STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2255

)

JAVIER MELENDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

Moses E. Williams, Esquire, of Tallahassee, for Petitioner. No Appearance For Respondent.

Final hearing was held in this proceeding in Lakeland on July 20, 1988. Except that the Petitioner, the Department of Labor add Employment Security (DLES), included in its referral to the Division of Administrative Hearings a Final Order that appeared to be on the matters alleged in the Administrative Complaint, the hearing appeared to have been scheduled on the Administrative Complaint against the Respondent, Javier Melendez, in which the DLES sought to impose $1400 in fines for two alleged violations. The Hearing Officer initially assigned this proceeding gave it the above caption and noticed the case for hearing on the Administrative Complaint.

At final hearing, at which Melendez did not appear, it was disclosed that the Final Order was addressed to the same Administrative Complaint and imposed

$1400 of fines, that the DLES omitted from the materials referred to the Division of Administrative Hearings Melendez' March, 1988 application to renew his registration as a farm labor contractor, that the DLES denied Melendez' application to renew his registration, that Melendez' Election Of Rights form actually was addressed to the denial of Melendez' application and that, notwithstanding the caption and designation of the issues in the Notice Of Hearing, the DLES believed the proceeding set for final hearing was the denial of Melendez' application. In Melendez' absence, the hearing proceeded on that basis.

FINDINGS OF FACT

1. During late 1987 and early 1988, the Respondent, Javier Melendez, was registered by the Petitioner, the Department of Labor and Employment Security (DLES), as a farm labor contractor with authorization to transport migrant and seasonal farm workers.

2. In March, 1988, Melendez applied to renew his registration as a farm labor contractor.

On or about April 5, 1988, the DLES entered a Final Order imposing $1400 of fines on Melendez for two violations: one, a violation of Section 450.33(5), Florida Statutes, and Rule 38B-4.005(1), Florida Administrative Code, for not carrying required liability insurance on the 1979 Ford van in which he was transporting migrant and seasonal farm workers on December 10, 1987; the second, a violation of Section 450.33(9), Florida Statutes, and Rule 38B-4.004(5), Florida Administrative Code, for not having a current valid inspection on the same vehicle on the same day.

1. Melendez did not take steps to bring his 1979 Ford van into compliance with the requirements for using it to transport migrant and seasonal farm workers.

   
   

2. On January 11, 1988, another registered farm labor contractor named Emmett Hunter was using a 1975 Ford van that Melendez owned and had loaned to Hunter for a rental charge to transport migrant and seasonal farm workers. The 1975 Ford van did not have required liability insurance for use in transporting migrant and seasonal farm workers.

   
   

3. Melendez still has not brought either of the two vans into compliance with the requirements for use in transporting migrant and seasonal farm workers. Melendez has paid no part of the $1400 of fines that were imposed by Final Order in April 1988.

   
   

4. Melendez did not appear at the final hearing in this case.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 450.30, Florida Statutes (1987), provides in pertinent part:

   
   

   1. No person may act as a farm labor contractor until a certificate of registration has been issued to him by the division and unless such certificate is in full force and effect and is in his possession.

      * * *

      (3) Unless sooner revoked, each certificate of registration, regardless of the date of issuance, shall be renewed on the next birthdate following the date of issuance and, thereafter, each year on the birthdate of the registrant.

      
      

6. Section 450.31, Florida Statutes (1987), provides in pertinent part:

   
   

   The division shall not issue to any person a certificate of registration as a farm labor contractor, nor shall it renew such certificate, until:

   * * *

   (2) The division is satisfied that the applicant complies with rules and regulations promulgated by it.

7. Section 450.32(1), Florida Statutes (1987), provides in pertinent part:

   
   

   1. The division may revoke suspend, or refuse to renew any certificate of registration when it is shown that the farm labor contractor has:

      1. Violated or failed to comply with any provision of this part or the rules adopted pursuant to s. 450.36.

8. Section 450.33, Florida Statutes (1987), provides in pertinent part: Every farm labor contractor must:

   * * *

   (5) 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. In no event may the amount of such liability insurance be less than that required by the provisions of the financial responsibility law of this state.

   * * *

   (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 Publ. 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.

   
   

9. The Respondent, Javier Melendez, has not complied with, and still does not comply with, Section 450.33(5) and (9), Florida Statutes (1987). In addition, Melendez still has not paid the $1400 fine previously assessed against him by Final Order of the Petitioner, the Department of Labor and Employment Security. Melendez, who did not even appear at the final hearing, did not establish entitlement to renewal of his certificate of registration as a farm labor contractor.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, the Department of Labor and Employment Security, enter a final order denying the application of the Respondent, Javier Melendez, for renewal of his certificate of registration as a farm labor contractor.

RECOMMENDED this 3rd day of August, 1988, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 3rd day of August, 1988.

COPIES FURNISHED:

Moses E. Williams, Esquire Department of Labor and

Employment Security

Suite 117, Montgomery Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152

Mr. Javier Melendez Post Office Box 2052

Haines City, Florida 33844

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

131 Montgomery Building

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

Docket for Case No: 88-002255

Orders for Case No: 88-002255