STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Petitioner, )

)

vs. ) Case No. 87-1225

)

HERBERT A. DOCKERY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Gainesville, Florida, before Robert T. Benton, II, Bearing Officer of the Division of Administrative Hearings, on June 4, 1987.

Neither respondent Dockery nor anybody on his behalf appeared at hearing.

Petitioner was Moses E. Williams, Esquire represented by Suite 117, Montgomery Building counsel: 2562 Executive Center Circle

Tallahassee, Florida 32394-0655

By letter dated February 27, 1987, Phil Summers, Chief of petitioner's Bureau of Agricultural Programs, advised respondent of the agency's intention to assess a civil penalty against him in the amount of $1,000, Petitioner's Exhibit No. 4, for failing on November 3, 1986, to provide wage statements to workers or to keep records of any type. Petitioner's Exhibit No. 2. Even though respondent Dockery had earlier admitted these omissions, Petitioner's Exhibit No. 3, and did not explicitly deny them when he requested an administrative hearing, Petitioner's Exhibit No. 5, the Department of Labor and Employment Security (DLES) transmitted the hearing request to the Division of Administrative Hearings, in purported compliance with Section 120.57(1)(b)3., Florida Statutes (1985 Supp.). In the letter seeking a hearing, respondent asserted DLES had "been misinformed about me." Petitioner's Exhibit No. 5.

ISSUE

Whether petitioner should assess a civil money penalty against respondent for failing to provide wage statements to workers or to keep records of any type in violation of Section 450.38(2), Florida Statutes (1986 Supp.), and Rule 38B- 4.12(1), Florida Administrative Code?

FINDINGS OF FACT

When respondent Herbert A. Dockery originally applied for registration as a Florida Farm Labor Contractor, on March 19, 1986, he certified that he had read and understood "the Florida Farm Contractor Rules and Regulations. Petitioner's Exhibit No. 8.

On June 25, 1986, Marshall Alexander Carroll and Henry Jefferson Parker, crew chief compliance officers in DLES' employ, discovered that Mr. Dockery was keeping no records of moneys he paid agricultural workers. They told him such recordkeeping was legally required and gave him blank forms, like those that came in as Petitioner's Exhibit No. 6, which he could use, by keeping the originals for himself and giving the workers duplicates.

On November 3, 1986, in the course of a scheduled payroll audit, Mr. Parker again asked Mr. Dockery about his recordkeeping, and asked him to produce his social security records, receipts or "anything he had." But Mr. Dockery was unable to produce any records and admitted that he had kept none, saying he had only worked three days 35 as a farm labor contractor in 1986. Petitioner's Exhibit No. 1.

Beginning June 1, 1986, Tommy Price worked with Mr. Dockery "a short while" picking and loading watermelons and driving a truck hauling watermelons. Mr.

Price worked for the respondent about a month all told but some of that time was in Missouri. During all the time he worked for Mr. Dockery, Mr. Price, who was paid in cash, never received any statements. Mr. Dockery didn't keep track of people's hours and might not even have known, at any one point, who was in the field working for him. The only records he kept were notations of how much he promised to pay different people for truckloads of watermelons.

CONCLUSIONS OF LAW

In the event a farm labor contractor "on or after June 19, 1985, commits a violation of [Chapter 450, Part III, Florida Statutes (1985)] or of any rule adopted thereunder [he] may be assessed a civil penalty of not more than $1,000 for each such violation." Section 450.38(2), Florida Statutes (1985). Here petitioner proposes to assess a $1,000 penalty for violations of Rule 38B- 4.12(1), Florida Administrative Code, now Rule 38B- 4.012(1), which like the statute authorizes imposition of civil penalties for infractions of rule or statute.

Disciplinary proceedings against a farm labor contractor resemble license revocation proceedings, which have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla.

1973); Kozerowitz v. Florida Real Estate Commission, 269 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). Strict procedural protections apply. The prosecuting agency has the burden of proof, Associated Home Health Agency, Inc. v. State Department of Health and Rehabilitative Services, 453 So.2d 104 (Fla. 1st DCA 1984); and the burden is to prove its case clearly and convincingly. See generally Addington

1. Texas, 441 U.S. 426 (1979); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. v. Department of Business Regulation, etc., 393 So.2d 1177 (Fla. 1st DCA 1981); Walker v. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). But see Turlington v. Ferris, No. BH-37 (Fla. 1st DCA; Oct. 2, 1986) 496 So.2d 177 rev. pending sub nom. Ferris v. Turlington, No. 69,561 (Fla.; n/a Oct. 31, 1986).

   
   

   The particular duty petitioner contends that respondent breached in the present case is laid down by Rule 388-4.006, Florida Administrative Code, which requires that farm labor contractors:

   
   

   (6)(a) Promptly when due, pay to farm

   workers whom he employs all moneys or other things of value.

   1. At least semi-monthly, present to each farm worker whom he employs or has employed during the semi-monthly period, a completed Notice of Payment form (LES Form ESF-3102) showing the amount of compensation, the number of hours worked, the rate of compensation, the name and federal identification number of the legal employer or employers of the farm worker during the payment period, and, in detail, each and every deduction made from wages. A failure by a contractor to complete any item on the prescribed form for any payment to any farm worker shall be a violation of these regulations. This requirement may be met by providing all of the required information on a detachable part of the check, draft, or voucher paying the farm worker's wages, in lieu of the form. This requirement shall not apply to the contractor if the farmer, processor, canner, packing shed operator, or nurseryman pays wages direct to farm workers.

   2. Retain for a period of 3 years an exact copy of each Notice of Payment form (LES Form ESF-3102) or a copy of the detachable part of the check, draft, or voucher which has been issued to each farm

worker whom he employs. Such records shall be maintained by the last name of each farm worker and shall be kept available in such condition as to facilitate inspection by authorized representatives of the Division.

(7) Retain for a period of 3 years, proof of payment showing the nature and amount of each payment made on behalf of each farm worker for whom he has acted as farm labor

contractor. Such payments shall include, but are not limited to, payments for social security, withheld income taxes, transportation and food.

Rule 38B-4.006, Florida Administrative Code.

Clear, convincing, and uncontroverted evidence established that respondent failed to make and keep the required records.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner fine respondent two hundred and fifty dollars ($250.00).

DONE and ENTERED this 15th day of June, 19B7, at Tallahassee, Florida.

ROBERT T. BENTON, II

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 15th day of June, 1987.

COPIES FURNISHED:

Hugo Menendez, Secretary

Department of Labor and Employment Security

206 Berkeley Building

2590 Executive Center Circle, East Tallahassee, Florida 32399-2152

Moses E. Williams, Esquire Suite 117, Montgomery Building 2562 Executive Center Circle Tallahassee, Florida 32399-0658

Herbert A. Dockery Post Office Box 664

Chiefland, Florida 32626

Docket for Case No: 87-001225

Orders for Case No: 87-001225