IN THE SUPREME COURT OF FLORIDA

TALLAHASSEE, FLORIDA

CASE NO. SCI 1-507

Lower Tribunal Case No: 2009-1337L,

DCANo: 1D09-5894

ROBERT A. BRAYSHAW,
STEPHANIE BRAYSHAW

Petitioner,

-vs-

AGENCY FOR WORKFORCE

INNOVATION, ET AL.,

Respondent.

On Appeal from the First District Court

of Appeal of the State of Florida

AMENDED INITIAL BRIEF ON JURISDICTION

 IN THE SUPREME COURT OF FLORIDA
TALLAHASSEE, FLORIDA

CASE NO: SCI 1-507

ROB BRAYSHAW,
STEPHANIE BRAYSHAW

Petitioner,

-vs-

AGENCY FOR WORKFORCE

INNOVATION, ET AL.,

Respondent.

AMENDED INITIAL BRIEF ON JURISDICTION

On Appeal from the First District Court of Appeal of the State of Florida
Lower Tribunal Case No: 2009-1337L, DCA No: 1D09-5894

DIRECT CONFLICT OF FEDERAL AND STATE DECISIONS

Comes now Rob and Stephanie Brayshaw with this Amended Initial Brief

On Jurisdiction regarding direct conflict of Federal and State Decisions.

We seek to invoke Discretionary jurisdiction to review a decision of the First

District Court of Appeal, Tallahassee, Florida, opinion rendered February

22, 2011. This Opinion is attached and separated at the Appendix.

STATEMENT OF THE CASE AND STATEMENT OF FACTS

There is a direct conflict in this case at bar for the State's decision to that of

the Federal Decision of the Internal Revenue Service for us as Employees.

The Internal Revenue Service conducted a Federal Investigation against

AHB, LLC DBA the Dakota Apartments during July 2008 until September

2009. This was with both their criminal and civil divisions. My wife and I

were reclassified as Employees and Never Independent Contractors under

Federal Cases #64943 and #64944. The Federal Decisions of the Internal

Revenue Service stated in their investigative documents on the court record

that we had no factors of being independent contractors. We were always

employees working for AHB, LLC as redetermined by the IRS in both

investigative cases. The State already had many fabricated statements and

documents on the court record from this employer and would not accept any

further documents right after the IRS concluded their investigations. The

Investigation of the IRS regarding my wife and I as employees clearly shows

this company of AHB, LLC for being fraudulent in not paying their

employee taxes with independent contractor misclassifications under a False

1099 status. My wife and I were always employees and were always

eligible to unemployment benefits while being classified by the State as well

as the IRS as employees as previously held in prior years with the third-party

Management company. This was before the AHB, LLC Company fired our

third-party management company of Coastal Property Services that we had

worked together for two years as property managers for these owners.

I personally have W-2 Forms from AUB, LLC as submitted to the IRS for

2006, 2007 and 2008 which completely made the prior 1099's as moot to the

entire situation as the AUB, LLC Company had fraudulently submitted

previously to the IRS. I also received a W-2 for 2010 this year because the

company of AHB, LLC was ordered by the IRS to pay a tax penalty of 20%

to the IRS for their non-payment of taxes during three years due to their

misclassification frauds. The company of AHB, LLC is currently in default

with the IRS because they have not submitted the W-2 Forms to my wife for

2006, 2007, 2008 and 2010 as the IRS determined her eligibility for working

as a property manager as well on their property according to numerous

evidences.

This company has been completely fraudulent and lied throughout the entire

state investigation while submitting fabrications and false documents to the

Agency for Workforce Innovation during legal proceedings. They were

represented by professional legal counsel in the City by Michael P. Bist who

has many local connections for working during the last 30 years as an

Attorney. The Federal Investigations by the IRS and the fact that my wife

and I are redetermined as employees should over-ride these falsified claims

of fraud by this company. Fraud should have no time limit in which the

lower court should have accepted the documents that the IRS mailed to us

stating that there was no way for us being independent contractors. We were

illegally misclassified by this company that was avoiding many legal costs

by attempting to claim that they didn't have any employees during years that

they held previously with us working for their property together. The

company of AHB, LLC DBA the Dakota Apartments was foreclosed in June

last year in which the apartment complex sold in December. It is now run

by a new management company and owned by another owner.

The State itself for Workforce Innovation as involved in this case based their

decisions on a Florida Common Law Test that has been utilized and written

since 1950's and 1960's. This testing is obviously out of date in which the

decisions were wrong and improper according to the Newer IRS standards.

Most Agencies utilize the new IRS testing because factors of being

independent contractors have changed over the years which obviously 50

years are a very long time. The court record clearly shows that the Attorney

for the Defendants "hand-delivered" all documents to Workforce Innovation

during the Investigation. We know that the only reason mat the attorney did

this was because of improper oral communications during the case. These
owners have repeatedly lied and talked bad about us for our cooperation

with the IRS for their federal investigations. All of their claims are shown as

false especially with the IRS re-determining us as employees with the actual

facts of the case. They submitted many false claims to the Agency during

the Investigation that had absolutely nothing to do with their tax frauds as

the focus of this case. They attempted to cover up the facts of the matter for

being tax frauds that didn't pay their employees properly. They attacked and

attempted to devalue my wife and I as individuals because of all the money

that they stole from us during working for their business. It seems to us that

many Florida Citizens are being denied unemployment benefits with

wrongful state determinations. This is quite obvious because the testing is

not very clear-cut at all while being outdated and should be obsolete for over

50 years old for the Florida Common Law Testing being used. The State

does not have the proper education and proper resources to determine the

eligibility for independent contractor testing like the IRS does for seeing

through a business owner's Complete Lies and Deceptions. Employees do

not file taxes every year in Florida with the State so they obviously don't

have the paperwork and all the resources of the Federal Agents.

The lower courts have shown a false appearance ofjustice to this case that
we have filed by allowing us to file the cases up the chain. The courts have

failed at justice with much corruption in the case. All of the Fraud and

Deceptions made by this employer during the case is the main factor even

with an out-dated Florida Law Test that should be obsolete as it doesn't

conform to IRS standards which really matter for W-2 and Federal

Determinations.

My wife and I don't have an attorney in this case after being robbed

thousands of dollars from a tax fraud employer. They didn't give us the

proper paid taxes, benefits, labor protections, staffing, funding and resources

while working for their fraud company as illegally paid under a wrongful

1099 status. The State obviously doesn't want to pay us for benefits that the

IRS certainly states that we are entitled because of this tax fraud. This

company is now foreclosed and out of business. The fraudulent dealings

caused the demise of this company and they certainly were not honest and

didn't run a business properly under Federal or State standards. That doesn't

change the fact that the State is also attempting to scoot around the facts of

the case at bar. We were never independent contractors and we have always

been eligible to unemployments. The IRS investigations on the record for

#64943 and 64944 clearly shows the deceptions and frauds of this out of
Business Company for trying to weasel their way out of business

obligations. They paid their taxes to the IRS after being exposed and had to

pay penalties as well. This court should appoint us an attorney because

of the complex issues in the case for writing a legal brief. The facts

clearly show in reasonable legal theory that Federal Law of the IRS trumps

the State Law. I currently hold W-2 Forms for these years of 2006,2007,

2008 and 2010 that wiped out the legal claims of us ever being independent

contractors. The legal decision with the Internal Revenue Service is final as

the owners have been ordered to pay taxes and submit our W-2 Forms. My

wife is also determined this employee status as well in their records

regardless if this crooked employer mails her the W-2 Forms just like he did

me. They have lied, cheated and stole money from us. Businesses such as

this have no credibility at all. The State did not have the proper resources to

determine the facts of the case based upon a 1950/1960's Florida Common

Law Test while also piled with fabrications and lies throughout the

determinations. It was basically impossible to verify these employer

statements by the State especially when they don't have the resources of the

IRS in which we don't file State Taxes Every Year. Their Company

Attorney has their own resources as well in which the State doesn't want to
pay us as legally entitled just as we worked previously under an employee

status that could not be changed legally. We should both be re-determined

with the State as with the IRS. It is wrong that the State is contrary to the

federal facts of the case on the record. There is also a major underlying

problem to this case for all Florida Citizens that is now being exposed. The

Florida Common-Law Testing is over 50 years old now for the basis of State

Independent Contractor Testing. This shows that the decision by the State

that should be made for reclassified employees is not being made just like in

our case. This can cause many legal problems to these legal employees for

not receiving unemployment benefits as legally entitled as shown as a matter

of Federal Law by the IRS. It can also cause many other legal problems for

having the wrong classification in which a company attempts to pass all the

legal liability to their employee that is baseless and without merit strictly

because of illegal 1099 misclassifications for illegal money savings.

My wife and I both certainly know that we have never owned any business

and were never eligible to be independent contractors. We have had many

long talks with Agents from the IRS regarding this AHB, LLC Company. It

seems that the State definitely needs to catch up on the times because the

eligibility of being an independent contractor isn't even the same as 50 years

8
ago when the Florida test was starting to be utilized. The Florida testing has

not been changed since while The IRS has new guidelines utilized.

Based upon the facts, it would be impossible for these owners to not know

that we were being illegally paid because of our prior work relationship and

working conditions with Coastal Property. These owners robbed us much

money because of the direct working relationship of being paid illegally.

The IRS Investigations submitted on the court record by us clearly shows

that everyone that made a decision in this case was clearly wrong. We had

no qualifications of being any independent contractor. The major

disqualification of this false claim of the state is acknowledged by them as

well. The Big Fatal Flaw of this work relationship was being property

managers together as previously while working on the owner's property

daily. We also had no financial control to their bank accounts clearly

showing that we had no business interest in the company at all since we

never wrote the checks of the company. The 20 Factors of Testing for the

IRS Standards clearly shows that we didn't meet one qualification of being

any independent contractor. Many of the claims that this business made to

try to justify our factors are shown on the record as weak and petty while

also having a professional attorney to blow smoke on the case. The bottom
line is that my wife and I were both redetermined as employees with the IRS

for this company to Federal Standards. This is just like we held prior while

working for this company before they utilized their illegal tax fraud scheme

by misclassifying us as independent contractors with a monthly payment to

me. I also have W-2's that clearly shows the facts that I was never an

independent contractor because of this business tax fraud. They lied

throughout out the case with numerous deceptions because they were caught.

The Agency of Workforce Innovation as the State of Florida clearly did not

have the legal resources as that of the IRS for the Federal Level. No

employee files state taxes in Florida every year. The State clearly didn't

have all the access to all of the facts in which the entire court hearing were

completely one-sided and biased throughout because of this company's legal

counsel giving nothing but lies and deceptions for directing the case.

We ask that the lower court's decision is over-turned as we clearly do not

meet any legal standards of being independent contractors under the

circumstances. It doesn't make any sense at all that the State will continue

to claim us as employees in their wrongful decisions. This is while the IRS

clearly shows a major victory to our case standing and contrary federal

opinion with the State's wrongful decisions for the true facts of the case.

10
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing document has

been furnished by USPS Mail Delivery on this 2fet day of April 2011 to the
following: jfrf %^ ^^
Rob Brayshaw, Pro Se
206 Wilson Green Boulevard
Tallahassee, Florida 32305

FLORIDA SUPREME COURT

500 South Duval Street
Tallahassee, Florida 32399-1927

AGENCY FOR WORKFORCE INNOVATION

John R. Perry, Assistant General Counsel
107 East Madison Street MSC 110
Tallahassee, Florida 32399-4128

MICHAEL P. BIST
1300 Thomaswood Drive
Tallahassee, Florida 32308

CERTIFICATION OF FONT SIZE AND STYLE

I HEREBY CERTIFY that this Amended Initial Brief On

Jurisdiction has been typed in font size and style, Times New Roman, 14 pt.

Rob Brayshaw, Pro Se

206 Wilson Green Boulevard
Tallahassee, Florida 32305
 IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA

ROB BRAYSHAW, NOT FINAL UNTIL TIME EXPIRES TO

STEPHANIE BRAYSHAW, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellants, CD V -H

v. CASE NO. 1D09-5894

C".- I
co
ro

AGENCY FOR WORK FORCE 3 '■

INNOVATION, ET AL.,
o

XT

Appellees. CO

Opinion filed February 22, 2011.

An appeal from an order of the Agency for Workforce Innovation.

Tom Clendenning, Director.

Rob Brayshaw and Stephanie Brayshaw, pro se, Appellants.

Michael P. Bist of Gardner, Bist, Wiener, Wadsworth & Bowden, P.A.,

Tallahassee, and John R. Perry, Senior Attorney, Tallahassee, for Appellees.

PER CURIAM.

Appellants Rob Brayshaw and Stephanie Brayshaw have applied for

unemployment compensation benefits, and their entitlement to benefits depends on

whether they were independent contractors or employees of Appellee AHB, LLC.

At issue in this appeal is a final order of the Agency for Workforce Innovation

("Agency") finding that the Brayshaws were independent contractors. The

Brayshaws argue the Agency erred by failing to apply the criteria used by the

Internal Revenue Service to determine, for employment tax purposes, whether an

employer-employee relationship exists.

Under section 443.1216(l)(a)2., Florida Statutes (2008), persons who may

be entitled to unemployment compensation include "[a]n individual who, under the

usual common-law rules applicable in determining the employer-employee

relationship, is an employee." The statute does not refer to other rules or factors

for determining the employment relationship. Therefore, the Agency was limited

to applying only Florida common law in determining the nature of the employment

relationship between the Brayshaws and AHB, LLC. In Cantor v. Cochran, 184

So. 2d 173, 174-75 (Fla. 1966), the supreme court adopted as the test in Florida

that which is set out in 1 Restatement of the Law, Agency (Second) §220 (1958):

(2) In determining whether one acting for another is a

servant or an independent contractor, the following
matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the
master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a
distinct occupation or business;
(c) the kind of occupation, with reference to whether, in
the locality, the work is usually done under the direction
of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
 instrumentalities, tools, and the place of work for the
person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the
job;
(h) whether or not the work is a part of the regular
business of the employer;
(i) whether or not the parties believe they are creating the
relation of master and servant; and
(j) whether the principal is or is not in business.

See Dep't of Health & Rehab. Servs. v. Dep't of Labor & Employment Sec, All

So. 2d 1284, 1286 (Fla. 1st DCA 1985) (stating that "[t]he proper factors to be

considered in determining whether an employer-employee relationship exists were

listed in [Cantor]"). We find the Agency properly applied these factors, and its

findings are supported by competent, substantial evidence. See Tamburello v.

State, Dep't ofMgmt. Servs., 657 So. 2d 32 (Fla. 1st DCA 1995). Accordingly, we

affirm the Agency's order finding the Brayshaws were independent contractors of

AHB, LLC.

AFFIRMED.

PADOVANO, ROBERTS, and MARSTILLER, JJ., CONCUR.