STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

TRAINING, BUREAU OF )

AGRICULTURAL PROGRAMS )

)

Petitioner, )

)

vs. ) CASE NO. 90-4999

)

JAMES E. BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 21, 1991, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Francisco R. Rivera, Esquire

Department of Labor and Employment Security

2012 Capital Circle, S.E. Suite 307 Hartman Building

Tallahassee, Florida 32399-0658

For Respondent: James E. Brown, pro se

5100 45th Street, Apt. 2-F West Palm Beach, Florida 33407

STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in the Administrative Complaint issued against him by Petitioner?

   
   

2. If so, what penalty should imposed?

PRELIMINARY STATEMENT

On January 9, 1990, Petitioner issued an Administrative Complaint alleging that Respondent, a farm labor contractor, committed the following statutory and rule violations on October 25, 1989, January 30, 1990, and March 15, 1990, which, according to Petitioner, justified the assessment of a civil penalty totaling $2,750.00 against him:

The first violation, in the amount of

$1,000.00, is assessed on the grounds that you failed to produce evidence to the Division that the motor vehicle you used to transport employees was in compliance with the requirements and specifications of Florida Law (Florida Statutes, 450.33(9) and Florida Administrative Code Rule 38H-11.004(5)).

The second violation, in the amount of

$750.00, is assessed on the grounds that you failed to produce evidence to the Division that you took out a policy of insurance with an insurance carrier, to insure yourself against liability for damage to persons or property arising out of the operation or ownership of the motor vehicle you used to transport individuals in connection with your business, activities, or operation as a farm labor contractor, in an amount no less than required by the financial responsibility laws of the State (Florida Statutes, 450.33(5) and

Florida Administrative Code Rule 38H-11.005(1)).

The third violation, in the amount of $250.00, is assessed on the grounds that you failed to carry your certificate of registration with you at all times and exhibit it to all persons

with whom you intended to deal in your capacity as a farm labor contractor prior to dealing, and, upon request, to Compliance Officer Carleen Willis, a representative of the Division (Florida Statutes, 450.33(1) and

Florida Administrative Code Rule 38H-11.006(1)).

The fourth violation, in the amount of $750.00, is assessed on the grounds that you contracted for the employment of farmworkers with a farm labor contractor before the contractor displayed to you a current certificate of registration issued by the Division (Florida Statutes 430.35).

Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On August 13, 1990, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct such a hearing.

The formal hearing in this matter was originally scheduled for December 11, 1990. At the request of Respondent, the hearing was continued and rescheduled for February 21, 1991.

Four witnesses testified at hearing: Carleen Willis, a Crew Chief Compliance Officer with Petitioner; Ruth Weaver, a Labor and Employment Specialist Supervisor with Petitioner, who prepared and signed the Administrative Complaint against Respondent; Cathy Perkins, an employee of Perkins Automotive in Belle Glade, Florida; and Respondent. In addition to the presentation of the testimony of these witnesses, six exhibits were offered and received into evidence.

At the close of the evidentiary portion of the hearing on February 21, 1991, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than ten days following the close of the hearing. On March 5, 1991, Petitioner filed a proposed recommended order. This proposed recommended order contains proposed findings of fact, which have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

1. At all times material hereto, Respondent has held a farm labor contractor certificate of registration issued by Petitioner.

   
   

2. Prior to November 13, 1990, his certificate did not authorize him to arrange or provide transportation for farmworkers. On November 13, 1990, his certificate was amended to reflect that he was henceforth "transportation authorized."

   
   

3. Carleen Willis has been a Crew Chief Compliance Officer with Petitioner for the past five years.

   
   

4. In her capacity as a Crew Chief Compliance Officer, she monitors the activities and operations of farm labor contractors in the field to ascertain whether they are in compliance with the various statutory and rule provisions regulating their conduct.

   
   

   Events of October 25, 1989

   
   

5. On October 25, 1989, while making a routine visit to the field, Willis encountered Respondent supervising approximately 30 farmworkers who were planting cane for United States Sugar Corporation (USSC).

   
   

6. Respondent had recruited these workers for USSC. He also had provided them with transportation in his 1979 International Bus, notwithstanding that he was not, at the time, "transportation authorized" inasmuch as he had submitted to Petitioner neither proof that this vehicle was properly insured, nor proof that it had been inspected and found in compliance with applicable safety standards.

   
   

7. For his services, Respondent was paid $100.00 a day by USSC.

8. The bus used to transport the farmworkers under Respondent's supervision was driven by Jean Baptiste Pierre. Pierre, who received compensation from Respondent for transporting the workers, did not then hold a current farm labor contractor certificate of registration issued by Petitioner.

   
   

9. Respondent did not have with him his certificate of registration and therefore was unable to produce it when Willis asked him to show it to her during her field inspection.

   
   

10. Following her inspection, Willis gave Respondent a citation charging him with violating Florida law by, among other things, "[f]ail[ing] to exhibit certificate," "[f]ail[ing] to assure safety of transportation vehicles," "[f]ail[ing] to obtain prescribed vehicle insurance," and "[u]tilization of unregistered crewleader."

    
    

    Events of January 30, 1990

    
    

11. On January 30, 1990, Willis again encountered Respondent in the field. Respondent was working as an independent contractor for USSC, as he had been at the time of their earlier meeting on October 25, 1989. On this occasion, he was en route to Clewiston with a group of farmworkers who had been recruited to plant cane. They were travelling in Respondent's 1979 International Bus.

    
    

12. Respondent had yet to submit proof that the vehicle was properly insured or that it had passed the necessary safety inspection. Accordingly, on this date, he still was not "transportation authorized."

    
    

13. Following her inspection, Willis gave Respondent a citation charging him with violating Florida law by "[f]ail[ing] to assure safety of transportation vehicles," and "[f]ail[ing] to obtain prescribed vehicle insurance."

    
    

    Events of March 15, 1990

    
    

14. On March 15, 1990, Respondent, for a fee, again used his 1979 International Bus to provide transportation to a group of farmworkers.

    
    

15. As of March 15, 1990, Respondent still had not submitted adequate proof that his vehicle met the applicable safety requirements. He therefore remained "transportation unauthorized."

    
    

16. Consequently, he was again cited by Willis, who on this date had paid him another visit in the field, for "[f]ail[ing] to assure safety of transportation vehicles."

    
    

    Record of Prior Violations

    
    

17. In 1986, Respondent was cited by Petitioner for acting as a farm labor contractor without being registered to do so. He recived a letter of warning for this violation.

    
    

18. On April 3, 1989, Respondent received a citation from Petitioner for failing to post and exhibit his certificate of registration, failing to assure the safety of the vehicle he was using to transport farmworkers, and failing to obtain the prescribed insurance for this vehicle. For these violations, he also received a letter of warning.

    CONCLUSIONS OF LAW

    
    

19. Petitioner has been vested with the authority and obligation to administer and enforce the provisions of Florida's Farm Labor Registration Law. These statutory provisions are found in Chapter 450, Part III, Florida Statutes. They regulate the activities and operations of persons who act as, and deal with, "farm labor contractors" in the State of Florida.

    
    

20. A "farm labor contractor," as that term is used in Chapter 450, Part III, Florida Statutes, is defined in Section 450.28(1), Florida Statutes, as follows:

    
    

    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.

       
       

21. A "farm labor contractor" who "commits a violation of [any provision of Chapter 450, Part III, Florida Statutes] or of any rule adopted thereunder may be assessed [by Petitioner] a civil penalty of not more than $1,000 for each such violation" pursuant to Section 450.38(2), Florida Statutes. Any such violation must be established by a preponderance of the evidence. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 415 (Fla. 4th DCA 1974).

    
    

22. In the instant case, Petitioner is seeking to impose upon Respondent, pursuant to Section 450.38(2), Florida Statutes, a civil penalty in the amount

    $2,750.00 for statutory and rule violations allegedly committed on October 25, 1989, January 30, 1990, and March 15, 1990. The following are the statutory and rule provisions that, according to the Administrative Complaint issued in the instant case, Respondent violated:

    
    

    450.33 Duties of farm labor contractor.- Every farm labor contractor must:

    
    

    (1) Carry his certificate of registration with him at all times and exhibit it to all persons with whom he intends to deal in his capacity as a farm labor contractor prior to so dealing and, upon request, to persons designated by the division.

    
    

    * * *

    (5) Take out a policy of insurance with any insurance carrier which policy insures such registrant against liability for damage to persons or property arising out of the operation or ownership of any vehicle or vehicles for the transportation of individuals in connection with his business, activities, or operations as a farm labor contractor. In no event may the amount of such liability insurance be less than that required by the provisions of the financial responsibility law of this state.

    
    

    * * *

    
    

    (9) Produce evidence to the division that each vehicle he uses for transportation of employees complies with the requirements and specifications established in chapter 316, s. 316.620, or Pub. L. No. 93-518 as amended by Pub. L. No. 97-470 meeting Department of Transportation requirements or, in lieu thereof, bears a valid inspection sticker showing that the vehicle has passed the inspection in the state in which the vehicle is registered.

    
    

    450.35 Certain contracts prohibited.- It is unlawful for any person to contract for the employment of farm workers with any farm labor contractor as defined in this act until the labor contractor displays to him a current certificate of registration issued by the division pursuant to the requirements of

    this part. 1/

    
    

    38H-11.004 Requirements of Registration. Application for the issuance or renewal of a certificate may be made at least 30 days prior to expiration, at any Florida State Job Service office of the Division. Prior to the issuance of a certificate, or the renewal of a certificate previously issued, a person

    seeking a certificate must:

    
    

    * * *

    
    

    (5) Submit proof that each vehicle which will be used for the transportation of farm workers has been found in compliance with the safety equipment inspection requirements of the state in which the vehicle is registered if applicable.

    38H-11.005(1) Insurance Coverage.

    
    

    (1) Each contractor must provide liability insurance coverage as required by Section 450.33, Florida Statutes, and must submit a certificate of insurance (Form NBCU-3798) at the time of application for a new or renewed certificate of registration, verifying that such insurance is in full force on each vehicle which the contractor is authorized to use to transport farmworkers. No farmworkers shall

    be transported until the certificate of insurance has been submitted to the division.

    
    

    38H-11.006 Duties of a Registrant.

    
    

    Upon obtaining his certificate, each contractor thereafter must:

    
    

    1. Carry his certificate with him at all times and, prior to engaging in each instance of activity as a contractor, exhibit his certificate to each person with whom he so deals.

       
       

23. The preponderance of the evidence establishes that, on the dates in question, Respondent was a "farm labor contractor," within the meaning of Section 450.28(1), Florida Statutes, who committed the statutory and rule violations alleged by Petitioner in its Administrative Complaint. Accordingly, the assessment of a civil penalty against him is warranted. Section 450.38(2), Fla. Stat.

    
    

24. In determining the amount of the civil penalty that should be imposed upon Respondent, it is necessary to consult Florida Administrative Code Rule 38H-11.012, which provides in pertinent part as follows:

    
    

    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 viola- tions;

       
       

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

       
       

    3. The gravity of the violation or viola- tions;

       
       

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

       
       

    5. Explanation of person charged with violation or violations;

    6. Commitment to future compliance, taking into account 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.

       
       

25. Having considered the facts of the instant case in light of the foregoing provisions of Florida Administrative Code Rule 38H-11.012, it is the view of the Hearing Officer that the appropriate punishment in the instant case is the imposition of a civil penalty totaling $2,250.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Petitioner enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint and imposing a civil penalty in the amount of $2,250.00 for these violations.

RECOMMENDED in Tallahassee, Leon County, Florida, this 13th day of March, 1991.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1991.

ENDNOTES

1/ The unregistered "farm labor contractor" with whom Respondent allegedly contracted in violation of this statutory prohibition was Jean Pierre Baptiste.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4999

The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by Petitioner in the instant case:

(1)-(1)(b). Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

(1)(c). Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

(1)(d). Accepted and incorporated in substance, except for the second sentence, which has been rejected because it is more in the nature of a statement of law than a finding of fact.

1. and (2)(a). Accepted and incorporated in substance.

(2)(b). Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

(2)(c). Accepted and incorporated in substance, except for the second sentence, which has been rejected because it is more in the nature of a statement of law than a finding of fact.

(3). Accepted and incorporated in substance.

(3)(a). Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

(3)(b)-(3)(e). Accepted and incorporated in substance.

COPIES FURNISHED:

Francisco R. Rivera, Esquire Department of Labor and

Employment Security 2012 Capital Circle, S.E.

Suite 307 Hartman Building Tallahassee, Florida 32399-0658

James Brown

5100 45th Street, Apt. 2-F West Palm Beach, Florida 33407

Frank Scruggs, Secretary Department of Labor and

Employment Security 2012 Capital Circle, S.E.

Suite 303 Hartman Building Tallahassee, Florida 32399-0658

Stephen Barron, Esquire General Counsel Department of Labor and

Employment Security 2012 Capital Circle, S.E.

Suite 307 Hartman Building Tallahassee, Florida 32399-0658

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY 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: 90-004999

Orders for Case No: 90-004999