Administrative law — Department of Financial Services properly assessed penalty against limited liability company for failure to maintain workers’ compensation insurance for its employees

Administrative
law — Department of Financial Services properly assessed penalty against
limited liability company for failure to maintain workers’ compensation
insurance for its employees — Section 440.107(15), Florida Statutes, only
exempts non-construction industry limited liability companies from a penalty
for the period between July 1, 2013 through December 31, 2013 — Owner/members
of a limited liability company are now included within the definition of
“employees”

HISTORIC HOME RENTALS, LLC, Appellant, v. DEPARTMENT OF
FINANCIAL SERVICES, ETC., Appellee. 5th District. Case No. 5D14-3874. Opinion
filed February 19, 2016. Administrative Appeal from the Department of Financial
Services. Counsel: Sean P. Sheppard, of Sheppard Firm, P. A., Ft. Lauderdale,
for Appellant. Mary K. Surles and Gregory D. Venz, of Department of Financial
Services, for Appellee.

(PER CURIAM.) Appellant appeals the final order assessing a
penalty against it for failing to maintain workers’ compensation insurance for
its employees. Although it concedes that it failed to provide the insurance as
required by law, it contends that it is statutorily exempt from the penalty.
Because Appellee’s interpretation of the statute is reasonable and not clearly
erroneous, we affirm.

Section 440.107, Florida Statutes (2013), empowers Appellee
to enforce employer compliance with workers’ compensation coverage
requirements. Specifically, section 440.107(7)(d)1., Florida Statutes, states,
in pertinent part, that Appellee:

shall
assess against any employer who has failed to secure the payment of
compensation as required by this chapter a penalty equal to 1.5 times the
amount the employer would have paid in premium when applying approved manual
rates to the employer’s payroll during periods for which it failed to secure
the payment of workers’ compensation required by this chapter within the
preceding 3-year period or $1,000, whichever is greater.

Although Appellant acknowledges this statutory authority to
assess a penalty, it contends that it is exempt from any such penalty by
application of section 440.107(15), Florida Statutes (2013), which provides:

A
limited liability company that is not engaged in the construction industry and
that meets the definition of “employment” at any time between July 1, 2013, and
December 31, 2013, may not be issued a penalty pursuant to this section for
failing to secure the payment of workers’ compensation.

Appellant urges that if it met the definition of
“employment” between the specified date range, it can never be penalized.
Conversely, Appellee contends that section 440.107(15) only exempts
non-construction limited liability companies from a penalty for the period between
July 1, 2013 through December 31, 2013. Appellee explains that prior to July 1,
2013, certain owner/members of non-construction limited liability companies
were arguably not deemed “employees” for purposes of determining whether
workers’ compensation was required. However, effective July 1, 2013,1 the statute was amended to make clear
that these owner/members were included within the definition of “employees”
unless the owner/member claimed an exemption not applicable here. As Appellee
explains, section 440.107(15) was intended to afford a grace period for the
affected entities to come into compliance with the change in definition.

We are obliged to defer to the agency’s interpretation of
the statute if it is within the range of possible, reasonable interpretations
and is not clearly erroneous. Cagle v. St. Johns Cty. Sch. Dist., 939
So. 2d 1085, 1089 (Fla. 5th DCA 2006). Here, Appellee’s interpretation clearly
satisfies this test. Indeed, it is the most reasonable interpretation of the
statute. It is consistent with the entire statutory scheme, the history of
amendments, and it is the best translation of the literal language used.
Accordingly, we affirm.

AFFIRMED. (LAWSON, C.J., TORPY and LAMBERT, JJ., concur.)

__________________

1See Ch.
2012-213, § 1, Laws of Fla. (amending definition of “Corporate officer”).

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