STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3636

)

ISAAC HAWTHORNE, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing was held in this case on October 20, 1987, in Sebring, 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

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

For Respondent: Andrew B. Jackson, Esquire

150 North Commerce Avenue Sebring, Florida 33870

At the hearing, Petitioner called Larry Coker and Juan Mendez, compliance officers, Stanley Hawthorne, Zephrin Augustine and Respondent. Petitioner also introduced 14 exhibits, numbered 11 through 24. Respondent called Nathaniel Hawthorne and Stanley Hawthorne to testify on his behalf. Official recognition was taken of the Recommended Order and Final Order in DOAH Case Number 87-1644. No transcript of the hearing has been filed. The parties were allowed to file proposed findings of fact, conclusions of law and memoranda within ten days after the hearing, and the Appendix to this Recommended Order includes a ruling on each timely filed proposed finding of fact.

The issue in this case is whether the Department of Labor and Employment Security (Petitioner) should assess an administrative penalty against Isaac Hawthorne (Respondent) for violating Section 450.35, Florida Statutes, based upon his alleged contracts with farm labor contractors on February 18 and March 2, 1987, before said farm labor contractor displayed to him a current certificate of registration issued by Petitioner.

FINDINGS OF FACT

1. Respondent is a registered farm labor contractor with social security number 264-86-0916 and certificate number 4-3266-K 86 I. He is part owner of Highlands Harvest Corporation and is registered with Petitioner as the

   Corporation's representative. Respondent signs payroll checks for Highlands Harvest, hires and fires its workers, and was referred to as the "bossman" by his brothers, Stanley and Nathaniel Hawthorne, and Zephrin Augustine.

   
   

2. On or about February 18, 1987, and March 2, 1987, Respondent recruited and hired farm workers for a fee, and directed, controlled and supervised their work as well as that of farm labor contractors who were not registered with Petitioner. Specifically, he hired and supervised Ortland Williams and Stanley Hawthorne as farm labor contractors, neither of whom had current and valid certificates of registration at the time.

   
   

3. Respondent contracted with Ortland Williams and Stanley Hawthorne, who were acting as farm labor contractors, for the employment of farmworkers in February and March, 1987 before said contractors displayed to him a current certificate of registration issued by Petitioner.

   
   

4. Respondent's actions were taken on behalf of Highlands Harvest Corporation for growers in Highlands County, Florida. However, as registered agent of the Corporation and based upon his role as the principal managing partner of the Corporation, Respondent is responsible for these actions. Therefore, his argument that the Corporation, not he, should be held responsible is rejected.

   
   

5. Ortland Williams and Stanley Hawthorne functioned as "goat drivers," as the term is used in the industry, at all times material hereto. Specifically, they gave directions to, and controlled the daily work of up to 15 farm workers under their direct supervision. They received a fee based upon the number of boxes picked each day by their crew. Williams transported such workers to the groves in February, 1987, and Stanley Hawthorne was responsible for recruiting and hiring the workers, according to a statement, he gave to Larry Coker, compliance officer, on March 2, 1987. As such, Williams and Stanley Hawthorne were acting as farm labor contractors.

   
   

6. An administrative penalty of $1000 has previously been assessed against Respondent for violating Section 450.35, Florida Statutes, following an administrative hearing in DOAH Case Number 87-1644.

   
   

   CONCLUSIONS OF LAW

   
   

7. 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 FCA 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).

   
   

8. The evidence clearly establishes that Respondent violated Section 450.35, Florida Statutes, by contracting for the employment of farm workers with farm labor contractors as defined in Section 450.28(1)(b), Florida Statutes, who were not registered with Petitioner. Respondent also failed to insure that said contractors displayed to him their certificates of registration before entering into such contracts. This occurred in both February and March, 1987, and constitutes two separate violations. Respondent was previously found to be in violation of Section 450.35, Florida Statutes, in DOAH Case Number 87-1644.

9. Petitioner is authorized to impose an administrative penalty of up to

$1000 for each violation of Chapter 450, Part III, Florida Statutes, which has been proven in this case. See Section 450.38(2), Florida Statutes, as created by Chapter 85-243, Laws of Florida.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner issue a Final Order assessing an administrative penalty of $2000.00 against Respondent.

DONE AND ENTERED this 3rd day of November, 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 3rd day of November, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3636

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Findings of Fact 1 and 6, but otherwise rejected as irrelevant to this case.

2. Rejected as irrelevant and unnecessary.

3. Adopted in Findings of Fact 2 and 5.

4. Adopted in Finding of Fact 3.

Ruling on Respondent's Proposed Findings of Fact:

1. Rejected in Finding of Fact 4.

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

Andrew B. Jackson, Esquire

150 North Commerce Avenue Sebring, Florida 33870

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: 87-003636

Orders for Case No: 87-003636