STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIAS SALINAS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4819

)

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

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on January 29, 1987 in Bradenton, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The Department of Labor and Employment Security (Respondent) was represented by Moses E. Williams, Esquire Elias Salinas (Petitioner) did not appear, and was not represented, at the hearing.

Respondent called compliance officers Larry Coker and Herb Mize, and auditor William J. Music to testify. In addition, Respondent introduced ten exhibits. No transcript of the hearing has been filed. The Appendix to this Recommended Order contains rulings on proposed findings of fact that have been filed.

FINDINGS OF FACT

1. Petitioner is a farm labor contractor registered with Respondent who has social security number 462-68-4765 and whose certificate number is 04320.

   
   

2. On the morning of May 8, 1986 Petitioner transported fifteen migrant and seasonal agricultural workers to Harloff Farm in a 1976 Chevy van, having identification number CGL 266U122920, and license tag number 077-DWU. Petitioner was working for Harloff Farm at the time as a farm labor contractor, and Petitioner recruited and supervised these agricultural workers.

   
   

3. Petitioner was not able to produce proof of liability insurance or a valid vehicle inspection report when requested to do so on May 8, 1986 by compliance officer Larry Coker.

   
   

4. Federal and state certificates of registration issued to Petitioner do not authorize the transport of migrant and seasonal agricultural workers.

   
   

5. Later in the day on May 8, 1986, Petitioner did obtain automobile liability insurance for his Chevy van, and on May 9, 1986, he obtained the required vehicle mechanical inspection report.

6. On May 8, 1986, Petitioner did not have a current vehicle inspection report or liability insurance coverage certificate for his 1976 Chevy van on file with Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has Jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. The Respondent is seeking to impose an administrative fine against Petitioner. Therefore Respondent has the burden of proof in this case, and must establish the alleged violations by clear and convincing evidence. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (FLa. 1st DCA 1981).

   
   

8. Section 316.620, Florida Statutes, requires carriers of migrant farm workers to insure that their vehicles adhere to standards set forth therein, or in lieu thereof display a valid inspection sticker showing that the vehicle has passed inspection in the state in which it is registered, as stated in Section 450.33(9), Florida Statutes, and Rule 38B-4.04(5), Florida Administrative Code.

   
   

9. Section 450.33(5), Florida Statutes, requires farm labor contractors to take out an insurance policy which insures against liability for damage to persons or property arising out of the operation of any vehicle used to transport individuals in connection with their farm labor business. See also Rule 38B- 4.05(1), Florida Administrative Code.

   
   

10. The evidence is unrefuted that Petitioner totally failed to comply with the above-cited requirements. It has clearly and convincingly been established that he transported migrant farm workers in connection with his farm labor contractor business, in a vehicle which did not have the required inspection sticker or liability insurance. Although he later obtained this required insurance and mechanical inspection report, he did not have them at the time he transported the workers on May 8, 1986, were copies on file with Respondent at the time.

    
    

11. Respondent is authorized to impose an administrative fine of up to

$1000 for each violation of Chapter 450, Part III, Florida Statutes. See Section 450.38(2), Florida Statutes, as created by Chapter 85-243, Laws of Florida. Since two violations have been proven, Respondent is authorized to impose an administrative fine of up to $2000. However, Petitioner's immediate action on May 8 and 9, 1986 to obtain liability insurance and an inspection report should be considered in mitigation of the penalty to be imposed.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent issue a Final Order imposing an administrative fine of $1500 against Petitioner.

DONE AND ENTERED 12th this day of February, 1987 in Tallahassee, Florida.

DONALD D. CONN

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 Hearing this 12th day of February, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4819

Rulings on Respondent's Proposed Findings of Fact: (For purposes of identifying each ruling the three unnumbered paragraphs appearing under Facts are consecutively numbered 1 through 3.)

1. Adopted in Findings of Fact 2,3.

2. Adopted in Findings of Fact 5,6.

3. Rejected as irrelevant to the issue in this case.

COPIES FURNISHED:

Moses E. Williams, Esquire Department of Labor and Employment Security

Montgomery Building, Suite 117 2562 Executive Center Circle, East Tallahassee, Florida 32399-0658

Elias Salinas 1712 12th Avenue

Bradenton, Florida 33505

Phil Summers, Chief Bureau of Agricultural Programs

Post Office Box 1698 Tallahassee, Florida 32302-1698

Hugo D. Nennenvez Secretary

206 Berkeley Building

2590 Executive Center Circle, East Tallahassee, Florida 32399-2152

Kenneth Hart, Esquire General Counsel Montgomery Building Suite 131

2562 Executive Center Circle, East Tallahassee, Florida 32399-2152

Docket for Case No: 86-004819

Orders for Case No: 86-004819