STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM G. KING, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5539

)

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, BUREAU OF ) AGRICULTURAL PROGRAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

William G. King, of Haines City, pro se.

Moses E. Williams, Esquire, of Tallahassee, for Respondent.

At final hearing on this case in Lakeland on February 18, 1988, the Petitioner admitted that he owes $32,949.04 in back unemployment compensation taxes but expressed the desire to explain the circumstances which he maintains justify renewal of his farm labor contractor registration notwithstanding the indebtedness.

FINDINGS OF FACT

1. In years past, the Petitioner, William G. King, was registered by the Respondent, the Department of Labor and Employment Security, Bureau of Agricultural Programs (DLES), as a farm labor contractor.

   
   

2. As a farm labor contractor, King can average earning about $8000 a year more than he could earn in an hourly wage job (at legal minimum wage or close to it.) In good years, he can make substantially more; in bad years, he can incur substantial losses. King's crew size averages 40 laborers but can vary from 3 to 200, depending on circumstances.

   
   

3. The season for harvesting Florida citrus runs from about November to June. From June to August, King tries to follow the melon harvest from Florida into North Carolina. If conditions are bad for harvesting melons during parts of the summer, he tries to secure contracts to have his crews pick moths out of trees during these months. In August, he drives a crew in his bus to New York to pick apples. All of these activities, until King is outside Florida, require DLES registration as a farm labor contractor.

   
   

4. In the early 1980's, King's farm labor contracting business experienced difficulties. While paying his crew per actual box of citrus picked, King was paid per estimated box based on the weight of the citrus he delivered. During lengthier than normal periods of hard freeze, King paid his crew more than he was paid and suffered substantial losses. In this financial condition, King did not pay unemployment compensation tax. By March 1982, King owed about $14,300,

   with interest and penalties. During the preceding year, King was able to save

   $10,000, which he applied to the tax bill in March, 1982. He also signed an agreement to pay $4,310.48 in monthly installments of $540. King paid $745 in March and $540 in either April or May, 1982 (or perhaps both). But, as a result of more financial setbacks in 1984 and 1985, the tax indebtedness increased to approximately $20,000 to $24,000, with interest and penalties.

   
   

5. When the DLES refused to renew King's registration in 1985, King approached the DLES local office to attempt to make arrangements for payment of the debt. King offered to have the grower with whom he intended to contract pay the DLES $100 a month on the debt. The DLES agent questioned the viability of the arrangement because the DLES usually requires a 20% down payment, but he did not outright decline King's offer. He said the offer had to be in writing.

   When King went to the party with whom he intended to contract, the party refused to send $100 per month to the DLES but agreed to send the DLES $1200 once a year and reduce King's compensation by $100 per month. Ultimately, in spring, 1986, the DLES refused the repayment arrangement because the DLES insisted on a down payment of approximately $5000, which King did not have.

   
   

6. Since 1986, King has not been able to make a 20% down payment on his tax bill and has not made any payments on the debt. His financial ability to make payments is handicapped by his inability to work as a farm labor contractor in Florida. For a full season or two, King was driving a crew in his bus to New York to pick apples. But in 1987, King was advised that it was illegal even to do this without a Florida registration and that the activity exposed him to a

   $10,000 fine. Instead, he would have to meet his crew in New York. In response, King applied to renew his Florida registration.

   
   

7. Not having made any recent payments on his tax bill, King owes the DLES

   $32,949.02 in unemployment compensation taxes, interest, penalties and filing fees.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 450.28(1), Florida Statutes (1987), defines "Farm labor contractor" as:

   
   

   1. Any person who, for a fee or other valuable consideration, recruits, transports into or within the state, supplies, or hires at any one time in any calendar year one or more farm workers to work for, or under the direction, supervision, or control of, a third person;

      or

   2. Any person who recruits, transports into or within the state, supplies, or hires at any one time in any calendar year one or more farm workers and who, for a fee or other valuable consideration, directs, supervises, or controls all or any part of the work of such workers.

      
      

9. Section 450.30, Florida Statutes (1987), provides that no person may act as a farm labor contractor without a certificate of registration.

10. Section 450.31, Florida Statutes (1987), provides that the Division shall not issue or renew a registration certificate until, among other things, the DLES is satisfied that the applicant complies with its rules and regulations. Similarly, Section 450.32(1)(a), Florida Statutes (1987), provides that the DLES may refuse to renew a certificate of registration when it is shown that the applicant has violated or failed to comply with the farm labor contractor statute (Chapter 450, Part III) or the DLES rules adopted under the statute. See also Rule 38B-4.010(4)(c), Florida Administrative Code.

    
    

11. Rule 38B-4.006(5), Florida Administrative Code, requires a registered farm labor contractor to comply with all applicable statutes, rules and regulations providing, among other things, for unemployment compensation. It is clear from the record in this case that King did not comply with applicable unemployment compensation laws and regulations.

    
    

12. Rule 38B-4.012(2), Florida Administrative Code, provides:

    
    

    1. In determining the amount of any penalty, the Division will consider the type of violation committed and other relevant factors, including but not limited to:

       1. Previous history of violation or violations;

       2. The number of workers affected by the violation or violations;

       3. The gravity of the violation or violations;

       4. Efforts made in good faith to comply with these rules and Chapters 450, Part III, F.S.;

       5. Explanation of person charged with violation or violations;

       6. Commitment to future compliance, taking into account the public health, interest or safety, and whether the person has had previous violations;

       7. The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury to the workers.

    
    

13. There is no DLES rule, and there was no evidence of any DLES non-rule policy, that partial registrations cannot be issued. To the contrary, Rule 38B- 4.006(3), Florida Administrative Code, suggests that limitations or restrictions can be placed on a registration certificate (requiring, as it does, that registrants observe any limitations or restrictions placed on his certificate.)

    
    

14. Renewing King's farm labor contractor registration certification, with a restriction that he not handle, pay or be responsible for payrolls, would be sensible in this case. In that way, the DLES would have reasonable assurances that King would not add to his unemployment compensation tax indebtedness, and someone more competent in payroll matters would be responsible for unemployment compensation tax for King's crews. (Other than the problem with the unemployment compensation tax, there is no impediment to renewal of King's

registration.) Finally, renewing King's registration certificate would significantly increase his ability to make arrangements to reduce his outstanding tax bill.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the DLES enter a final order:

1. granting the Petitioner's application to renew his farm labor contractor registration, with reservations.

   
   

2. issue to the Petitioner a farm labor contractor registration certificate, with the restrictions:

   
   

   1. that the Petitioner not be permitted to pay, handle or be responsible for payroll;

      
      

   2. that the Petitioner be required to notity those with whom he contracts--both laborers and growers--of the terms of the restriction on his registration certificate; and

      
      

   3. that the Petitioner be required to file a quarterly report to the DLES giving the name, address and telephone number of the person responsible for payroll(s), especially unemployment compensation tax, for each laborer in his crew(s) during the preceding quarter.

      
      

3. that the Petitioner initially be permitted to make annual $1200 payments on his outstanding unemployment compensation tax bill, with no penalty for making larger payments in accordance with his financial ability.

RECOMMENDED this 21st day of March, 1988, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 21st day of March, 1988.

COPIES FURNISHED:

William G. King

785 Phillips Way (L.H.) Haines City, Florida 33844

Moses E. Williams, Esquire Office of General Counsel Suite 117 Montgomery Building

2562 Executive Center Circle, East Tallahassee, Florida 32399-0658

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

131 Montgomery Building

2562 Executive Center Circle, East Tallahassee, Florida 32399-0658

Docket for Case No: 87-005539

Orders for Case No: 87-005539