STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF LABOR, EMPLOYMENT, ) AND TRAINING AND BUREAU OF ) AGRICULTURAL PROGRAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3813

)

LEOPOLDO CANTU, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on September 4, 1990 in Arcadia, Florida.

APPEARANCES

For Petitioner: Moses Williams, Esquire

Department of Labor and Employment Security

2562 Executive Circle Center, Suite 117

Tallahassee, Florida 32399-0658 For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent should be assessed a civil penalty for acting as a farm labor contractor without a certificate of registration?

PRELIMINARY STATEMENT

By an Administrative Complaint dated June 6, 1990 and filed with the Division of Administrative Hearings on June 20, 1990, the Petitioner charged Respondent with acting as a farm labor contractor in the state of Florida without a valid certificate of registration in violation of Section 450.30(1), Florida Statutes, and assessing a civil penalty in the sum of $500.00 in accordance with Section 450.38(2), Florida Statutes. The Respondent timely requested a formal hearing under Section 120.57(1), Florida Statutes, and this proceeding ensued.

In support of its charges, the Petitioner presented the testimony of Ruth Weaver and Corey Coker. Petitioner's Exhibits 1 through 12 were received into evidence.

The Respondent did not present himself at the time scheduled for hearing although a Notice of Hearing was mailed to Respondent's last known address and was not returned by the United State Postal Department as being undeliverable.

The Petitioner did not furnish the Division of Administrative Hearings with a transcript of this proceeding. The Petitioner waived the filing of Proposed Findings of Fact and Conclusions of Law under Section 120., Florida Statutes.

The Respondent has failed to timely file a Proposed Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Upon consideration of the oral and documentary evidence addressed at the hearing, the following relevant facts are found:

   
   

2. On or about February 26, 1987 the Respondent was charged with failure to register as a farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes. As a result of this charge, Respondent registered as a farm labor contractor on March 2, 1987 and was issued a certificate of registration on March 6, 1987 which expired on October 3, 1987, the day after Respondent's birthdate, for failure to make application for renewal in accordance with Section 450.31, Florida Statutes.

   
   

3. On November 30, 1989, during a routine check of farm labor contractors in DeSoto County, Florida, the Respondent was found to be transporting ten farm laborers who he had hired to pick at 18 per box.

   
   

4. Respondent was being paid a fee of 75 per box to have the fruit picked. Respondent was responsible for, and supervised, the ten farm laborers referred to in paragraph 2.

   
   

5. In addition to being paid for harvesting the fruit, Respondent received

   $75.00 per trailer to drive the van and load fruit on the trailer and other duties.

   
   

6. Another farm labor contractor, Chris Marroquin, owns the van in which Respondent was transporting the farm laborers and was the individual who paid Respondent for picking the fruit, driving the van and loading the trailer.

   
   

7. Although Respondent was acting as a farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes, on November 30, 1989, he did possess a certificate of registration as required under Section 450.30, Florida Statutes.

   
   

8. The Respondent was charged with: (a) failure to register in violation of Section 450.30, Florida Statutes; (2) failure to put registration in violation of Section 450.33(4), Florida Statutes and; (3) transporting farm laborers without authorization in violation of Rule 38H-11.006(5), Florida Administrative Code.

   
   

9. Respondent applied for a certificate of registration on December 1, 1989 and was issued same on December 5, 1989.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

11. The Respondent comes within the definition of a "farm labor contractor" as that term is defined in Section 450.28(1), Florida Statutes, and, as such, is required to have a certificate of registration issued in accordance with Section 450.31, Florida Statutes before acting as a "farm labor contractor" or otherwise be in violation of Section 450.30, Florida Statutes and subject to the penalty set forth in Section 450.38(2), Florida Statutes, which provides in pertinent part as follows:

    
    

    (2) Any farm labor contractor who, on or after June 19, 1985, commits a violation of this part or of any rule adopted thereunder may be assessed a civil penalty of not more than $1,000 for each such violation . . .

    
    

12. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA Fla. 1977). Petitioner has sustained its burden of proof to show that Respondent violated Section 450.30(1), Florida Statutes, Section 450.33(4), Florida Statutes and Rule 38H-11.006(5), Florida Administrative Code, and therefore, subject to civil penalty under Section 450.38(2), Florida Statutes, and Rule

38H-11.012(1), Florida Administrative Code.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusion of Law, the evidence of record, the candor and demeanor of the witness and the factors set forth in Rule 38H-11.012(2)(a-q), Florida Administrative Code, it is, therefore,

RECOMMENDED: That the Petitioner enter a Final Order assessing civil penalty against the Respondent, Leopoldo Cantu, Jr. in the account of $500.00.

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

WILLIAM R. CAVE

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 September, 1990.

COPIES FURNISHED:

Hugo Menendez, Secretary Department of Labor and

Employment Security

2590 Executive Center Circle, East Berkeley Building, Suite 200 Tallahassee, FL 32399-2152

Stephen Barron, General Counsel 2012 Capitol Circle, S.E.

Suite 307, Hartman Building Tallahassee, FL 32399-0658

Leopoldo Cantu, Jr. Route 6, Box 495L Edinburg, TX 78539

Moses Williams, Esquire Department of Labor and

Employment Security

2562 Executive Center Circle Suite 117

Tallahassee, FL 32399-0658

Ruth Ann Weaver

Bureau of Agricultural Progrms Post Office Box 1698 Tallahassee, FL 32302-1698

Docket for Case No: 90-003813

Orders for Case No: 90-003813