16-001143 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. Steve Mundine Construction, Inc. Status: Closed Recommended Order on Friday, May 27, 2016.

Summary: Respondent failed to timely request a hearing and thereby waived his right to challenge the proposed agency action. The agency did not lull the Respondent into inaction or mislead him in any manner that would constitute estoppel.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF WORKERS'

COMPENSATION,

Petitioner,

vs. Case No. 16 - 1143

STEVE MUNDINE CONSTRUCTION,

INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

O n April 29, 2016, in Orlando, Florida, a hearing was

conducted before J. D. Parrish, an administrative law judge with

the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Young J. Kwon, Esquire

Michael Joseph Gordon, Esquire

Florida Department of Financial Services

Workers Compensation Compliance

200 East Gaines Street

Tallahassee, Florida 32399

For Respondent: John Lauran ce Reid, Esquire

Dickens Reid PLLC

517 East College Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether the Respondent, Steve Mundine Construction, Inc.,

timely challenged the Second Amended Order of Penalty Assessment

and, if not, whether pursuant to the doctrine of equitable

tolling RespondentÓs untimely filed challenge should be

accepted.

PRELIMINARY STATEMENT

On March 1, 2016, the Petitioner, Department of Financial

Services, Division o f Work ersÓ Compensation, forwarded this case

for formal proceedings. T he Respondent maintains that if his

petition to challenge the Second Amended Order of Penalty

Assessment was not timely filed , it was due to the PetitionerÓs

action in misleading or lul ling the Respondent into inaction.

At the hearing the Petitioner presented the testimony of

Stephanie Scarton and Cathy Nunez. The PetitionerÓs Exhibits A

through F were admitted into evidence. The Respondent testified

on his own behalf and RespondentÓs Exhibit 1 (an affidavit) was

a lso received in evidence. The T ranscript of th e proceedings

was filed on May 5 , 2016. The parties were granted ten days to

file their proposed recommended orders. The proposed orders

have been fully considered.

FINDING S OF FACT

1. The Petitioner is the state agency charged with the

responsibility of enforcing and assuring empl oyers meet the

requirements of c hapter 440, Florida Statutes. The law in

Florida requires employers to maintain appropriate workersÓ

compensation coverage for their employees.

2. At all times material to this case , the Respondent was

doing business in Florida and was subject to the requirements of

the law.

3. On May 6, 2015, Stephanie Scarton, an investigator

employed by the Petitioner, stoppe d at one of the RespondentÓs

construction sites and initiated an investigation as to whether

the Respondent maintained appropriate workersÓ compensation for

the two employees found at the job site.

4. After determining that the requisite documentation f or

workersÓ compensation coverage was not produced, Ms. Scarton

issued a Stop - Work Order (PetitionerÓs Exhibit A). The Stop -

Work Order advised the Respondent that he, Steven Mundine,

d/b/a , Steve Mundine Construction, Inc., was in violation of

Florida law by Ðfailing to obtain coverage that meets the

requirements of c hapter 440, F. S., and the Insurance Code.Ñ

5. PetitionerÓs Exhibit A included a Notice of Rights that

provided, in part:

You have a right to administrative review of

this action by the Depart ment under sections

120.569 and 120.57, Florida Statutes.

* * *

FAILURE TO FILE A PETITION WITHIN THE

TWENTY - ONE (21) DAYS CONSTITUTES A WAIVER OF

YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE

AGENCY ACTION. [Emphasis in original]

6. In response to the S top - Work Order , the Respondent met

with Cathy Nunez on May 7, 2016, and executed an Agreed Order of

Conditional Release from Stop - Work Order (PetitionerÓs Exhibit

B ). In addition to signing the agreed o rder , the Respondent

submitted an affidavit that prov ided:

I Steve Mundine have terminated Bill Busch

and Karl G. Kerr. I am no longer conducting

business as Steve Mundine Const. Inc. I

have opened a new company Paradigm Building,

LLC but will not work til we applied and

received exemptions. Including Ri chard

Hans.

7. Under the terms of the Agreed Order of Conditional

Release from Stop - Work Order the Respondent represented that he

would remit periodic payments of the remaining penalty amount

pursuant to a Payment Agreement Schedule for Periodic Paymen t of

Penalty with the Department or pay the remaining penalty amount

in full within 28 days after the service of the Stop - Work Order.

As a condition of receiving the conditional release the

Respondent remitted $1 , 000.00 toward the penalty amount.

8. In o rder to assist the Petitioner with the accurate

calculation of the penalty that would be due , the Respondent was

advised that he needed to submit records. When the Respondent

asked Cathy Nunez if he needed to retain a lawyer, she did not

tell him that he did not need a lawyer. She advised him that a

lawyer was not required to produce the records that were needed

to make the penalty calculation.

9. The Respondent did produce records to the Petitioner

and in turn an Amended Order of Penalty Assessment (P etitionerÓs

Exhibit C) was completed that advised the Respondent that he

owed a total penalty of $63,837.82. Cathy Nunez hand - delivered

the Amended Order of Penalty Assessment to the Respondent on

July 24, 2015. Included was a second Notice of Rights tha t

advised the Respondent of his right to challenge the assessment.

Additionally, the Respondent was advised that a petition to seek

administrative review of the action had to be filed within

twenty - one days.

10. After considering additional records sub mitted by the

Respondent , the Petitioner prepared a Second Amended Order of

Penalty Assessment (PetitionerÓs Exhibit D) to itemize the

revised amount owed by the Respondent. The Second Amended Order

of Penalty Assessment ordered the Respondent to pay a to tal

penalty of $47,006.28.

11. Stephanie Scarton delivered the Second Amended Order

of Penalty Assessment to the Respondent on December 22, 2015.

12. At the same time (December 22, 2015) , Ms. Scarton

presented the Respondent with a Payment Agreement Schedule for

Periodic Payment of Penalty (PetitionerÓs Exhibit E). The

payment agreement acknowledged that the Respondent had

previously remitted $1 , 000.00 toward his penalty and allowed for

the remaining $46,006.28 to be repaid over the course of 60

mont hly payments. The Respondent did not agree to sign the

payment agreement. Accordingly, a blank agreement was left with

the Respondent, not the one providing for the payments

previously described.

13. On December 22, 2015, the Respondent disagreed with

the repayment amount and believed the penalty had been

incorrectly calculated. On December 22, 2015, the Respondent

knew he had a limited amount of time to challenge the Second

Amended Order of Penalty Assessment.

14. On December 22, 2015, Ms. Scarton hand - delivered to

the Respondent the Second Amended Order of Penalty Assessment

including a Notice of Rights. The only documents not left with

the Respondent on December 22, 2015, were copies of the payment

agreement signed by Ms. Scarton .

15. On Dece mber 22, 2015, the Notice of Rights provided to

the Respondent was identical to the Notice of Rights previously

provided to him.

16. Before leaving the Respondent on December 22, 2015,

Ms. Scarton reminded the Respondent he had a limited amount of

time to file a petition seeking administrative review of the

agency action.

17. The Petitioner did not misrepresent the procedural

requirements to challenge the agency action, did not lull the

Respondent into a false sense of security or inaction, and did

no t advise the Respondent as to whether he should retain a

lawyer in connection with an administrative review of the

penalty assessment. The weight of the credible evidence

supports the finding that when the Respondent eventually filed a

petition to challen ge the agency action , it was beyond the 21

days allowed by law.

CONCLUSIONS OF LAW

18. Pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2015) , DOAH has jurisdiction over the subject matter of

and the parties to this proceeding.

19. Under the law the Respondent had 21 days within which

to file a petition to seek administrative review of the Second

Amended Order of Penalty Assessment. See Fla. Admin . Code

R. 28 - 106.111. The failure to timely file a request for review

constitutes a waiver of the right to challenge agency action.

See Whiting v. DepÓt of Law Enforcement , 849 So. 2d 1149 (Fla.

5 th DCA 2003).

20. In this case the Respondent did not timely file a

petition or request for an administrative review of the Second

Amended Order o f Penalty Assessment.

21. The provisions of Ðequitable tollingÑ as described in

Machules v. DepÓt of Admin. , 523 So. 2d 1132 (Fla. 1988) , do not

apply to the facts of this case. On at least three occasions the

Petitioner advised the Respondent of the req uirement to file

within 21 days. The Petitioner did not mislead the Respondent or

lull him into inaction. The weight of the credible evidence

established that the Petitioner informed the Respondent of his

right to seek review of the action, repeatedly ad vised him of the

timeline to do so, and acted properly in providing all documents

required by law to effect appropriate service. The doctrine of

equitable tolling does not apply to this case.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of

law , it is RECOMMENDED that the Department of Financial Services,

Division of WorkersÓ Compensation, enter a final order

determining the RespondentÓs request for administrative review of

the Second Amended Order of Penalty Assessment was not timely

filed.

DONE AND ENTERED this 27th day of May , 2016 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tal lahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of May, 2016 .

COPIES FURNISHED:

Christopher Ivey Miller, Esquire

Department of F inancial Services

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

John Laurance Reid, Esquire

Dickens Reid PLLC

517 East College Avenue

Tallahassee, Florida 32301

(eServed)

Young J. Kwon, Esquire

Department of Financial Services

200 East Ga ines Street

Tallahassee, Florida 32399

(eServed)

Michael Joseph Gordon, Esquire

Florida Department of Financial Services

Workers Compensation Compliance

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Div ision of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.