STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES WILSON, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3657

) DEPARTMENT OF LABOR & EMPLOYMENT ) SECURITY, BUREAU OF AGRICULTURAL ) PROGRAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer, on November 24, 1986, in Tavares, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Moses E. Williams, Esquire

Department of Labor and Employment Security

Room 117, Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399

For Respondent: Archie O. Lowry, Jr., Esquire

PULLUM & JUDSON

Post Office Drawer 2160 Leesburg, Florida 32748

This cause arose from an investigation by personnel of the Department ("crew chief compliance officers") who observed the Petitioner, James Wilson, working on an eggplant farm in the alleged capacity of a farm labor contractor. This belief was arrived at by the investigators questioning the Petitioner and another employee at the farm site which led them to believe that the Petitioner was being paid by the farm owner to recruit, transport and supervise labor for the farm in connection with the owner's eggplant harvesting and packing operation. The charges also included the alleged failure to file proof of insurance and proof of the labor transportation vehicle's safety inspection.

The Petitioner conceded that he did not have up-to-date insurance or safety inspections for his van, but contends that such is not required since, at times pertinent hereto, he was not functioning as a farm labor contractor.

James Wilson elected to formally dispute the allegations by the Department and petitioned for a hearing pursuant to Section 120.57(1), Florida Statutes.

The cause came on for hearing in Tavares, Florida, on the above referenced date, at which the Department presented two witnesses and fourteen exhibits. The Department's Exhibits 1, 6, 9, 13, and 14 were admitted into evidence.

Respondent's Exhibit 6 was admitted only as corroborative hearsay under Section 120.58, Florida Statutes. Respondent's Exhibit 1 was admitted for the limited purpose of showing notice of charges to Mr. Wilson, but not for the truth of the matters asserted therein, and Exhibit 9 was only admitted to show that Mr.

Wilson was a licensed farm labor contractor, although it was not admitted as probative of his operating in that capacity on the date, June 17, 1986, or on the job in question. Respondent's Exhibit 14 was admitted only on the issue of notice of the charges against Mr. Wilson, but not as probative of guilt of those charges. The Petitioner presented five witnesses, including his own testimony.

At the conclusion of the proceeding, the parties elected to file Proposed Findings of Fact and Conclusions of Law, which were timely submitted. Those Proposed Findings of Fact and Conclusions of Law have been considered and treated in this Recommended Order and are addressed again in the Appendix attached hereto and incorporated by reference herein.

The issue to be resolved in this proceeding concerns whether James Wilson was functioning as a farm labor contractor for purposes of the authority cited below on June 17, 1986, when the Department's representatives made an inspection of his work site on the Mark Arnold Eggplant Farm and if so whether he is guilty of the charges concerning failure to have proper insurance and safety inspections with regard to his farm labor transport vehicle, as well as what penalty, if any, is warranted.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida charged with enforcing the Statutes and Rules, cited in pertinent part below, designed to regulate the practice of farm labor contractors in the State of Florida, and with enforcing compliance with that authority and imposing sanctions for violation of it.

   
   

2. There is no dispute that James Wilson is licensed as a farm labor contractor but, as will be seen below, he was not functioning as a farm labor contractor and thus is not chargeable for the violations alleged herein with regard to the activities observed by the Department's representatives on June 17, 1986, the date pertinent to this proceeding.

   
   

3. On June 17, 1986, Mr. W. R. Brooks, an agent for the Department of Labor and Employment Security, had cause to make an inspection of an eggplant harvesting/grading operation near Summerfield, Florida. The farm is owned by Mr. Mark Arnold. Mr. Brooks, acting on his belief that the Respondent James Wilson was functioning as a farm labor contractor and recruiting and transporting workers to the eggplant field and supervising them, made an inspection of the farm and the grading shed where the eggplants harvested were graded by Wilson and other workers. Mr. Brooks was of the belief that Wilson was hired by Mr. Arnold to recruit and transport workers to the eggplant harvesting field and grading shed and to supervise them. He partially based this belief on the fact that Willie Davis, an employee of Mr. Arnold working at the site, informed him that Mr. Wilson was the "foreman." It was not shown, however, that Willie Davis informed Mr. Brooks of any details concerning any arrangement between Mr. Wilson and the farm owner, Mr. Arnold. Mr. Brooks' testimony, based in part upon discussions he had with Willie Davis and Mr. Wilson at the farm site, failed to establish that Mr. Wilson was paid any fee or consideration of any kind in return for transporting, recruiting or supervising workers.

4. Ms. Rosie Jenkins was also called by the Department to testify. Mr. Brooks had interviewed Ms. Jenkins early one morning when she had been drinking most of the night, and by her own admission, was still drunk as she was talking to Mr. Brooks at the door of her residence. Ms. Jenkins testified that she was too intoxicated on the occasion of her interview with Mr. Brooks to understand clearly the nature of his questions or to understand or recall the precise nature of her answers. Her testimony at hearing establishes that Mark Arnold hired her for the job and was the only supervisor at the job site. Ms. Jenkins occasionally borrowed money from James Wilson and would repay him with interest and would also pay him a dollar per trip when he transported her to the field on some occasions. Ms. Jenkins' statement that the owner, Mr. Arnold, was the only supervisor at the job site is corroborated by Willie Davis, who was also employed at the harvesting and grading operation on the day in question. He established that there was no reason for any supervision because, as Ms. Jenkins put it, all the employees already knew their jobs and, according to Mr. Davis, they were working on "piece work" anyway, which means they were paid according to how many boxes of eggplants they prepared for transportation to the packing house. The more eggplant they graded correctly and packed for transportation, the more they were paid as wages, thus, inasmuch as the workers were already trained, there was no incentive for the owner to pay any person such as Wilson to supervise them.

   
   

5. Ms. Dorothy Walker worked for Mark Arnold at the eggplant farm for approximately three years. She worked in the grading shed area grading eggplant and established that no supervision was needed for workers in that area since they were all trained in their jobs. She was hired by Mr. Mark Arnold and on some occasions "caught a ride" with James Wilson in order to get to work. This was not shown to be a regular practice, however. She also stated that Mr. Mark Arnold was her supervisor and that James Wilson was an employee just like any other employee without supervisory authority. Each of the workers would from time to time tell another worker, who was doing something improperly, the proper means of performing the job, including Wilson, but Mark Arnold was the only person with supervisory authority over the workers.

   
   

6. Mr. Mark Arnold, the owner of the eggplant farm in question, established that there was no contract between him and James Wilson to recruit, transport or supervise employees. Mr. Wilson's employment was not conditioned upon his recruiting, transporting or hiring employees. Mr. Arnold stated that he did not pay Wilson a fee or other valuable consideration for transporting workers to his field and Wilson was not paid a fee or other consideration for supervising or controlling the workers at the job site. Wilson was paid on an hourly basis, the same as the other workers, and additionally was paid by the box for hauling eggplants to the packing house from the farm site. Mr. Wilson was expected to work the same hours as other employees. Mr. Arnold acknowledged that on some occasions, when he had to leave the field for any reason, he would sometimes tell Wilson to look after the operation while he was gone, but this was not a regular supervisory position and Mr. Wilson was not paid by Arnold for doing so. Mr. Arnold's testimony was not rebutted by the Department and it is noteworthy that at no time in the investigatory process was Mr. Arnold contacted personally by any Department personnel concerning the allegations at issue in this proceeding.

   
   

7. Mr. Wilson's testimony corroborated that of Mr. Arnold in demonstrating that he was paid an hourly fee the same as other employees and did not direct, supervise or control the workers, whether or not he transported them to the eggplant farm. Wilson was compensated on a per box basis for transporting the eggplants to the packing house, but that was an arrangement solely between him

   and Arnold and involved no other employees in terms of transportation, supervision or hiring. In years past, Mr. Wilson has worked as a farm labor contractor in the citrus industry, at which time he did recruit his own crew and transport them to the job site. Although he maintains his farm labor contractor's license at the present time, he was not acting in that capacity at the job site in question. None of the employees he recruited in the citrus industry were the same employees at the eggplant farm. He renews his farm labor contractor's license annually and hopes eventually to return to employment in that capacity in the citrus industry, which he left as a result of the late, disastrous freeze which significantly curtailed citrus operations in the central Florida area involved.

   
   

8. In summary, it has not been established that Mr. Wilson was paid by Mr. Arnold or any third party for transporting workers to the field. It was shown at most that occasionally Mr. Wilson was compensated by the employees themselves in return for him giving them rides to work, which is nothing more than a car pooling arrangement. Moreover, it was not demonstrated that Mr. Wilson exercised any supervisory authority over the workers at the eggplant harvesting and grading site. Because of his long history of successful employment with Mr. Arnold, Mr. Arnold did occasionally entrust him with oversight of the operation while he left the field to go on errands during a given work day. The point is, Mr. Wilson was not compensated any extra for such services and was paid the same hourly wage as other workers in the field and the grading shed. Although Mr. Wilson was paid on a per box basis for transporting the eggplant from the farm to the packing house, this was not a means of compensating him for transporting, recruiting or supervising employees because he performed an additional service with his own vehicle in return for that compensation, that is, he loaded the boxes on his vehicle, transported them to the packing house, and returned, paying his own expenses. It therefore cannot be found that the payment for transporting the boxes was merely a means of giving him additional compensation for the alleged supervision, transportation and recruitment of workers.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section 458.28(1)(a), Florida Statutes, provides that a farm labor contractor is any person who, for a fee or other valuable consideration, recruits, transports, supplies or hires one or more farm workers to work for or under the direction, supervision or control of the third person. At paragraph (b), it is provided that a farm labor contractor also means any person who recruits, transports, supplies or hires 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 those workers.

    
    

11. The pivotal consideration here is that the Statute at issue requires a fee or other valuable consideration to be paid by a third person, in this case, Mr. Mark Arnold, for the transportation of workers or for their supervision, control, direction or hiring by the alleged farm labor contractor. Although Mr. Wilson did from time to time transport workers to the field, it has clearly been established that he did not receive a fee or other valuable consideration from any third person, including Mr. Arnold, for doing so, nor did he receive such consideration for the recruitment, transportation, hiring or supervision of such farm workers. Ms. Rosie Jenkins was the only worker to testify on behalf of the Department and could not recall whether or not she actually worked on the day in

    question, June 17, 1986. She offered no testimony establishing from whence came her supervision that day or any other day, except that she was supervised by the farm owner, Mr. Mark Arnold. Mr. Arnold, as well, established that no fee or other valuable consideration was paid to Wilson for performing any of the above duties which might be indicative of a farm labor contracting relationship.

    
    

12. Section 458.48(3), Florida Statutes, defines a car pool as an arrangement between and by farm workers for their transportation to and from the work site and for which the driver or owner of the vehicle transporting them is not paid by any third party (such as a farm owner) but rather is paid, if at all, by the members of the car pool themselves, thus differentiating that arrangement from a farm labor contractor situation. Therefore, it can be seen that the car pool situation, to the extent that Wilson's casual transportation of two of the workers testifying meets that definition, is not probative of a farm labor contractor relationship. Indeed, the testimony shows at most that on occasion the Mr. Wilson would be paid a dollar by a worker such as Ms. Jenkins for giving the worker a ride to the job site.

    
    

13. The above authority reveals that a fee or other valuable consideration must be given by a third person to the person who transports, supervises or recruits workers transported, in order for that person to be considered a farm labor contractor. If an employee is receiving the same hourly wage as other workers, this cannot constitute a valuable fee or other consideration under this authority and render that employee such a contractor. See Gonzales vs. State of Florida, 443 So.2d 425 (1st DCA 1984) at 427. The fact that Mr. Wilson may have been paid an agreed upon sum per box of eggplants transported to the packing house was not shown to constitute consideration for his transportation, hiring or supervising the workers in question, since Mr. Wilson performed a separate and distinct service in return for that remuneration, to wit, the loading of the boxes of eggplant on his own vehicle and transporting the eggplants at his own transportation cost to the packing house in return for that payment. Accordingly, it cannot be found that the Respondent James Wilson was functioning as a farm labor contractor within the ambit of the above-cited authority and thus the violations with which he is charged, including those involving failure to have current insurance and current vehicle safety inspections, have not been proven.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that the charges against James Wilson be dismissed in their entirety.

DONE and ENTERED this 11th day of 1987, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3657

Department's Proposed Findings of Fact and Conclusions of Law

1. Accepted, but not dispositive of the material issues presented.

2. Rejected as to its second sentence, which is not in accordance with the preponderant testimony and evidence adduced.

3. Accepted, but not dispositive of the material issues presented.

4. Accepted, but not dispositive of the material issues presented.

Respondent James Wilson's Proposed Findings of Fact

1. Rejected as not constituting a Proposed Finding of Fact, but rather legal argument.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

COPIES FURNISHED:

Moses E. Williams, Esquire Department of Labor and

Employment Security

Room 117, Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399

Archie O. Lowry, Jr., Esquire PULLUM & JUDSON

Post Office Drawer 2160 Leesburg, Florida 32748

Hugo Menendez, Secretary Department of Labor and

Employment Security

206 Berkeley Building

2590 Executive Center Circle, East Tallahassee, Florida 32301

Kenneth Hart, Esquire General Counsel Department of Labor and

Employment Security

131 Montgomery Building

2562 Executive Center Circle, East Tallahassee, Florida 32301

Docket for Case No: 86-003657

Orders for Case No: 86-003657