STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

DIVISION OF LABOR AND )

EMPLOYMENT TRAINING, )

BUREAU OF AGRICULTURAL )

PROGRAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4432

)

ROBERT L. MOORE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 25, 1988, in St. Augustine, Florida.

The Petitioner, the Department of Labor and Employment Security, was represented at the formal hearing by Moses E. Williams, Esquire. The Respondent, Mr. Robert L. Moore, represented himself.

INTRODUCTION

By letter dated August 18, 1987, the Department of Labor and Employment Security (hereinafter referred to as the "Department") notified the Respondent, Robert L. Moore, that the Department intended to revoke Mr. Moore's Florida Farm Labor Contractor Certificate of Registration (hereinafter referred to as the "Certificate"). Mr. Moore requested an administrative hearing. The request for hearing was forwarded to the Division of Administrative Hearings by the Department by letter dated October 15, 1987.

Subsequent to the filling of Mr. Moore's request for hearing, Mr. Moore's Certificate expired. Mr. Moore requested a renewal of his Certificate by the Department. By letter dated December 16, 1987, the Department notified Mr.

Moore that the Department intended to refuse to renew his Certificate. On January 6, 1988, Mr. Moore executed an Election of Rights requesting an administrative hearing to contest the refusal to renew his Certificate. That request was forwarded to the Division of Administrative Hearings by the Department by letter dated January 8, 1988.

Only one case has been opened by the Division of Administrative Hearings to consider the two requests for formal hearing filed by Mr. Moore.

At the formal hearing the Department presented the testimony of Tom Leggett, Larry Harvel and Marshall A. Carol. The Department also offered 5

exhibits which were accepted into evidence without objection from Mr. Moore. Mr. Moore testified on his own behalf.

The parties have stipulated that Mr. Moore owes unemployment compensation taxes to the Division of Unemployment Compensation of the Department and that Mr. Moore operated as a crew leader at all times relevant to this proceeding.

Neither party has filed a proposed recommended order in this case.

ISSUE

Whether the Department may revoke and/or refuse to renew Mr. Moore's Certificate?

FINDINGS OF FACT

1. During 1982, 1983, 1984, part of 1985 and 1986, Mr. Moore acted as a farm labor contractor as those terms are defined in Section 450.28(1), Florida Statutes, and Rule 38B-4.02, Florida Administrative Code.

   
   

2. Mr. Moore also acted as a crew leader as defined in Section 443.036(12), Florida Statutes, with a crew of approximately 16 to 20 farm workers.

   
   

3. During 1982 through 1986 Mr. Moore failed to file quarterly unemployment compensation tax reports with the Department. When questioned by the Department about why he was not filing quarterly reports Mr. Moore would begin filing them. He would not continue filing them, however, and he paid no taxes due with the reports he filed.

   
   

4. During 1982 through 1986 Mr. Moore failed to pay unemployment compensation taxes which totalled $6,831.27, including penalties, interest and filing fees, as of February 1, 1988. This amount will increase every month after January, 1988, that the debt is not paid because of the accrual of interest.

   
   

5. By letter dated August 18, 1987, the Department gave Mr. Moore notice that it intended to revoke his Certificate. By letter dated December 16, 1987, the Department gave Mr. Moore notice that it intended to refuse to renew the Certificate.

   
   

6. The Department gave Mr. Moore an opportunity to explain why he should be allowed to retain his Certificate. The Department also attempted to work with Mr. Moore to give him an opportunity to pay the delinquent taxes. At least two representatives of the Department have discussed the payment of delinquent taxes with Mr. Moore in the past. Mr. Moore would agree to make payments to the Department as a result of these discussions. For a while Mr. Moore would make payments. Within a short period of time after beginning payments, Mr. Moore would stop.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

8. Section 450.28(1), Florida Statutes, and Rule 38B-4.02, Florida Administrative Code, define the terms "farm labor contractor." Pursuant to a stipulation of the parties, Mr. Moore was a farm labor contractor from at least 1982 through the date of the formal hearing of this case.

   
   

9. Pursuant to Section 450.30, Florida Statutes, a farm labor contractor must obtain a "certificate" from the Department in order to act as a farm labor contractor. See Rule 38B-4.03, Florida Administrative Code. Certificates must be renewed annually. Rule 38B-4.02(4), Florida Administrative Code. Mr. Moore held such a certificate from 1982 through part of 1987 when the Department refused to renew Mr. Moore's Certificate.

   
   

10. Section 450.32(1)(a), Florida Statutes, provides that a certificate may be revoked or suspended, or that the Department may refuse to renew a certificate, if a farm labor contractor has:

    
    

    1. Violated or failed to comply with any provision of this part or the rules adopted pursuant to s. 450.36.

       
       

11. In this case the Department initially sought to revoke Mr. Moore's Certificate. Before a formal hearing could be conducted on the question of the revocation of his Certificate, the Certificate had to be renewed and the Department refused to do so. The Department sought the revocation of, and refused to renew, the Certificate because of an alleged failure of Mr. Moore to comply with Rule 38B-4.06(5), Florida Administrative Code. This Rule requires that farm labor contractors:

    
    

    (5) Comply with all applicable statutes, rules or regulations of the United States or of the State of Florida for the protection or benefit of labor, including but not limited to those providing wages, hours, fair, labor standards, social security, workers' compensation, unemployment compensation, child labor and transportation. [Emphasis added].

    
    

12. The facts in this case proved that Mr. Moore failed to comply with all applicable statutes, rules or regulations of Florida pertaining to unemployment compensation. Mr. Moore was a crew leader pursuant to Section 443.036(12), Florida Statutes, from 1982 through 1986. During that period of time Mr. Moore was required to remit unemployment compensation taxes pursuant to Chapter 443, Florida Statutes. Mr. Moore failed to comply with this requirement of Florida law. Mr. Moore has, therefore, violated Rule 38B-4.06(5), Florida Administrative Code, and the Department may revoke his Certificate and refuse to renew it pursuant to Section 450.32(1)(a), Florida Statutes.

    
    

13. Prior to taking action to revoke the Certificate and refusing to renew it, the Department notified Mr. Moore of the facts and conduct which the Department believed supported such action and Mr. Moore was given an opportunity to discuss the matter with the Department. The Department, therefore, complied with the requirements of Rule 38B-4.10(2), Florida Administrative Code. The Department, as a result of these discussions, gave Mr. Moore an opportunity to pay the delinquent taxes in monthly installments. Mr. Moore failed to do so

14. At the formal hearing Mr. Moore requested that he be allowed to retain his Certificate. He indicated that he would pay the delinquent taxes, penalty, interest and filing fees by making monthly payments. Mr. Moore has already been given an opportunity to pay off the delinquent amount in monthly installments. It would not, therefore, be appropriate to give him another such opportunity to pay the delinquent amount in monthly installments.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order revoking and refusing

to renew Mr. Moore's Certificate.

DONE and ENTERED this 22nd day of March, 1988, in Tallahassee, Florida.

LARRY J. SARTIN

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 22nd day of March, 1988.

COPIES FURNISHED:

MOSES E. WILLIAMS, ESQUIRE STATE OF FLORIDA DEPARTMENT OF LABOR AND

EMPLOYMENT SECURITY MONTGOMERY BUILDING, ROOM 117 2562 EXECUTIVE CENTER CIRCLE TALLAHASSEE, FLORIDA 32399-0658

ROBERT L. MOORE

P. O. BOX 61

HASTINGS, FLORIDA 32045

ROD WILLIS, BUREAU CHIEF

BUREAU OF AGRICULTURAL PROGRAMS

P. O. BOX 1698

TALLAHASSEE, FLORIDA 32302-1698

HUGO MENENDEZ, SECRETARY

206 BERKELEY BUILDING

2590 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152

KENNETH HART GENERAL COUNSEL

131 MONTGOMERY BUILDING

2562 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152

Docket for Case No: 87-004432

Orders for Case No: 87-004432