Allen v. DEPARTMENT OF FINANCIAL SERVICES
| Decision Date | 24 November 2004 |
| Docket Number | No. 4D03-4732.,4D03-4732. |
| Parties | Judith ALLEN, d/b/a Underwater Maintenance Services and Earl Yearicks, Appellants, v. DEPARTMENT OF FINANCIAL SERVICES, Division of Workers' Compensation, Appellee. |
| Court | Florida District Court of Appeals |
Richard W. Glenn of the Law Office of Richard W. Glenn, West Palm Beach, for appellants.
Colin M. Roopnarine, Assistant General Counsel, Department of Financial Services, Division of Legal Services, Tallahassee, for appellee.
Appellants, Judith Allen d/b/a Underwater Maintenance Services, and Earl Yearicks, appeal from a Final Order entered by appellee, Florida Department of Financial Services, Division of Workers' Compensation (the "Department"). We reverse. In 2003, the Department issued an Amended Stop Work Order and Penalty Assessment Order against appellants. It ordered appellants to stop work until they complied with workers' compensation laws and paid the penalty of $150,968 they had been assessed. Appellant requested an administrative hearing on the order asserting that appellants' work fell within the jurisdiction of the Longshoremen and Harbor Workers' Compensation Act, 33 U.S.C. sections 901 et seq. (the "Act") and that Chapter 440 of the Florida Statutes which requires workers' compensation coverage by employers was preempted by the Act.
At the hearing, the testimony revealed that appellants' business hired divers to work in the water performing commercial diving services and from barges or dive floats demolishing and/or building bridges. After the hearing, the administrative law judge found that:
The Department's Final Order concluded that appellants did not have workers' compensation coverage, which appellants admitted, and that their jurisdictional claim was without merit. Appellants were ordered to comply with the Amended Stop Work and Penalty Order.
Section 440.09, Florida Statutes (2001), provides:
Section 440.107(5) provides:
(5) 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 has failed to do so, 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 of all business operations at the place of employment or job site....
In FCCI Fund (FEISCO) v. Cayce's Excavation, Inc., 726 So.2d 778 (Fla. 1st DCA 1998) (citing Babin v. North Florida Shipyards, Inc., 705 So.2d 66 (Fla. 1st DCA 1997), modified on other grounds, 709 So.2d 657 (Fla. 1st DCA 1998)
), the court held that "[a]s a matter of state law, coverage under the LHWCA precludes coverage under Florida's Workers' Compensation Law." FCCI, 726 So.2d at 780. It concludes: "Florida law makes coverage under the federal act the question on which the jurisdiction of the judge of compensation claims depends in the present case." Id. Thus, it must now be determined whether appellants' employees qualify under the Act.
In P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979), the Supreme Court set forth the requirements for qualifying under the Act. It held:
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 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, 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...
To continue reading
Request your trial