94-002931RP Florida United Businesses Association, Inc. vs. Department Of Labor And Employment Security Status: Closed DOAH Final Order on Wednesday, October 26, 1994.

Summary: Proposed rule chapter is valid and consistent with legislative intent even if not the best alternative. Petitioner did not give agency specifics on economic impact.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA UNITED BUSINESSES )

ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-2931RP

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, DIVISION OF )

SAFETY, )

)

Respondent. )

___________________________________)

TAMPA ELECTRIC COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2932RP

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Respondent. )

___________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Mary Clark, held a formal hearing in the above-

styled cases on August 8, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner, Thomas W. Stahl, Esquire

Florida United Eric D. Prutsman, Esquire

Business Assn., NEWELL & STAHL, P.A.

Inc.: 817 North Gadsden Street

Tallahassee, Florida 32303-6313

and

Karen Phillips, Esquire

Florida United Business Association, Inc.

200 West College Avenue

Tallahassee, Florida 32302

For Petitioner, Steven P. Seymoe, Esquire

Tampa Electric Post Office Box 391

Company: Tallahassee, Florida 32302

For Respondent, David Hawkins, Esquire

Florida Dept. John Carlson, Esquire

of Labor and Department of Labor & Employment Security

Employment The Hartman Building, Suite 307

Security: 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

STATEMENT OF THE ISSUES

 e t h e r p r o p o s e h d u l e s c o m p r i s i r n w i T h e i s s u e i n t h s e e p r o c e e d i n g s s g

chapter 38I-74, published by the Department of Labor and Employment Security,

Division of Safety, are an invalid exercise of the agency's delegated

legislative authority.

PRELIMINARY STATEMENT

On May 6, 1994, the Department of Labor and Employment Security, Division

of Safety (Division), published notice of its intent to adopt proposed rule

chapter 38I-74 (Workplace Safety Committees). Petitioners, Florida United

Businesses Association, Inc. (FUBA), and Tampa Electric Company, timely filed

petitions pursuant to section 120.54(4), F.S., to determine the validity of the

proposed rule chapter. Petitioners' cases were consolidated and set for

hearing. On June 9, 1994, the parties filed a Joint Motion for Continuance and

the hearing was rescheduled for August 8, 1994.

Before hearing, the Division and Tampa Electric Company filed a joint

stipulation that resolves their dispute. The Division agreed to publish certain

changes, in exchange for which Tampa Electric Company agreed to withdraw its

request for a hearing. Counsel for Tampa Electric Company appeared at the

hearing and confirmed the agreement. Tampa Electric Company did not participate

further in the hearing on August 8, and the hearing proceeded on FUBA's claim

that the proposed rule chapter is an invalid exercise of delegated legislative

authority.

At the commencement of the hearing, the Division filed two prehearing

motions. Its Motion for Partial Dismissal of Petition to Determine Invalidity

of Proposed Rule was taken under advisement and is addressed in this Final

Order. The Division's Motion Objecting to Use of Deposition to Perpetuate

Testimony of Beverly Karmanos was denied.

During the hearing FUBA called Karen Phillips; Thomas L. Schieffelin, who

was tendered as an expert in safety, safety programs, and safety in risk

management; Gary P. Hobart, who was tendered as an expert in actuarial sciences;

and Dr. Joseph L. Katz, who was tendered as an expert in statistics and

statistical methodology. FUBA also introduced the video-taped deposition of

Beverly Karmanos. FUBA's exhibits 1 through 7 were admitted into evidence.

The Division introduced the testimony of Richard Maiello and Julie

Schuneman. The Division's exhibits 1 and 2 were admitted into evidence.

A hearing transcript was filed on August 18, 1994, and at the parties'

request, an amended transcript was filed on August 25, 1994.

FUBA filed a motion to "amend record" on September 2, requesting that the

hearing officer take official recognition of rule 38I-10, F.A.C., an existing

rule of the Division. Over objection, the request is granted, but as reflected

below, consideration of that rule does not affect the outcome here.

The parties filed proposed final orders on September 2. Their proposed

findings of fact are addressed in the attached appendix.

FINDINGS OF FACT

1. In their prehearing stipulation, filed August 5, 1994, the parties

stipulate to these facts:

a. Petitioner, Florida United Businesses Association, Inc. (FUBA), is

a Florida nonprofit corporation with offices at 200 West College Avenue, Suite

210, Tallahassee, Florida, 32301.

b. The affected state agency is the Department of Labor and

Employment Security, Division of Safety (Division), with offices located at 2002

Old Saint Augustine Road, Suite 45, Building E, Tallahassee, Florida, 32399-

0663. The Division is the agency charged with the duty to implement and enforce

provisions of Chapter 442 (Laws of Florida, Ch. 93-415), the Florida

Occupational Safety and Health Act.

c. The Division published a Notice of Public Workshop concerning

proposed rule chapter 38I-74 that appeared in volume 20, number 12, Florida

Administrative Weekly at 1801-02 (Mar. 25, 1994).

d. The Division held a public workshop in Tallahassee on April 8,

1994. FUBA did not appear at nor submit comments for consideration at the

public workshop.

e. The Division held a public hearing in Tallahassee on May 31, 1994.

FUBA, its representatives, or both, appeared and participated in the public

hearing.

f. The proposed rule 38I-74, was published on May 6, 1994, in the

Florida Administrative Weekly, Volume 20, Number 18.

g. The parties agree that Petitioner, Florida United Businesses

Association, Inc., has standing in these proceedings.

h. On May 27, 1994, FUBA requested the Division to prepare an

economic impact statement.

Economic Impact Statement

2. FUBA alleges that the proposed rules are invalid because the agency did

not consider their impact on many small businesses and the agency did not

attempt to reduce disproportionate impacts on small businesses.

3. There is no evidence that FUBA made the agency aware of specific

concerns regarding the proposed rules' economic impact in the public workshop,

public hearing, or written comments.

4. Beverly Karmanos, a small-business owner whose testimony was presented

by deposition in this proceeding, conjectures that the rules will cost

approximately $3,000. per year. She bases that cost on two assumptions that are

not supported by the text or logical implications of the rules: that the safety

committee must be comprised of three or more employees; and that those employees

will be required to work overtime in order to accomplish the tasks of the

committee.

5. The proposed rules allow the employer to determine the total number of

members on the committee and their tenure, provided that the number of employer

representatives shall not exceed the number of employee representatives. See

proposed rule 38I-74.003(1)(a). The rules require that the committees meet at

least once each calendar year quarter, but no other frequency, duration or time

is specified. See proposed rule 38I-74.003(1)(c).

Identifying the Affected Employer

6. Sections 442.003 and .012, adopted by the Legislature in the 1993

special "C" Session (Ch. 93-415, Laws of Fla.), provide:

442.003. Legislative intent

It is the intent of the Legislature to

enhance occupational safety and health in

this state through the implementation and

maintenance of policies, procedures, practices,

rules, and standards that reduce the incidence

of employee accidents, occupational diseases,

and fatalities compensable under chapter 440.

The Legislature further intends that the Division

of Safety of the Department of Labor and Employment

Security develop a means by which it can identify

individual employers with a high frequency or

severity of work-related injuries; conduct safety

inspections of those employers; and assist those

employers in the development and implementation

of employee safety and health programs. In

addition, it is the intent of the Legislature

that the Division of Safety of the Department of

Labor and Employment Security administer the

provisions of this chapter; provide assistance

to employers, employees, and insurance caregivers;

and enforce the policies, rules, and standards

set forth in this chapter.

442.012. Workplace safety committees

(1) In order to promote health and safety in

places of employment in this state:

(a) Each public or private employer of more

than 10 employees shall establish and administer

a workplace safety committee in accordance with

rules adopted under this section.

(b) Each public or private employer of 10 or

fewer employees which is identified by the division

as having high frequency or severity of work-related

injuries shall establish and administer a workplace

safety committee in accordance with rules adopted

under this section.

(2) The division shall adopt rules:

(a) Prescribing the membership of the workplace

safety committees so as to ensure an equal number

of employee representatives, who are volunteers or

are elected by their peers, and of employee

representatives, and specifying the frequency

of meetings.

(b) Requiring employers to make adequate records

of each meeting and to file and to maintain the

records subject to inspection by the division.

(c) Prescribing the duties and functions of the

workplace safety inspections by the committee.

1. Establishing procedures for workplace safety

inspections by the committee.

2. Establishing procedures investigating all

workplace accidents, safety-related incidents,

illnesses, and deaths.

3. Evaluating accident-prevention and illness-

prevention programs.

4. Prescribing guidelines for the training of

safety committee members.

(3) Employers that operate under a collective-

bargaining agreement that contains provisions

regulating the formation and operation of work-

place safety committees that meet or exceed the

minimum requirements contained in this section,

or employers who otherwise have existing workplace

safety committees that meet or exceed the minimum

requirements established by this section are in

compliance with this section.

(4) Employees must be compensated their regular

hourly wage while engaged in workplace safety

committee training, meetings, or other duties

prescribed under this section. (Emphasis added)

7. The proposed rules include these relevant definitions:

(3) "Compensable injury" means any injury or

illness arising out of or in the course of

employment which requires the injured worker

to lose more than seven days from work.

(9) "High frequency employer" means an employer

identified by the division of having three or

more compensable injuries in the period of

three calendar years immediately preceding

adoption of the rule chapter, and thereafter

in the most recent period of three calendar years.

(Proposed rule 38I-74.002)

8. FUBA argues that the definition of "high frequency employer" is

overbroad, as it will include substantially all Florida employers in the

requirement for a safety committee. Moreover, Petitioner claims that the rules

are arbitrary and unreasonable. Specifically, Petitioner contests the "three in

three" rule (three compensable injuries in three calendar years).

9. The Division proposes to identify individual employers by using a data

base maintained by the Division of Workers' Compensation. The data base

identifies approximately 450,000 Florida employers in the workers' compensation

system and includes information on 1.9 million workers' compensation claims,

which information is derived from the first report of injury submitted by

employers and from the periodic status report submitted by carriers.

10. The Division downloads into its computer the entire data base from the

Division of Workers' Compensation. Thereafter, the Division refines the data by

eliminating claims for which injured employees do not satisfy the lost-time

requirement of eight days or more, employers with less than three injuries in

three calendar years, and employers no longer in business.

11. The workers' compensation data base affords the Division certain

utility. The data base is maintained within the Department and is readily

accessible to the Division. Moreover, the data base allows the Division to

identify employers by the frequency of claims, to determine trends and patterns

that reflect recurrence of injuries, and to differentiate between claims that

resulted in lost time greater than seven days and lost time of seven days or

less.

12. The Division experimented with various methodologies for identifying

"high frequency employer" and ultimately decided on the three compensable

injuries in a period of three calendar years (three-and-three) codified in the

proposed rule for several reasons.

13. The three-and-three method offers administrative simplicity. It is

immediately obvious to small employers whether they experienced three

compensable injuries in three calendar years and are required to establish a

safety committee.

14. The methodology identifies a level of employers that is within the

enforcement ability of the Division. The Division employs 198 persons,

approximately sixty of whom are enforcement specialists. The number of

specialists available to conduct inspections was a key factor in the Division's

decision. The methodology produced a list of 10,561 employers who experienced

three compensable claims in three years.

15. The three-and-three methodology comports with the statutory

requirement that the Division identify employers on the basis of high frequency

or severity of work-related injuries. The three-and-three methodology reflects

the element of frequency, and indirectly embraces the concept of severity.

Severity is reflected in the definition of compensable injury, which includes

only injuries that result in an employee's absence from work more than seven

days.

16. FUBA, through its competent and credible experts, contends that a more

sophisticated and fair process would measure "frequency" based on numbers of

employees and would measure "severity" based on costs of the claims. The

disregard of inherent risks in given industries, according to FUBA, makes the

"three for three" methodology statistically arbitrary. The Division, however,

rejected those alternatives for good reason.

17. The workers' compensation data base provides aggregate injury data on

employers, such as size of workforce by employer classification or group, but it

does not permit the Division to identify the number of employees at the

establishment level. The Division must independently corroborate the number of

employees with known information contained in the data base on the frequency of

injuries. The Division must verify the number of employees in a particular

establishment by telephone call or on-site visit after it receives a complaint

or schedules a random inspection. The Division will proceed with an

investigation of an employer with more than ten employees. Likewise, the

Division will proceed with an investigation of an employer with ten or less

employees if that employer appears on the high frequency list.

18. Establishment level information would be useful to the Division in

identifying high frequency employers. For this reason, the Division considered

merging independent data sources, which contained information on the number of

employees per establishment, with the workers' compensation data base. For

example, the Division considered using labor market information available

through the Bureau of Labor and Employment Training. However, confidentiality

restrictions prevent use of that information for enforcement purposes. Also,

the Division considered using Dunn & Bradstreet. However, technical limitations

made its use unfeasible, since the Division achieved a correlation of less than

a 30 percent match with employers in the workers' compensation data base.

19. The Division considered using other data fields available outside the

workers' compensation data base, such as financial loss, average payroll, and

rates of injury. Use of those fields was rejected, in part, because the

Legislature did not specifically require the Division to consider their use as a

means of identifying high frequency employers.

20. The unstable nature of financial loss information makes its use of

little benefit to the Division. Experience has shown that the annualized cost

of claims reflected in the workers' compensation data base is extremely unstable

month-to-month and is subject to variability. Only after three years does the

cost of claims, considered from a statewide perspective, become stable and

suitable as a benchmark of program success.

National Labor Relations Act

21. FUBA alleges that proposed rules 38I-74.002 and .003 "may" violate the

National Labor Relations Act in the manner in which the rules require employers

to form safety committees. (Paragraph 12, Petition to Determine Invalidity of

Proposed Rule)

22. This allegation is presumably based on Ms. Karmanos' perception that

the safety committees must work overtime. As found above, the rules do not on

their face require overtime, nor is such logically implied by any of the

proposed rules in Chapter 38I-74.

Employer Evaluation

23. FUBA contends that proposed rule 38I-74.006 fails to establish

adequate standards for its application. The rule provides as follows:

38I-74.006 Employer Evaluation by the Division.

(1) The division shall conduct an evaluation

of an employer to assure compliance with the

provisions of this rule chapter.

(2) Employers subject to an evaluation by the

division shall:

(a) Meet with a representative of the division;

(b) Assign a contact person to work with the

division representative; and

(c) Provide requested information pertaining

to employer responsibilities specified in this

rule chapter.

(3) The evaluation of an employer shall be

conducted at the employer's place of business.

24. FUBA introduced no evidence or argument in support of its contention,

other than Ms. Karmanos' shrugging comment that she thought the provision was

"vague".

Penalty

25. Finally, FUBA asserts that proposed rule 38I-74.099 arbitrarily

establishes a $500 fine for all violations. This rule provides as follows:

38I-74.099 Penalties.

An employer who violates this rule chapter

shall be subject to penalties authorized by

the Act or division rule, provided that an

employer who violates rule 38I-74.003 (employer

requirements) shall be assessed $500 for each

day the employer fails to comply with any section

of that rule, not to exceed $50,000 for a continu-

ing violation.

26. The Division intends that proposed rule 38I-74.099 be read in

conjunction with rule chapter 38I-60, F.A.C., which prescribes compliance

procedures that must occur before the Division assesses a penalty. The Division

must issue a notice of violation; the employer must fail to abate the violation;

and the Division must issue a notice of penalty. That chapter also permits an

employer to introduce evidence in mitigation of a penalty.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties to these consolidated cases. Section 120.54(4),

F.S. FUBA is "substantially affected" within the meaning of that section and

has standing to request a hearing to determine whether the proposed rule is an

"invalid exercise of delegated legislative authority." Id. at (4)(a); Section

120.52(8), F.S.

28. A challenger to the validity of the proposed rule chapter based on an

agency's economic impact statement must establish more specific standing. In

particular,

. . . No person shall have standing to challenge

an agency rule, based upon an economic impact

statement of lack thereof, unless that person

requested preparation of an economic impact

statement under subparagraph (2)(b)2. and provided

the agency with information sufficient to make

the agency aware of specific concerns regarding

the economic impact of the proposed rule, by

either participating in a public workshop,

public hearing, or by submission of written

comments, regard the rule.

Section 120.54(2)(d), F.S.

For reasons indicated above, FUBA lacks standing to challenge the rule chapter

based on the Division's economic impact statement. See Florida Surplus Lines

Ass'n, Inc. v. Department of Revenue, 16 F.A.L.R. 1058, 1064 (DOAH 1993).

29. While sincere and well-intended, Ms. Karmanos' testimony on economic

impact was without substantial foundation, either legally or factually.

Means of identifying employers

30. In Department of Labor and Employment Security, Division of Workers'

Compensation v. Bradley, 636 So.2d 802 (Fla. 1st DCA 1994), the district court

summarized several principles to guide the resolution of validity proceedings

under section 120.54(4), F.S.:

It is an established principle that "[w]here

the empowering provision of a statute states

simply that an agency 'may make such rules

and regulations as may be necessary to carry

out the provisions of this act,' the validity

of the regulations promulgated thereunder will

be sustained as long as they are reasonably

related to the purposes of the enabling legis-

lation, and are not arbitrary or capricious."

In a rule challenge, "the burden is upon one who

attacks a proposed rule to show that the agency,

if it adopts the rule, would exceed its authority;

that the requirements of the rule are not appropriate

to the end specified in the legislative act; that the

requirements contained in the rule are not reasonably

related to the purposes of the enabling legislation

or that the proposed rule or the requirements thereof

are arbitrary or capricious." Another settled

principle in the area of administrative rulemaking

is that--

agencies are to be accorded wide discretion in

the exercise of their rulemaking authority,

clearly conferred or fairly implied and consistent

with the agencies' general statutory duties . . .

An agency's construction of the statute it

administers is entitled to great weight and

is not to be overturned unless clearly erroneous

. . . the agency's interpretation of a statute

need not be the sole possible interpretation or

even the most desirable one; it need only be within

the range of possible interpretations.

Bradley, 636 So.2d, at 807 (citations omitted; emphasis in original).

31. FUBA has the burden of proving by a preponderance of the evidence that

the Division exceeded its legislatively delegated authority. Humana, Inc. v.

Department of Health and Rehabilitative Services, 469 So.2d 889, 890 (Fla. 1st

DCA 1985); Agrico Chemical Co. v. State Department of Environmental Regulation

365 So.2d 759, 763 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979).

32. In the Florida Occupational Safety and Health Act, the Legislature

required that certain public and private employers establish and administer

safety committees. Ch. 93-415, Section 63 Laws of Fla. (creating Section

442.012(1), F.S.). The requirement to establish and administer safety

committees applies to each public or private employer of "more than 10

employees," on the one hand; and to each public or private employer of "10 or

fewer employees which is identified by the division as having high frequency or

severity or work-related injuries," on the other. Id. The Legislature

delegated to the Division rulemaking authority to accomplish these purposes.

33. The Legislature did not define expressly "high frequency or severity

of work-related injuries." However, the Legislature did make clear its intent

when it created Section 442.003, F.S., cited in paragraph 6, above. The

Division has expressed its intention to advance this legislative purpose in

proposed rule 38I-74.001(1).

34. Two definitions from the proposed rule chapter in combination reveal

the means by which the Division identifies those employers with 10 or fewer

employees who must establish a safety committee. In proposed rule 38I-

74.002(9), the Division defines "high frequency employer"; in 38I-74.002(3), the

Division defines "compensable injury" in terms related to the severity of the

injury. (See paragraph 7, above).

35. The means chosen by the Division to identify employers with "high

frequency or severity of work-related injuries" is rationally related to the

legislative purposes of the Florida Occupational Safety and Health Act. The

Division plainly focused on the frequency of injuries, but also indirectly

embraced "severity" by considering only compensable injuries.

36. The Division properly considered available resources as the basis for

interpreting and implementing its legislatively delegated authority. The

Division's choice to rely on the readily available data base maintained by the

Division of Workers' Compensation reflected sound administrative judgment.

Moreover, the Division's choice to reject the merger of other specific data

resources outside the Division's control similarly was supported by reasoned

decision-making.

37. The Division properly considered the number of its personnel trained

to conduct investigations as a basis for identifying employers who are required

to implement safety committees under the proposed rule chapter since the

Legislature delegated to the Division authority to "develop a means by which it

can identify individual employers with a high frequency or severity of work-

related injuries," and further directed the Division to "conduct safety

inspections of those employers; and assist those employers in the development

and implementation of employee safety and health programs." Ch. 93-415, Section

54, Laws of Fla. (creating Section 442.003, emphasis added). The Division

exercised sound discretion in considering practicality and its resources in

establishing the means to identify employers that would be required to inspect

and assist.

38. FUBA failed to meet its burden of proving the invalidity of the

Division's proposed rule chapter. FUBA advocated that the Division abandon its

methodology and adopt one or more measures accepted in the insurance industry or

statistical disciplines as the means for identifying employers with "high

frequency or severity of work-related injuries." For example, FUBA's

alternatives are dependent on the Division's acquisition of employer payroll and

other data fields not available currently to the Division, or were otherwise

rejected by the Division for sound reasons. For further example, FUBA's

proposal defines a "severe" claim as one that exceeds $25,000; FUBA arbitrarily

came up with this definition. In contrast, the concept of "severity" under the

proposed rule chapter incorporates existing statutory guidelines. See, Section

440.12(1), F.S.

National Labor Relations Act

39. Whether the proposed rule chapter "may" require employers to violate

federal law is speculative and irrelevant to the inquiry in these proceedings.

Moreover, no proof of a violation was presented to support Petitioner's claim in

this regard.

Employer evaluation

40. FUBA introduced no competent evidence to support its claim that

proposed rule 38I-74.006 is vague. The text of the rule, cited in paragraph 23,

above, is simple, straightforward and clear.

Penalty

41. An agency may establish by rule a penalty that is within the limits of

delegated authority. Florida League of Cities, Inc. v. Administration

Commission, 586 So.2d 397, 412 (Fla. 1st DCA 1991). The Legislature authorized

the Division to assess penalties "not less than $100 nor more than $5,000 for

each day . . . " Ch. 93-415, Section 64, Laws of Fla. (adopting Section

442.013, F.S.) Consistent with its rulemaking prerogatives, the Division has

adopted a penalty in proposed rule 38I-74.099 that falls within the

legislatively authorized range. The proposed $500 a day penalty relates only to

violations of one portion of the rule. Otherwise, the rule merely incorporates

by reference the penalties authorized by the statute or other rule of the

Division.

ORDER

Based on the foregoing, it is hereby

ORDERED:

The Petition by Florida United Business Association, Inc., is DENIED. The

Petition by Tampa Electric Company is dismissed, as moot, based on the agreement

of the parties.

DONE AND ORDERED this 26th day of October, 1994, in Tallahassee, Florida.

___________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of October, 1994.

APPENDIX

The following constitute specific rulings on the findings of fact proposed

by the parties.

Petitioner's (FUBA) Proposed Findings

1. Adopted in paragraph 1.

2. Adopted in preliminary statement.

3-4. Adopted in paragraph 6.

5. Rejected as unnecessary.

6. Adopted in paragraph 7.

7-9. Rejected as immaterial. The Division's methodology is supported by

reason and by the enabling statute.

10. Rejected as contrary to the facts, or immaterial. "Severity" is

included in the definition of "compensable injury".

11. Rejected as contrary to the facts.

12. Rejected as a misconstruction of the testimony as a whole.

13-15. Rejected as unnecessary or immaterial.

16. Rejected as unsupported by the evidence or law.

17. Rejected as immaterial.

18. Rejected as a misstatement of the testimony, and immaterial.

19. Rejected as irrelevant.

20. Adopted in part in paragraph 14, but the process described was not the

only basis for the Division's decision.

21. Rejected as contrary to the evidence. The rule, on its face, is not

"vague".

22. Rejected as immaterial. The penalties do not exceed the maximum

established by statute.

Respondent's Proposed Findings

1. Adopted in paragraph 1.

2. Rejected as unnecessary.

3. Adopted in paragraph 2.

4. Adopted in substance in paragraph 3.

5. Adopted in substance in paragraph 8.

6. Adopted in substance in paragraph 6.

7. Adopted in substance in summary in paragraph 5.

8. Rejected as unnecessary.

9. Adopted in paragraph 7.

10. Adopted in paragraph 9.

11. Adopted in paragraph 10.

12. Adopted in paragraph 11.

13-14. Adopted in paragraph 12.

15. Adopted in paragraph 13.

16. Rejected as immaterial.

17-18. Adopted in paragraph 14.

19. Adopted in paragraph 15.

20. Adopted in paragraph 17.

21. Adopted in paragraph 18.

22. Adopted in paragraph 19.

23. Adopted in paragraph 20.

24. Adopted in paragraph 21.

25-26. Adopted in paragraph 22.

27. Adopted in paragraph 24.

28-29. Adopted in paragraph 25.

30. Included in conclusion of laws, paragraph 41.

31. Adopted in paragraph 26.

COPIES FURNISHED:

Thomas W. Stahl, Esquire

Eric D. Prutsman, Esquire

NEWELL & STAHL, P.A.

817 N. Gadsden Street

Tallahassee, Florida 32303-6313

Karen Phillips, Esquire

Florida United Business Association, Inc.

200 West College Avenue

Tallahassee, Florida 32302

Steven P. Seymoe, Esquire

P. O. Box 391

Tallahassee, Florida 32302

David Hawkins, Esquire

John Carlson, Esquire

Dept. of Labor & Employment Security

The Hartman Building, Ste. 307

2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

Liz Cloud, Chief

Bureau of Administrative Code

The Capitol, Room 1802

Tallahassee, Florida 32399-0250

Carroll Webb, Exec. Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Shirley Gooding, Secretary

Department of Labor and

Employment Security

303 Hartman Building

2012 Capital Circle S.E.

Tallahassee, Florida 32399-2152

Edward A. Dion, General Counsel

Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle S.E.

Tallahassee, Florida 32399-2152

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this final order is entitled to judicial

review pursuant to Section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rule of Appellate Procedure. Such proceedings are

commenced by filing one copy of a notice of appeal with the agency clerk of the

Division of Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First District, or

with the District Court of Appeal in the appellate district where the party

resides. The notice of appeal must be filed within 30 days of rendition of the

order to be reviewed.