STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION OF ) LABOR, EMPLOYMENT AND TRAINING, ) BUREAU OF COMPLIANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2362

)

MICHELLE A. BLOUNT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on August 4, 1994 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Francisco R. Rivera, Senior Attorney

Department of Labor and Employment Security

2012 Capital Circle, Southeast Suite 307 Hartman Building Tallahassee, Florida 32399-2189

For Respondent: no appearance

STATEMENT OF THE ISSUES

Whether Respondent should be assessed a civil money penalty of $1,000.00 for alleged violations of Sections 450.33(10), and 316.620(3) and (4)(d) and (k), Florida Statutes (1993).

PRELIMINARY STATEMENT

On March 21, 1994, Petitioner issued an administrative complaint and a notice of intent to assess Respondent a $1,000.00 civil money penalty for violating Sections 450.33(10) and 316.620(3) and (4)(d) and (k), Florida Statutes. By a request dated April 14, 1994, Respondent timely requested a formal hearing pursuant to Section 120.57, Florida Statutes. On April 28, 1994, this matter was referred to the Division of Administrative Hearings for hearing. Following transfer of the case to the undersigned, this matter was set for hearing. Respondent was notified of the date, time and place of the hearing at the address furnished.

At the final hearing, Respondent failed to appear. After waiting a reasonable period of time, the hearing was convened. Diligent search and inquiry was made and Respondent could not be located. Petitioner called Christian G. Antwi, LET Administrator I, and Terrence McAuliffe, Compliance Officer, as witnesses. Petitioner offered 12 exhibits, which were received into evidence. No evidence or witnesses were presented on behalf of Respondent.

Petitioner sought and was granted the opportunity to submit proposed findings of fact and conclusions of law.

A transcript was not filed in this matter. Petitioner submitted proposed findings of fact and conclusions of law which were received on August 15, 1994, carefully considered and accepted in substance.

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

My specific rulings on Petitioner's proposals are set forth in the Appendix attached hereto.

FINDINGS OF FACT

1. Respondent, Michelle A. Blount, is a farm labor contractor licensed in Florida.

   
   

2. On January 14, 1994, a vehicle transporting members of Respondent's farm labor crew was involved in an accident in St. Lucie County, Florida which resulted in the death of one passenger and serious injury to eight others.

   
   

3. Respondent was hired by Willie J. Lampkin to transport, supervise, recruit and provide a crew for harvesting and loading fruit.

   
   

4. Elva Ochoa was employed by Respondent to recruit, transport, supervise and provide a crew, in connection with Respondent's contract with Willie J. Lampkin.

   
   

5. On January 14, 1994, ten farm workers were being transported to the groves of Lampkin at the direction of Ochoa.

   
   

6. The vehicle used to transport the workers was a pickup truck with a cab covering the bed. It did not have secured seating, the tires were worn out and unsafe, and it did not have any means of communication between the passengers and the driver.

   
   

7. The vehicle was not approved or insured to transport workers, nor did it have an inspection certificate on record with the Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

   
   

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

   
   

10. Petitioner has filed an administrative complaint and Respondent has denied the allegations. Therefore, Petitioner is obliged to prove the

    allegations in the complaint by clear and convincing evidence. Feris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Respondent is charged with having violated Subsections 450.33(10), and 316.620(3) and (4)(d) and (k), Florida Statutes.

    
    

12. These relevant subsections of the statutes state in pertinent part:

    
    

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

    
    

    (10) Comply with all applicable statutes, rules, and regulations of the United States and of the State of Florida for the protection or benefit of labor, including, but not limited to, those providing for wages, hours,

    fair labor standards, social security, workers' compensation, unemployment compensation, child labor, and transportation. . . .

    
    

    316.620 Transportation of migrant farm workers.

    
    

    Every carrier of migrant farm workers shall systematically inspect and maintain, or cause to be systematically maintained, all motor vehicles and their accessories subject to its control to ensure that such motor

    vehicles and in accordance with the provisions of this chapter.

    
    

    (1) COMPLIANCE. Every carrier of migrant farm workers, and its officers, agents, drivers, representatives and employees directly concerned with the installation and maintenance of equipment and accessories, shall comply and be conversant with the requirements and specifications of this section, and no carrier of migrant farm workers shall operate any motor vehicle over the public highways of this state, or cause or permit it to be operated, unless it is equipped in accordance with said requirements and specifications.

    
    

    1. TIRES. Every motor vehicle shall be equipped with tires of adequate capacity to support its gross weight. No motor vehicle shall be operated on tires which have been worn so smooth as to expose any tread fabric or which have any other defect likely to cause failure. No vehicle shall be operated while transporting passengers while using any tire which does not have tread configurations on

       that part of the tire which is in contact with the road surface. No vehicle transporting passengers shall be operated with regrooved, recapped, or retreaded tires on front wheels.

       
       

    2. PASSENGER COMPARTMENT. Every motor vehicle transporting passengers, other than a bus, shall have a passenger compartment meeting the following requirements:

    
    

    (d) Seats. A seat shall be provided for each worker transported. The seats shall be securely attached to the vehicle during the course of transportation; not less than 16 inches nor more than 19 inches above the floor; at least 13 inches deep; equipped with back rests extending to a height of at least

    36 inches above the floor, with at least 24 inches of space between the back rests or between the edges of the opposite seats when face-to-face; designed to provide at least 18 inches of seat for each passenger; without cracks more than 1/4 inch wide, and the back rest, if slatted, without cracks more than 2 inches wide; and the exposed surfaces, if made of wood, planed or sanded smooth and free of splinters.

    
    

    (k) Communication with driver. Means shall be provided to enable the passengers to communicate with the driver. Such means may include telephone, speaker tubes, buzzers, pull cords, or other mechanical or electrical means.

    
    

13. By clear and convincing evidence, the Petitioner has sustained the charge that Respondent violated Sections 450.33(10), and 316.620(3) and (4), Florida Statutes.

    
    

14. By virtue of Section 450.38, Florida Statutes and Rule 38H-11.012, Florida Administrative Code, Petitioner can assess a civil money penalty of up to $1,000.00 for each violation of the statute.

    
    

15. Due to the gravity of the violations, a civil money penalty of

$1,000.00 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 Sections 450.33 and 316.620, Florida Statutes. It is further

RECOMMENDED that Respondent be fined $1,000.00 and such fine to paid within thirty days from date of the final order entered by the Division. Should Respondent fail to pay fine, Respondent's license as a farm labor contractor should be suspended until the fine is paid in full.

DONE and ENTERED this 19th day of August, 1994, in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 19th day of August, 1994.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Petitioner's proposed findings of fact Accepted in substance: paragraphs 1-7.

Respondent did not submit proposed findings.

COPIES FURNISHED:

Shirley Gooding, Secretary Department of Labor and Employment

Security

303 Hartman Building

2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152

Edward A. Dion, Esquire

Department of Labor and Employment Security

303 Hartman Building

2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152

Francisco R. Rivera, Esquire Department of Labor and Employment Security

2012 Capital Circle, Southeast Suite 307 Hartman Building Tallahassee, Florida 32399-2189

Michelle A. Blount

531 North Dollings Avenue Orlando, Florida 32805

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: 94-002362

Orders for Case No: 94-002362