STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARING

ANTHONY M. WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-6010

) 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 January 20, 1989, in LaBelle, Florida.

APPEARANCES

For Petitioner: Anthony M. Williams

Post Office Box 1651 LaBelle, Florida 33935

For Respondent: Noses E Williams, Esquire

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

Tallahassee, Florida 32399-0658

By letter dated November 17, 1988, the Respondent, Department of Labor and Employment Security (hereinafter the Department) notified the Petitioner, Anthony M. Williams (hereinafter Williams), of its intent to deny his application for a Florida Farm Labor Contractor Certificate of Registration.

The letter stated that the certificate would not be issued because the Petitioner was a named defendant in an out-of-state law suit, and had failed to pay the money judgment resulting from the law suit. The Petitioner disputes the allegations of fact set forth in the intent to deny letter. A request for a formal administrative hearing was filed with the Department on December 1, 1988.

On January 6, 1989, an amended intent to deny letter was issued to the Petitioner. The amended letter further alleged that the Petitioner failed to comply with contracts made as a farm labor contractor, failed to detail wage deductions in writing, gave misleading information about employment conditions, failed to display his certificate of registration, and failed to provide a written statement in the required languages as to wages and working conditions. As the Petitioner represented he was prepared to defend against the amended intent to deny letter on the date of hearing, the amendment was allowed by the Hearing Officer.

During the hearing, the Respondent presented four witnesses and introduced thirteen exhibits. Exhibit 8 through Exhibit 12 were admitted into evidence.

The Petitioner testified in his own behalf and submitted five exhibits, four of which were admitted into evidence.

A transcript of the proceeding was not ordered. The thirty-day requirement for the filing of the Recommended Order was waived by the parties as additional time was needed by them to file proposed findings of fact. Rulings on the proposed findings of fact submitted by the parties are in the Appendix to the Recommended Order.

ISSUE

Whether the Petitioner is eligible to receive a certificate to contract with farm laborers pursuant to Chapter 450, Florida Statutes.

FINDINGS OF FACT

1. In June 1983, the Petitioner Williams recruited migrant farm workers in Florida for the purpose of picking pickle cucumbers and long green cucumbers in Salisbury, Maryland.

   
   

2. The information about the wages and working conditions in Maryland were reduced to writing and placed upon the U.S. Department of Labor Form WH-416, as required by the Farm Labor Contractor Registration Act. This form was written in English and Creole on June 24, 1983, and was furnished to each worker at the time of recruitment.

   
   

3. According to the written information, the farm workers were to receive the minimum wage of $3.35 an hour. The piece rate for pickle cucumbers was forty-five cents per five eighths basket. The piece rate for long green cucumbers was fifty cents per bushel. Transportation and insurance were to be provided to the farm workers. It was represented that housing was available in the area at the cost of $25.00 per person, per week. Work was to begin on June 30, 1983, and would continue until September 15, 1983.

   
   

4. Based upon the representations made within the U.S. Department of Labor Form WH-416, the Petitioner Williams was able to hire a crew of twenty people in Florida for the Maryland contract.

   
   

5. A copy of the Form WH-416 was posted in each bus provided by the Petitioner during the trip from Florida to Maryland. The form remained posted in the buses during the term of employment.

   
   

6. When the buses reached Salisbury, Maryland, housing was not available. The Petitioner inspected the area prior to contracting with the farm workers, and was surprised to find different conditions upon arrival. The Petitioner Williams remained with the farm workers until they were able to obtain housing after the Fourth of July holiday. The farm workers and the Petitioner lived in the buses for a one week period. When housing became available, the cost of

   $20.00 per person, per week, was less than the anticipated rate. The workers paid their rent payments directly to their respective landlords.

   
   

7. The farm workers received the forty-five cents per basket rate at the Bradford farm for pickle cucumbers during most of the harvest.

8. During the payroll period of July 14, 1983 to July 21, 1983, the farm workers were paid thirty cents per basket at the Bradford farm. The reason for the price reduction during this time period was not made known to the Hearing Officer. However, testimony showed that the workers were aware that this price decrease was a change in contract, and they were given the opportunity to leave the job by the Petitioner. The workers decided to continue work at the farm for the new piece rate. This renegotiation took place in the State of Maryland.

   The change in the price of the piece work was initiated by the crop owner and not the Petitioner Williams. It is unknown if a Form WH-416 was completed to reflect this change.

   
   

9. During the Maryland contract, farm workers received their wages in cash in pay envelopes. It is unknown whether the envelopes contained an itemized statement of deductions in pay or whether any deductions were taken from the pay.

   
   

10. The Respondent Williams was legally required to keep the 1983 payroll records for three years. The records were not available at the 1989 hearing.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. During the July 1983 recruitment of farm workers in Florida, the Petitioner Williams was subject to the federal government's Farm Labor Contractor Registration Act as opposed to Florida's Farm Labor Registration Law. There was no showing at hearing that the Respondent failed to comply with the applicable laws which governed this contract.

    
    

13. The criteria for determining whether an applicant should be granted a state certificate of registration are found in Section 450.32, Florida Statutes, and Chapter 38H-4, Florida Administrative Code. The rules in effect in 1983 are found in Chapter 38B-4, Florida Administrative Code.

    
    

14. The reasons given to the Respondent for the denial of his application were: 1. He was named as a defendant in a law suit. 2. He failed to comply on his part with contracts between him and his farm workers. 3. He failed to give itemized statements in writing for wage deductions. 4. He made false statements as to job conditions. 5. He failed to display a copy of his application for certificate of registration, and he failed to display a statement in English and Creole which showed his rate of compensation as well as the rate to be paid to the farm workers. 6. He did not satisfy a $30,000.00 judgment.

    
    

15. According to the criteria established under Florida law, the only violation proved at hearing which could prevent the issuance of a state certificate would be the Petitioner's giving of false or misleading information concerning the housing conditions in Maryland during his Florida recruitment in 1983. Any other alleged acts were outside of the state's regulations and were governed by federal law. Florida regulations did not apply to the situation.

    
    

16. During hearing, the Petitioner testified that he went to the Salisbury, Maryland, area just prior to the Florida recruitment and at that time, housing was available. The housing shortage was temporary, and did not last beyond the end of the Fourth of July weekend, which may have affected

    transient housing in the locale. In any event, the false or misleading information regarding housing does not appear to be intentional, and the situation was remedied by the Petitioner as soon as possible.

    
    

17. Section 450.33(3), Florida Statutes, which states the legal duties of a farm labor contractor, provides in pertinent part:

    
    

    Every farm labor contractor must comply on his part with the terms and provisions of all legal and valid agreements entered into between the registrant in his capacity as a farm labor contractor and third persons.

    
    

18. The Petitioner complied with the agreement as set forth in U.S. Department of Labor Form WH-416, when he personally inspected the housing situation in Salisbury, Maryland, shortly before he began his farm worker recruitment in Florida.

Based upon 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 ORDERED this 17th day of May, 1989, in Tallahassee, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this of 17th day of May, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-6010

Petitioner's proposed findings of fact are addressed as follows:

1. Rejected. Contrary to Form WH-416.

2. Rejected. Hearsay.

3. Rejected. Hearsay.

4. Rejected. Irrelevant. Not given as reason for rejection.

5. Rejected. Contrary to law of case in memorandum published regarding Nonville v. Williams, Case No. JH-84-1648 (USDC Md 1987)

6. Rejected. Goes to motive and weight to be given to testimony, not to the truth of the matters asserted.

Respondent's Proposed Findings of Fact are addressed as follows:

1-4. Accepted. See Preliminary Matters.

1. Rejected. The Petitioner admitted five exhibits. See Preliminary matters.

2. Accepted. See Preliminary Matters.

3. Accepted. See Order of Denial in pleadings.

4. Accepted. See rulings recorded on documents.

5. Accepted. See Preliminary Matters. 10. Rejected. Improper summary and unqualified expert opinion as to the ultimate facts and conclusions of law.

1. Rejected. Documents speak for themselves.

2. Rejected. See HO #3 and #7.

3. Accepted. See HO #6. 14. Rejected. See HO #6.

15. Rejected. See HO #3 and #7.

16.-18. Rejected. Irrelevant. Not given as reasons for denial of certification by the Respondent in the Intent to Deny Letter or its amendments.

1. Accepted, but not probative.

2. Rejected. See HO #5.

3. Accepted, but not probative.

4. Rejected. See HO #3.

5. Accepted. See HO #6.

6. Accepted. See HO #6.

7. Rejected. See HO #3 and #7.

8. Rejected. See HO #5.

COPIES FURNISHED:

Anthony M. Williams Post Office Box 1651 LaBelle, Florida 33935

Moses E Williams, Esquire Suite 117, Montgomery Building 2562 Executive Circle Center Tallahassee, FL 32399-0658

Hugo Menendez, Secretary Department of Labor and Employment Security

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

Stephen Barron, Esquire General Counsel Department of LES

2590 Executive Center Cir. Tallahassee, FL 32399-2152

Docket for Case No: 88-006010

Orders for Case No: 88-006010