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. 91-2889

)

DAVID TORRES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on August 14, 1991, in Haines City, Florida.

APPEARANCES

For Petitioner: Francisco R. Rivera, Esquire

Department of Labor and Employment Security

2012 Capital Circle, S.E. Suite 307, Hartman Building Tallahassee, FL 32399-0658

For Respondent: David Torres, pro se

Post Office Box 842 Haines City, FL 33844

STATEMENT OF THE ISSUE

Whether Respondent contracted for the employment of farm workers with a farm labor contractor before the contractor displayed a current certificate of registration in violation of Section 450.35, Florida Statutes (1989).

PRELIMINARY STATEMENT

By Administrative Complaint, dated April 22, 1991, Petitioner, Department of Labor and Employment Security, Division of Labor, Employment and Training, charged that Respondent, David Torres, a licensed farm labor contractor, violated Chapter 450, Florida Statutes (1989), by hiring an unlicensed farm labor contractor. Respondent contested the allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989). The matter was referred to the Division of Administrative Hearings on May 7, 1991, and this hearing followed.

At the final hearing Petitioner presented the testimony of Larry Coker, a Crew Chief Compliance Officer, Mr. Billy Handford and Ms. Ruth Ann Weaver, a Labor Employment and Training Supervisor, and two exhibits were offered and received into evidence. The Respondent testified in his own behalf and presented Albert Saldana as a witness.

The hearing was recorded by a court reporter but a transcript was not ordered. Petitioner filed Proposed Findings of Fact and Conclusions of Law on August 19, 1991, which have been accepted in substance.

FINDINGS OF FACT

Based upon all of the evidence received at the hearing, the following findings of relevant facts are determined:

1. Respondent, David Torres, is a farm labor contractor licensed in Florida.

   
   

2. On January 31, 1991 Larry Coker, during a routine grove inspection, observed a crew of farm workers picking fruit in the Happy Acres Grove, in Hardee County, under the supervision of Respondent. Respondent utilized Billy Handford and Antonio Torres to transport the farm workers to the grove.

   
   

3. Mr. Handford was employed to recruit and transport farm workers for a fee to be paid by Respondent. Billy Handford did not have a Florida FLC license which authorized him to engage in this occupation.

   
   

4. On January 31, 1991, Billy Handford recruited and transported six farm workers from the Bartow area to the Happy Acres grove in Hardee County.

   
   

5. Respondent was cited for three violations of Chapter 450, on January 31, 1991.

   
   

   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. Petitioner is charged with the duty to enforce the provisions of Chapter 450, Part III, Florida Statutes (1989).

   
   

8. The Petitioner has filed an administrative complaint and is obliged to prove the allegations in the complaint by the preponderance of the evidence.

   
   

9. Respondent is charged with having violated Subsection 450.35, Florida Statutes (1989). That subsection states:

   
   

   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.

10. Subsection 450.28(1)(a), Florida Statutes (1989) defines farm labor contractor as:

    
    

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

    person; . . .

    
    

11. By a preponderance of the evidence, the Petitioner has sustained the charge that Respondent on January 31, 1991, contracted for the employment of farm workers, through the use of Billy Handford, who was not registered as a farm labor contractor, in violation of Section 450.35, Florida Statutes (1989).

    
    

12. Respondent's testimony that Billy Handford did not work for him and that he was the victim of "selective enforcement" and discrimination due to his race is not credible.

    
    

13. By virtue of Section 450.38, Florida Statutes (1989), Petitioner can assess a civil money penalty of up to $1,000 (dollars) for each violation of the statute.

    
    

14. Since this was Respondent's first offense, a civil penalty of $500 is an appropriate penalty.

RECOMMENDATION

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

violated Section 450.35, Florida Statutes (1989). It is further RECOMMENDED that Respondent be fined $500 (dollars) and such fine to paid within thirty days from date of the final order entered by the Division.

DONE and ORDERED this 26th day of August, 1991, in Tallahassee, Florida.

DANIEL M. KILBRIDE

Hearing Officer

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 26th day of August, 1991.

COPIES FURNISHED TO:

FRANCISCO R. RIVERA, ESQUIRE DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY

2012 CAPITAL CIRCLE, S.E. SUITE 307, HARTMAN BUILDING TALLAHASSEE, FL 32399-0658

DAVID TORRES,

POST OFFICE BOX 842 HAINES CITY, FL 33844

FRANK SCRUGGS, SECRETARY DEPARTMENT OF LABOR AND

EMPLOYMENT SECURITY

303 HARTMAN BUILDING

2012 CAPITAL CIRCLE, S.E. TALLAHASSEE, FL 32399-2152

STEPHEN BARRON, GENERAL COUNSEL DEPARTMENT OF LABOR AND

EMPLOYMENT SECURITY

307 HARTMAN BUILDING 2012 CAPITAL CIRCLE S.E.

TALLAHASSEE, FL 32399-2152

Docket for Case No: 91-002889

Orders for Case No: 91-002889