17-004241 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. Boss Lady Concreate Co., Llc Status: Closed Recommended Order on Thursday, November 16, 2017.

Summary: Department proved that the Stop-Work Order was issued in compliance with chapter 440.107.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCI AL

SERVICES, DIVISION OF WORKER S Ó

COMPENSATION,

Petitioner,

vs. Case No. 17 - 4241

BOSS LADY CONCREATE CO., LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 25, 2017 , Administrative Law Judge Yolonda

Green of the Division of Administrative H earings (ÐDOAHÑ) ,

conducted a final hea ring in this case, by video tele conference

with sites in Pensacola and Tallahassee, Florida.

APPEARANCES

For Petitioner: Christina Pumphrey, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

For Respondent: Mary Atwood, pro se

Boss Lady Concreate Co. , LLC 1/

5801 Clearwater Drive

Pensacola, Florida 32505

STATEMENT OF THE ISSUE

Whether Petitioner properly issued the Stop - Work Order

(ÐSWOÑ) for Respondent Ós failure to comply with PetitionerÓs

Request for Production of Business Records (ÐRequest to

ProduceÑ).

PRELIMINARY STATEMENT

On June 5, 2017 , Petitioner, Department of Financial

Services, Division of WorkersÓ Compensation (ÐDepartmentÑ or

ÐPetitionerÑ ), issued a SWO , alleging that Respondent , Boss Lady

Concreate Co . , LLC . (ÐBoss Lady Co. Ñ or ÐRespondentÑ ) , failed to

produce required business records within 10 business days in

violation of section 440.107(7)(a), Florida Statutes (2016).

The SWO directed Respondent to cease business operations until

the Department issues an order releasing the SWO for all

worksites.

Respondent disputed the DepartmentÓs authority to issue the

SWO and requested a formal hearing . On July 26, 2017 ,

Petitioner referred this matter to DOAH for assignment to an

admin istrative law judge. The undersigned issued a n otice

scheduling the formal hearing for September 25, 2017 .

On September 20, 2017 , the Department filed a Motion to

Deem Matters Admitted and to Relinquish Jurisdiction (ÐMotion to

Relinquish Ñ) . Given the short time frame before the formal

heari ng, the M otion to Relinquish was taken under advisement

until the date of the hearing. During preliminary matters, the

parties presented argument regarding PetitionerÓs Motion to

Relinquish . After hearing argument from both parties, the

undersigned denied Petiti onerÓs Motion to Relinquish.

Petitioner made an ore tenus Motion to Continue , which was

denied.

On September 25, 2017 , the undersigned conducted the final

hearing , as scheduled. The hearing was called to order at

10:00 a.m. , E astern S tandard T ime (ÐESTÑ) . After preliminary

matters, PetitionerÓs counsel requested a brief recess to allow

her primary witness additional time to appear at the hearing.

At approximately 10:45 a.m. EST , Petitioner was given a se cond

recess to allow the witness to appear. The hearing reconvened

after the recess with the witness present.

At the hearing, the Depart ment presented the testimony of

Chris Byrnes, a Department i nvestigator, and Dep artmentÓs

Exhibits 1 through 5 w ere admitted without objection.

Respondent pres ented the testimony of two witnesses: Mary

Atwood , owner and manager of Boss Lady Co. ; and Ricky Atwood,

husband of Mary Atwood . Respondent offered no exhibits.

The one - volume T ranscript of the final hearing was filed

with DOAH on October 16, 2017. On October 4, 2017, Respondent

filed a post - hearing statement, which the undersigned accepts as

RespondentÓs Proposed Recommended Order (ÐPROÑ). On October 23,

2017, Petitioner timely filed a PRO. B oth post - hearing

submittals have been considered in the preparation of this

Recommended Order .

Unless otherwise indicated, a ll references to statutes are

to Florida Statutes (2016 ), which is the law in effect at the

time of the alleged acts .

FINDING S OF FACT

1. The Department is the state agency responsible for

enforcing the requirement of the Workers' Compensation l aw that

requires employers to secure the payment of workers'

compensation coverage for their employees and corporate

officers. § 440.107, Fla. Stat.

2. Respondent is a Florida limited liability c ompany ,

organized on September 18, 2014, engaged in business in Florida.

Mary Atwood is the listed manager and owner of Boss Lady Co .

3. The nature of RespondentÓs business was a disputed

issue at the final hearing.

4. Mrs. Atwood testified that s he obtained a license to

engage in construction as a minority female business owner.

5 . The record contains a handwritten list of jobs provided

by Mrs. Atwood to represent the work performed by Respondent,

which included color sealer (app lication), partial color sealer

(removal), privacy fence repair, and privacy fence

(installation).

6 . On May 18, 2017, Mr. Byrnes observed a truck parked in

front of a property with a magnetic sign indicating, Boss Lady

Concreate Company. The sign indicated the com pany worked on

patios, driveways, foundation, flat work, and privacy fences.

He then stopped at the property to perform a random check.

7 . During the random check, Mr. Byrne s encountered two men

when he approached the property. The first man, Joshua Bro wn,

was operating a pressure washer. Mr. Byrnes told Mr. Brown his

name and the purpose of his visit. Mr. Brown told Mr. Byrnes

that his boss, Mary, was in the back of the house. Mr. Brown

stated that it was his first day working for Mrs. Atwood and

tha t he was expecting to receive beer money for the day.

8 . The second man, Kenneth Archibald , stated that he works

for Mrs. Atwood off and on and had done so for some time. He

stated he was generally paid eight or nine d ollars per hour and

that he expected to be paid his general wage for that day Ó s

work.

9 . Mrs. Atwood denied that Mr. Archibald and Mr. Brown

were her employees and stated that they were just helping her

out for the day.

10 . However, Mrs. Atwood transported t he two men to the

proper ty for the purpose of pressure wash ing the driveway.

While Mrs. Atwood continued to deny that she intended to pay the

gentle man for the work performed, she testified that the men

wanted beer money and she was Ð going to give them a couple of

dollars for beer . Ñ No one was paid for anything that day.

11 . Neither of the two men alleged to have been working

for Mrs. Atwood testified at the hearing. Mrs. AtwoodÓs

testimony is the only direct evidence presented at hearing of

the payment arrangement for the two men at the property

location.

12 . Mr. Byrnes checked the Department's Coverage and

Compliance Automated System ("CCAS") database to determine

whether Mr s. Atwood had secured the payment of workers'

compensation insurance coverage or had obtained an exemption

from the requirements of chapter 440. CCAS is a database that

Department investigators routinely consult during their

investigations to check for compliance, exemptions, and other

workers' compensation related items. CCAS revealed that

Mrs. Atwood had an exemption for herself for construction,

effective October 5, 2016 . There was no evidence that

Respondent had workersÓ compensation coverage for any employees .

13 . Based on his jobsite interviews with the alleged

employees and Mrs. Atwood , and his CC AS computer search,

Mr. Byrnes conclu ded that Mrs. Atwood had two employees working

in the construction industry and that she had failed to obtain

workersÓ compensation coverage for tho se employees in violation

of chapter 440. As a result, Mr. Byrnes issued a S WO that he

personally served on Mrs. Atwood on May 18, 2017.

14 . Also on May 1 8, 2017, Mr. Byrnes served Mrs. Atwood

with a Request for Pr oduction , asking for payroll records ,

accounting records , disbursements, contracts for work,

subcontractors Ó documents, and documentation of subcontractorsÓ

workersÓ compensation coverage f or the period from February 13,

2017, through May 18, 2017 . The request for payroll records

included income tax documents.

15 . Mrs. Atwood provided Mr. Byrnes with a list of jobs

performed, including the amount paid for work performed , in

response to the Request for Production. Mrs. Atwood testified

that she p roduced the only records she had in her possession

because she did not have payroll records , bank records, or

billing records. Mrs. Atwood also testified that Boss Lady Co.

filed taxes , yet it did not provide tax records because

Mr. Byrnes allegedly did n ot request the records.

16 . The under signed is not persuaded by Mrs. AtwoodÓs

testimony regarding failure to produce the income tax records.

17 . The evidence supports a finding that Boss Lady Co. had

tax records fo r the covered time period which wer e no t produced

to the Department .

18 . The evidence produced at hearing clearly and

convincingly demonstrated that Mrs. Atwood was covered by an

exemption (related to the construction industry) from workers Ó

compensation insurance exemption.

19 . There is direct evidence that Mr. Byrnes saw Mr. Brown

operatin g the pressure washer, and that, at the very least,

Mrs. Atwood intended to pay him a couple of dollars for beer .

Thus, the undersigned finds that Mr. Brown was working for

Respondent on May 18, 201 7.

20 . However, there was no direct evidence that

Mr. Archibald was observed performing any work. The only

evidence as to whether Mr. Archibald worked for Respondent or

how he was paid was hearsay statements of Mr. Archibald as

restated by Mr. Byrnes. Mr. Archibald was not available at

hearing to corroborate Mr. Byrnes testimony. Mrs. Atwood

testified that Mr. Archibald was merely plugging in the pressure

washer. The Department did not demonstrate by clear a nd

convincing evidence that Mr. Archibald wa s performing work for

Respondent on May 18, 2017.

21 . Mr. Byrnes testified that the work he observed on

May 18, 2017 (pressure washing) was non - construction work.

Although the work performed on that day may not be classified as

non - construction work, the evide nce demonstrates that Boss

Lady Co. is an employer with one or more employees engaged in

the construction industry. Thus, Boss Lady Co. was required to

maintain workersÓ compensation coverage for its employees.

22 . The Department has demonstrated that iss uance of the

SWO was proper, pursuant to chapter 440 .

23 . The Department has demonstrated by clear and

convincing evidence that Respond ent was in violation of

chapter 440 by failing to produce tax records in response to the

R equest to Produce.

CONCLUSIONS OF LAW

2 4 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding, pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2017).

2 5 . Employers are required to secure payment of workersÓ

compensation for their employees. §§ 440.10(1)(a) and

440.38(1), Fla. Stat.

2 6 . "Employer" is defined, in part, as "every person

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

2 7 . "Employment . . . means any service performed by an

employee for the person employing him or her" and includes "with

respect to the construction industry, all private employment in

which one or more employees are employed by the same employer."

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

2 8 . " Employee " is defined, in part, as " any person who

receives remuneration from an employer for the performance of

any work or service while engaged in any employment under any

appointment or contract for hire or apprenticeship, express or

implied, oral or written. " § 440.02(15)(a), Fla. Stat .

29 . The Department has the burden of proof in this case

and must show by clear and convincing evidence that the employer

violated the Workers' Compensation Law. See DepÓt of Banking

and Fin., Div. of Sec. and Investor Prot. v. Osborne Stern and

Co. , 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

3 0 . In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116 n.5 (Fla. 1st DCA 1989),

the Court defined clear and convincing evidence as follows:

[C]lear and convinc ing evidence requires

that the evidenc e must be found to be

credible; the facts t o which the witnesses

testify must be dist inctly remembered; the

evide nce must be pre cise and explicit and

the witnesses must be lacking in confusion

as to the facts in issu e. The evidence must

be of such weight th at it produces in the

mind of the trier of fa ct the firm belief of

conviction, without hesitancy, as to the

tru th of the all egations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

3 1 . The undersigned has found that the Department proved

by clear and convincing evidence that Respondent employed

Mr. Brown. The Department did not prove by clear and con vincing

evidence that Respondent employed Mr. Archibald on May 18, 2017 .

The Department did prove that Respondent was a business in the

construction industry. Therefore, Respondent was required to

obta in workersÓ compensation insurance coverage for Mr. Brown .

3 2 . Section 440.02(8) defines "construction industry" as

"for - profit activities involving any building, clearing,

filling, excavation, or substantial improvement in the size or

use of any struct ure or the appearance of any land." Section

440.02(8) further provides "[t]he division may, by rule,

establish standard industrial classification codes and

definitions thereof which meet the criteria of the term

'construction industry' as set forth in thi s section."

Respondent Ó s business activities as described by Mrs. Atwood of

concrete color sealer and installer of privacy fences

constituted construction under the DepartmentÓs statutorily

authorized rules. Fla. Admin. Code R. 69L - 6.021(2)(x )

and (yyy) .

3 3 . Section 440.107(7)(a) provides in relevant part:

Whenever the department determines that an

employer who is required to secure the

payment to his or her employees of the

compensation provided for by this chapter as

failed to secure the payment of wo rkers'

compensation required by this chapter . . .

such failure shall be deemed an immediate

serious danger to public health, safety, or

welfare sufficient to justify service by the

department of a stop - work order on the

employer, requiring the cessation o f all

business operations. If the department

m akes such a determination, the department

shall issue a stop - work order within

72 hours.

Thus, the Department's SWO was mandated by statute.

3 4 . The Department demonstrated by clear and convincing

evidence that it correctly issued the SWO to Respondent.

3 5 . The Department demonstrated by clear and convincing

evidence that Respondent failed to comply with the Request to

Produce by failing to produce tax records.

RECOMMENDATION

Based on the foregoing Finding s of Fact and Conclusions of

Law, it is RECOMMENDED that the Department entered a final order

finding:

(a) the Depa rtment properly issued the Stop - Work Order

against Boss Lady Concreate Co . , LLC ; and

(b) Boss Lady Concreate Co . , LLC , failed to comply wi th

the SWO by failing to provide tax records as requested by the

DepartmentÓs Request to Produce.

DONE AND ENT ERED this 16th day of November , 2017 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, 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 H earings

this 16th day of November , 2017 .

ENDNOTE

1/ RespondentÓs busi ness is registered with the Division of

Corporations as Boss Lady Concreate Co ., LLC .

COPIES FURNISHED :

Mary Atwood

Boss Lady Concreate Co. LLC

5801 Clearwater Drive

Pensacola, Florida 32505

Christina Pumphrey, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

(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 this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.