STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4943

) NATHANIEL MANNS, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing was held in this case on February 10, 1987, in Gainesville, Florida, before Stephen F. Dean, a duly designated Hearing Officer of the Division of Administrative Hearings. At the beginning of the hearing, the Hearing Officer directed the style of the case be changed to accurately reflect the status of the parties, the Department as Petitioner and Manns as Respondent. The Bureau of Agricultural Programs (Petitioner) was represented by Moses E. Williams, Esquire. Nathaniel Manns (Respondent) did not appear, and was not represented, at the hearing. Petitioner called crew chief compliance officer CCCO, Jeff Parker and Mr. Steven Davy to testify. In addition, Petitioner introduced Petitioner Exhibits 1-11. No transcript of the hearing has been filed.

Petitioner filed a proposed finding which was adopted with rewording of several paragraphs.

ISSUE

Whether Respondent committed the alleged violations.

APPEARANCES

For Petitioner: Moses E. Williams, Esquire

Department of Labor and Employment Security

Montgomery Building

2562 Executive Center Circle East Tallahassee, Florida 32301

For Respondent: No Appearance

FINDINGS OF FACT

At the hearing of this case, the Petitioner's Motion that the request for admissions be deemed admitted was granted, resulting in the following facts being admitted:

1. Waldron Produce of Citra, Florida, paid Respondent to supervise farmworkers harvesting peanuts on August 7, 1986.

   
   

2. Respondent did not present to each farmworker he employed a notice of payment, showing the amount of compensation, number of hours worked, the rate of compensation, the name and federal identification number of legal employers of the farmworkers during the pay period, in detail, each and every deduction made from wages.

   
   

3. Respondent did not retain for a period of three years an exact copy of each notice of payment form or a copy of the detachable part of the check, draft, or voucher that had been issued to each farmworker he employed.

   
   

4. Respondent supervised a crew of farmworkers hand-harvesting peanuts approximately five miles east of Highway 301 on the north side of county road

   319 in Marion County, Florida, on August 7, 1986.

   
   

5. Respondent did not post his application for a certificate of registration at the work site of the farmworkers on August 7, 1986.

   
   

6. Respondent did not post a working conditions statement at the work site of the farmworkers showing the rate of compensation the grower paid him and the rate of compensation he was paying the farmworkers on August 7, 1986.

   
   

7. Respondent contracted with Waldron Produce for the employment and supervision of farmworkers without first displaying to Waldron Produce a current certificate of registration issued by the Bureau.

   
   

   In addition, the following facts are based upon evidence introduced at hearing:

   
   

8. Respondent did not give wage statements to his workers.

   
   

9. On August 20, 1986, Respondent met with CCCO Parker for a payroll audit. The audit revealed that Respondent was not giving wage statements to workers.

   
   

10. Respondent did not make social security deductions and forward them to the social security administration. The audit revealed that Petitioner was not keeping the records by last name of each farmworker, or in a condition to facilitate inspection by the Bureau. (See testimony of Parker.)

    
    

11. Respondent's records showed that he had paid Mr. Stanley Davy $77.00 for work during the week of August 4 through August 8, 1986.

    
    

12. Mr. Davy received only half of the $77.00 and he worked approximately

    11 to 12 hours per day. (See testimony of Davy.)

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. Petitioner is seeking to impose an administrative fine against Petitioner. Therefore, Petitioner has a burden of proof in this case, and must establish alleged violations by clear and convincing evidence. Balino vs. The Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Bowen

    vs. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Florida Department of Transportation vs. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

14. Section 450.30, Florida Statutes, says no person may act as a farm labor contractor until a certificate of registration has been issued to him by the Division unless a certificate is in full force and effect and is in his possession. See also Rule 38B-4.03, Florida Administrative Code.

    
    

15. Section 450.33(7), Florida Statutes, requires farm labor contractors to 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 employees wages or separately, an itemized statement in writing showing in detail each and every deduction made from wages. See also Rule 38B-4.06(6)(b), Florida Administrative Code.

    
    

16. Section 450.33(4), Florida Statutes, requires farm labor contractors to display permanently at the site where the work is to be performed and on all vehicles used by the registrant for the transportation of employees:

    
    

    1. Copy of his application for a certifi- cate of registration; and

    2. A written statement in English and in Spanish when any employee is Spanish speaking, showing the rate of compen- sation he receives from the grower with whom he has contracted, and the rate of compensation he is paying to his

       employees for service rendered to, for or under the control of such grower.

       
       

       See also Rule 38B-4.08, Florida Administrative Code.

       
       

17. Section 450.33(6), Florida Statutes, requires a farm labor contractor to maintain such records as may be designated by the Division. Rule 38B- 4.06(6)(c), Florida Administrative Code, 4 requires farm labor contractors to retain for a period of three years an exact copy of each notice of payment form (LES Form ESF-3102) or copy of the detachable part of the check, draft, or voucher which has been issued to each farmworker whom he employs. Such records shall be maintained by the last name of each farmworker and shall be kept available in such condition as to facilitate inspection by authorized representatives of the Division.

    
    

18. Respondent totally failed to comply with the requirements above. Petitioner has clearly and convincingly established that Respondent:

    
    

19. Acted as a farm labor contractor without a certificate of registration being issued to him by Petitioner. Alternatively, Respondent did not have a certificate of registration that was in full force and effect in his possession at the time he acted as a farm labor contractor.

    
    

20. Did not post a copy of his application for a certificate of registration nor his working conditions statement at the site where farm work was to be performed.

    
    

21. Did not provide semimonthly, or at the time of each payment of wages, furnish each of the workers with a wage statement on two occasions.

22. Did not retain for a period of three years accurate copies of each notice of payment forms, maintain records by last names of each farmworker, nor keep the records in such condition to facilitate inspection by an authorized representative of the Division.

    
    

23. Did not retain for a period of three years proof of payment showing the nature and amount of each payment made on behalf of each farmworker for whom he acted as a farm labor contractor, including deductions for social security as well as other deductions.

    
    

24. Petitioner is authorized to impose an administrative fine up to $1,090 for each violation of Chapter 450, Part III, Florida Statutes. See Section 450.38(2), Florida Statutes. Since five violations have been proven, Petitioner is authorized to impose an administrative fine up to $5,000. However, Respondent's action on August 20, 1986 to submit payroll records should be considered in mitigation of the penalty to be imposed.

RECOMMENDATION

Having found Respondent guilty of violating Sections 450.301, 450.33(7), 450.33(4)(a) and (b) , and 450.33(6), it is

RECOMMENDED that Petitioner issue a Final Order imposing an administrative fine of $2,500 against Respondent.

DONE and ORDERED this 5th day of March, 1987, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1987.

COPIES FURNISHED:

Moses E. Williams, Esquire Department of Labor and

Employment Security Montgomery Building

2562 Executive Center Circle East Tallahassee, Florida 32399-2152

Nathaniel Manns, Jr.

Route 4, Box 4852

Citra, Florida 32627

Hugo Menendez, Secretary Department of Labor and Employment

Security

206 Berkeley Building

2590 Executive Center Circle East Tallahassee, Florida 32399-2152

Kenneth Hart, Esquire General Counsel

Department of Labor and Employment Security

131 Montgomery Building

2562 Executive Center Circle East Tallahassee, Florida 32399-2152

Docket for Case No: 86-004943

Orders for Case No: 86-004943