TALLAHASSEE, Fla. – A Florida man who was charged with workers’ compensation fraud has filed a lawsuit against the State of Florida, arguing its workers’ compensation law is an “abuse of authority” and unconstitutional.
Plaintiff Jose Carlos Soares Da Cruz filed his lawsuit June 13 against the State in the Circuit Court of the Second Judicial Circuit, in and for Leon County.
In June 2013, Da Cruz, an Orlando resident, was charged with three counts of workers’ compensation fraud in Orange County Circuit Court.
A state prosecutor charged that Da Cruz knowingly failed to secure workers’ compensation insurance for seven individuals, all employees of his JC Brick & Paver Services LLC. According to court documents, Da Cruz was required to do so by Florida Statutes Chapter 440.
Da Cruz contends his conviction and its “collateral consequences create a concrete, ongoing injury.”
Under Chapter 440, the Florida Department of Financial Services – which has the power to enforce alleged criminal violations relating to the workers’ compensation statutes – defines “engaged in work” as an “employee of a construction industry employer headquartered outside the state of Florida.”
It also states that the employee is “engaged in work” if he/she engages in “new construction, alterations, or any job of any construction activities involving any form of the building, clearing, filling, excavation or improvement in the size or use of any structure of the appearance of any land, or performing any job duties or activities which would be subject to those contracting classifications identified in the Contracting Classification Adjustment Program within the borders of the state of Florida, regardless of whether an employee returns to his or her home state each night …”
Da Cruz argues he does not qualify under the definition.
“Even if the court finds the defendant constitutes an ‘employer,’ he resides within the state of Florida, and thus the rule still does not apply to him,” the seven-page complaint states.
He also argues Chapter 440 is “void for vagueness” because it does not put a reasonable person on notice of when an employer is required to carry workers’ compensation insurance in Florida.
In his filing, Da Cruz also contends he should only be charged with a third-degree felony.
“Under the Rule of Lenity, when a statute is ambiguous or vague, the court should resolve any ambiguity or vagueness in favor of the defendant,” the complaint states.
“There is no definition of ‘monetary value’ contained in Chapter 440 of the Florida Statutes. The rates and procedures for calculating workers’ compensation insurance premiums are developed by the Department of Insurance, acting in conjunction with the National Council on Compensation Insurance Inc. (NCCI), a body organized by and acting on behalf of the insurance carriers that write workers’ compensation insurance.”
Da Cruz argues that because the rates and procedures used to calculate the “monetary value” vary “so significantly,” there is no uniform definition to be found within them.
“This makes a the [sic] value that is ultimately calculated is not reliable or fair enough to determine whether a defendant should be charged with first, second, or third degree felony.
Da Cruz’s complaint seeks declaratory judgment and injunctive relief.
He is represented by Adrian S. Middleton, an associate at the Sword & Shield Attorneys’ Insurance and Administrative Law Division. Middleton focuses his practice on workers’ compensation insurance regulatory compliance matters, according to the firm’s website.
