STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR ) AND EMPLOYMENT SECURITY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1704

)

MARVIN JAMES, )

)

Respondent. )

)

RECOMMENDED ORDER

The formal administrative hearing in this case was held on June 23, 1987, in Lakeland, Florida. Appearing for the parties were:

For Petitioner: Marvin James, Pro Se

1501 Island Avenue

Dade City, Florida 33525

For Respondent: Moses E. Williams, Esquire

Department of Labor and Employment Security

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

The Petitioner introduced eight exhibits into evidence, and presented the testimony of Herbert W. Mize and Carl Junior Mears. The Respondent did not present any exhibits, and presented his own testimony, as well as testimony from Andrew L. Gaddy and Zephaniah Sterling.

There is no transcript.

The parties have submitted proposed findings of fact and conclusions of

law.

FINDINGS OF FACT

1. Herbert W. Mize is a compliance officer for the Petitioner, the

   Department of Labor and Employment Security.

   
   

2. On January 14, 1986, Mr. Mize was performing field checks in Hillsborough County. He arrived at a citrus grove, staying on the outside due to the canker problem. Ten to fifteen workers were up on ladders among the citrus trees. The Petitioner, Marvin James, was driving a vehicle loading up citrus.

   
   

3. Mr. Mize asked Mr. James who was crew leader on the job at that time. Mr. James stated that he was the crew leader.

4. A 1977 Dodge van was parked nearby. Mr. James told Mr. Mize that it was his van and that he drove workers to work that day in his van. The same 1977 Dodge van had previously been insured by Mr. James by the U.S. Fire Insurance Company, but Mr. James did not have insurance on the 1977 Dodge van on January 14, 1986. P. Ex. 4, 5, and 6.

   
   

5. Mr. Mize gave a notice of noncompliance to Mr. James, and Mr. James acknowledged that he had seen it by signing it at the bottom. P. Ex. 3. Relevant to this case, Mr. James was informed by Mr. Mize that he was in noncompliance with state law by failure to carry and exhibit proper certificate of registration as a farm labor contractor and by failure to obtain adequate vehicle insurance. Id.

   
   

6. Mr. James testified that he was very familiar with the law requiring farm labor contractor registration and vehicle insurance to transport workers since he had been a crew leader since 1978.

   
   

7. Mr. James testified that on January 14, 1987, he was working for Carl Junior Mears, but only to load citrus, and that he did not transport workers in his van and did not supervise workers in the grove. His testimony is rejected as not credible for the following reasons:

   
   

   1. Mr. James testified that he was "under his van working" when Mr. Mize came up. He gave no explanation why he was working on his van instead of loading citrus as he testified at another point.

      
      

   2. Mr. Mears admitted that Mr. James did direct and supervise workers in the grove from time to time, and also admitted that Mr. James "sent" workers to him.

      
      

   3. Both of the worker witnesses presented by Mr. James testified that they had known James for a number of years, which indicates that they have had some sort of formal working relationship with him.

      
      

   4. If Mr. James in fact had told Mr. Mize that he was not the crew leader, it would have been logical for Mr. Mize to have then asked "well, who is the crew leader?" But Mr. James insisted that he did not tell Mr. Mize where the crew leader was because Mr. James said Mr. Mize did not ask. This is not believable.

      
      

   5. Mr. James testified that Mr. Mears was the crew leader, and that he was available in the grove on January 14, 1986. Considering the fact that Mr. James was familiar with the requirements of the law, if it were true that Mr. Mears was present in the grove, it would logically be expected that Mr. James would have tried to be helpful and would have voluntarily told Mr. Mize who Mr. Mears was and where he was even if Mr. Mize had somehow failed to ask. It is particularly unbelievable that Mr. James would not have, on his own, told Mr. Mize where Mr. Mears was located since Mr. James admitted that Mr. Mize that day cited him for crew leader violations, and Mr. James signed the citation. P. Ex. 3.

      
      

   6. The demeanor of Mr. Mize indicated credibility, while the demeanor of Mr. James indicated a lack of credibility.

      
      

8. Mr. Mears paid Mr. James for his services as a crew leader.

9. On January 14, 1986, Mr. James drove workers to the citrus groves in his 1977 Dodge van and he was supervising them as a crew leader, both for pay from Mr. Mears. Mr. James was not registered on January 14, 1986 as a crew leader, and did not have insurance on the 1977 Dodge van he used to transport workers.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case.

    
    

11. On January 14, 1986, the Respondent, Marvin James, was transporting and supervising farmworkers for a fee or other valuable consideration and thus was a farm labor contractor as defined by section 450.28(1)(a), Fla. Stat.

    
    

12. On January 14, 1986, the Respondent, Marvin James, violated section 450.30(1), Fla. Stat., by failing to have a certificate of registration in full force and effect and in his possession.

    
    

13. On January 14, 1986, the Respondent, Marvin James, was required by section 450.33(5), Fla. Stat., to have a policy of insurance upon his 1977 Dodge van insuring himself against liability for damage to persons or property arising from the operation or ownership of that vehicle for the transportation of farmworkers, and he violated this statute by failing to have such insurance.

    
    

14. The proper amount of a civil penalty for these violations is governed by rule 38B-4.12(2), Fla. Admin. Code. Relevant to this case are the following portions of that rule. The number of workers at risk in the transportation to and from the groves is not clear, but surely was at least 4 or 5, if not more. Subparagraph (b). The Respondent made no good faith effort to comply with the requirements of the law. Subparagraph (d). The Respondent's explanation at the formal administrative hearing was not believable. Subparagraph (e). There was no commitment by the Respondent to comply in the future. Subparagraph (f). By failing to carry insurance, the Respondent gained financially to the extent of the cost of the premium. Subparagraph (g). These are sufficient aggravating factors to support the recommended penalty of two thousand dollars ($2,000).

RECOMMENDATION

For these reasons it is recommended that the Department of Labor and Employment Security enter its final order finding that the Respondent, Marvin James, on January 14, 1986, violated section 450.30(1), Fla. Stat., by failing to have a certificate of registration in full force and effect and in his possession and violated section 450.33(5), Fla. Stat., by failing to have a policy of insurance on his 1977 Dodge van used to transport farmworkers, and assessing a civil penalty of two thousand dollars ($2,000).

DONE and ENTERED this 13th day of July, 1987.

WILLIAM C. SHERRILL, JR.

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 13th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1704

The following are rulings upon findings of fact by number or paragraph number as proposed by the parties which have been rejected.

Findings of fact proposed by the Petitioner: None.

Findings of fact proposed by the Respondent:

Paragraph 2: Rejected for the reasons stated in finding of fact 7. Paragraph 3: Rejected for the reasons stated in fending of fact 7. Paragraph 4: Mr. Mize had no need to talk to workers in the grove since

Mr. James admitted he was the crew leader, and did not tell Mr. Mize then that Mr. Mears was the crew leader.

Paragraph 5: Mr. Mize testified that he saw workers on ladders, and made it clear that his number was only an estimate.

Paragraph 6: Rejected for the reasons stated in finding of fact 7.

Paragraph 7: Rejected for lack of testimony in the record as to these facts.

Paragraph 8: Rejected in the conclusions of law.

COPIES FURNISHED:

Hugo Menendez, Secretary Department of Labor and

Employment Security

206 Berkeley Building

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

Kenneth Hart, Esquire General Counsel Department of Labor and

Employment Security

131 Montgomery Building

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

Marvin James

1501 Island Avenue

Dade City, Florida 33525

Moses E. Williams, Esquire Department of Labor and

Employment Security Montgomery Building, Room 117

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

Docket for Case No: 87-001704

Orders for Case No: 87-001704