STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD L. EPPS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1739

) DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on May 18, 1988, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Richard L. Epps, pro se

2141 Barker Boulevard

Fort Myers, Florida 33901

For Respondent: Moses E. Williams, Esquire

Office of General Counsel Suite 117 Montgomery Building 2562 Executive Center Circle

Tallahassee, Florida 32399-0658

During the hearing, the Respondent presented the testimony of three witnesses and eight exhibits which were admitted into evidence. The Petitioner was given the opportunity to cross examine these witnesses, and he testified in his own behalf. The issue before the Hearing Officer is to determine whether the Petitioner is eligible to receive his certificate to contract with farm labor employees pursuant to Chapter 450, Florida Statutes.

FINDINGS OF FACT

1. On September 17, 1987, the Petitioner entered a nolo contendere plea to two felonies: possession of cocaine and possession of marijuana. The plea was entered in Case No. 86-342-CF, in the Circuit Court of DeSoto County, Florida, and the Petitioner was adjudged guilty of the offenses.

   
   

2. In the Court's judgment of guilt, it was found to the Court's satisfaction that the Petitioner was not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that RICHARD EPPS should suffer the penalty authorized by law. As a result of the Court's findings, the Petitioner, RICHARD EPPS, was sentenced to three years probation. He was ordered to serve five months in the county jail as a condition of that probation.

3. On January 25, 1988, the Petitioner completed an application for a Florida Farm Labor Contractor Certificate of Registration. The purpose of the application was to obtain a new certificate as he was no longer eligible for a renewal of his prior certificate. On March 16, 1988, the Respondent notified the Petitioner of its intent to refuse to issue the certificate of registration. The reasons given were: 1) The U.S. Department of Labor recommended against it due to the felony convictions. 2) By rule, the Respondent is required to cooperate with any federal agency. 3) Once a certificate is obtained, each contractor must comply with all applicable statutes, rules, and regulations for the protection or benefit of labor.

   
   

4. The Petitioner has used marijuana in the past. He has never used it during working hours, and his work crew was unaware that he has ever used marijuana. He has never allowed drugs in the work place and he no longer uses marijuana.

   
   

5. The Petitioner has never used cocaine or other illegal drugs, except for the marijuana. The Petitioner's arrest on November 6, 1986, for the possession of cocaine and marijuana was a result of his location in the wrong place at the wrong time. When he went to his marijuana supplier's home to purchase marijuana for his personal use, the house was raided by the Arcadia Police Department. Originally, all of the people within the house where individually charged with possession of all of the drugs stored there. The Petitioner's plea of nolo contendere was a result of a plea bargain agreement.

   
   

6. The Petitioner is aware that his former drug activity was criminal in nature, and he has stopped his marijuana use with the help of voluntary counseling, his family, the fact that he is on probation, and the fact that his habit got him into serious trouble.

   
   

7. The Petitioner will not endanger the safety of a work crew as a result of his past use of marijuana. There is no evidence that the safety of the work crew was ever endangered as a result of the Petitioner's past habit or that his presence in the fields will be harmful to farm workers.

   
   

8. The Petitioner has never engaged in transporting farm workers beyond state lines. His crew leader activities are confined to less than twenty workers and he works for one farmer, Mr. Bobby Williams in Arcadia, Florida.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1) and Rule 38H-4.010, Florida Administrative Code.

   
   

10. The facts of this case reveal that the Petitioner does not bring farm workers into the state. He only recruits and transports workers within the state. As a result, the Florida Farm Labor Registration Law applies as opposed to the Migrant and Seasonal Agricultural Worker Protection Act of 1983, as amended. The state is the primary judge of the need for a statute or other appropriate means to regulate any enterprise, trade, occupation, or profession if necessary to protect the public health, welfare and morals within the state. McInerney v. Ervin, 46 So.2d 458 (Fla. 1950).

    
    

11. The criteria for determining whether an applicant should be granted a state certificate of registration are found in Chapter 38H-4, Florida

    Administrative Code, and Section 450.32, Florida Statutes. According to the criteria established under Florida law, the Petitioner is not prohibited from receiving a certificate because of his two felony convictions for possession of illegal drugs.

    
    

12. The reasons given to the Petitioner for his denial were: 1) The Department of Labor recommended against it due to the felony convictions. 2) Once a certificate is obtained, the contractor must comply with all applicable statutes, rules, and regulations for the protection or benefit of labor.

    
    

13. There was no evidence presented at hearing as to how the registration of the Petitioner as a crew leader in Florida, under Florida laws, would be deemed a lack of appropriate cooperation with the U.S. Department of Labor. The state has its own registration process in addition to and separate from the federal registration process for farm labor contractors. The state registration process does not require, as a condition precedent, that a crew leader obtain a valid federal certificate. The state's right to regulate a trade, occupation, or profession within its borders is paramount. The first reason given for the denial of the Petitioner's certificate of registration is arbitrary and without a basis in fact proved at hearing. Until the legislature adopts the U.S. Department of labor evaluation procedures and criteria for issuing a certificate of registration, the Petitioner's application for a certificate is controlled by state law, not federal recommendations.

    
    

14. There was no evidence presented at hearing to show that the Petitioner will not comply with all applicable statutes, rules, or regulations for the protection or benefit of labor. The evidence presented by both sides reveals that the Petitioner has complied with such requirements in the past and will do so in the future.

    
    

15. The Respondent alluded to the possibility that the Petitioner might possess and use drugs in the future. These drugs might remain in his blood stream and cause an accident which might harm a farm worker whom the state is seeking to protect under Chapter 450, Florida Statutes.

    
    

16. The scenario proposed by the Respondent is not founded upon any factual basis and is contrary to the findings of the circuit court judge who specifically found that the Petitioner was not likely to engage in a criminal course of conduct again. The scenario is also contrary to the evidence adduced at hearing and the findings of fact which resulted from the formal hearing on May 18, 1988.

Based on the foregoing, it is RECOMMENDED:

That the Department of Labor and Employment Security enter a final order granting the Petitioner a certificate of registration as a farm labor contractor.

DONE AND ENTERED this 30th day of June, 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY, 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 30th day of June, 1988.

COPIES FURNISHED:

Mr. Richard L. Epps 2141 Barker Boulevard

Fort Myers, Florida 33901

Moses E. Williams, Esquire Office of General Counsel Suite 117 Montgomery Building 2562 Executive Center Circle

Tallahassee, Florida 32399-0658

Hugo Menendez, Secretary Department of Labor and

Employment Security

206 Berkeley Building

2590 Executive Center Circle, East Tallahassee, Florida 32399-21526

Docket for Case No: 88-001739

Orders for Case No: 88-001739