STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1202

)

EDGAR T. COLEMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- captioned case on June 11, 1987 in Palatka, Florida. The issue for determination is whether Edgar T. Coleman (Respondent) has violated provisions of the Farm Labor Registration Law, Chapter 450, Part III, Florida Statutes, as alleged by the Department of Labor and Employment Security (Petitioner).

APPEARANCES

For Petitioner: Moses E. Williams, Esquire

Department of Labor and Employment Security

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

For Respondent: Edgar T. Coleman, Pro Se

Post Office Box 5 Umatilla, Florida 32794

BACKGROUND

By letter dated February 6, 1987, Petitioner advised Respondent that a civil money penalty of $600.00 was being assessed against the Respondent for the alleged violation of Section 450.33(4)(9), Florida Statutes and Rule 38B- 4.004(5) and 38B-4.008, Florida Administrative Code. By letter dated June 9, 1987 and hand delivered on June 11, 1987 at the time of the scheduled hearing in this cause, Petitioner notified Respondent that the letter of February 6, 1987 was rescinded. However, by letter dated June 9, 1987 and hand delivered on June 11, 1987 at the time of the scheduled hearing, Petitioner advised Respondent that a civil money penalty in the amount of $2,450.00 was being assessed against Respondent for alleged violations of Sections 450.33(4)(a),(5) and (9) and 450.35, Florida Statutes and Rule 38B-4.004(5), 38B-4.005(1) and 38B-4.008, Florida Administrative Code, and as grounds therefor alleged that Respondent had failed to: (a) Submit evidence to the Petitioner that each vehicle used by the Respondent to transport farm workers complied with the requirements and specifications established in Section 316.620, Florida Statutes or Public Law

93-518 as amended by Public Law 94-470 or, in lieu thereof, display a valid inspection sticker on such vehicle; (b) Submit evidence of having obtained liability insurance to insure the Respondent against liability for damages to persons or property arriving out of the operations or ownership of each vehicle used by Respondent to transport farm workers in connection with Respondent's farm labor contracting business; (c) Display prominently on all Vehicles a copy of Respondent's application for certificate of registration and; (d) Require a farm labor contractor to display a current certificate of registration before contracting with the contractor for the employment of farm workers. At this juncture, the parties were advised that the undersigned considered this an amendment to the original charges which did not allow Respondent sufficient time to prepare a defense to the new charges. However, after fully explaining this, Respondent advised the undersigned that he had been aware of these charges since November 20, 1986 when he signed the Farm Labor Contractor Registration Complaint, Form JSR 1200 and was prepared to go forward and defend them. The "amendment" was allowed and the hearing proceeded.

In support of its charges, Petitioner presented the testimony of Larry Coker, Compliance Officer and Respondent. Petitioner's exhibits 1-10 were received into evidence. Respondent testified on his own behalf but did not present any documentary evidence.

Although Respondent presented what was referenced as "Proposed Findings of Fact", it was basically Respondent's argument that he was not a "contractor" and a statement of his concern dealing with his inability to obtain a written contract with the producer of the agricultural product to be harvested by Respondent. Petitioner did not submit any posthearing Proposed Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was a registered farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes with Social Security number 426-98-6045 and certificate number 06506 with an expiration date of March 31, 1987.

   
   

2. On November 20, 1986, at 8:30 a.m. at a road block north of Zolfo Springs, Florida at the intersection of State Highway number 64 and U.S. Highway number 17 in Hardee County, Florida a 1978 Ford pickup truck registered to Edgar

   T. Coleman, Post Office Box 5, Umatilla, Florida, license number 778 ETK, Vehicle Identification Number F15HKACA8834, driven by Joe Carl Stephens, was found to be transporting seven (7) farm workers.

   
   

3. There was no application for certification for either Joe Carl Stephens or Edgar T. Coleman posted in the 1978 Ford pickup truck referred to in paragraph 2 and the truck at that time was not registered with Petitioner under Chapter 450, Florida Statutes.

   
   

4. Although Joe Carl Stephens later obtained certification as a farm labor contractor, he was not a certified farm labor contract as that term is defined in Section 450.28(1), Florida Statutes at the time he was stopped in the road block.

   
   

5. At the time Larry Coker, Compliance Officer, prepared the complaint against Joe Carl Stephens, approximately 8:30 a.m., November 20, 1986, there was no evidence filed with Petitioner showing the 1978 Ford pick-up being covered by the liability insurance policy of Respondent or Joe Carl Stephens.

   Additionally, the Petitioner had no evidence that the truck had been inspected for compliance with the requirements and specifications established in Section 316.620, Florida Statutes and there was no valid inspection sticker displayed on the truck.

   
   

6. An inspection of the truck at the road block revealed that: (a) the seats for the passenger in the back of the truck were not secured; (b) the camper top covering the bed of the truck was less than 60 inches above the floor; (c) the tailgate (exit for workers in back) would not close properly and was held closed with a rope and; (d) there was no communication device between the back area of truck and front area of the truck where driver was located.

   
   

7. At 1:00 p.m. on November 20, 1986, Edgar T. Coleman arrived at Petitioner's Wauchula, Florida office with an inspection certificate and, although undated, there was credible evidence that it was completed on November 20, 1986 after the complaint was filed, and an insurance binder completed at 11:00 a.m. on November 20, 1986 adding Respondent's 1978 Ford truck identified in paragraph 2 above to his existing vehicle liability insurance policy.

   
   

8. At 1:00 p.m. on November 20, 1986, Larry Coker filed a Farm Labor Contractor Registration Complaint on Respondent listing violations under Sections 450.33(4)(a),(5) and (9) and 450.35, Florida Statutes.

   
   

9. Although there was evidence that Joe Carl Stephens was employed by Respondent and that Respondent paid the fee of $35.00 to Petitioner for Stephens to obtain his farm labor contractor's certificate, there was credible testimony from Respondent that he was not contracting with Stephens as a farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes on November 20, 1986 but was dealing with Stephens as a farm worker and there was no extra compensation being paid to Stephens for driving the truck.

   
   

10. There was insufficient evidence to show that Respondent was contracting with Stephens as a farm labor contractor.

    
    

11. There was credible evidence that Respondent at all times material to this proceeding had hired, supervised and transported more than one (1) farm worker and had received compensation for such activities.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Section 450.33(4)(a),(5) and (9), Florida Statutes, provides in pertinent part as follows:

    
    

    1. Have displayed prominently at the site where the work is to be performed and on all vehicles used by the registrant for the transportation of employees: (e.s)

       1. A copy of his application for a certificate of registration....

          * * *

    2. Take out a policy of insurance with any insurance carrier, which policy

       insures such registrant against liability for damage to persons or property arising out of the operation or ownership of any vehicle or vehicles for the transportation of individuals in connection with his business, activities, or operations as a farm labor contractor....

       * * *

       (9) Produce evidence to the division that each vehicle he uses for the transportation of employees complies with the requirements and specifications established in chapter 316, s.316.620, or Pub. L.No. 93-518 as amended by Pub. L.No. 97-470 meeting Department of Transportation requirements or, in lieu thereof, bears a valid inspection sticker showing that the vehicle has passed the inspection in the state in which the vehicle is registered.

       
       

       See also Rule 38B-4.08, 38B-4.005(1) and 38B-4.004(5), Florida Administrative Code.

       
       

14. While Respondent's immediate compliance with the requirements of Section 450.33(5)(9), Florida Statutes after the violations were cited may be a basis for reducing the administrative fine under Rule 38B-4.012(2), Florida Administrative Code, the evidence is unrebutted that Respondent was in violation of the above-cited requirements.

    
    

15. The evidence was insufficient to show a violation of Section 450.35, Florida Statutes.

    
    

16. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribune. Florida Department of Transportation v.

    J.W.C. Company, Inc., 396 So.2d 778 (2 DCA Fla. 1981). The Petitioner has met its burden of proof to show a violation of Section 450.33(4)(a),(5) and (9), Florida Statutes, but has failed to meet its burden of proof to show a violation of Section 450.35, Florida Statutes.

    
    

17. Pursuant to Section 450.38(2), Florida Statutes, Petitioner is authorized to impose an administrative fine up to $1,000.00 for each violation of Chapter 450, Part III, Florida Statutes. See also Rule 38B-4.012(1), Florida Administrative Code.

RECOMMENDATION

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

RECOMMENDED that the Petitioner, enter a Final Order assessing an administrative fine of $750.00 against Respondent for violation of the requirements of Section 450.33(4)(a), (5) and (9), Florida Statutes and dismissing the charges of violating Section 450.35, Florida Statutes.

Respectfully submitted and entered this 10th day of July, 1987, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 10th day of July, 1987.

COPIES FURNISHED:

Moses E. Williams, Esquire Department of Labor and Security Tallahassee, Florida 32301

Mr. Edgar Coleman Post Office Box 5 Umatilla, Florida

Hugo Menendez, Secretary Department of Labor and

Employment Security

206 Berkeley Building 2590 Executive Center Circle, East

Tallahassee, Florida 32399-2152

Docket for Case No: 87-001202

Orders for Case No: 87-001202