STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND EMPLOYMENT ) SECURITY, DIVISION OF LABOR, )

EMPLOYMENT AND TRAINING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4922

)

EUGENE MARTINEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 31, 1990, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Francisco R. Rivera, Esquire

307 Hartman Building

2012 Capital Circle, S. E. Tallahassee, FL 32399-0658

For Respondent: Eugene Martinez, pro se

P. O. Box 2194 LaBelle, FL 33935

STATEMENT OF THE ISSUES

The issue is whether respondent, Eugene Martinez, should have a

$1,500 civil penalty imposed for allegedly violating Sections 450.33(5) and

1. and 450.35, Florida Statutes (1989)

   PRELIMINARY STATEMENT

   
   

   By an administrative complaint dated June 4, 1990, petitioner, Department of Labor and Employment Security, Division of Labor, Employment and Training (Division), charged that respondent, Eugene Martinez, a licensed farm labor contractor, had violated Chapter 450, Florida Statutes (1989) and various administrative rules by using an unregistered farm labor contractor and failing to comply with safety and insurance requirements on his vehicle.

   The complaint sought to impose upon respondent a $1,500 civil fine. Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989). The matter was referred by petitioner to the Division of Administrative Hearings on August 7, 1990, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated September 18, 1990, a final hearing was scheduled for October 31, 1990, in Fort Myers, Florida.

   At final hearing petitioner presented the testimony of Karen Hendry, an insurance agent, and Larry Coker, a Division employee. Also, petitioner offered petitioner's composite exhibit 1. The exhibit was received in evidence. Respondent testified on his own behalf. After the hearing commenced, and the testimony of the above witnesses was taken, respondent stipulated that the allegations in the complaint were true and offered mitigating evidence.

   
   

   There is no transcript of hearing. Petitioner filed proposed findings of fact and conclusions of law on November 7, 1990. A ruling on each proposed finding of fact is contained in the Appendix attached to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   1. This controversy arose on the morning of January 29, 1990, when Larry Coker, a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made a routine inspection of a citrus harvesting crew working in an orange grove owned by Adrian Chapman and located one-half mile east of State Road 39 in DeSoto County, Florida. The purpose of the inspection was to determine whether the crew and its supervising contractor were in compliance with state regulations.

      
      

   2. Upon entering the premises, Coker observed a crew of approximately seventeen workers harvesting fruit in the citrus grove. An individual by the name of Martin R. Olvera was operating a high lift at the work site. Coker approached Olvera and asked him who was the farm labor contractor for the crew. Olvera responded that the licensed farm contractor was respondent, Eugene Martinez, but that Martinez had authorized him (Olvera) to supervise the crew that day in Martinez's absence. Olvera acknowledged that he was being paid $40 per day by respondent to supervise the loading of fruit and transport the workers from LaBelle to the grove. Division records reflect that Olvera is

      not licensed by the Division to perform those activities.

      
      

   3. A few minutes after Coker completed his inspection, respondent arrived at the work site. He readily acknowledged that Olvera was acting as a farm labor contractor without a license. By allowing Olvera to supervise a crew without a proper license, respondent used an unregistered farm labor contractor in contravention of the law.

      
      

   4. Olvera had transported the workers to the field that day in respondent's 1973 Ford bus. Respondent acknowledged that he did not have the proper liability insurance on the vehicle or the required inspection sticker. Both are required by law and agency rules.

      
      

   5. After being issued a citation that morning, respondent obtained the necessary insurance on his vehicle that afternoon. A vehicle inspection was obtained two days later. In addition, respondent initiated the necessary paperwork for Olvera to become a registered farm labor contractor. Because of those prompt efforts to satisfy Division requirements, respondent asked that he be given leniency on any civil fine. He has been unable to work since losing his right leg in an accident in May 1990 and is presently experiencing financial problems. There is no evidence that respondent has ever been disciplined by the Division for a violation of the law or agency rules.

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

      
      

   7. By its complaint, the Division seeks to impose a $1,500 civil penalty on respondent for allegedly violating Chapter 450, Florida Statutes (1989). In view of respondent's stipulation of guilt, it is concluded that these allegations have been proven. Therefore, the only remaining issue is

      the appropriate penalty to be imposed.

      
      

   8. Petitioner contends that a $1,500 penalty is appropriate because

(a) it charged respondent only with three violations even thought its compliance officer observed two other violations, and (b) respondent could have been fined $1,000 per violation, or a total of $3,000, if the maximum penalty for three violations was imposed. Given respondent's timely efforts to correct all cited violations, a fine of $200 per violation, or a total of $600, is more appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent Eugene

Martinez has violated Sections 450.33(5) and (9) and 450.35, Florida

Statutes (1989). It is further recommended that respondent be fined $600, such fine to be paid within thirty days from date of the final order entered by the Division.

DONE and ENTERED this 9 day of November, 1990, in Tallahassee, Florida.

DONALD R. ALEXANDER

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9 day of November, 1990.

APPENDIX

Petitioner:

1. Partially adopted in findings of fact 1 and 2.

2. Partially adopted in finding of fact 3.

3. Partially adopted in finding of fact 4.

Note - Where a finding of fact has been partially used, the remainder has been rejected as being unnecessary, cumulative, subordinate, irrelevant or not supported by the evidence.

COPIES FURNISHED:

Frances R. Rivera, Esquire

The Hartman Building, Suite 307 2012 Capital Circle, S.E. Tallahassee, FL 32399-0657

Mr. Eugene Martinez

P. O. Box 2194 LaBelle, FL 33935

Hugo Menendez, Secretary Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle, S.E. Tallahassee, FL 32399-0658

Steven D. Barron, Esquire Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle, S.E. Tallahassee, FL 32399-0658

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004922

Orders for Case No: 90-004922