16-002425 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. Ms Dockside Marina, Llc Status: Closed Recommended Order on Thursday, November 3, 2016.

Summary: The Longshoremen and Harbor Workers' Compensation Act did not exempt Respondent from the requirements of Florida's Workers' Compensation Law, and the Department proved that the Stop-Work Order and 2d Amended Penalty Assessment should be imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF WORKERS'

COMPENSATION,

Petitioner,

vs. Case No. 16 - 2425

MS DOCKSIDE MARINA, LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

July 11, 2016, in Tallahassee, Flo rida, before James H.

Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Tabitha G. Harnage, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

For Respondent: Daniel H. Cox, Esquire

Daniel H. Cox, P.A.

Post Office Drawer CC

1954 Cape Street

Carrabelle, Florida 32322

STATEMENT OF THE ISSUE S

The issue in this case is whether MS Dockside Marina, LLC

( Respondent ) , violated the provisions of chapter 440, Florida

Statutes, 1 / by failing to secure the payment of workersÓ

compensation, as alleged in the Stop - Work Order and Second

Amended Order of Penalty Assessment ; and , if so, what is the

appropriate penalty.

PRELIMINARY STATEMENT

On August 5, 2015, the Department of Financial Services,

Division of Workers' Compensation (the Department) , served

Respondent with a Stop - Work Order and Order of Penalty

Assessment (Stop - Work Order) and a Request for Production of

Business Records for Penalty Assessment Calculation ( Requ est for

Production ) for RespondentÓs failure to secure workersÓ

compensation for its employees as required by chapter 440.

Respondent timely responded to the Request for Production and

the Department, in turn, calculated an Amended Order of Penalty

Assess ment . The Amended Order of Penalty Assessment , assessing

a penalty of $34,718.00, was se rved on Respondent on

September 11, 2015.

On November 3, 2015, Respondent requested an informal

proceeding before the Department to dispute the Stop - Work Order

and Ame nded Order of Penalty Assessment.

Prior to requesting the informal hearing, Respondent

purchased a Florida workersÓ compensation insurance policy on

August 19, 2015. In accordance with section 440.107(7)(d)1.,

the Department prepared a 2 n d Amended Order of Penalty

Assessment which gave Respondent a premium credit of $1,678.00

against the previously calculated penalty . The 2nd Amended

Order of Penalty Assessment , which reduced the penalty to

$33,040.00 , was served on Respondent on January 16, 2016.

Pursuant to section 120.57(2), Florida Statutes, an

informal hearing was held before the Department on March 28,

2016. By O rder dated April 4, 2016, on the ground that a

disputed fact was raised at the informal hearing, Department

he aring o fficer Merribeth Bohanan relinquished jurisdiction . On

May 3, 2016, this matter was referred to the Divisi on of

Administrative Hearings (DOAH ).

At the final hearing conducted before the undersigned, t he

Department presented the testimonies of Dep artment compliance

i nvestigator, Donald Hurst , and p enalty a uditor, Lynne Murcia.

The Department offered 12 exhibits, designated Petitioner's

Exhibits P - 1 through P - 12, all of which were received into

evidence. Respondent presented the testimony of Eric Pfeufer,

as managing member of Respondent, and offered four exhibits,

which were received into evidence as Respondent's Exhibits R - A,

R - B, R - C, and R - D.

The proceedings were transcribed and a transcript was

ordere d. The due date for the parties to submit proposed

recommended orders was initially set for 10 days from the filing

of the transcript with the DOAH . The Transcript, consisting of

one volume, was filed on August 3, 2016. By Order granting the

parties' Ag reed Motion for Extension of Time to File Proposed

Recommended Order , the parties were given until September 9,

2016, within which to file their proposed recommended orders.

The parties thereafter timely filed their respective Proposed

Recommended Orders, both of which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency responsible for

enforcing the statutory requirement that employers secure

workers' compensation coverage for the benefit of their

employees.

2. Respondent is a Florida limited liability company

formed on May 13, 2010 . T he officers of Respondent are Angela

and Eric Pfeufer.

3. At all pertinent times, Respondent has been active ,

licensed to do business , and engaged in the business of a boat

storage and boat repair marina located on the Carrabelle River

at 292 G raham Drive , Carrabelle, Florida 32322 . The Carrabelle

River is one of the navigable water s of the United States.

4. The boat repair s ervices offered by Respondent include

boat painting, sandblasting, structural repairs, driveline

generator repairs, fiberglass repair, welding, pressure w as hing,

and engine work.

5. On August 5, 2015, Department i nvestigator Donald Hurst

visited RespondentÓs marina in connection with a worker s Ó

compensation compliance investigation of Respondent . On that

date, Respondent had 10 employees , but did not have a workersÓ

compensation policy or employee leasing policy , and there were

no active exemptions for RespondentÓs officers.

6. On the day of Investigator HurstÓs visit, RespondentÓs

e mployees were Angela Pfeufer, Eric Pfeufer, Shiloh Spivey,

Austin Pfeufer, Luke Steinle, Travis Clayton, Richard Sand,

Vernon Thompson, Gavin Pfeufer, and Jesse Carrot . Ang ela and

Eric Pfe u fer were RespondentÓs mana ging members . T he categories

and pay rate of RespondentÓs other employees were as follows:

secretary Shiloh Spivey at $14 per hour; maintenance man and

lift operator Austin Pfeufer at $15 per hour; boat lift operator

Luke Steinle at $17.50 per hour; boat painter and fiberglass

worker Richard Sand at $17 per hour; boat mechanic and boatyard

worker Travis Clayton at $15 per hour; painter Gavin Pfeufer at

$12 per hour ; painter and fiberglass worker Jesse Carroll at

$12 per hour ; and maintenance man and boat - lift operator Vernon

Thompson at $12 per hour.

7. Because Respondent had no workersÓ compensation

insurance policy in place , on August 5, 2015, Investigator Hurst

served the Stop - Work O rder and a business records request on

Respondent . When they were served , I nvestigator Hurst explained

to RespondentÓs officers the effect and purpose of the documents

and how Respondent could come into compliance.

8. Respondent came into compliance on August 6, 2015, by

making a $1,000 down payment, signing a conditional release,

reduc ing its workforce , and obtaining exemptions for its two

managing members. Respondent also purchased a Zenith Insurance

Company workersÓ compensation insurance policy on August 15,

2015.

9. Respondent timely responded to the DepartmentÓs

b usiness r ecords r equest by providing the Department with

financial documentation, payroll records, and business records.

10. After receiving RespondentÓs records, the Department

assigned Department p enalty a uditor Lynne Murcia the task of

review ing the records and calculat ing the penalty to be assessed

against Respondent.

11. Based on the information provided to Investigator

Hurst at the job site by RespondentÓs managing member Angela

Pfeufer, Invest igator HurstÓs observations at the job site on

August 5, 2015, and the managing membersÓ exemptions, Penalty

A uditor Murcia assigned classification codes 8810 and 6836 in

calculat ing a penalty.

12. Classification codes are four - digit codes assigned to

various occupations by the National Coun cil on Compensation

Insurance ( NCCI) to assist in the calculation of workersÓ

compensation insurance premiums. Classification c odes are

listed in the Scopes® Manual. Classification code 8810 applies

to clerical off ice employees . C lassification code 6836 applies

to Ðwaterfront operations including the operation of boat docks,

storage facilities, repair shops . . . repair of boats and

engines . . . and all dockside employees. Ñ

13 . The Department determined the gross payroll for

RespondentÓs employees in accordance with the procedures

required by section 440.107(7)(d)1. , and Florida Administrative

Code R ule 69L - 6.027(1) , and the gross payroll was used in

calculating the penalty .

14. Penalty auditor Murcia then applied the corresponding

approved manual rates for classification codes 8810 and 6836 for

the related periods of non - compliance and utilized the

methodology specified in section 440.107(7)(d)1. and r ule 69L -

6.027 to determ ine the final penalty.

15. Once the penalty was calculated, o n September 11,

2015, the Department served the Amended Order of Penalty

Assessment on Respondent, assessing a penalty of $34,718.00.

16. After that , Respondent provided the Department with

proof that it had obtained a Zenith Insurance Company workersÓ

compensation insurance policy with a paid premium totaling

$1,678.00.

17. In accordance with s ection 440.107(7)(d)1. , the

Department reduced RespondentÓs penalty by applying a $1,678 .00

credi t for a paid premium against the previously calculated

penalty, resulting in the issuance of the 2nd Amended Order of

Penalty Assessment totaling $33,040.00, served on Respondent by

ele ctronic mail on January 8, 2016.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

19. Chapter 440 is known as the ÐWorkersÓ Compensation

Law.Ñ § 440.01, Fla. Stat.

20. The Department is responsible for enforcing the

requirement that employers coming within the provisions of

chapter 440 obtain workers' compensation coverage for their

employees "that meets the requirements of [chapter 440] and the

Florida Insurance Code." § 440.107(2), Fla. Stat.

21. Secti on 440.107(3) provides that Ð[t]he department

shall enforce workersÓ compensation coverage requirements,Ñ and

Ðthe department shall have the power to . . . (g) [i]ssue stop -

work orders, penalty assessment orders, and any other orders

n ecessary for the administration of this section.Ñ

§ 440.107(3), Fla. Stat.

22. Because the Department is seeking to prove violations

of a statute and impose administrative fines or other penalties,

it has the burden to prove the allegations in the complaint by

clear and convincing evidence. Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987).

23. Chapter 440 broadly defines "employer" as "every

person carrying on any employment." § 440.02(16)(a), Fla. Stat.

24. Every employer is required to secure the payment of

workers' compensation for the benefit of its employees, unless

exempted or excluded under chapter 440. § 440.10, Fla. Stat.

25. "Emp loyment," subject to Florida's W orkers'

C ompensation L aw, includes Ð[a]ll private employments in which

four or more employees are employed by the same employer or,

with respect to the construction industry, all private

employment in which one or more employees are employed by the

same employer. Ñ § 440.02(17)(a) and (b)(2), Fla. Stat.

26. Sect ion 440.107(2) states ÐÒsecuring the payment of

workersÓ compensationÓ means obtaining coverage that meets the

requirements of this chapter and the Florida Insurance Code.Ñ

27. "Every employer who is required to provide workers'

compensation coverage for employees engaged in work in this

state shall obtain a Florida policy or endorsement for such

employees that utilizes Florida class codes, rates, rules and

manuals that are in co mpliance with and approved under the

provisions of Chapter 440, F.S., and the Florida Insurance Code,

pursuant to Sections 440.10(1)g) and 440.38(7), F.S." Fla.

Admin. Code R. 69L - 6.019.

28. Under sections 440.10, 440.107( 2), and 440.38, every

employer i s required to secure the payment of workersÓ

compensation for the benefit of its employees unless exempted or

excluded und er chapter 440 .

29. Strict compliance with the WorkersÓ Compensation Law

is required by the employer. See C & L Trucking v. Corbitt ,

546 So. 2d 1185, 1187 (Fla. 5th DCA 1989) .

30. Whenever the Department finds that an employer who is

required to secure the payment of workers' compensation coverage

has failed to do so, such failure is deemed an immediate serious

danger to the public health, safety, or welfare sufficient to

justify service by the Department of a Stop - Work Order or Order

of Penalty A ssessment on the employer. § 440.107 Fla . Stat .

31. Respondent argues that it is not required to secure

workersÓ compensation coverage because most of its employees are

covered by the Longshoremen and Harbor WorkersÓ Compensation Act

(the Act) .

32. Although the Department bears the ultimate burden of

proving its case against Respondent by clear and convincing

evidence , Respondent has the burden of proving that it falls

within an exception to the requirement that it provide workersÓ

compensation coverage for its employees under Florida law. As

observed in Armstrong v. Ormond in the Pines , 734 So. 2d 596 ,

(Fla. 1st DCA 1999) :

[A]s a general proposition, "it is incumbent

on those relying on an act for protection to

bring themselves within the specifications

laid down . . . ." Robbins v. Webb's Cut

Rate Drug Co. , 153 Fla . 822, 16 So. 2d 121,

123 ( Fla . 1943). More specifically, "an

exception to a statute must be proven by the

one seeking to establish it." Mayo's Clinic

v. Livingston , 172 So. 2d 619, 620 ( Fla . 2d

DCA 1965). See also City of Chicago v.

Westphalen , 95 Ill. App. 2d 331, 238 N.E.2d

225, 22 8 (Ill. App. 1968) ("When a party

seeks to avoid the general application of

a statute or ordinance and seeks to

establish his case as within an exception

thereto, it is incumbent upon him to prove

those facts which would bring him within the

defined except ion . In other words, a party

wishing to benefit by an exception must

prove that he comes within it.").

33. S ection 440.09(2) provides :

Benefits are not payable in respect of the

disability or death of any employee covered

by the Federal EmployerÓs Liability Act, the

LongshoremenÓs and Harbor WorkerÓs

Compensation Act, the Defense Base Act, or

the Jones Act.

34. The Act is found in 33 U.S.C. § 18 .

35. Ð[A]s a matter of state law, coverage under [the Act]

precludes coverage under FloridaÓs WorkersÓ Compensation Law.Ñ

FCCI Fund v. CayceÓs Excavation , 726 So. 2d 778 , 780 (Fla. 1 st

DCA 1998).

36. In order to obtain coverage under the Act, Respondent

must show that it is an ÐemployerÑ within the meaning of the A ct

that is not subject to coverage under FloridaÓs workersÓ

compensation laws , and that its employees qualify for coverage

under the Act. 33 U.S.C. §§ 902(3) & (4) , 903(d)( 1 - 3 ) .

37. Under the Act, Ð[t]he term ÒemployerÓ means an

employer any of whose employees are employed in maritime

employment, in whole or in part, upon the navigable waters of

the United States (including any adjoining pier, wharf, dry

dock, terminal, building way, marine railway, or other adjoining

area customarily used by an employer in loading, unloading,

repairing, or building a vessel). Ñ 33 U.S.C. § 902(4).

38. The Act provides coverage for disability or death of

employees from injuries occurring upon navigable waters of the

United St ates. Specifically, the Act states:

Except as otherwise provided in this

section, compensation shall be payable under

this Act in respect of disability or death

of an employee, but only if the disability

or death results from an injury occurring

upon the navigable waters of the United

States (including any adjoining pier, wharf,

dry dock, terminal, building way, marine

railway, or other adjoining area customarily

used by an employer in loading, unloading,

repairing, dismantling, or building a

vessel).

33 U .S.C. § 903(a).

39. In P.C. Pfeiffer Co. v. Ford , 444 U.S. 69, 73 - 74

(1979), the Supreme Court set forth the requirements for

qualifying under the Act after it was amended by Congress in

1972 . It explained:

The Act now extends coverage to more workers

by replacing the single - situs requirement

with a two - part situs and status standard.

The newly broadened situs test provides

compensation for an "employee" whose

disability or death "results from an injury

occu rring upon the navigable waters of the

United States (including any adjoining pier,

wharf, dry dock, terminal, building way,

marine railway, or other adjoining area

customarily used by an employer in loading,

unloading, repairing, or building a

vessel)." § 3(a), 33 U.S.C. § 903(a). The

status test defines an employee as "any

person engaged in maritime employment,

including any longshoreman or other person

engaged in longshoring operations, and any

harborworker including a ship repairman,

shipbuilder, and ship break er . . . ."

§ 2(3), 33 U.S.C. § 902(3). To be eligible

for compensation, a person must be an

employee as defined by § 2(3) who sustains

injury on the situs defined by § 3(a).

40. Arguably, as RespondentÓs business is adjacent to the

Carrabelle River, Respondent meets the Ðsitus Ñ test. See Smart

v. Marathon Seafood , 444 So. 2d 48, 50 (Fla. 1st DCA 1983) .

41. Even if the situs test is met, that determination is

superfluous if the employees do not meet the ÐstatusÑ test . Id.

In Smart , the situs test was met, but the status test was not.

Id. at 50 . The claimant in Smart worked Ðupon the navigable

waters of the United States (including any adjoining pier,

wharf, dry dock, terminal, building way, marine railway, or

other adjoining area customarily used by an employer in loading,

unloading, repairing, or building a vessel).Ñ Id . However, the

employee did not meet the ÐstatusÑ test because it was

determined that Ðhe w as not engaged in moving cargo Ò directly

f rom ship to land transportat ionÓ or Ò a worker responsible for

some portion of that activity . Ó Ñ Id. at 51 - 52.

42. In the case - at - bar, the definitional section of the

Act precludes RespondentÓs employees from meeting the ÐstatusÑ

test. With regard to the definition of Ðemployee,Ñ section

902(3) of the Act provides:

(3) The term "employee" means any person

engaged in maritime employment, including

any longshoreman or other person engaged in

longshoring operations, and any harborworker

including a ship repairman, shipbuilder, and

ship - breaker, but such term does not

include - -

(A) individuals employed exclusively to

perform office clerical, secretarial,

security, or data processing work;

(B) individuals employed by a club, camp,

recreational ope ration, restaurant, museum,

or retail outlet;

(C) individuals employed by a marina and

who are not engaged in construction,

replacement, or expansion of such marina

(except for routine maintenance);

(D) individuals who (i) are employed by

suppliers, tran sporters, or vendors,

(ii) are temporarily doing business on the

premises of an employer described in

paragraph (4), and (iii) are not engaged in

work normally performed by employees of that

employer under this Act;

(E) aquaculture workers;

(F) individuals employed to build any

recreational vessel under sixty - five feet in

length, or individuals employed to repair

any recreational vessel, or to dismantle any

part of a recreational vessel in connection

with the repair of such vessel;

(G) a master or member of a crew of any

vessel; or

(H) any person engaged by a master to load

or unload or repair any small vessel under

eighteen tons net; if individuals described

in clauses (A) through (F) are subject to

coverage under a State workers' compensation

law.

43. P aragraphs (A), (C), (F), (G) and ( H ) of section

902 (3), quoted above, specifically exclude all of RespondentÓs

employe es from coverage under the Act. P aragraph (C) , alone,

excludes most of RespondentÓs employees from coverage, as

employees of a marina are not included . Ð MarinaÑ means a

licensed commercial facility that provides secured public

moorings or dry storage for vessels on a leased basis. Ñ

§ 327.02 (22) , Fla. Stat. Moreover, paragraph (A) excludes

managing member Angela Pfeufer and secretary Shiloh Spivey, as

both were office clerical workers . Paragraph (F) excludes

RespondentÓs employees who Ðre pair any recreational vessels.Ñ

And, p aragraph s (G) and (H), taken together, exclude a master or

crew member of a vessel and any employees who are engaged by a

master to repair any small vessel under 18 tons net.

44. Respondent also failed to meet the requirement under

33 U . S . C . § 903(d)(2)(B) , that its employees are Ð not subject to

coverage under a State workersÓ compensation law.Ñ Respondent

Ðhas [n]either made the special payments required or

controverted payment in the manner prescribed in the Act. Ñ 33

U.S.C. § 914(b) and (d) .

45. Instead of showing that RespondentÓs operations and

employees are covered by the Act , the clear and convincing

evidence demonstrate d that Respondent is a Florida marina that

offers boat repair, storage, and berthing services and whose

workers should be covered by workersÓ compensation obtained by

Respo ndent under Florida law.

46. Respondent owns and maintains multiple docks with

mooring space at the Carrabelle marina , as well as multiple

storage units on its property , including dry storage on land,

dry berthing units , and indoor storage units . Respondent also

holds itself out as a boat repair facility. Boats are hauled

out of the water with lifts and cranes and repaired in a large

building or adjacent land on the property.

47. The NCCI specifically contemplated these serv ices in

NCCI Florida c lass c ode Ð6 836 STATE ACT, MARINA & DRIVERS Ñ (Cod e

6836). The operation of boat docks and storage facilities are

speci fically considered in c ode 6836, as are t he operation of

repair shops and the repair of boats and engines .

48. Code 6836 also applies to all dockside employees .

RespondentÓs facility is a marina on the Carrabelle River with

multiple docks. Except for two clerical workers, a ll of

RespondentÓs employees are dockside, work ing by, near, or on the

dock at any given time during their employ.

49. Rather than c ode 6836, Respondent argues that NCCI

class code 6824F applies to its marina and operations. Class

code 6824F , however, is a federal class code applicable to the

construction or repair of wood, metal, fiberglass or plastic

yach ts, motorboats, sailboats , or rowboats not exceeding

150 feet in length overall. B erthing, storage, or mooring

services are not contemplated under class code 6824F.

50. Further, u nlike c ode 6836, class c ode 6824F does not

contemplate RespondentÓs operation of wet and dry boat storage .

Further, class code 6824F is limited to operations within

federal jurisdiction.

51. R ather than demonstrating that Respondent is an

employer under the Act who is exempt from FloridaÓs workersÓ

compensation requirements , the evidence and law presented in

this case demonstrated that , at all material times , Respondent

was an employer 2/ under Florida law subject to the requirement

under section 440.02(16)(a) that it Ð shall be liable for, and

shall secure, the payment to his or her employees [ 3 / ] . . . the

compensation payable under ss. 440.13, 440.15, and 440.16.Ñ

§ 440.10(1)(a), Fla. Stat.

52. It was also clearly shown that o n August 5, 2015,

Respondent employed eight uninsured employees , and that the

Department properly issued and served the Stop - Work Order,

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

Penalty Assessment on Respondent.

53. Section 440.107(7)(d)1. provides that Ð the

[D]epartment shall assess against any employer who has failed to

secure the payment of compensation as required by this chapter a

penalty equal to 2 times the amount the employer would have paid

in premium when applying approved manual rates to the employ erÓs

payroll during periods for which it failed to secure the payment

of workersÓ compensation required by this chapter within the

preceding 2 - year period or $1,000, whichever is greater.Ñ

54. These statutory provisions mandate that the Department

assess a penalty for noncomp liance with chapter 440 and do not

provide any authority for the Department to reduce the amount of

the penalty.

55. Rule 69L - 6.027 adopts a penalty calculation worksheet

for the DepartmentÓs penalty auditors to utilize Ð[f]or purpose s

of calculating penalties to be assessed against employers

pursuant to section 440.107, Florida Statutes.Ñ Fla. Admin.

Code R. 69L - 6.027(1).

56. Rule 69L - 6. 0 35 defines payroll for calculating

penalties. Remuneration includes, but is not limited to, wag es,

salaries, loans, 1099 income, profit sharing, income

distributions, dividends, and cash payments. Fla. Admin. Code

R. 69L - 6.035(1).

57. Considering evidence of RespondentÓs payroll for its

employees during the appl icable time frame and the applicable

method for calcula ting penalties , it is found that t he

Department applied the proper methodology in computing the

Amended Order of Penalty Assessment and 2nd Amended Order of

Penalty Assessment pursuant to section 440.107(7 )(d)1 . and r ules

69L - 6 .027 and 69L - 6. 035 .

58. Therefore, under the evidence and law as outlined

above, it is concluded that the Department proved by clear and

convincing evidence that Respondent failed to secure workersÓ

compensation coverage for its employees , and that the Department

correctly calculated and issued the Stop - Work Order and 2nd

Amended Order of P enalty Assessment of $33,040.00 against

Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department enter a final

o rder , consistent with this Recom mended Order , upholding the

Stop - Work Order and imposing the penalty set forth in the 2 n d

Amended Order of Penalty Assessment against MS Dockside Marina,

LLC .

DONE AND ENTERED this 3rd day of November , 2016 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of November , 2016 .

ENDNOTES

1 / Unless otherwise indicated, all citations to the Florida

Statutes are to current versions which have not substantively

changed since the time of the allegations in this case.

2/ Florida law defines ÐemploymentÑ as Ðall private employments

in which four or more employees are employed by the same

employer.Ñ 440 .02(17)(b)2., Fla. Stat. Section 440.02(16)(a)

defines ÐemployerÑ in part as Ðevery person carrying on any

employment.Ñ

3 / Florida law defines ÐemployeeÑ in part as Ðany person who

receives remuneration from an employer for the performance of

any work or service whil e engaged in any employment.Ñ

§ 4 40.02(15)(a), Fla. Stat. Also included in the definition of

ÐemployeeÑ is Ðany perso n who is an officer of a corporation and

who performs services for remuneration for such corporation

within this state, whether or not such services are continuous.Ñ

§ 440.02(15)(b), Fla. Stat.

COPIES FURNISHED :

Tabitha G. Harnage, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Daniel H. Cox, Esquire

Daniel H. Cox, P.A.

Post Office Drawer CC

1954 Cape Street

Carrabelle, Florida 32322

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division 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 th is Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.