STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-7708

)

GABRIEL BAIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark held a formal hearing in the above-styled case on June 18, 1992. With concurrence of the parties, the hearing was conducted by telephone.

APPEARANCES

For Petitioner: Francisco R. Rivera

Senior Attorney

Department of Labor and Employment Security

2012 Capital Circle S.E. Suite 307 Hartman Bldg.

Tallahassee, Florida 32399-0658

For Respondent: Gabriel Bain, pro se

30 South Ivey Lane Orlando, Florida 32811

STATEMENT OF THE ISSUE

An administrative complaint dated January 24, 1991, alleges that Respondent violated Chapter 450, F.S., Part III, by acting as a farm labor contractor without an active certificate of registration and by contracting with an unregistered individual. The issue for disposition is whether those violations occurred, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

Respondent contested the allegations of the complaint and requested a formal administrative hearing. After referral to the Division of Administrative Hearings, the case was set for hearing on February 26, 1992.

The hearing was continued at the parties' request when Respondent agreed to pay a fine. The hearing was rescheduled for June 18th with the intent that the Respondent would pay the fine over the three-month intervening period; in that

event, the hearing would be cancelled. This was clearly stated in the amended notice of hearing issued on February 21, 1992.

On June 15, 1992, a telephone conference was conducted on prehearing procedures. Respondent orally requested a continuance of the June 18th hearing in order to contact witnesses and to re-hire the lawyer he had discharged when the parties reached tentative agreement in February. No part of the fine was paid.

The request was denied since Respondent had been provided clear notice of the fact that the hearing would go forward if the fine was not paid.

At the hearing Petitioner presented the testimony of Cindy Ewing, Accounting Manager, Nevins Fruit Co.; Henry Parker and Marshall Carroll, Department of Labor and Employment Security Compliance Officers; Sylvester Smith, Apopka Job Service Officer; and Ruth Weaver, Labor, Employment and Training Specialist Supervisor. Petitioner's ten exhibits were received in evidence.

Respondent testified in his own behalf and submitted no exhibits.

Petitioner filed a proposed recommended order and its proposed findings of fact are substantially adopted here.

FINDINGS OF FACT

1. Gabriel Bain, the Respondent, has worked in citrus fields for 37 years. At various times he has been registered as a farm labor contractor.

   
   

   He had his own company, Mid-Florida Harvesting, but became bankrupt in 1990 after the citrus freeze disaster.

   
   

   Bain's business address is 30 South Ivey Lane, Orlando, Florida.

   
   

2. On or about December 14, 1990, Compliance Officers, Henry Parker and Marshall Carroll were at Nevins Fruit Company in Mims, Brevard County, checking leads on unregistered farm labor contractors.

   
   

   In the course of an interview with Steve Schaffer, Harvest Manager for Nevins, Gabriel Bain was called in as the man who was in charge of the harvesting job.

   
   

   Bain identified himself to the officers with a driver's license and did not have his certificate of registration with him.

   
   

3. Schaffer produced the certificate that Bain had submitted when he was hired by Nevins. The certificate was in the name of General Traders, Inc., and had an expiration date of February 28, 1991. "G. Bain" was handwritten on the signature line.

   
   

4. During the meeting with Carroll and Parker, on December 14, 1990, Bain freely admitted hiring Jerome Pender as a sub-contractor. Pender was not registered as a farm labor contractor, but had shown Bain papers that he had applied for his certificate. Bain signed a notarized statement attesting to this fact and gave it to the compliance officers.

5. The compliance officers issued a summary of violations to Bain for utilization of an unregistered crewleader. At the time, they were unaware that Bain was, himself, unregistered.

   
   

6. Gabriel Bain's registration in the name of Mid-Florida Harvesting expired on June 30, 1990.

   
   

   His application, in the name of General Traders, Inc., was approved on March 1, 1991. In December 1990, he was working for General Traders but was not included in that company's registration. He was not registered in any other name in December 1990, and a subsequent summary of violations was issued, citing "fail to register."

   
   

7. In December 1990, at the time of the compliance officers' investigation, Gabriel Bain was working for Nevins Fruit Company as a farm labor contractor and was paid for his work in that capacity.

   
   

   In this work he subcontracted with other labor contractors who provided crews.

   
   

8. At the hearing Bain claimed that he lied to the compliance officers about hiring Jerome Pender. He claimed he lied because he had actually hired Willie Simmons, someone whom the Nevins people had told him they did not want "within 100 miles" of their groves. This self-impeachment in no way advances Respondent's averment of innocence.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.

   
   

10. Section 450.30, F.S. provides, in pertinent part:

    
    

    450.30 Requirement of certificate of registration; education and examination program. (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. (2) No certificate of registration may be transferred or assigned.

    
    

11. Section 450.28(1), F.S. defines "farm labor contractor" as follows:

    
    

    450.28 Definitions. (1) "Farm labor contractor" means: (a) 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 (b) 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 to work for, or under the direction, supervision, or control of, a third person; or (b) 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.

    
    

12. Section 450.35, F.S. prohibits contracting for employment of farmworkers with any farm labor contractor until the farm labor contractor displays a current certificate of registration issued by the Division of Labor, Employment and Training.

    
    

13. The division is authorized to assess a civil penalty of not more than

    $1000.00 for each violation of Chapter 450, F.S. or the rules promulgated thereunder.

    
    

14. The agency proved that Respondent was acting as a farm labor contractor without a certificate in full force and effect when he was working for Nevins in December 1990. The agency also proved that he sub-contracted with an individual who was similarly unlicensed.

    
    

15. The civil penalty of $1250.00 proposed by the agency for these two violations is within the permitted limits referenced above, and is within the agency's discretion as provided in Rule 38H-11.012, F.A.C.

RECOMMENDATION

Based upon the foregoing, it is hereby recommended that a final order be entered, finding Gabriel Bain guilty of violating Sections 450.30(1), F.S. and 450.35, F.S., and assessing a civil fine of $1250.00 to be paid within thirty

(30) days.

RECOMMENDED this 22nd day of July, 1992, at Tallahassee, Florida.

MARY W. CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1991.

COPIES FURNISHED:

Francisco Rivera, Sr. Atty. Department of Labor and Employment

Security

2012 Capital Circle, S.E.

307 Hartman Building Tallahassee, Florida 32399-0658

Gabriel Bain

30 S. Ivey Lane Orlando, Florida 32811

Frank Scruggs, Secretary

303 Hartman Building

2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152

Cecilia Renn

Chief Legal Counsel

307 Hartman Building

2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this 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 contact the agency that will issue the final order in this case concerning agency 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: 91-007708

Orders for Case No: 91-007708