligated to relieve Amerisure from having to pay 2009 assessments,

734but then goes on to create a state tax "subsidy" for Amerisure, unauthorized by statute, in the

751form of cash equivalent"credits" towards future assessments- merely because Amerisure did

763not have a profitable year in 2009. In so concluding, the Recommended Order departs from the

779essential requirements oflaw. It includes numerous conclusions oflaw that must therefore be

791rejected for the reasons stated below.

797In effect, the Recommended Order would have the Chief Financial Officer convert what

810constitutes a statutory tax on workers' compensation policies written in Florida into a non-

824statutory subsidy program for unprofitable insurance companies. Section 440.51, Florida

834Statutes, requires only that insurance entities profiting from the highly-regulated Florida market

846for workers' compensation coverage make a prorated contribution to cover the administrative

858costs attendant to supervision of that marketplace by the Department. This contribution takes

871the form of quarterly assessments comprising a specified but small percentage of the net

885premiums written or collected by each entity during the quarter. Each of these assessments, paid

900to the Division, is recognized and uniformly treated as a tax. See Fla. Sheriffs

914Workers' Compensation Fund v. Dept. of Financial Services, 40 So.2d 792, (Fla. 1 st DCA 2010);

930cert. denied, 48 So.2d 836 (Fla. 2010); Fla. Dept. of Financial Services v. RiscOIp Ins. Co., 871

947So. 2d 261 (Fla. 1 st DCA 2004); Section 440.51, Fla. Stat. (paid insurance assessments

962deductible from "any other tax" levied on insurance products).

971The assessment statute makes no provision at all, however, for anything resembling a

984subsidy that must be paid by the Department to a carrier, calculated as a percentage of the "net

1002negative premiums" lost by the carrier during an entire assessment year in which it is

1017unprofitable. Notwithstanding this, the Recommended Order simply assumes that there was

1028independent Department authority to create just such a subsidy for Amerisure in 2009 merely by

1043issuing quarterly assessment forms containing a "debit! credit" calculation derived by

1054multiplying "net negative" premium experience for a quarter by the same assessment percentage

1067used to calculate the tax due from profitable carriers. See Exhibit A, p. 13-14; 18-20, para. 34;

108447-50.

1085Nothing in Florida Statutes evinces a legislative intent to allow the Department

1097unlimited discretion to grant tax "credits" to a workers' compensation carrier in this manner. It

1112is long-settled that no administrative agency has the authority to "say what the law is." See

1128llim.t of Insurance v. Southeast Volusia Hospital Dist., 438 So.2d 815 (Fla. 1983); Coca-Cola

1142Co., Food Division v. State, Department of Citrus, 406 So.2d 1079 (Fla. 1981), appeal dismissed

1157..

1158sub nom. Kraft, Inc. v. Florida Department of Citrus, 456 U.S. 1002, 102 S.Ct. 2288, 73 L.Ed.2d

11751297 (1982). An administrative agency is a creature of statute and can only do what it is

1192authorized to do by the Legislature. See Florida Dep't onns. and Treasurer v. Bankers Ins.

1207Co.,694 So.2d 70 (Fla. 1st DCA 1997); accord, Ocampo v. Department of Health, 806 So.2d

1223633, Fla. 1 st DCA 2002). An agency may adopt only rules that implement or interpret the specific

1241powers and duties granted by the enabling statute. See Section 120.536 (1), Florida Statutes. The

1256Department neither has nor claims any statutory authority to devise and implement state tax

1270subsidies for carriers based on supposed "excess credits." Yet the Recommended Order

1282implicitly accepts the legal premise that the Department has the power via non-rule policy to

1297unilaterally pledge the credit of the state for the benefit of a private corporation. This conclusion

1313is a fundamental error of law of constitutional proportions that pervades the entire

1326Recommended Order. See Art. VII, Section 10, Fla. Const.

1335The Recommended Order attaches undue significance to the fact that for the 2009

1348assessment year only, Division employees, acting without statutory authority and in derogation

1360of Section 120.55(1)(a)4, Flolida Statutes, supplied Amerisure with a quarterly assessment form

1372that was never promulgated as a rule and that purported to identify "credits" to which the carrier

1389was entitled. Thus, the AU in her Recommended Order makes findings of fact that are

1404technically accurate, but then draws legally erroneous legal conclusions from those facts. See

1417Exhibit A, pp.13-24. These legal conclusions, however, ignore that there is neither statutory nor

1431constitutional authority for the Division to create free-standing tax credits redeemable from the

1444State Treasury for the benefit of a private insurance carrier that paid nothing in assessments to

1460the Division. Even if it is assumed for the purposes of argument that Division personnel had

1476deliberately tried to create a state tax subsidy program for the carriers such as AmeIisure (which

1492is manifestly not the case here), such an attempt would be void ab initio. The Department has no

1510statutory authority to do so, and to fashion such a "welfare" program for insurers without

1525statutory authority would be an unconstitutional uSUrpation of the power of the legislative

1538branch. See, e.g. Chiles v. Children A, B,C, D, and E, 589 So.2d 260 (Fla. 1991).

1555Section 624.5094, Florida Statutes, was first enacted in 1997 and has not been amended

1569since. It represents a clear expression of legislative intent. Entitled "Casualty insurance

1581premiums," the statute provides, in its entirety:

1588Notwithstanding any statutory provision to the contrary, for the purposes of calculating

1600the annual assessments for the Special Disability Trust Fund under s. 440.49 and

1613expenses of administration under s. 440.51, any amount paid or credited as dividends or

1627premium refunds in the same calendar year by the insurer to its policyholders must be

1642deducted from "net premium," "net premiums written," "direct premium," and "net

1653premium collected" for the calendar year. Such offset for dividends or premium refunds

1666paid or credited for the currentyear must be applied against the current year's net

1680premium for that year's assessment regardless of the policy year for which the dividends

1694or premium refunds are being reimbursed. (Emphasis added.)

1702Read together with Sections 440.49-.51, Florida Statutes, Section 624.5094 makes clear

1713that, forannual assessment purposes, all statutory deductions from a carrier's "net" premium

1725base must be taken in the assessment year in which they occur "regardless of the policy year" to

1743which the deductions relate. The Department agrees with the conclusion reached in the

1756Recommended Order on this issue. See Exhibit A, p. 41, para. 118. This principle is simple to

1773apply for assessment purposes. Its application is triggered by actual carrier expenditures for

1786dividends and returned premiums which avoids complicated and unnecessary retroactive

1796accounting calculations and attributions. If a carrier pays minimal dividends and returns no

1809premiums to its insured, its assessment base for that year will not be materially altered. If, by

1826contrast, a carrier must return more premiums than remain in force during an assessment year, it

1842is entirely foreseeable that a carrier, as did Amerisure in 2009, will have no positive cash flow

1859from which an annual assessment can be paid. The only logical resolution of this situation is for

1876the regulator, as the statute clearly authorizes, to excuse the carrier from its obligation to pay an

1893assessment for the assessment year in question. That is exactly what happened here. The reason

1908it happened was not based upon so-called "credits" issued by the Department, however. The

1922assessment was not imposed because Amerisure had no "net premium" for 2009 that could be

1937assessed.

1938In this context, it is important to recognize, as the AU failed to do, that annual

1954assessments are, indeed, annual and are the product of a carrier's premium experience for that

1969year, and that year only. The AU fails to accord any meaning to the statutory phrase "against the

1987current year's net premium for that year's assessment," language that clearly contemplates that

2000an assessmentmust be paid for the current year before a carrier may claim a refund. No action

2017by the Department "eliminates" a carrier's "credits" against its assessment liability for dividends

2030paid and premiums returned when its annual assessment is finalized at zero. Section 624.5094,

2044Florida Statutes, by operation of law, forecloses a carrier's ability to apply its "excess credits"­

2060that is, the carrier's having made more expenditures for dividends and returnpremium than were

2074needed to offset the carrier's entire assessment obligations for that year-to reduce a future

2088year's tax liability. This statute simply does not grant the Department independent, extra­

2101statutory discretion to devise and declare additional deductions from a carrier's current or future

2115annual assessment bases, and thereby reduce the amount of tax it owes to the State. Nothing in

2132the Administrative Procedure Act grants a state agency the right to contravene statutes. The

2146Recommended Order ignores this basic principle of Florida law in a rush to countermand the

2161Department's "elimination" of non-existent, non-statutory tax "credits" claimed by Amerisure.

2171But, as the Supreme Court of Florida held long ago in White v. Crandon, 116 Fla. 162, 156 So.

2190303,305 (1934): "The authority of public officers to proceed in a particular way or only upon

2207specific conditions implies a duty not to proceed in any manner other than that which is

2223authorized by law."

2226The record in this case is clear: Amerisure paid no WCA TF or SDTF assessments for

22422009, the year when it showed no net positive premium capable of supporting any assessment.

2257Amerisure admitted, and the Recommended Order found, that it had experienced fallout from the

2271stalled construction industry during the recent recession. Many of Amerisure's insureds became

2283entitled to the return of premiums previously paid to Amerisure because, in the absence of

2298construction activity, covered risks did not materialize. See Exhibit A, at pp.! 0-11, para.27 -31.

2313The record shows that Amerisure's net premium downturn began in 3Q 2008, causing a

2327reduction in .A.merisure's 2008 assessments. Because Amerisure had already paid its 1Q and 2Q

23412008 estimated assessments, its total 2008 assessment payments exceeded the revised final

2353assessments for that year, resulting in Department recognition of a $99,119.66 overpayment to

2367the SnTF by Amerisure and a $3,178.47 overpayment to the WCATF. See Exhibit A, at pp. 12,

238518, para. 33, 45. Amerisure could have elected to obtain a cash refund of its 2008 overpayment,

2402but elected instead to apply the balance to reduce a future assessment liability, which it

2417ultimately did, by applying its 2008 overpayment to its 2010 assessment.

2428Amerisure, however, had no assessment liability for 2009 against which Amerisure's

2439overpayment "credit balance" could apply, and no assessment was levied. Put another way,

2452Amerisure had no tax obligation for calendar 2009 that could be offset, in part, by means of its

2470overpayment balance. The record shows that the balance was applied and extinguished the next

2484time Amerisure did have a tax liability to the Department: its calendar 2010 assessments. See

2499Exhibit A, at pp.15, 20, para. 35-40; 51-55. Thus, Amerisure's actual 2008 tax overpayment was

2514refunded in 2010 in the fonn of cash equivalent credits redeemable against its pending

2528assessment obligations for 2010. This refund transaction falls squarely within the ambit of

2541Section 215.26, Florida Statutes.

2545The Division's Exceptions 3 and 4 correctly suggest that the Recommended Order

2557attempts to drag into the ambit of Section 215.26, a matter that involves no actual 2009

2573overpayment to the Division by Amerisure or, indeed, any other actual overpayment to the State

2588Treasury. Implicit is a significant threshold issue: if no monies are paid into the State Treasury

2604in error, then there is nothing to "refund" from the State Treasury. The CFO's authority under

2620Section 215.26(1) expressly extends only to the return of actual "overpayments" to the State

2634Treasury, including "any payment made into the State Treasury in error." The remedy created

2648by the Recommended Order is in no a "refund," but rather is nothing more than a

2664constitutionally impermissible "administrative appropriation" to Amerisure: a non-statutory tax

2673deduction worth $296,337. The RecommendedOrder departed from the essential requirements

2684of law by failing to recommend denial of any "subsidy" demands brought by Amerisure under

2699the purported authority of Section 215.26, Florida Statutes.

2707Finally, the Recommended Order contains detailed fmdings of fact that have support in

2720the record, but lead to erroneous conclusions of law that support the erroneous ultimate

2734conclusion that the Department must pay Amerisure a subsidy under the guise of a purported

"2749credit." In her Finding of Fact # 90 the ALJ states: "The elimination of "'excess credits" at the

2767end of the year is currently the policy of the Division of Workers' Compensation and is how its

2785employees process quarterly reports and assessment payments." The Department does not

2796dispute that it is its policy not to grant cash equivalent "credits," however characterized, to any

2812insurance carrier unless that carrier has overpaid its assessment for that year. However, the

2826legal conclusions that flow from the ALI's mischaracterization of the Division's failure to

"2839refund" Amerisure cannot be accepted by the Department. The Recommended Order plainly

2851misidentifies Amerisure's 2009 negative premium experience, which led to the company's not

2863having to pay any assessments for that year, as the enforceable basis for supposed "credits" to

2879Amerisure, as if Florida law allowed the Division to give a Amerisure a reward in the form of a

2898subsidy merely because it had an unprofitable 2009. The ALI's determination in tlus regard is a

2914conclusion oflaw, rather than a finding of fact.

2922Accordingly, the ALJ's Conclusions of Law Nos. 112-113, 115,117-122, 124-126 and

2934129-135 are rejected to the extent tbeydo not conform to the analysis above. That rejected

2949verbiage is replaced by the preceding analysis and the statement: "Amerisure seeks payment of

2963monies from the WCATF and SDTF based upon negative net premiums for calendar year 2009.

2978Amerisure had no assessment base in calendar year 2009, paid no assessments into the WCATF

2993or SDTF for calendar year 2009, and as a result is not entitled to a refund of any monies from the

3014State Treasury." This conclusion of law and the supporting preceding analysis is more reasonable

3028than those conclusions oflaw that it replaces.

3035The Purported Non-Rule Policy

3039Turning to the key issue of whether a supposed Department non-rule policy ever deprived

3053Amerisure of a property right to cash equivalent "excess credits," the confusing rationale

3066expressed in the Recommended Order fails to comport with the dictates of the Administrative

3080Procedure Act. Under Section 120.56(4)(d), Florida Statutes, when an agency is found to have

3094established non-rule policies, the agency must immediately desist fi-om utilization ofthe policies

3106in question. An unpromulgated rule is an invalid exercise of delegated legislative authority and is

3121therefore unenforceable. See Department of Revenue v. Vanjaria Enterprises, Inc., 675 So.2d

3133252 (Fla 5 th DCA 1996); Dept. of Natural Resources v. Wingfield Dev. Co.,581 So.2d 193 (Fla.

31511 st DCA 1991). Yet, as Division Exception 7 correctly points out, the Recommended Order in

3167this case would require the Department to unilaterally create a new policy conferring cash

3181equivalent tax "credits" as a type of subsidy for Amerisure (to the detriment of all other insurers,

3198as their assessment base would rise) which is, itself, the very definition of prohibited non-rule

3213policy. Thus, the Recommended Order, if accepted, would require the Department to implement

3226an obvious non-rule policy. See Exhibit A, at p. 59. Ironically, it is actually the AU who is

3244attempting to implement a policy (the proposed subsidy credits) without the benefit of a rule.

3259Consequently, the Recommended Order violates Section 120.57(1)(e), Florida Statutes, which

3269prohibits an administrative law judge, as well as an agency, from requiring the Department to

3284base a specific action "that determines the substantial interests of a party on an unadopted rule."

3300The Recommended Order also misses a fundamental point. Chapter 440, Florida

3311Statutes, requires the Division to calculate how much a carrier owes the State in its annual

3327assessments. There is not a scintilla of statutory authority for the Division to calculate "credits"

3342for the purpose of determining how much the State owes as a subsidy to a carrier like Amerisure

3360that cannot be assessed because of the plain meaning of Section 624.5094, Florida Statutes.

3374Simply put, an insurer that has not paid an assessment is not entitled to a refund of a portion of

3394that "non-assessment" just because it has experienced a "negative net premium" for an entire

3408assessment year.

3410The Recommended Order simply refuses to acknowledge that the "credit" calculations

3421confusedly presented on Amerisure's quarterly assessment forms were only for the purpose of

3434determining how much Amerisure's assessments would be and notfor the purpose of calculating

3447an unauthorized subsidy to the company. As Division Exception I correctly points out, when it

3462was detennined that the assessments of Amerisure would be zero, the calculations of potential

"3476credits" became "excess" only because of the simple mathematical fact that Amerisure's

3488assessments could not be further reduced "below zero." Metaphorical "credits" can be applied

3501against potential assessment "liabilities" only until the zero assessment level isreached;

3512subtraction from zero yields zero. What the Recommended Order brands as an illicit non-rule

3526policy of "eliminating" the "excess credits" ignores that the supposed "policy" is merely the

3540direct function of arithmetic in conformance with the plain meaning of the applicable statutes.

3554Division personnellmew perfectly well that for purposes of assessment year 2009, the

3566Department had no legal authority to do anything beyond acknowledging that Amerisure owed

3579zero for 2009 assessments. See, e.g, Exhibit A, pp. 35-36, para. 103. It is not proof of

"3596elimination" that 2009 calculations were not found on 20 I0 assessment forms because each

3610assessment year is an independent "tax year" and 2009 calculations were irrelevant to the 2010

3625assessment determination under Section 624.5094, Florida Statutes. Ultimately, the failure of the

3637Division to monetize the supposed "excess credits" was not an illicit non-rule policy, but rather a

3653correct application of the plain meaning of Section 624.5094, Florida Statutes.

3664Contrary to the Recommended Order's legal conclusions, the timing of Amerisure's

3675petition to "refund" supposed "excess credits" in no way prejudiced Amerisure, because there

3688could not lawfully have been, and therefore never were, any non-statutory, ALJ-created "excess

3701credits" to be refunded. The size of a carrier's assessment base, and consequently, the size of its

3718assessment, is determined exclusively by reference to Section 624.5094, Florida Statutes, which

3730makes no provision for the issuance of "credits" applicable to reduce the cost of an assessment.

3746The Recommended Order asserts that nothing in Section 624.5094 "mandates that credits be

3759eliminated under any circumstances." Exhibit A, at p. 42. This statement is technically correct,

3773but only because nothing in that statute mandates or allows the existence of non-statutory

"3787credits" of any kind as deductions from a carrier's future assessments in the first place.

3802Ultimately, the Recommended Order simply fails to apply the cardinal legal principle stated in

3816the First District Court of Appeals' opinion in The Environmental Trust v. Dept. of

3830Environmental Protection, 741 So.2d493 (Fla. 1 st DCA 1998):

3839Proof of entitlement to government benefits cannot rest on a claim that the benefits are

3854not specifically prohibited by law. Rather, the burden is on the claimant to show that a

3870particular benefit is allowed by the law.

3877741 So.2d at 496.

3881Finally, the Recommended Order ignores that ascribing to the Department a supposed

3893non-rule policy of not implementing a "reverse assessment" subsidy for Amerisure is but a

3907misleading way to express a simpler fact: the Division did not pay, or offer to pay a tax subsidy

3926to Amerisure to offset its poor financial performance in assessment year 2009. The record here

3941is devoid of evidence that the Division has ever paid or offered to pay such a subsidy to any

3960other carrier. When all other record evidence is to the contrary, the mere fact that "debit/credit"

3976calculations appeared on quarterly assessment forms does not support the ALl's legal conclusion

3989that the Division's unpromulgated quarterly assessment forms somehow sponsored a non-rule

4000subsidy program at all, let alone as special program for Amerisure's benefit only.

4013The Administrative Procedure Act obliges each state agency to exercise the powers and

4026duties delegated to it in strict conformance with the statutes that grant them specific powers to

4042act. In this context, rulemaking is "not optional" for agencies, provided, however, that

4055rulemaking cannotextend beyond the dictates of the specific law being implemented. To

4067enforce rulemaking, Section 120.56 prohibits non-rule policies in most instances, with agencies

4079required to desist from policies properly subject to be promulgated as rules. This case has

4094disclosed a need for the Division to develop and promulgate rules as to the Division procedures

4110associated with assessments required by Sections 440.49 and .51, Florida Statutes. That

4122deficiency is being remedied by the institution of rulemaking for the adoption of legally

4136sufficient rules, including quarterly assessment forms. A Notice of Rule Development for this

4149rulemaking was published on Feb11lary 13, 2014.

4156The paradox of the Recommended Order, and the source of its inconsistency with

4169traditional AP A jUlisprudence, is that it wouldcompel the Department to expend in excess of a

4185quarter of a million dollars in taxpayers' funds to subsidize Amerisure based upon a supposed

"4200excess credits" policy of the Division that does not exist. There is no statutory authority for

4216such a tax subsidy. If the Division attempted to formally promulgate such a subsidy rule, it

4232would certainly be rejected by the Joint Administrative Procedure Committee as exceeding the

4245Division's statutory authority. The Recommended Order, however, under the guise of enforcing

4257the APA's prohibitions on non-rule policy, but actually in derogation of the requirements of the

4272APA, would have the Division implement a nonsensical policy wholly lacking in statutory

4285support or authorization as a fiscal windfall for Amerisure. Neither the Department nor the

4299Division has ever operated a "subsidy" program for workers' compensation carriers. The

4311Division's decision not to pay a subsidy to Amerisure for assessment year 2009 was not the

4327implementation of an illicit non-11lle policy, but rather the consistent and correct application of

4341law. The Division's refusal to act outside the boundaries of its statutory delegation to benefit

4356Amerisure was fully in accordance with the express legislative intent behind the APA: to

4370proscribe agency action that exceeds the scope of lawful authority delegated to the agency.

4384Finally, as Division Exception 5 correctly contends, the Recommended Order

4394misidentifies the time limitations within Section 215.26(2), Florida Statutes, as if they were a

4408non-rule policy initiative of the Department. This conclusion is also confusing, for it is also

4423inconsistent with the AP A's presumption of primacy for statute over administrative rule. Section

4437215.26(2) provides, in pertinent part: "Application for refunds as provided by this section must

4451be filed with the Chief Financial Officer, except as otherwise provided in this subsection, within

44663 years after the right to the refund has accrued orelsethe right is barred." Neither the Chief

4483Financial Officer nor the Department have a say in whether Section 215.26(2) applies to

4497potential refund claims. If a carrier that overpaid its assessments and thereby accrued a right to a

4514refund of its overpayment failed to lay claim to the refund amount for four years, its "credits" are

4532not eliminated by action of the Department, but rather are made unc1aimable by operation of law.

4548Accordingly, for the reasons stated above, the AL.I's Conclusions of Law Nos. 143-144,

4561146-147 and 149 are rejected to the extent they do not conform to the analysis above. All of the

4580rejected conclusions support an unreasonable result: requiring the Department to pay a state

4593subsidy, in the form of cash equivalent credits, to an insurance carrier when the Department

4608lacks statutory authority to do so. The rejected verbiage is replaced by the preceding analysis and

4624the statement: "The Division did not engage in non-rule policy in denying the Appellant's

4638request for a refund on the basis of its 2009 unprofitability, as the Appellant was not subjected to

4656any assessment for that year." This conclusion oflaw and the supporting analysis is as or more

4672reasonable than those conclusions oflaw that it replaces, that have been rejected here as being

4687inconsistent with Florida law.

4691IT IS THEREFORE ORDERED THAT:

46961. The Findings of Fact of the Administrative Law Judge are ADOPTED, v.rith the

4710clarifications discussed in the text of this Final Order.

47192. The Conclusions of Law of the Administrative Law Judge in paragraphs 112-113,

4732115,117-122, 124-126, 129-135, 143-144, 146-147 and 149 are REJECTED for the reasons

4745stated in this Final Order. /

47513. The Department's exceptions have been considered and GRAJ."JTED in the text of this

4766Final Order. Any exception not specifically mentioned is denied as moot.

47774. Amerisure has no accrued right to a refund from the State Treasury in any amount in

4794respect of workers' compensation carrier assessment year 2009.

48025. Ameri.surehas no accrued right to receive the sum of$296,337.09 from the State

4816Treasury for assessment year 2009.

48216. Amerisure's Request for Refund of$296,337.09 is hereby DENIED.

4831DONE and ORDERED this 10 th day of Febmary, 2014.

4841Chief of Staff

4844NOTICE OF RIGHTS

4847Any person adversely affected by this Order is entitled to seek review of this Order

4862pursuant to Section 120.68, Florida Statutes, and Fla. R. App. P. 9.110. Review proceedings

4876must be instituted by filing a notice of appeal with Julie Jones, CP, FRP, DFS Agency Clerk,

4893Department of Financial Services, 612 Larson Building, 200 E. Gaines Street, Tallahassee,

4905Florida 32399-0390, and a copy of the same accompanied by the required filing fee with the

4921appropriate District Court of Appeal within thirty (30) days of rendition ofthis Order.

4934COPIES FURNISHED TO:

4937Maria Elena Abate, Esq.

4941Sharlee Hobbs Edwards, Esquire

4945Colodny, Fass, Talenfeld, rd Karlinsky, rd Abate and Webb, P.A.

4955100 Southeast 3 Ave., 23 Floor

4961Ft. Lauderdale, Florida 33394

4965David Hershel, Executive Senior Attorney

4970Department of Financial Services

4974200 East Gaines Street

4978Tallahassee, Florida 32399

4981Barbara J. Staros, Administrative Law Judge

4987Division of Administrative Hearings

4991The DeSoto Building

49941230 Apalachee Parkway

4997Tallahassee, FL 32399-3060

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PDF
Date
Proceedings
PDF:
Date: 05/12/2015
Proceedings: Order Closing File and Relinquishing Jurisdiction. CASE CLOSED.
PDF:
Date: 03/30/2015
Proceedings: Notice of Conclusion of Administrative Appeal filed.
PDF:
Date: 02/27/2014
Proceedings: Notice of Administrative Appeal filed.
PDF:
Date: 02/17/2014
Proceedings: Agency Final Order filed.
PDF:
Date: 02/13/2014
Proceedings: Agency Final Order
PDF:
Date: 11/15/2013
Proceedings: Recommended Order
PDF:
Date: 11/15/2013
Proceedings: Recommended Order (hearing held June 27-28, 2013). DOAH JURISDICTION RETAINED.
PDF:
Date: 11/15/2013
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/05/2013
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 08/05/2013
Proceedings: Petitioner Amerisure Mutual Insurance Company's Proposed Recommended Order filed.
Date: 07/18/2013
Proceedings: Transcript Volume I-IV (not available for viewing) filed.
PDF:
Date: 07/02/2013
Proceedings: Joint Notice of Filing Excerpts of Greg Jenkins' Deposition Transcript filed.
Date: 06/27/2013
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 06/27/2013
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 06/26/2013
Proceedings: Respondent's First Request for Admissions to Petitioner filed.
PDF:
Date: 06/26/2013
Proceedings: Respondent Department of Financial Services, Division of Workers' Compensation's Motion for Attorney's Fee Against Amerisure Mutual Insurance Company filed.
PDF:
Date: 06/26/2013
Proceedings: Petitioner Amerisure Mutual Insurance Company's Motion to Take Judicial Notice filed.
PDF:
Date: 06/24/2013
Proceedings: Petitioner, Amerisure Mutual Insurance Company's Motion for Attorney's Fees and Costs Against Department of Financial Services, Division of Workers' Compensation and Incorporated Memorandum of Law filed.
PDF:
Date: 06/24/2013
Proceedings: Unilateral Prehearing Stipulation filed.
PDF:
Date: 06/24/2013
Proceedings: Petitioner's Unilateral Pre-hearing Stipulation filed.
PDF:
Date: 06/21/2013
Proceedings: Motion for Enlargement of Time to File Joint Pre-hearing Stipulation filed.
PDF:
Date: 06/20/2013
Proceedings: Order on Respondent`s Motion for Summary Final Order.
PDF:
Date: 06/20/2013
Proceedings: Motion for Enlargment of Time to File Petitioner's Response to Respondent's Motion for Summary Final Order filed.
PDF:
Date: 06/19/2013
Proceedings: Notice of Taking Telephonic Deposition (of Amerisure Mutual Insurance Company) filed.
PDF:
Date: 06/18/2013
Proceedings: Petitioner's Notice of Serving Verified Responses to Respondent's First Set of Interrogatories filed.
PDF:
Date: 06/18/2013
Proceedings: Petitioner, Amerisure Mutual Insurance Company's Response to First Request for Production of Documents by Respondent, Department of Financial Services, Division of Workers' Compensation filed.
PDF:
Date: 06/18/2013
Proceedings: Petitioner's Response to Respondent's First Request for Admissions to Petitioner filed.
PDF:
Date: 06/17/2013
Proceedings: Notice of Withdrawal as Co-Counsel (Mary Ingley) filed.
PDF:
Date: 06/13/2013
Proceedings: Respondent Department's Motion for Summary Final Order filed.
PDF:
Date: 06/12/2013
Proceedings: Notice of Cancellation of Deposition (of Amerisure Mutual Insurance Company) filed.
PDF:
Date: 06/07/2013
Proceedings: Order on Motion to Amend Petition for Formal Administrative Hearing.
PDF:
Date: 06/05/2013
Proceedings: Notice of Taking Deposition (of Amerisure Mutual Insurance Company) filed.
PDF:
Date: 06/05/2013
Proceedings: Notice of Taking Deposition (of Amerisure Mutual Insurance Company) filed.
PDF:
Date: 06/04/2013
Proceedings: Notice of Taking Web Video Deposition Duces Tecum (of Department of Financial Services, Division of Workers' Compensation) filed.
PDF:
Date: 05/30/2013
Proceedings: Motion to Amend Petition for Formal Administrative Hearing Involving Disputed Issues of Material Fact filed.
PDF:
Date: 05/29/2013
Proceedings: Notice of Appearance (Michael Davidson) filed.
PDF:
Date: 05/20/2013
Proceedings: Petitioner's Second Request for Production of Documents to Respondent Department of Financial Services, Division of Workers' Compensation filed.
PDF:
Date: 05/15/2013
Proceedings: Respondent's Notice of Service of Discovery filed.
PDF:
Date: 05/08/2013
Proceedings: Notice of Taking Deposition (of American Mutual Insurance Company) filed.
PDF:
Date: 04/23/2013
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for June 27 and 28, 2013; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 04/23/2013
Proceedings: Agreed Motion to Continue Final Hearing filed.
PDF:
Date: 04/17/2013
Proceedings: Notice of Appearance as Co-Counsel (Mary Ingley) filed.
PDF:
Date: 04/17/2013
Proceedings: Respondent's Objection to Petitioner's First Set of Interrogatories to Respondent and Petitioner's Expert Witness Interrogatories to Respondent filed.
PDF:
Date: 04/11/2013
Proceedings: Notice of Taking Deposition (of G. Jenkins) filed.
PDF:
Date: 04/11/2013
Proceedings: Notice of Taking Deposition (of M. Brown) filed.
PDF:
Date: 04/03/2013
Proceedings: Re-notice of Taking Deposition (of V. Griffin) filed.
PDF:
Date: 04/03/2013
Proceedings: Re-notice of Taking Deposition (of G. Smith) filed.
PDF:
Date: 03/27/2013
Proceedings: Amended Notice of Taking Deposition (of V. Griffin) filed.
PDF:
Date: 03/27/2013
Proceedings: Amended Notice of Taking Deposition (of G. Smith) filed.
PDF:
Date: 03/26/2013
Proceedings: Notice of Taking Deposition (of V. Griffin) filed.
PDF:
Date: 03/26/2013
Proceedings: Notice of Taking Deposition (of G. Smith) filed.
PDF:
Date: 03/26/2013
Proceedings: Notice of Service of Petitioner's Expert Witness Interrogatories to Respondent Department of Financial Services, Division of Workers' Compensation filed.
PDF:
Date: 03/26/2013
Proceedings: Notice of Service of Petitioner's First Set of Interrogatories to Respondent Department of Financial Services, Division of Workers' Compensation filed.
PDF:
Date: 03/26/2013
Proceedings: Petitioner's First Request for Admissions to Respondent Department of Financial Services, Division of Workers Compensation filed.
PDF:
Date: 03/21/2013
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 03/21/2013
Proceedings: Notice of Hearing (hearing set for May 21 and 22, 2013; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 03/21/2013
Proceedings: Response to Initial Order filed.
PDF:
Date: 03/18/2013
Proceedings: Petitioner's First Request for Production of Documents to Respondent Department of Financial Services, Division of Workers' Compensation filed.
PDF:
Date: 03/14/2013
Proceedings: Notice of Intent to Deny Applications for Refund filed.
PDF:
Date: 03/14/2013
Proceedings: Petition for Formal Administrative Hearing Involving Disputed Issues of Material Fact filed.
PDF:
Date: 03/14/2013
Proceedings: Agency referral filed.
PDF:
Date: 03/14/2013
Proceedings: Initial Order.

Case Information

Judge:
BARBARA J. STAROS
Date Filed:
03/14/2013
Date Assignment:
03/14/2013
Last Docket Entry:
05/12/2015
Location:
Clearwater, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (21):