STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF LABOR, SECURITY AND TRAINING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3357

)

ABEL FLORES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 18, 1990, in Immokalee, Florida.

APPEARANCES

For Petitioner: Moses E. William, Esquire

307 Hartman Building

2012 Capital Circle, S. E. Tallahassee, FL 32399-0658

For Respondent: Abel Flores, pro se

P. O. Box 1611 Immokalee, Florida 33934

STATEMENT OF THE ISSUES

The issue is whether respondent should have a $1,000 civil penalty imposed for allegedly violating Section 450.30, Florida Statutes (1989) and Rule 38H-11.003, Florida Administrative Code (1989) by acting as a farm labor contractor without a certificate of registration.

PRELIMINARY STATEMENT

In an administrative complaint dated April 27, 1990, petitioner, Department of Labor and Employment Security, Division of Labor, Employment and Training (Division), charged that respondent, Abel Flores, who holds no current and active licenses issued by petitioner, had violated Section 450.30,

Florida Statutes (1989) and Rule 38H-11.003, Florida Administrative Code (1989) by acting as a farm labor contractor without having a certificate of registration as required by law. Respondent disputed the above allegation and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989). The matter was referred by petitioner to the Division of Administrative Hearings on May 29, 1990, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated June 12, 1990, a final hearing was scheduled on July 18, 1990, in Inmokalee, Florida.

At final hearing petitioner presented the testimony of Ruth Ann Weaver and Don R. Symonette, Sr., both Division employees. Also, petitioner offered petitioner's exhibits 1-6. All exhibits were received in evidence.

Respondent testified on his own behalf and presented the testimony of Lindsey Newton, Olga Martinez Flores, Irene Flores Ortiz, Jose Meza and Norma Flores.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner on July 26, 1990. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. Based upon all of the evidence, the following findings of fact are determined:

   
   

2. This controversy arose on May 1, 1989, when Don R. Symonette, who is a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made an inspection of a farm owned by Ovid Barnett some seven or eight miles east of Immokalee, Florida. The testimony as to what transpired during the course of the inspection is sharply in dispute. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and that testimony is embodied in the findings below.

   
   

3. As Symonette drove by the farm that day, he observed a crew of approximately eighteen workers picking bell peppers in a field. Thereafter, Symonette drove his vehicle onto the premises for the purpose of determining if pertinent statutes and Division rules were being followed. He initially observed respondent, Abel Flores (Abel), standing by a pickup truck in the same field where the laborers were harvesting the peppers. The two were acquainted from several meetings over the prior years. Symonette asked respondent what he was doing, and respondent answered that he was helping his brother, Alfredo, who is a registered farm labor contractor. Respondent also volunteered that he was being paid by his brother and received approximately $40 per day in compensation. Abel further acknowledged, and the Division records show, that he is not certified as a farm labor contractor. At that point, Symonette decided to give Abel the benefit of the doubt and to interview respondent's brother, Alfredo, who was supervising a crew in an adjacent field.

   
   

4. During the course of the interview, Alfredo advised Symonette that he (Alfredo) was the supervisor in charge of the crew and it was he who had contracted with the farm to supply the workers. Even so, Symonette concluded that because Abel was the only person standing in the other field, he was "supervising" the other crew and was doing so without a certificate of registration. Accordingly, Symonette filled out a summary of violations which cited Abel for failing to register as a contractor. After discussing the summary with Abel, Symonette had Abel sign the document. He also prepared a site review and inspection check list which Abel reviewed and signed.

   
   

5. On April 27, 1990, or almost a year later, the Division issued an administrative complaint charging Abel with acting as a farm labor contractor without having a certificate of registration. On June 7, 1990, Symonette sent by mail a form to Ovid Barnett requesting information regarding Abel's employment. On an undisclosed date, the form was returned to Symonette and contains what purports to be Barnett's signature. However, the contents of the completed form are hearsay in nature and cannot serve as the basis for a finding

   of fact. Moreover, even if the response was not hearsay, it fails to disclose the nature of Abel's employment with the farm and whether the hourly compensation allegedly given Abel was being paid at the time the form was completed in June 1990 or when the inspection occurred thirteen months earlier. In this regard, it is noted that at hearing Abel produced pay stubs from April and May 1989 which indicate that his salary was either $4.325 per hour or $5.00 per hour, depending on whether he was driving a tractor in the fields or a truck from the fields to the packing house. The former amount is the same as was being paid a number of other farm workers whose job responsibilities were not disclosed. Abel's testimony on compensation is accepted as being credible and comports with the statement made by Abel to Symonette that he was being paid around $40 per day for a full day's work.

   
   

6. All compensation received by Abel was from his employer, Ovid Barnett. In some cases, he was paid by check from the farm, and in other cases, he was paid by his brother who had in turn been paid by the farm. To the extent the allegation is relevant, there is insufficient evidence to establish that Abel received double compensation during May 1989 by being paid by both his brother and Barnett at the same time.

   
   

7. To bolster Abel's contention that he was not acting as a farm labor contractor on May 1, 1989, a supervisor at Barnett's farm established that Abel was driving trucks between the field and the packing house when the inspection occurred, and as such, it was necessary for Abel to stand by his truck while the workers loaded the truck with produce. As a driver, Abel had the responsibility of overseeing the loading of produce on his truck and, when necessary, to direct the workers on how to properly do so. It is noted that at hearing, Symonette did not describe the activities being performed by Abel except that Abel was simply "standing" around his truck and "appeared" to be supervising the work crew. Accordingly, it is found that Abel was not performing the duties of a farm labor contractor on May 1, 1989.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

   
   

9. By its complaint, the Division seeks to impose a $1,000 civil penalty on respondent for allegedly violating Subsection 450.30(1), Florida Statutes (1989). That subsection provides as follows:

   
   

   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 in his possession.

   
   

   Also significant are the provisions of Subsection 450.28(1), Florida-Statutes (1989) which define a "farm labor contractor" as follows:

   
   

   1. "Farm labor contractor" means:

      1. Any person who, for a fee or other valuable consideration, recruits, transports into or within the state, supplies, or hires at any one time in any calendar year one or

         more farm workers to work for, or under the direction, supervision, or control of, a third person; or

      2. Any person who recruits, transports into or within the state, supplies, or hires at any one time in any calendar year one or more farm workers and who, for a fee or other valuable consideration, directs, supervises, or controls all or any part of the work of such workers.

      
      

      The complaint alleges that on May 1, 1989, respondent "acted as a farm labor contractor without a certificate of registration being issued to (him) by the Division and (respondent) did not have a certificate of registration in full force and effect and in (his) possession." As the party seeking to impose a

      $1,000 civil penalty on respondent, the Division is obliged to prove this allegation by a preponderance of the evidence.

      
      

10. The greater weight of credible evidence supports a conclusion that respondent was not acting as a farm labor contractor on May 1, 1989, when observed by the Division compliance officer. In reaching this conclusion, the undersigned notes that, except to the extent that Abel was required to supervise the loading of produce on his truck, there was no evidence to show that Abel was directing, supervising or controlling all or any part of the work of such workers within the meaning of the law. Respondent's admission that he was helping- his brother, a licensed farm labor contractor, and was being paid $40 per day for his services are insufficient to establish the penal charges. This being so, the complaint must fail.

    
    

11. Finally, at hearing respondent requested relief for his failure to answer a request for admissions propounded by petitioner. Because he is a lay person and does not understand the English language well, and petitioner did not demonstrate that it would be prejudiced in the presentation of its case were the technical admissions withdrawn, the undersigned granted the relief. That ruling is reaffirmed. Wilson v. Department of Administration, Division of Retirement, 538 So.2d 139 (Fla. 4th DCA 1989).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative

complaint, with prejudice.

DONE and ENTERED this 20th day of August, 1990, in Tallahassee, Florida.

DONALD ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990.

APPENDIX

Petitioner:

1-3 Partially adopted in finding of fact 2.

4. Partially adopted in finding of fact 4.

Note - Where a finding has been partially used, the remainder has been rejected as being irrelevant, cumulative, a conclusion of law, unnecessary, subordinate, or not supported by the evidence.

Copies Furnished:

Hugo Menendez, Secretary

Department of Labor and Employment Security

307 Hartman Building

2012 Capital Circle, S.E. Tallahassee, FL 32399-0658

Moses E. Williams, Esquire

307 Hartman Building

2012 Capital Circle, S. E. Tallahassee, FL 32399-0658

Abel Flores

P. O. Box 1611 Immokalee, FL 33934

Steven D. Barron, Esquire

307 Hartman Building

2012 Capital Circle, S. E. Tallahassee, FL 32399-0658

Docket for Case No: 90-003357

Orders for Case No: 90-003357