STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) LABOR AND EMPLOYMENT SECURITY, ) DIVISION OF UNEMPLOYMENT ) COMPENSATION, DIVISION OF LABOR ) AND EMPLOYMENT TRAINING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0873

)

ERASTIOUS CROWL, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sebring, Florida, on April 14, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration in this case was whether Respondent's Farm Labor Contractor's Certificate should be disciplined and whether upon expiration, it should be renewed, because of the alleged misconduct outlined in the Administrative Complaint filed herein.

APPEARANCES

For Petitioner: Moses E. Williams, Esquire

Department of Labor and Employment Security Montgomery Building, Suite 117

2562 Executive Center Circle Tallahassee, Florida 32399

For Respondent: Erastious Crowl, pro se

Post Office Box 2186

Lake Placid, Florida 33852 BACKGROUND INFORMATION

On January 28, 1988, the Department of Labor and Employment Security (DLES), notified Respondent by letter of its intent to revoke his Florida Farm Labor Contractor Certificate of Registration on the basis that he had failed to pay civil money penalties previously imposed upon him in the amount of

$2,450.00. Respondent submitted an Election of Rights form on February 19, 1988, in which he disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing. The matter was referred to the Division of Administrative Hearings on February 22, 1988, and assigned to the undersigned, who, on March 28, 1988, set the case for hearing.

At the hearing, Petitioner presented the testimony of Vivian Martin, a staff person with the Civil Money Penalty Program for DLES; and Larry Coker, Compliance Officer with the Department; and introduced Petitioner's Exhibits 1

through 11. Respondent testified in his own behalf, but did not present any documentary evidence.

Neither party submitted proposed findings of fact nor was the undersigned furnished with a transcript of the proceedings.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, Respondent possessed a Certificate of Registration as a Farm Labor Contractor, issued under the provisions of Chapter 450, Part III, Florida Statutes. The Certificate number is C-04-387166-D-88-R. It was issued on June 15, 1987, and expired on April 30, 1988.

   
   

2. The Department of Labor and Employment Security is the state agency charged with regulating farm labor contractors.

   
   

3. At the time Respondent applied for his certificate, on June 4, 1987, he gave as the address for sending documents, P.O. Box 2186, Lake Placid, Florida, 33852.

   
   

4. At approximately 9:00 am on June 4, 1987, Larry Coker, a DLES Compliance Officer, observed the Respondent drive his 1980 Ford van up to a convenience store in the town of Ona, on State Road 64, in Hardy County, Florida. At the time, Respondent had thirteen migrant workers in the van with him. Mr. Coker's examination of the van at the time revealed that the seats in the van were not secured to the floor or the frame of the vehicle, and the vehicle was not insured.

   
   

5. Mr. Coker attempted to discuss the matter with the Respondent, who had stopped at the store to purchase gas and ice, and to give the workers an opportunity to purchase food for lunch. However, Respondent indicated that he had to get to work, and Mr. Coker followed Respondent to a watermelon field where he and the other workers were to cut watermelons. Though at the hearing, Respondent denied that he was the contractor for the workers in question, at the field, on June 4, 1987, he had indicated that he paid his workers in cash on a daily basis, did not deduct for social security, did not keep names, addresses, or other records, nor did he give a wage statement to the workers.

   
   

6. At the hearing, Mr. Crowl admitted making the statement, but contended that he was referring to his routine practice on those occasions when he served as a labor contractor. He unequivocally denies, however, that the workers in his van on June 4, 1987, were his employees. He insists they were the employees of another contractor whose van had broken down beside the road and to whom he was giving a ride, merely to assist them in getting to work.

   
   

7. When Mr. Coker discussed the matter with the grower, Randall Roberts, and the crew leader in the field, Mr. McGahey, Roberts indicated that he had just hired Respondent, and that he paid Respondent, who was responsible for paying the workers. Under the circumstances, and considering the relative probabilities of the testimony, it is found that the workers in question were Respondent's employees, and that he did improperly manage them under the terms of Chapter 450, Florida Statutes.

   
   

8. It is also found that Mr. Crowl's prior Farm Labor Contractor Certificate of Registration expired in February, 1987. Even though expired, it should have been posted either at the work site or in the van, but was not.

   Respondent, also, was not authorized to transport workers in his van. As a result, Mr. Coker cited Respondent for failing to register as a contractor, (based on the expired certificate); failing to make, keep or preserve records; failing to provide wage statements to workers; failing to assure the safety of transportation vehicles; failing to obtain prescribed vehicle insurance; and failing to post his certificate of registration as required. The complaint was forwarded to DLES headquarters in Tallahassee.

   
   

9. On June 29, 1987, Rod Willis, Chief of the Bureau of Agricultural Programs for the DLES, by letter, notified Respondent that the Department was assessing a civil money penalty against him for the above cited six violations in the total amount of $2,450.00. Under the terms of the letter, Mr. Crowl was given twenty-one days to remit the amount of penalty due, or to request a hearing under Section 120.57, Florida Statutes. The letter was sent by certified mail to the address listed by Mr. Crowl in his application for registration, but was subsequently returned undelivered. Mr. Crowl contends that he never received the letter because shortly after the date of the incident here, he left for New York and did not return until November, 1987.

   
   

10. Because requirements outlined in the certified letter referenced above were not complied with, on January 25, 1988, the acting director of the DLES entered a Final Order imposing the $2,450.00 fine, and advising Respondent of his right to appeal. No appeal was taken.

    
    

11. On January 28, 1988, Mr. Willis, again by letter, notified Respondent of the Division's intention to revoke his Florida Farm Labor Contractor's Certificate of Registration, citing his failure to pay the previously assessed civil money penalty or to request a hearing. Mr. Crowl was again advised of his right to request a hearing on the revocation, and this hearing was the result.

    
    

12. At the hearing, counsel for Petitioner indicated that if Respondent was willing to make arrangements for the payment of the $2,450.00 civil money penalty assessed, he would consider recommending to the Division Director a settlement that might result in allowing Respondent to retain his Contractor's Certificate.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

14. There is no reasonable doubt that Respondent was the Farm Labor Contractor responsible for the thirteen workers discovered in his truck on June 4, 1987, and that he is guilty of the six violations outlined by Mr. Coker.

    
    

15. Under the provisions of Chapter 450, Florida Statutes, the Department of Labor and Employment Security has the authority to impose civil money penalties and such a penalty was imposed by the Department. Notice thereof was furnished to the Respondent by certified mail. It is clear that Respondent did not receive the Notice of Penalty, and therefore did not pay it. Petitioner intends to revoke Respondent's certificate on the basis of his failure to pay.

    
    

16. There is no reason to doubt Respondent's testimony that he was out of town during the period in question that the letter was sent to him. Petitioner contends that Respondent changed his place of residence and failed to notify the Division thereof. However, the post office box listed on the application is the same post office address that Respondent still maintains and the Notice of Civil

    Money Penalty was apparently returned simply because Respondent was out of town and did not pick up his mail within a reasonable amount of time. There is no showing that he changed his notification address, or thereafter failed to notify the Department.

    
    

17. The revocation is based not on the misconduct involving the thirteen migrant workers, but instead on Respondent's failure to pay the penalty assessed. The Department has already gone on record as determining that the appropriate punishment for the offenses involving the workers is a civil money penalty. It would be unfair to now say that the civil money penalty is inappropriate and revocation appropriate.

    
    

18. In its letter of intent to revoke, which forms the Administrative Complaint, the Petitioner gave Respondent the option of either paying the penalty or demanding the hearing. He requested the hearing, and it is appropriate that he now be given the option of paying the penalty prior to any revocation of his certificate, since he was not previously afforded a hearing on the issue regarding the workers. This has now been done, and the issue of his liability for the offenses regarding the workers has been resolved against him.

    
    

19. He should now be required to pay the penalty originally imposed, and given a reasonable time to pay it. If he does not, revocation action would be appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED, that Respondent, Erastious Crowl, be ordered to pay the previously assessed civil money penalty in the amount of $2,450.00, with the condition that if the payment of the penalty is not paid within a time period satisfactory to the Department, his Certificate be revoked.

Recommended in Tallahassee, Florida, this 9th day of May, 1988.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1988.

COPIES FURNISHED:

MOSES E. WILLIAMS, ESQUIRE DEPARTMENT OF LABOR AND

EMPLOYMENT SECURITY MONTGOMERY BUILDING, SUITE 117 2562 EXECUTIVE CENTER CIRCLE TALLAHASSEE, FLORIDA 32399

ERASTIOUS CROWL

POST OFFICE BOX 2186

LAKE PLACID, FLORIDA 33852

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: 88-000873

Orders for Case No: 88-000873