STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3402

)

JOSE R. LUERA, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on October 15, 1987, in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Moses E. Williams, Esquire

Department of Labor and Employment Security

Montgomery Building, Suite 117 2562 Executive Center Circle Tallahassee, Florida 32399-0658

For Respondent: James Quillen, II, Esquire

509 North Morgan Street Tampa, Florida 33602

At the hearing, Petitioner introduced eleven exhibits and called Herb Mize, crew chief compliance officer, Donn Goodson, owner of Goodson Farms, and Gary Carmichael, field foreman, to testify. Respondent did not introduce any exhibits or call any witnesses. No transcript of the hearing was filed, and the parties waived the filing of proposed recommended orders.

FINDINGS OF FACT

1. During January and February, 1987, Respondent acted as a farm labor contractor without a certificate of registration having been issued to him by Petitioner. Specifically, he was hired by Goodson Farms as a farm labor contractor, after holding himself out as such, and did act as a farm labor contractor by supplying and transporting 55 to 75 farm workers for the harvesting of cauliflower at Goodson Farms. He received payment for his services and disbursed payments to these workers.

   
   

2. Respondent has failed to possess, for a period of three years, proof of payments he has made to each farm worker for whom he has acted as a farm labor contractor. Records he did provide to Herb Mize, crew chief compliance officer, were incomplete and did not include a record of payments for social security, income taxes withheld, and deductions for food and transportation.

   CONCLUSIONS OF LAW

   
   

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

   v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

4. Section 450.33(6), Florida Statutes, requires farm labor contractors to maintain records required by Petitioner. Rule 38B-4.007, Florida Administrative Code, specifies that deductions from wages shall be made in accordance with Section 450.33(7), Florida Statutes, which states that farm labor contractors shall:

   
   

   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.

   
   

   See also Rule 38B-4.006(6)(b), Florida Administrative Code.

   
   

5. Section 450.30(1), Florida Statutes, requires persons acting as farm labor contractors to be registered as such with the Petitioner. Section 450.28(1), Florida Statutes, defines a "farm labor contractor" to be anyone who accepts a fee for recruiting, transporting, or hiring one or more farm workers for a third person. In this case, Respondent was acting as a farm labor contractor by supplying and transporting farm workers to Goodson Farms for the cauliflower harvest in early 1987. At the time, Respondent was not registered with Petitioner. See Rule 38B-4.003, Florida Administrative Code.

   
   

6. Petitioner is authorized to impose an administrative fine of up to

$1000 for each violation of Chapter 450, Part III, Florida Statutes. See Section 450.38(2), Florida Statutes, as created by Chapter 85-243, Laws of Florida. Therefore, since two clear violations have been shown, Petitioner has sustained its burden in this case, and is authorized to assess an administrative penalty against Respondent.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing an administrative penalty of $1400.00 against Respondent.

DONE AND ENTERED this 23rd day of October, 1987, in Tallahassee, Florida.

DONALD D. CONN

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 23rd day of October, 1987.

COPIES FURNISHED:

Moses E. Williams, Esquire Department of Labor and

Employment Security

2562 Executive Center Circle East Montgomery Building, Suite 117 Tallahassee, Florida 32399-2152

James Quillen, II, Esquire

509 North Morgan Street Tampa, Florida 33602

Hugo Menendez, Secretary Department of Labor and

Employment Security

2590 Executive Center Circle East

206 Berkeley Building Tallahassee, Florida 32399-2152

Kenneth Hart, Esquire General Counsel Department of Labor and

Employment Security

2562 Executive Center Circle East

131 Montgomery Building Tallahassee, Florida 32399-2151

Docket for Case No: 87-003402

Orders for Case No: 87-003402