STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 99-1422

)

PORFIRIO LOREDO, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on September 20, 1999, in Winter Haven, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The witnesses and court reporter attended the hearing in Winter Haven. The undersigned participated by telephone conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Francisco R. Rivera, Senior Attorney

Department of Labor and Employment Security

Hartman Building, Suite 307 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

For Respondent: Porfirio Loredo, pro se

Post Office Box 5503 Eloise, Florida 33880

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated Sections 450.33(5), (6), (9), and (10) and 450.35, Florida Statutes (1997), by failing to make, keep, or preserve payroll

records; failing to maintain the required inspection of a vehicle used to transport workers; failing to maintain insurance on such a vehicle; utilizing an unregistered crew leader; allowing an unlicensed driver to transport workers; driving without authorization; transporting workers without authorization; and, if so, what penalty, if any, should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on April 2, 1999. The complaint, in relevant part, alleges seven violations of Chapter 450, Part Three, and seeks to impose a penalty in the amount of $5,750. Respondent timely requested an administrative hearing.

On March 16, 1999, Petitioner referred the matter to the Division of Administrative Hearings ("DOAH") to conduct an administrative hearing. Administrative Law Judge William Cave set the matter for hearing on July 16, 1999, subsequently granted Petitioner’s motion for continuance, rescheduled the hearing for September 20, 1999, and transferred the matter to the undersigned sometime after June 30, 1999.

At the hearing, Petitioner presented the testimony of three witnesses and submitted four exhibits for admission in evidence. Respondent testified in his own behalf, called no other witnesses, and submitted no exhibits for admission in evidence.

The identity of the witnesses and exhibits, and any rulings regarding each, are set forth in the transcript filed on October 25, 1999. Petitioner timely filed its proposed recommended order ("PRO") on November 4, 1999, and filed an amended PRO the following day. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating farm labor in the state. Respondent is a registered farm labor contractor and crew leader pursuant to certificate of registration CO4-957228I98R. Respondent’s certificate of registration was effective through September 30, 1999.

2. On December 10 and 11, 1998, Respondent and his crew were harvesting fruit in Polk County, Florida. Compliance Officer Teresa McCutchen approached the crew and asked for the crew leader.

3. Respondent identified himself as the crew leader and produced his certificate of registration. The registration did not authorize Respondent to drive or transport farm workers.

4. Respondent transported his crew to the field on December 10, 1998, through Respondent’s employee, Mr. Roberto Gomez-Gonzalez. Mr. Gomez-Gonzalez is an unlicensed driver and acted as a farm labor contractor, within the meaning of Section 450.28(1)(a), without being registered as a farm labor contractor.

5. At Respondent’s direction, Mr. Gomez-Gonzalez drove Respondent’s crew to the field on December 10, 1998, in a blue

   1984 Chevrolet van. The license plate on the van was issued to Respondent for a 1994 Pontiac two-door sedan.

6. The 1984 Chevrolet lacked insurance coverage for the transportation of farm workers and had not received the required safety inspections. Respondent did not maintain required payroll records for his crew.

7. On December 11, 1998, Officer McCutchen returned to the field with Compliance Officer Joe Machado to interview the Spanish-speaking crewmembers. That morning, Respondent had driven the crewmembers to the field in the 1984 blue Chevrolet van.

8. Respondent has a prior history of similar violations. On January 7, 1997, Respondent entered into a settlement agreement with Petitioner. Petitioner had assessed a civil penalty of $1,250 against Respondent for failure to maintain insurance on a vehicle used to transport workers, failure to maintain safety inspections, and the unauthorized transportation of workers. Pursuant to the settlement agreement, Respondent paid a civil penalty of $1,000.

9. Section 450.35 authorizes Petitioner to impose a civil penalty up to $7,000 for the seven violations in the Administrative Complaint. The $5,750 civil penalty is reasonable based on the facts in this case and Respondent’s prior disciplinary history involving similar violations.

10. Failure to impose a civil penalty would result in an economic inducement for Respondent to violate state requirements

    to maintain vehicle insurance, safety inspections, and payroll records. Respondent could reduce the cost of goods sold by evading the cost of insurance premiums, vehicle maintenance required to comply with safety inspections, and accounting fees for record keeping. A civil penalty operates to negate the economic benefit to Respondent from violating applicable law and also tends to reduce the competitive advantage Respondent’s violations give him over other businesses which comply with state law.

    CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

12. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty to be imposed. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996) (holding that the imposition of fines against Respondent requires Petitioner to prove the allegations by clear and convincing evidence).

13. Petitioner satisfied its burden of proof. Petitioner showed that Respondent violated Sections 450.33(5), (6), (9), and

(10) and 450.35 by failing to maintain payroll records; failing to maintain the required safety inspection of a vehicle used to

transport workers; failing to maintain vehicle insurance; utilizing an unregistered crew leader; allowing an unlicensed driver to transport workers; driving without authorization; and transporting workers without authorization. A civil penalty of

$5,750 is reasonable when all of the facts and circumstances in this case and Respondent’s prior disciplinary history are taken into account.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the allegations in the Administrative Complaint and imposing a civil penalty of $5,750.

DONE AND ENTERED this 7th day of December, 1999, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1999.

COPIES FURNISHED:

Mary Hooks, Secretary Department of Labor and

Employment Security

303 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Sherri Wilkes-Cape, General Counsel Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Francisco R. Rivera, Esquire Department of Labor and

Employment Security Hartman Building, Suite 307

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189

Porfirio Loredo

Post Office Box 5503 Eloise, Florida 33880

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-001422

Orders for Case No: 99-001422