STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-172

)

RAUL SALDIVAR, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in Room 112, City Hall, 735 8th Street South, Naples, Florida, on May 4, 1981.

APPEARANCES

For Petitioner: Chad J. Motes, Esquire

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301

For Respondent: Jackson Boughner, Esquire

959 28th Avenue, North Naples, Florida 33940

ISSUES

The issues presented in this action concern the Petitioner's failure to renew the Respondent's Florida Farm Labor Contractor Certificate of Registration for the year 1981. The refusal to renew the certificate is premised upon the alleged failure on the part of the Respondent to furnish Felix Munoz and others with an itemized statement of deductions made from their payments for rent, and loans owed to the Petitioner, and by doing so purportedly acting contrary to Subsection 450.33(7), Florida Statutes. In addition, it is alleged, as a ground for refusal to renew the certificate, that Raul Saldivar, Jr., failed to distribute when due all monies or other items of value entrusted him by third persons for such purpose in violation of Subsection 450.33(2), Florida Statutes, and Rule 385-4.08(8)(a), Florida Administrative Code, by receiving payroll checks payable to Arnulfo Ramirez, Esteban Guerraro, Carmen Cruz, Juan Cruz, Santos Martinez, and Leonel Flores; further, that Respondent took the payroll checks in the absence of the farm workers, endorsed and deposited the checks to his bank account.

FINDINGS OF FACT 1/

1. In the years 1979 and 1980, the Respondent had been granted a Florida Farm Labor Contractor Certificate of Registration from the State Department of Labor and Employment Security in keeping with the terms and conditions of Chapter 450, Florida Statutes. When Saldivar applied for the renewal of his Florida Farm Labor Contractor Certificate of Registration for 1981, he was refused renewal for the reasons set forth in the issues statement of this Recommended Order. The Respondent has, in all other respects, complied with the necessary conditions for his relicensure.

   
   

2. Beginning in August, 1979, and continuing into 1980, the Respondent was a member of a partnership known as R & S Sons. Particularly in the year 1980, Saldivar, as a member of the partnership, was involved in providing farm labor employees to various tomato growers (Corkscrew Growers, Greener's Farm, C & G Farms, Johnson's Farm, Harvey Brothers, and R & S Sons, which was the partnership farm.) There was no written contract between the growers and Saldivar. Each grower would pay Saldivar for transporting the farm laborers to the growers' farms, and in addition, pay Saldivar for running a labor camp, that is, the place at which the farm laborers resided when they were not employed picking tomatoes. This latter item was the payment for rent for the laborers. The Respondent was also paid by the growers for the units of tomatoes picked by the laborers on an increment payment basis known as a "bin."

   
   

3. The Respondent maintained a list of farm laborers through the device of a time card for each employee that worked for a week or mere for one of the growers. Those farm employees had Social Security cards and the growers furnished Workers' Compensation Insurance coverage for the benefit of the farm laborers. There were approximately 200 farm laborers in the category being provided by the Respondent's organization.

   
   

4. The drivers of the tomato hauling trucks worked for the growers but the trucks belonged to the Saldivar organization and the picking buckets were also provided by this latter group.

   
   

5. The farm laborers were paid by checks issued by the various growers. They were made up from time records maintained by the Respondent's organization. The check had attached to it a stub indicating the amount of pay, and the amount of Social Security deductions and the stub was available to be maintained by the employee. The information placed on the time records was gained from field supervisors who were employees of the growers. (Although the growers had field supervisors immediately in charge of the farm laborers, Saldivar was the overall coordinator for the activities of these laborers.) No withholding amount was taken out of the checks of the laborers other than Social Security. The payroll records of the Respondent would indicate the net earnings and gross amount paid to each farm laborer.

   
   

6. Payment to the farm laborers was made at the farm labor camp managed by the Respondent. The process for disbursing the checks was to call the laborer by name and Saldivar would hand the check to the laborer.

   
   

7. One of the farm laborers who lived at the Saldivar camp and picked tomatoes for a grower in the area was Felix Munoz. Munoz arrived at the Saldivar camp in August, 1979. Saldivar, at that point, loaned Munoz money to pay for Munoz's transportation to Florida. There was no repayment of the travel loan for a period of time for reason of unavailability of work for Munoz.

8. In late September, Munoz began to repay the loan, and the method of repayment was at the time wherein the Respondent disbursed the payroll check from the grower to Munoz. Munoz would in turn endorse the check over to the Respondent and receive cash in the face amount of the check, and then give the Respondent some of that cash as repayment for the loan. Munoz was not provided a statement of the amount repaid on the loan. Respondent did have the amount written on a piece of paper over which he had control.

   
   

9. The same loan arrangements for transportation that were involved with the laborer Munoz occurred with other farm laborers living in the Saldivar camp, and the same method was utilized for handling the manner of repayment of the indebtedness, and for recording the matters of the indebtedness.

   
   

10. Munoz and other farm laborers also paid the Respondent rent for living at the Respondent's farm labor camp and the rent was paid from the proceeds of the checks for their efforts as tomato pickers. Munoz and others were not given statements of the amount they had paid to Saldivar for rent.

    
    

11. Arnulfo Ramirez, Esteban Guerrero, Carnen Cruz, Juan Cruz, Santos Martinez and Leonel Flores were farm laborers who arrived at the Saldivar camp in December, 1979. These individuals, as with others spoken to above, were loaned money to pay for their transportation costs to Florida. The Respondent loaned them the money, and they in turn, agreed to repay the transportation loan from salaries earned and by the method identified before. These individuals had left the area of the State when the growers issued their last paycheck. Therefore, Respondent picked up the paychecks from the growers, and acting on the advice of counsel, endorsed the farm laborers' names to the checks and deposited them in the Respondent's account and the proceeds were used as credit against the transportation loans owed by these individuals.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this action.

    
    

13. In the course of the hearing the Petitioner offered as its exhibit what purports to be excerpts from a deposition given by Respondent in an alleged federal court case. The Respondent's counsel objected to the admission of this item on the basis that it was not a certified copy, that it constituted hearsay, was not in fact an admission against interest, and was a discovery proceeding.

    
    

14. The exhibit is not the original deposition, and it is not a "duplicate" of the deposition within the meaning of Section 90.953, Florida Statutes; 2/ and cannot be introduced on the authority of that provision.

    
    

15. The deposition is documentary evidence within the meaning of Section 120.58(1)(d), Florida Statutes, 3/ and while it may constitute a "copy" in its excerpted form extracted from the original, there was no demonstration that the original was not readily available for purpose of this hearing and by the tenor of counsel for the Respondent's remarks offered in his objection to the admission of this item, it is clear that the Respondent was desirous of having the opportunity to compare the purported copy with the original, or duplicate of the deposition. Consequently, the purported deposition not having been satisfactorily authenticated, introduction of the requested excerpts between pages 54 through 60 to line 11 is denied admission. The decision is reached, recognizing the fact that sufficiently authenticated deposition testimony is an

    exception to the hearsay rule, being an admission against interest within the meaning of Subsection 90.803(18), Florida Statutes, 4/ and thereby an exception to the hearsay rule. Here the item was not satisfactorily authenticated.

    
    

16. As stated in the introductory portion of this order, the Respondent has fulfilled all requirements for renewal of his Florida Farm Labor Contractor Certificate of Registration for the year 1981, and that certification is being withheld solely on the basis of certain contentions made by the Petitioner. One of those contentions is set forth in December 9, 1980, correspondence addressed to the Respondent in which it is alleged that payments for rent and loans related to one Felix Munoz and other unnamed farm laborers made over to the Respondent, were accomplished by the process of deductions made from the pay of those individuals and that such monies were withheld by the Respondent in a circumstance wherein the Respondent had the obligation to provide itemized statements of the deductions to those individuals and did not do so. This constituted a violation of Subsection 450.33(7), Florida Statutes, 5/

    according to the Petitioner.

    
    

17. A reading of the above referenced Subsection leads to the conclusion that only these farm labor contractors who employ farm laborers, and through the employment process pay the wages of those individuals by check, draft or voucher, must either as a part of these indicia of payment or through a separate itemized statement in writing, show in detail each and every deduction made from the wages prior to the disposition of those wages. In this instance, those individuals spoken to were employees of the growers, notwithstanding the supervision provided by the Respondent and other functions for coordination for which remuneration was received for such activities on the part of the Respondent. Those individual farm laborers were paid by checks drawn by the growers and included deductions made by the employer/grower and as a part of this payment a detachable stub indicating those deductions was provided.

    
    

18. The payment on account for rents and transportation costs made from the farm laborers to Saldivar were not the type payment and deduction arrangements contemplated by the aforementioned section. Therefore, this basis for denying the Respondent's application for relicensure does not suffice and should not promote a denial of the renewal of the requested certificate.

    
    

19. A second ground for denial is promoted on the basis of an alleged violation by the Respondent of Subsection 450.33(2), Florida Statutes, 6/ and Rule 38B-4.06(6)(a), Florida Administrative Code. 7/

    
    

20. Saldivar had loaned money to Arnulfo Ramirez, Esteban Guerrero, Carmen Cruz, Juan Cruz, Santos Martinez and Leonal Flores for the purpose of paying their transportation to Florida to pick tomatoes. Those individuals were to repay him from the proceeds of their wages paid by the growers. At the time of the last wage payment, those individuals ware not available to receive their checks, and the Respondent placed their checks in the operating account of his business and applied proceeds from their checks against the indebtedness he claimed the workers owed to him.

    
    

21. While the Respondent may not have been in a position to locate and disburse the checks to the aforementioned farm laborers, his fiduciary responsibility is such that it was inappropriate for him to apply those wages to his business account to the extent of utilizing the wage proceeds to satisfy

claimed indebtedness related to transportation costs. In the absence of the ability to locate the farm laborers and disburse the checks, the checks should have been returned to the growers. By his actions, the Respondent has violated this provision. The fact of the violation is sufficient, at a minimum, to require special conditions to the licensure of the Respondent for the year 1981. To that end, it is

RECOMMENDED:

That the Respondent be granted a renewal of his Florida Farm Labor Contractor Certificate for the year 1981, only upon a good faith effort to locate the aforementioned farm laborers and pay those individuals the wages earned, and issued from the growers, which were inappropriately placed in the account of the Respondent and utilized by him. In the absence of the ability to locate the named farm laborers, the Respondent should be required to place the amount of salary payments due and owing to those laborers in an escrow account pending the location of the farm laborers. 8/

DONE and ENTERED this 5th day of June, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1981.

ENDNOTES

1/ The facts found here are as testified to at the hearing on May 4, 1981, and as related in the January 22, 1981, deposition of the Respondent taken by counsel for the Petitioner. That deposition is being transmitted with this Recommended Order, and shall constitute part of the record.

2/ Admissibility of duplicates. -A duplicate is admissible to the same extent as an original, unless: (1) The document or writing is a negotiable instrument as defined in s. 673.104, a security as defined in 678.102, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment. (2) A genuine question is raised about the authenticity of the original or any other document or writing. (3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.

3/ (d) Documentary evidence may be received in the form of a copy or excerpt if the original is not readily available. Upon request, parties shall be given am opportunity to compare the copy with the original.

4/ Hearsay exceptions; availability of declarant immaterial. The provision of

s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness: (18)

ADMISSIONS.-A statement that is offered against a party and is: (a) His own statement in either an individual or a representative capacity; (b) A statement of which he has manifested his adoption or belief in its truth; (c) A statement by a person specifically authorized by him to make a statement concerning the subject; (d) A statement by his agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or (e) A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member's participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.

5/ Duties of farm labor contractor. Every farm labor contractor must: (7) Semimonthly, or at the time of each payment of wages, furnish each of the workers employed by him, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing in detail each and every deduction made from such wages.

6/ Duties of farm labor contractor. -Every farm labor contractor must: (2) Promptly when due, pay or distribute to the individuals entitled thereto all moneys or other things of value entrusted to the registrant by any third person for such purpose.

7/ Duties of a Registrant. Upon obtaining his certificate, each contractor thereafter must: (6)(a) Promptly when due, pay to the farm workers whom he employs all moneys or other things of value.

8/ The Petitioner in this action, in the person of counsel, has presented proposed findings of fact and conclusions of law in this action. Those proposals and conclusions have been reviewed prior to the entry of this Recommended Order. To the extent that the proposals and conclusions are inconsistent with this Recommended Order, they are hereby rejected.

COPIES FURNISHED:

Chad J. Motes, Esquire

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301

Jack Boughner, Esquire 959 28th Avenue, North Naples, Florida 33940

Docket for Case No: 81-000172

Orders for Case No: 81-000172