STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

EMPLOYMENT AND TRAINING, )

)

Petitioner, )

vs. ) CASE NO. 90-4692

)

MEDARDO G. SOTO, )

)

Respondent. )

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

EMPLOYMENT AND TRAINING, )

)

Petitioner, )

vs. ) CASE NO. 90-4693

)

MARTIN G. SOTO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matters were heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 16, 1990, in Immokalee, Florida.

APPEARANCES

For Petitioner: Francisco R. Rivera, Esquire

307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-0658

For Respondents: No appearance

STATEMENT OF THE ISSUES

The issues are whether (a) respondent, Medardo G. Soto, should have a

$1,500 civil penalty imposed for allegedly violating Sections 450.33(5) and

1. and 450.35, Florida Statutes (1989), and (b) whether respondent, Martin G. Soto, should have a $250 civil penalty imposed for allegedly violating Section 450.30, Florida Statutes (1989).

   PRELIMINARY STATEMENT

   
   

   In an administrative complaint dated June 4, 1990, petitioner, Department of Labor and Employment Security, Division of Labor, Employment and Training (Division), charged that respondent, Medardo G. Soto, a licensed farm labor contractor, had violated Chapter 450, Florida Statutes (1989) and various administrative rules by using an unregistered farm labor contractor

   and failing to comply with safety and insurance requirements on his vehicle. The complaint sought to impose upon respondent a $1,500 civil fine. That complaint was assigned Case No. 90-4692. In a second administrative complaint issued the same date, petitioner alleged that respondent, Martin G. Soto, had violated Section 450.30, Florida Statutes (1989) and an agency rule by acting as a farm contractor without a license. The complaint sought to impose upon respondent a $250 civil fine. That complaint was assigned Case No. 90-4693. Respondents disputed the above allegations and requested formal hearings pursuant to Subsection 120.57(l), Florida Statutes (1989). Both matters were referred by petitioner to the Division of Administrative Hearings on July 26, 1990, with a request that a hearing officer be assigned to conduct a formal hearing. By notices of hearing dated September 18, 1990, final hearings were scheduled on October 16, 1990, in Immokalee, Florida.

   
   

   At final hearing, petitioner's motion to consolidate the two cases was granted. Also, petitioner presented the testimony of Ruth Ann Weaver and Larry Coker, both Division employees. Finally, petitioner offered petitioner's exhibits 1 - 3. All exhibits were received in evidence. Respondents did not appear.

   
   

   There is no transcript of hearing. Petitioner waived its right to file proposed findings of fact and conclusions of law.

   
   

   FINDINGS OF FACT

   
   

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

   
   

   1. This controversy arose on the morning of January 29, 1990, when Larry Coker, a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made an inspection of a citrus harvesting crew working in an orange grove on the Black Bay Citrus and Cattle Company on County Road 763 in DeSoto County, Florida. The purpose of the inspection was to determine whether the crew and its supervising contractor were in compliance with state regulations.

      
      

   2. Upon entering the premises, Coker observed a crew of eighteen workers harvesting fruit in a citrus grove. Respondent, Martin G. Soto (Martin), was operating a high lift at the work site. Coker approached Martin and asked him who was the farm labor contractor for the crew. Martin responded that his brother, Medardo G. Soto (Medardo), who is also a respondent in this cause,

      was the licensed farm labor contractor but he (Medardo) was in Immokalee. Martin acknowledged that he (Martin) was supervising the crew for his bother and was being paid $50 per day to do so. Division records reflect that Martin is not licensed by the State to perform that activity. Accordingly, it has been established through Martin's admissions and Coker's observations that Martin was acting as a farm labor contractor without a license. Martin was issued a citation that day which he read and signed. At the bottom of the citation

      Martin acknowledged that the charges contained therein were true. By allowing his brother to supervise a crew without a proper license, Medardo used an unregistered farm labor contractor in contravention of the law.

      
      

   3. Martin further acknowledged that he had driven the workers to the field that day in Medardo's 1986 Ford van. A search of Division records revealed that the 1986 Ford van did not have the required vehicle inspection or proof of liability insurance on file with Division offices. Agency rules require that evidence of such inspection and insurance be filed with the Division. Accordingly, it is found that Medardo operated a vehicle used to transport workers without furnishing the Division proof of the necessary vehicle inspection and insurance.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   5. By the two complaints, the Division seeks to impose a $1,500 and

      $250 civil penalty, respectively, on respondents Medardo and Martin Soto for allegedly violating Chapter 450, Florida Statutes (1989). To establish these charges, the Division is obliged to prove the allegations in the two complaints by the preponderance of the evidence.

      
      

   6. Respondent Martin G. Soto is alleged to have violated 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.

      
      

      By a preponderance of the evidence, the Division has established that on January 29, 1990, Martin acted as a farm labor contractor without an appropriate certificate of registration. Therefore, the allegation in the administrative complaint has been established.

      
      

   7. Respondent Medardo G. Soto is first charged with having violated Subsections 450.33(5) and (9), Florida Statutes (1989). Those subsections require a farm labor contractor to:

(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 Pub. 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.

Rule 38H-11.004(5), Florida Administrative Code (1989) requires that a contractor "submit proof that each vehicle which will be used for the transportation of farm workers has been found in compliance with the safety equipment inspection requirements of the state" while Rule 38H-11.005(1) requires that a contractor "submit a certificate of insurance . . . verifying that such insurance is in full force on each vehicle which the contractor is authorized to use to transport farmworkers." By a preponderance of the evidence the Division has sustained the charge that Medardo's vehicle did not have the required inspection sticker and liability insurance as required by the above statutes and rules. Respondent is also charged with having used an unregistered farm labor contractor in violation of Section 450.35, Florida Statutes (1989). The evidence supports a conclusion that this charge has been sustained. 5. Petitioner has recommended that fines of $1,500 and $250 be imposed on Medardo and Martin Soto. Under the circumstances herein, these fines are appropriate and should be imposed.

RECOMMENDATION

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

G. Soto has violated Sections 450.33(5) and (9) and 450.35, Florida Statutes

(1989) and that respondent Martin G. Soto has violated Subsection 450.30(1), Florida Statutes (1989). It is further recommended that

Medardo and Martin Soto be fined $1,500 and $250, respectively, such fines to be paid within thirty days from date of the final order entered by the Division.

DONE and ENTERED this 29th of October, 1990, in Tallahassee, Florida.

DONALD ALEXANDER

Hearing Officer

Division of Administraive 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 29th day of October, 1990.

COPIES FURNISHED:

Francisco R. Rivera, Esquire

307 Hartman Building

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

Mr. Medardo G. Soto 1013 North 19th Street Immokalee, FL 33934

Mr. Martin Soto

1013 North 19th Street Immokalee, FL 33934

Hugo Menendez, Secretary

Dept. of Labor and Employment Security

307 Hartman Building

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

Stephen D. Barron, Esquire

307 Hartman Building

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004692

Orders for Case No: 90-004692