STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, BUREAU ) OF AGRICULTURAL PROGRAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3392

)

ARACELI RIVERA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 26-28, 1992, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Francisco Rivera, Esquire

Department of Labor and Employment Security

2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189

For Respondent: I. Jeffrey Pheterson, Esquire

Sally Still, Esquire

400 South Dixie Highway Suite 420 Boca Raton, Florida 33432

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations described in the Administrative Complaint, as amended?

   
   

2. If so, what civil penalty or penalties should be assessed?

   
   

   PRELIMINARY STATEMENT

   
   

   On April 24, 1992, the Department of Labor and Employment Security (hereinafter referred to as the "Department") issued an Amended Administrative Complaint alleging that Respondent committed statutory and rule violations on September 18, 1991, October 18, 1991, and October 21, 1991, which, pursuant to Chapter 450, Part III, Florida Statutes, warranted the revocation of her Florida farm labor contractor certificate of registration as well as the assessment of civil penalties totaling $13,000.00. Respondent denied the allegations of wrongdoing made in the Amended Administrative Complaint and requested a formal hearing. On June 4, 1992, the matter was referred to the Division of

   Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested.

   
   

   Prior to hearing, the Department gave notice that it no longer proposed to take any action against Respondent's certificate of registration and that it intended to impose only monetary penalties against Respondent for her alleged wrongdoing. In addition, with the permission of the Hearing Officer, it amended the Amended Administrative Complaint. As so amended, the Amended Administrative Complaint alleges that Respondent committed the following violations of law:

   
   

   (4)(a) A violation of Subsection 450.34(1), Florida Statutes, and Rule 38H-11.010(4)(a), Florida Administrative Code, in the amount of

   $1,000.00, is assessed on the grounds that on September 18, 1991, you made a misrepresentation or false statement in your application for a certificate as a farm labor contractor by claiming that you are not providing transportation to your employees.

   1. A violation of Subsection 450.33(9), Florida Statutes, and Rule 38H-11.004(5), Florida Administrative Code, in the amount of

      $1,000.00 is assessed on the grounds that on October 18, 1991, you failed to produce evidence to the Division [of Labor, Employment and Training] that the motor vehicle (1978 Station wagon, V.I.N. 1L35U8S167733) used to transport employees had been inspected and was in compliance with the requirements and specifications of Florida Law.

   2. A violation of Subsection 450.33(5), Florida Statutes, and Rule 38H-11.005(1), Florida Administrative Code, in the amount of

      $1,000.00, is assessed on the grounds that on October 18, 1991, you failed to produce evidence to the Division, that you took out a policy of insurance with an insurance carrier, to insure yourself against damage to persons or property arising out of the operation or ownership of the motor vehicle (1978 Station wagon V.I.N. 1L35U8S167733) used to transport individuals in connection with your business, activities, or operations as a farm labor contractor, in an amount no less than required by the financial responsibility law of the State.

   3. A violation of Subsection 450.33(4), Florida Statutes, and Rule 38H-11.008, Florida Administrative Code in the amount of

$1,000.00, is assessed on the grounds that on October 18, 1991, you failed to display prominently on all motor vehicles (1978 Station wagon V.I.N. 1L35U8S167733), a copy of your application for a certificate of registration and a written statement in English and Spanish (when any employee is Spanish-speaking), showing the rate of

compensation you received from the grower with whom you have contracted, and the rate of compensation paid to your employees for services rendered to, for, or under the control of such grower.

1. A violation of Rule 38H-11.006(5), Florida Administrative Code, in the amount of

   $1,000.00, is assessed on the grounds that on October 18, 1991, you used Cruz Hernandez Alvarez as the driver of a motor vehicle (1978 Station wagon V.I.N. 1L35U8S167733), without insuring that the driver had a valid driver's license.

2. A fine is assessed on the grounds that on October 18, 1991, you employed Julio Mendoza Corince, a fifteen year old minor, in violation of 38H-11.006(5), F.A.C., which requires compliance with all applicable federal or state statutes, rules and regulations for the protection or benefit of labor, including child labor, specifically including section 450.045(1), Fla. Stat., which requires any person who hires, employs, or suffers to work any child to first obtain and keep on record proof of the child's age.

3. A violation of Subsection 450.33(4), Florida Statutes, and Rule 38H-11.008, Florida Administrative Code, in the amount of

   $1,000.00, is assessed on the grounds that on October 21, 1991, you failed to display prominently at the site where work was performed, a copy of your application for a certificate of registration and a written statement in English and in Spanish (when any employee is Spanish speaking), showing the rate of compensation you received from the grower with whom you have contracted, and the rate of compensation paid to your employees for services rendered to, for, or under the control of such grower.

4. A violation of Subsection 450.33(4), Florida Statutes, and Rule 38H-11.008,

Florida Administrative Code, in the amount

of $1,000.00, is assessed on the grounds that on October 21, 1991, you failed to display prominently on all motor vehicles (1977 Chevrolet Van, V.I.N. CGL257U218651), a copy of your application for a certificate of registration and a written statement in English and in Spanish (when any employee is Spanish speaking), showing the rate of compensation you received from the grower with whom you have contracted, and the rate of compensation paid to your employees for services rendered to, for, or under the control of such grower.

1. A violation of Subsection 450.33(9),

   Florida Statutes, and Rule 38H-11.004(5), Florida Administrative Code, in the amount of

   $1,000.00, is assessed on the grounds that on October 21, 1991, you failed to produce evidence to the Division, that the motor vehicle (1977 Chevrolet Van, V.I.N. CGL257U218651) used to transport employees had been inspected and was in compliance with the requirements and specifications of Florida law.

2. A violation of Subsection 450.33(5), Florida Statutes, and Rule 38H-11.005(1), Florida Administrative Code, in the amount of

   $1,000.00, is assessed on the grounds that on October 21, 1991, you failed to produce evidence to the Division that you took out a policy with an insurance carrier, against liability for damage to persons or property arising out of the operation or ownership of the motor vehicle (1977 Chevrolet Van, V.I.N. CGL257U218651) used to transport individuals in connection with your business, activities, or operations as a farm labor contractor, in an amount no less than required by the financial responsibility law of the State.

3. A fine of $1,000.00 is assessed on the grounds that on October 21, 1991, you employed Miguel Paiz, a 17 year old minor, in violation of 38H-11.006(5), F.A.C., which requires compliance with all applicable federal or state statutes, rules and regulations for the protection or benefit of labor, including child labor, specifically including section 450.081, Fla. Stat. which

prohibits employment of minors 17 years of age during school hours.

On October 22, 1992, in accordance with the Hearing Officer's directive, the parties filed a Joint Prehearing Statement, which contained the following stipulations:

1. Respondent is a farm labor contractor.

2. Respondent stated in her application for a license as a farm labor contractor that she would not be providing transportation to her crew.

3. Chapter 450, Fla. Stat. regulates activities of farm labor contractors.

4. It is a violation of subsection 450.34(1), Fla. Stat. to make a false statement or misrepresentation on an application for a farm labor contractor license.

5. The vehicles identified in the amended Administrative Complaint were not properly insured and inspected as required by subsections 450.33(5) and (9), Fla. Stat., if

   such vehicles were used to transport farm workers for a farm labor contractor.

6. The vehicles identified in the amended Administrative Complaint which were used to transport farm workers were not registered by title of ownership to the drivers, or to any passenger in the vehicles.

7. Cruz Hernandez Alvarez did not have a valid driver's license as required for drivers of vehicles transporting farm workers for a farm labor contractor.

8. Respondent did not post, on the vehicles identified in the amended Administrative Complaint, a statement of the terms and conditions of employment of farm workers, as required to be displayed on vehicles used to transport farm workers for a farm labor contractor, by Subsection 450.33(4), Fla. Stat.

9. Respondent did not post, at the site of employment, a statement of the terms and conditions of employment of farm workers, as required to be displayed at the site of employment by subsection 450.33(4), Fla. Stat.

10. Julio Mendoza Corince, and Miguel Paiz were minors, aged 15 and 17 years of age, respectively, in October 1991.

11. Respondent did not obtain and keep on record proof of age of Julio Mendoza Corince on or prior to October 18, 1992, as required by Subsection 450.045(1), Fla. Stat.

12. Miguel Paiz worked as a farm laborer under Respondent's supervision during school hours.

13. On October 18, 1991, eight (8) persons identified hereafter were driving on Okeelanta Center Line road, when a single car accident occurred resulting in the death of the first seven (7) persons listed below:

    1. Cruz Hernandez-Alvarez

    2. Julio Mendoza-Corince

    3. Domingo Ortiz-Mejia

    4. Diego Mendoza-Ailon

    5. Pablo Mendoza-Ortiz

    6. Pascual Vincente-Mendez

    7. Francisco Augustine-Corince

    Gaspar Mejia Mendoza was the sole survivor of the October 18, 1991 single car accident.

14. If Respondent agreed to a request that she loan $100.00 to Juan Lopez, one of her crew members, for unspecified purposes, that would not constitute transportation of workers regulated by Section 450.33, Fla. Stat.

At the formal hearing that was held in this matter, the testimony of ten witnesses was presented: Alfred Perry, a Deputy Regional Administrator for the United States Department of Labor, Wage and Hour Division; Jesus Velasquez, a

Compliance Officer with the Department; Rene Callobre, an Assistant District Director with the United States Department of Labor, Wage and Hour Division; Andre Jeudy, another of the Department's Compliance Officers; Christian Antwi, who heads the Department's Child Labor Section; Ruth Ann Weaver, a Labor, Employment and Training Specialist Supervisor with the Department; Oscar Schneider, the Personnel Director and Labor Relations Counselor for Okeelanta Sugar Corporation; Yolanda Rodriguez, an Employment Interviewer at the Department's Belle Glade Job Service office; Anna Rivera, Respondent's daughter; and Respondent. In addition to the testimony of these ten witnesses, a total of 34 exhibits were offered and received into evidence.

At the close of the evidentiary portion of the hearing on October 28, 1992, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than 30 days following the Hearing Officer's receipt of the hearing transcript. On December 4, 1992, the Hearing Officer received the hearing transcript. On December 14, 1992, the parties filed a motion jointly requesting an extension of the deadline for the submission of post-hearing submittals. By order issued December 15, 1992, the Hearing Officer granted the motion and extended the deadline for the filing of post-hearing submittals to January 11, 1993.

On January 11, 1993, Respondent filed a 70-page proposed recommended order, which was accompanied by a motion requesting permission to exceed the 40-page limit for proposed recommended orders prescribed by Rule 60Q-2.031(3), Florida Administrative Code. Upon consideration, said motion is hereby GRANTED.

At 8:05 a.m. on January 12, 1993, the Department filed its proposed recommended order. Later that same day, it filed an unopposed motion seeking an additional one-day extension of the post-hearing submittal deadline. Upon consideration, said motion is hereby GRANTED. On January 14, 1992, the Department filed a "corrected" proposed recommended order.

The parties' proposed recommended orders contain, what are labelled as, "findings of fact." These "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made to supplement the factual stipulations into which the parties have entered:

1. Respondent was born in Mexico. She has lived in the United States since October of 1974.

   
   

2. Respondent has a fourth grade education that she received in her native land. She is unable to read or write English and speaks and understands very little of the language. She communicates primarily in Spanish.

   
   

3. Respondent lives with her husband and five of her six children, including her 21-year old daughter, Anna, who unlike her mother, is fluent in both English and Spanish.

   
   

4. Recently, due at least in part to the inability of family members to find work and to the lengthy hospitalization of Raphael, Jr., one of Respondent's sons, the Rivera family has experienced serious financial problems and has been unable to pay all of its bills. As a result, the family home is in

   foreclosure and water service to the home has been terminated. The family's plight should improve to some extent, however, inasmuch as Respondent's husband started working again approximately a week before the final hearing in this case. Respondent, though, remains unemployed, as does her daughter Anna, although they are both actively seeking employment.

   
   

5. At all times material to the instant case, Respondent has been a Florida-registered farm labor contractor.

   
   

6. She received the first of her farm labor contractor certificates of registration in 1990. To date, she has an unblemished disciplinary record. Since becoming registered, the only statutory and rule violations with which she has been charged are those that are the subject of the instant case.

   
   

7. To obtain her certificates, Respondent simply had to fill out application forms. The application forms were in English. She therefore went to the local Department Job Service office to obtain the assistance of a bilingual Department employee fluent in English and Spanish to help her complete these forms. In each instance, the Department employee assisting Respondent filled out the form after obtaining the necessary information from Respondent and, after doing so, presented the completed form to Respondent for her signature.

   
   

8. Jesus Velasquez was the Department employee who helped Respondent complete the application form for her initial certificate of registration. Velasquez has been a Compliance Officer with the Department for the past nine years. During his meeting with Respondent, Velasquez briefly described to her some of the duties and obligations of registered farm labor contractors.

   
   

9. Andre Jeudy, who was then an Agricultural Service Representative with the Department, but is now a Department Compliance Officer, helped Respondent complete the application form she submitted to obtain her second certificate of registration. The form was completed, signed and submitted on November 20, 1990.

   
   

10. Item 7 of the form requested the applicant to "Check Each Activity to be performed Involving Migrant and/or Seasonal Agricultural Workers for Agricultural Employment." Two "activities" were listed. The first was "Recruit, solicit, hire, employ, furnish, pay." The second was "Transport." Based upon what he had been told by Respondent, Jeudy checked the first, but not the second, of these listed activities.

    
    

11. Item 9 of the form asked, "Will Transportation be Provided the Workers?" If the response was in the affirmative, the applicant was further instructed to "Give number and type of vehicles used to transport migrant and seasonal agricultural workers." Based upon the information that he had been provided by Respondent, Jeudy marked the "Yes" box and wrote only the following to supplement this affirmative response: "TRANSP will be provide [sic] By company Bus (Okeelanta)."

    
    

12. By her signature, Respondent certified on the form that "all representations made by me in this application are true to the best of my knowledge and belief" and that "I have read or had explained to me and fully understand the State of Florida Farm Labor Registration Law and its implementing regulations, and will fully comply with the requirements therein."

13. By letter dated December 4, 1990, Respondent was advised by the Department that it had issued her the new certificate of registration (hereinafter referred to as the "1990-91 Certificate") for which she had applied. The certificate, which had an "expiration date" of "11/91," was enclosed with letter.

    
    

14. Respondent's 1990-91 Certificate indicated that Respondent was "Transportation Unauthorized." The certificate provided the following explanation as to what it meant to be "Transportation Unauthorized:"

    
    

    Transportation Unauthorized- You are not permitted to arrange and/or provide transportation of migrant and seasonal agricultural workers. To obtain a certificate authorizing the transportation of workers within the meaning of the Act, you must file evidence of compliance with applicable safety and health requirements as stated in the Act and regulations and with the insurance of financial responsibility requirements provided therein.

    
    

15. On September 18, 1991, Respondent went to the local Job Service office to apply for a successor certificate. The Department employee who assisted Respondent on this occasion was Mary Ann Ruiz. Ruiz accurately conveyed on the application form the information with which she had been provided by Respondent.

    
    

16. The application form that Ruiz helped Respondent fill out was identical to the one Respondent had used to obtain her 1990-91 Certificate.

    
    

17. With respect to Item 7, Ruiz checked the first ("Recruit, solicit, hire, employ, furnish, pay"), but not the second ("Transport"), of the farm labor contractor activities listed.

    
    

18. As to Item 9, Ruiz marked the "Yes" box and gave the following written explanation: "trans provided by Okeelanta." No further information regarding such transportation was furnished on the form.

    
    

19. As she had done the year before, Respondent certified the accuracy of the information contained in the application and her knowledge of, and her intention to fully comply with, the "Florida Farm Labor Registration Law and its implementing regulations." At the time of her application, she did not intend to transport any farm workers.

    
    

20. By letter dated December 19, 1991, Respondent was advised by the Department that it had issued her the successor certificate of registration (hereinafter referred to as the "1991-92 Certificate") for which she had applied. The certificate, which had an "expiration date" of "11/92," was enclosed with letter.

    
    

21. Respondent's 1991-92 Certificate indicated that Respondent was again "Transportation Unauthorized" and it repeated the explanation of the term that had been set forth in the 1990-91 Certificate.

    
    

22. In 1990 and 1991, Respondent recruited farm workers to plant sugar cane seed and perform related tasks for the Okeelanta Sugar Corporation (hereinafter referred to as "Okeelanta").

23. Okeelanta has substantial land holdings in the Everglades Agricultural Area on which it grows and harvests sugar cane that it then processes and converts into refined sugar for sale.

    
    

24. Okeelanta paid Respondent a total of $10,958.90 for her services ($4,550.40 for services rendered in 1990 and $6,408.50 for services rendered in 1991).

    
    

25. Okeelanta treated Respondent as an independent contractor.

    
    

26. The workers she recruited, on the other hand, were considered by Okeelanta to be employees of the corporation. They were paid directly by Okeelanta, which made appropriate deductions from their paychecks.

    
    

27. The workers were organized into planting crews made up of eight or nine persons each.

    
    

28. At any given time during the 1990-91 and 1991-92 planting seasons, there were several crews comprised of workers Respondent had recruited for Okeelanta (hereinafter referred to as "Respondent's crews").

    
    

29. Okeelanta employed timekeepers to maintain records of the work performed by each of the crews in its fields. Anna Rivera, Respondent's daughter, was the timekeeper responsible for maintaining the records of the work done by Respondent's crews.

    
    

30. Respondent's crews were supervised and directed in the field by another Okeelanta employee, Zone Supervisor Raphael Colunga. As the Zone Supervisor, Colunga had the authority to discharge any crew member under his supervision.

    
    

31. Respondent frequently went out in the field to monitor the activities of her crews. She did so because the amount of compensation she received from Okeelanta was dependent upon the work performed by her crews.

    
    

32. Respondent used her own vehicle to make the trip to the field.

    
    

33. There was an Okeelanta bus that drove crew members from the Okeelanta employee parking lot to the field in the morning and back to the parking lot in the afternoon.

    
    

34. Respondent's crews did not always arrive early enough in the morning to catch these buses. On those occasions that they missed the bus, the transportation that they used to commute to work was the transportation that they used to get to the field.

    
    

35. Every employee that Respondent recruited for Okeelanta for the 1991-92 planting season, before being hired, was screened by the Department at its Belle Glade Job Service office pursuant to a written agreement between Okeelanta and the Department, which provided as follows:

    RECRUITING ARRANGEMENT

    
    

    Okeelanta Corporation

    
    

    It is the intent of Belle Glade Job Service (hereafter the Job Service) and Okeelanta Corporation (hereafter the "Employer") to bring together individuals, who are seeking employment, and the Employer, who is seeking workers without charging a fee. Therefore, The Job Service and the Employer enter into this arrangement:

    1. Assist job seekers in obtaining employment from the employer;

    2. Allow the Job Service to facilitate the match between the job seekers and the employer.

       Both parties enter into this arrangement with the understanding that each will comply with all applicable federal and state laws, rules, and regulations (please see attached addendum of specific responsibilities) pursuant to Title 20 of the Code of Federal Regulations. Part 652, 655 and 658.

       
       

       BOTH PARTIES AGREE THAT THIS RECRUITING ARRANGEMENT WILL -

       
       

       1. Continue for no longer than one year from the date both parties have signed the document.

       2. Constitute the sole exclusive arrangement indicating how they will work together.

       3. Terminate upon either party's written notice for the other party that the arrangement will be cancelled in 30 days.

       4. Abide by the attached addendums of JS and Employer obligations.

          
          

36. Addendum I to the agreement listed the Department's obligations. These obligations were as follows:

    
    

    1. Provide the Employer notice to renew this arrangement at least 60 days prior to ending date of this arrangement or prior to the expected beginning of the season, whichever is earlier. The notice will contain a request to the employer for written response as to their satisfaction with the arrangement, information on any problem that have [sic] developed and meeting date to renew the arrangement.

    2. Provide the employer daily a log summarizing job placement activities for each day in which one or more individuals were referred to the employer.

    3. Provide I-9 Certification on individuals hired no later than 48 hours from date JS is notified of hire.

    4. Designate one Employment representative to be stationed on daily basis or as needed, to serve as the liaison responsible for working with Okeelanta Corporation.

    5. Provide the Okeelanta Corporation with reverse referral recruitment cards to give the applicants.

    6. Maintain a pool of qualified applicants for the positions listed with Job Service, who have been screened against the selection criteria of the company. Provide Okeelanta with a list of qualified applicants on file whenever an opening arises.

    7. Refer applicants from the pool, with a completed I.D. card, a completed W-4 form, JS Referral Card, (a completed I-9 on recalls) upon receipt of a job order.

       
       

37. Addendum II to the agreement listed Okeelanta's obligations. These obligations were as follows:

    
    

    1. List all job openings for which they wish Job Service to recruit.

    2. Provide the Belle Glade JS office a supply of W-4 forms applications for completion by qualified applicants desiring to work for the company.

    3. On a daily basis inform the Belle Glade JS office of the hiring decision made on each applicant referred by the JS.

    4. Designate one of its employees, within one week of the starting date of this arrangement, to serve as the liaison responsible for working with the JS.

    5. Provide a working space for the employee designated to be stationed at the employer premises.

    6. Acknowledge receipt of the above referenced regulations as a part of this arrangement, which it will furnish the above referenced employee.

    
    

38. The job order Okeelanta placed with the Department's Belle Glade Job Service office in accordance with the foregoing agreement for sugar cane seed planters and other agricultural workers needed for the 1991-92 planting season specified that these employees would be expected to work six days a week, from 7:00 a.m. to 3:00 or 4:00 p.m., weather permitting.

    
    

39. Okeelanta hired only those prospective employees who were deemed qualified and given a referral or "yellow" card by the Department. These prospective employees were required to present their card to the Zone Supervisor. After doing so and being accepted for employment, they received an Okeelanta employee identification number and their names appeared on the Okeelanta Day Haul Master List for each day they worked.

40. Prospective employees unable to produce a "yellow" card for the Zone Supervisor were referred to the Department's Belle Glade Job Service office.

    
    

41. In light of Okeelanta's policy of turning away prospective employees who did not have "yellow" cards, Respondent advised every employee that she recruited for Okeelanta during the 1991-92 planting season that they had to go to the Department's Belle Glade Job Service office and obtain such a card before they could begin working for Okeelanta.

    
    

42. Respondent was never told that she had to verify the qualifications of members of her crews who had been screened and referred to Okeelanta by the Department. She therefore believed that there was no need for her to do so.

    
    

43. Miguel Paiz was a member of one of Respondent's crews. He was interviewed at the Department's Belle Glade Job Service office prior to the commencement of the 1991-92 planting season and, although, as he made the interviewer aware, he was only 17 years of age at the time, he was given a "yellow" card. The W-4 form that was completed during his interview indicates that, at least at the time of the interview, Paiz was married.

    
    

44. On the morning of Friday, October 18, 1991, three or four days after the start of the 1991-92 planting season, Cruz Hernandez Alvarez, lost control of the 1978 station wagon he was driving on a private road on Okeelanta property and the vehicle went into a canal on the side of the road. Seven of the eight occupants of the vehicle were killed.

    
    

45. Alvarez did not have a valid driver's license at the time of the accident.

    
    

46. The vehicle he was driving belonged to Juan Andres. Its V.I.N. was 1L35U8S167733.

    
    

47. Alvarez and some, but not all, of the other occupants of the vehicle, including the lone survivor of the accident, were members of one of Respondent's crews.

    
    

48. Julio Mendoza Corince, a 15-year old boy, was one of the occupants of the vehicle who perished in the accident. Earlier that month, Corince had gone to the Department's Belle Glade Job Service office to obtain a "yellow" card. The Department employee with whom he interviewed, however, refused to refer him because he was underage.

    
    

49. Corince was not a member of any of Respondent's crews. Indeed, at no time before the accident had Respondent ever met or spoken with him.

    
    

50. After the bodies were recovered from the canal, Respondent, and later her daughter Anna, were called to the scene and asked by the police if they were able to identify any of the victims. Viewing the dead bodies was a very emotionally upsetting experience for both of them. They spent the remainder of the day at home.

    
    

51. No work was done by any of Respondent's crews that day.

    
    

52. State and federal investigators began their investigation shortly after the accident was reported.

53. Compliance Officer Velasquez was the Department's lead investigator. Rene Callobre, an Assistant District Administrator with the United States Department of Labor, Wage and Hour Division, who, like Velasquez, is fluent in both English and Spanish, conducted the federal investigation.

    
    

54. A short time after beginning his investigation on the day of the accident, Velasquez went to the Okeelanta property and asked to speak with Respondent.

    
    

55. After being told that Respondent had left for the day, Velasquez proceeded to Respondent's home, where he interviewed Respondent.

    
    

56. Velasquez and Respondent conversed in Spanish during the interview. Respondent was still emotionally upset at the time of the interview, but not to the extent that she was irrational or unable to effectively communicate with Velasquez. At no time did she provide an inappropriate response to his inquiries.

    
    

57. During the interview, Respondent freely and voluntarily gave a statement in Spanish to Velasquez.

    
    

58. Velasquez had not warned Respondent before she gave the statement that what she said could be used against her in an administrative proceeding such as the instant one. 1/

    
    

59. Velasquez wrote down in English what Respondent had told him in Spanish. This written, English translation of the statement, which accurately reflected Respondent's discussion with Velasquez, was then read back to Respondent in Spanish. Respondent thereupon signed the written statement, which read as follows:

    
    

    I am a farm labor contractor with cert # 29482 & expiration date of Nov. 1992. At present I am employed by Okeelanta Sugar Corp. My duties are to recruit & supervise farm workers to plant sugar cane. My fee for this task is

    $1.10 per row of cane planted by the crew. I recruited my crews by word of mouth. They know I am a contractor, so they come to my house to ask for work. The first thing I tell any worker that comes here to my house is that they must go the Job Service Office in Belle Glade and register. When they are properly registered, they go to the Okeelanta parking lot and there they are transported by company bus to the work site. I tell all the workers they must provide their own transportation to the Okeelanta parking lot. I tell all my workers this because I do not own a vehicle big enough to transport them from their home and back. I tell them that if they want to work, they must come on their own. I recruited 4 crews consisting of 8 workers each crew. Three of the crews were coming from Indiantown (Guatemalans) and one crew from this area (Mexicans). These crews, the ones from Indiantown, worked with me last year. I

    usually give the driver or the owner of the vehicle $100 per week for gasoline. I did this last year and was intending to do this this year also. The three crews from Indiantown came by car (station wagon) and a van. The station wagon carried 1 crew (8 workers) and the van carried 2 crews (16 workers). On this date, only one crew leader showed up, the station wagon. The van with the 2 crews did not show up. These crews started to work on Tuesday October 15, 1991. I do not pay the workers, Okeelanta does.

    
    

60. The statement was in all respects factually accurate.

    
    

61. Respondent had not yet during the 1991-92 planting season paid or loaned or agreed to pay or loan anyone "$100 for gasoline" in connection with the transporting of her crews.

    
    

62. At no time did Respondent tell any state or federal investigator, including Velasquez or Callobre, otherwise. 2/

    
    

63. On Monday, October 21, 1991, Velasquez went out in the field to visit with Respondent and the members of her crews. Velasquez was accompanied by Compliance Officer Jeudy. Jeudy was being trained by Velasquez.

    
    

64. Velasquez and Jeudy observed a 1977 Chevrolet van in the field. The van's V.I.N was CGL257U218651. Neither on the van nor anywhere else in the field was there posted a copy Respondent's application for a certificate of registration or a statement, in English and Spanish, showing Respondent's and her crews' rates of compensation.

    
    

65. Velasquez asked Respondent if any of the members of her crews had been transported in the van. Respondent responded in the affirmative and indicated that two of her crews from Indiantown had travelled in the van.

    
    

66. Velasquez then asked to speak to the driver of the van. Respondent thereupon retrieved Miguel Paiz, who was working in the field. Although he was

    17 years of age and it was during normal school hours, Paiz was at work and not in school.

    
    

67. Velasquez asked to see Paiz's driver's license and his farm labor contractor's certificate of registration. Paiz showed Velasquez his driver's license and the "yellow" card he had received from the Department. Paiz advised Velasquez that he did not have, and therefore was unable to produce, a farm labor contractor's certificate of registration.

    
    

68. Paiz told Velasquez that Juan Lopez was paying him $10.00 a day for driving the van.

    
    

69. During his conversation with Velasquez, Paiz erroneously identified Lopez as the owner of the van. The actual owner of the van was Julio Puentes.

    
    

70. After speaking with Paiz, Velasquez interviewed Lopez. Based upon what he understood Lopez to have said during the interview, Velasquez prepared a written statement for Lopez's signature which provided as follows:

    I borrowed the (vehicle) van that this date transported 16 workers to Okeelanta Sugar Corp. to work in the planting of sugar cane. I was recruited by Araceli Rivera. I am paid

    $100 per week for the gasoline I use in the vehicle. I am also paid $1.00 per row of sugar cane planted by Okeelanta. I am not registered as a F.L.C.

    
    

    Lopez refused to sign the statement.

    
    

71. To the extent that the statement suggests that Lopez was then being paid by Respondent for "the gasoline [Lopez] use[d] in the ['transporting'] vehicle," it is inaccurate. No such payments were made by Respondent to Lopez during the 1991-92 planting season.

    
    

    CONCLUSIONS OF LAW

    
    

72. The Department has been vested with the authority and obligation to administer and enforce the provisions of Florida's Farm Labor Registration Law. These statutory provisions are found in Chapter 450, Part III, Florida Statutes. They regulate the activities and operations of persons who act as, and deal with, "farm labor contractors" in the State of Florida.

    
    

73. A "farm labor contractor," as that term is used in Chapter 450, Part III, Florida Statutes, is defined in Section 450.28(1), Florida Statutes, as follows:

    
    

    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.

    
    

74. The provisions of Chapter 450, Part III, Florida Statutes, however, do not apply to "[a]ny person who transports workers solely by means of a carpool." Section 450.29(2), Fla. Stat. A "carpool," as that term is used in Section 450.29(2), Florida Statutes, "means an arrangement reached by and between farm workers for transportation to and from work and for which the driver or owner of the vehicle is not paid by any third person other than the members of the carpool." Section 450.28(3), Fla. Stat.

    
    

75. A "farm labor contractor" who "commits a violation of [any provision of Chapter 450, Part III, Florida Statutes] or of any rule adopted thereunder may be assessed [by the Department] a civil penalty of not more than $1,000 for each such violation" pursuant to Section 450.38(2), Florida Statutes.

76. The Department may impose such penalties based only upon those statutory and rule violations that are specifically alleged in the administrative complaint issued against the "farm labor contractor" and which are proven by a preponderance of the evidence. See Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990); DiLeo v. School Board of Dade County, 569 So.2d 883, 884 (Fla. 3d DCA 1990); Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 415 (Fla. 4th DCA 1974).

    
    

77. In the instant case, Petitioner is seeking to impose upon Respondent, pursuant to Section 450.38(2), Florida Statutes, civil penalties totalling

    $11,000.00 for statutory and rule violations allegedly committed on September 18, 1991, October 18, 1991, and October 21, 1991. The following are the statutory and rule provisions that, according to the Administrative Complaint issued in the instant case, as amended, Respondent violated:

    
    

    1. Duties of farm labor contractor.- Every farm labor contractor must:

       
       

       * * *

       1. Have displayed prominently at the site where the work is to be performed and on all vehicles used by the registrant for the transportation of employees:

          1. A copy of his application for a certificate of registration; and

          2. A written statement in English, and in Spanish when any employee is Spanish-speaking, showing the rate of compensation he receives from the grower with whom he has contracted and the rate of compensation he is paying to his employees for services rendered to, for, or under the control of such grower.

       2. 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 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.

       
       

    2. Prohibited acts of farm labor contractor.- No licensee shall:

    
    

    (1) Make any misrepresentation or false statement in his application for a certificate of registration.

    
    

    38H-11.004 Requirements of Registration.

    
    

    Application for the issuance or renewal of a certificate may be made at least 30 days prior to expiration, at any Florida State Job Service office of the Division. Prior to the issuance of a certificate, or the renewal of a certificate previously issued, a person seeking a certificate must:

    * * *

    (5) 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 in which the vehicle is registered if applicable.

    
    

    38H-11.005(1) Insurance Coverage.

    
    

    (1) Each contractor must provide liability insurance coverage as required by Section 450.33, Florida Statutes, and must submit a certificate of insurance (Form NBCU-3798) at the time of application for a new or renewed certificate of registration, verifying that such insurance is in full force on each vehicle which the contractor is authorized to use to transport farmworkers. No farmworkers shall be transported until the

    certificate of insurance has been submitted to the division.

    
    

    38H-11.006 Duties of a Registrant.

    
    

    Upon obtaining his certificate, each contractor thereafter must:

    * * *

    (5) Comply with all applicable statutes, rules or regulations of the United States or of the State of Florida for the protection or benefit of labor, including but not limited to, those providing for wages, hours, fair labor standards, social security, workers' compensation, unemployment compensation, child labor and transportation.

    38H-11.008 Posting Requirements.

    
    

    Each contractor must display prominently at the site where work is to be performed, and on all vehicles used by him for the transportation of employees, a copy of his application form (LES Form ESF-3100) and of the Work Conditions Statement form (LES Form ESF-3101). The Work Condition Statement form shall be completed in every respect and shall be current as to work then being done at any given time. The forms required hereby to be posted shall be placed in a conspicuous place or places in addition to the vehicle used in

    transporting workers, where they are likely to be seen by all of the contractor's employees. A failure by the contractor to post the forms, or to post a form which describes as required the work at that time being performed shall constitute non-compliance with this regulation, and shall be cause for revocation, suspension or refusal to renew any certificate, assessment of a civil penalty, and such other relief as may be provided by law.

    
    

    38H-11.010 Decisions to Approve, Revoke,

    
    

    Suspend, or Refuse to Renew a Certificate. Action by the Division to approve, revoke, suspend, or refuse to renew a certificate shall be in accordance with Sections 120.57 and 120.60, Florida Statutes, and these rules.

    * * *

    1. Grounds for suspension, revocation or denial of a certificate shall include:

       1. The contractor's making any misrepresentation or false statement in the application or other information required by the Division.

    
    

78. The foregoing are penal provisions and, as such, they "must be strictly construed and no conduct is to be regarded as included within [them] that is not reasonably proscribed by [them]. Furthermore, if there are any ambiguities included such must construed in favor of the . . . [registrant]." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

79. The Department alleges in paragraph (4)(a) of the Administrative Complaint, as amended, that on September 18, 1991, Respondent violated Section 450.34(1), Florida Statutes, and Rule 38H-11.010(4)(a), Florida Administrative Code, by falsely stating on her application for a farm labor contractor certificate of registration that she would not be providing transportation for the members of her crews. The preponderance of the evidence, however, does not establish that, at the time she filled out the application, Respondent had any intention of furnishing transportation for the farm workers she recruited. Absent such a showing, the allegation advanced in paragraph (4)(a) of the

    Administrative Complaint, as amended, should be dismissed. Cf. Palmer v. Santa Fe Healthcare Systems, Inc., 582 So.2d 1234, 1236 (Fla. 1st DCA 1991)("[a] fraudulent misrepresentation is ordinarily actionable only as to statements of past or existing facts, and a promise of future conduct generally will not serve as a predicate for a claim of fraud;" "[a] promise as to future conduct may serve as a predicate for a claim of fraud if is made without any intention of performing, or with the positive intention not to perform").

    
    

80. The Department alleges in paragraph (4)(b) of the Administrative Complaint, as amended, that on October 18, 1991, Respondent violated Section 450.33(9), Florida Statutes, and Rule 38H-11.004(5), Florida Administrative Code, by failing to produce evidence that the station wagon that had plunged into the canal on Okeelanta property earlier that day "had been inspected and was in compliance with the requirements and specifications of Florida law." The preponderance of the evidence, however, does not establish that Respondent owned the station wagon or was in any way involved with, or responsible for, its operation on the day in question. Absent such a showing, the allegation advanced in paragraph (4)(b) of the Administrative Complaint, as amended, should be dismissed.

    
    

81. The Department alleges in paragraph (4)(c) of the Administrative Complaint, as amended, that on October 18, 1991, Respondent violated Section 450.33(5), Florida Statutes, and Rule 38H-11.005(1), Florida Administrative Code, by failing to produce evidence that she had taken out a policy "to insure [herself] against liability for damage to persons or property arising out of the operation or ownership of the [station wagon] . . . in an amount no less than required by the financial responsibility law of the State." As noted above, however, the preponderance of the evidence does not establish that Respondent owned the station wagon or was in any way involved with, or responsible for, its operation on the day in question. Absent such a showing, the allegation advanced in paragraph (4)(c) of the Administrative Complaint, as amended, should be dismissed.

    
    

82. The Department alleges in paragraph (4)(d) of the Administrative Complaint, as amended, that on October 18, 1991, Respondent violated Section 450.33(4), Florida Statutes, and Rule 38H-11.008, Florida Administrative Code, by failing to prominently display on the station wagon "a copy of [her] application for a certificate of registration and a written statement in English and Spanish . . . showing the rate of compensation [she] received from the grower with whom [she] ha[d] contracted, and the rate of compensation paid to [her] employees for services rendered to, for, or under the control of such grower." The preponderance of the evidence, however, does not establish that Respondent 3/ was in any way using the station wagon to transport any member of her crews or any other farm worker on the day in question. Absent such a showing, the allegation advanced in paragraph (4)(d) of the Administrative Complaint, as amended, should be dismissed. 4/

    
    

83. The Department alleges in paragraph (4)(f) of the Administrative Complaint that on October 18, 1991, Respondent violated Rule 38H-11.006(5), Florida Administrative Code, by "us[ing] Cruz Hernandez Alvarez as the driver of a motor vehicle [the station wagon] without insuring that the driver had a valid driver's license." The preponderance of the evidence, however, does not establish that Respondent was in any way responsible for Alvarez being at the wheel of the station wagon on the day in question. Absent such a showing, the allegation advanced in paragraph (4)(f) of the Administrative Complaint, as amended, should be dismissed.

84. The Department alleges in paragraph (4)(g) of the Administrative Complaint, as amended, that on October 18, 1991, Respondent violated Rule 38H- 11.006(5), Florida Administrative Code, by "employ[ing] Julio Mendoza Corince, a fifteen year old minor [contrary to] section 450.045(1), Fla. Stat. which requires any person who hires, employs, or suffers to work any child to first obtain and keep on record proof of the child's age." The preponderance of the evidence, however, does not establish that Respondent had any dealings with Corince, employment-related or otherwise, at any time prior to Corince's untimely death on October 18, 1991. Absent such a showing, the allegation advanced in paragraph (4)(g) of the Administrative Complaint, as amended, should be dismissed.

    
    

85. The Department alleges in paragraph (4)(i) of the Administrative Complaint, as amended, that on October 21, 1991, Respondent violated Section 450.33(4), Florida Statutes, and Rule 38H-11.008, Florida Administrative Code, by failing to prominently display on the 1977 Chevrolet van that two of her crews had used to commute to work that day "a copy of [her] application for a certificate of registration and a written statement in English and Spanish . . . showing the rate of compensation [she] received from the grower with whom [she] ha[d] contracted, and the rate of compensation paid to [her] employees for services rendered to, for, or under the control of such grower." The preponderance of the evidence, however, does not establish that Respondent 5/ was in any way using the van to transport any member of her crews or any other farm worker on the day in question. Absent such a showing, the allegation advanced in paragraph (4)(i) of the Administrative Complaint, as amended, should be dismissed.

    
    

86. The Department alleges in paragraph (4)(k) of the Administrative Complaint, as amended, that on October 21, 1991, Respondent violated Section 450.33(9), Florida Statutes, and Rule 38H-11.004(5), Florida Administrative Code, by failing to produce evidence that the 1977 Chevrolet van "had been inspected and was in compliance with the requirements and specification[s] of Florida law." The preponderance of the evidence, however, does not establish that Respondent owned the van or was in any way involved with, or responsible for, its operation on the day in question. Absent such a showing, the allegation advanced in paragraph (4)(k) of the Administrative Complaint, as amended, should be dismissed.

    
    

87. The Department alleges in paragraph (4)(l) of the Administrative Complaint, as amended, that on October 21, 1991, Respondent violated Section 450.33(5), Florida Statutes, and Rule 38H-11.005(1), Florida Administrative Code, by failing to produce evidence that she had taken "out a policy with an insurance carrier, against liability for damage to persons or property arising out of the operation or ownership of the [1977 Chevrolet van] . . . in an amount no less than required by the financial responsibility law of the State." As noted above, however, the preponderance of the evidence does not establish that Respondent owned the van or was in any way involved with, or responsible for, its operation on the day in question. Absent such a showing, the allegation advanced in paragraph (4)(l) of the Administrative Complaint, as amended, should be dismissed.

    
    

88. The Department alleges in paragraph (4)(m) of the Administrative Complaint, as amended, that on October 21, 1991, Respondent violated Rule 38H- 11.006(5), Florida Administrative Code, by "employ[ing] Miguel Paiz, a 17 year old minor [contrary to] section 450.081, Fla. Stat. which prohibits employment of minors 17 years of age during school hours." The preponderance of the evidence, however, does not establish that Respondent at any time "employed"

    Paiz. 6/ Absent such a showing, the allegation advanced in paragraph (4)(m) of the Administrative Complaint, as amended, should be dismissed.

    
    

89. Paragraph (4)(h) of the Administrative Complaint, as amended, contains the only remaining allegation against Respondent. The Department alleges in this paragraph that on October 21, 1991, Respondent violated Section 450.33(4), Florida Statutes, and Rule 38H-11.008, Florida Administrative Code, by "fail[ing] to display prominently at the site where work was performed, a copy of [her] application for a certificate of registration and a written statement in English and Spanish . . . showing the rate of compensation [she] received from the grower with whom [she] ha[d] contracted, and the rate of compensation paid to [her] employees for services rendered to, for, or under the control of such grower." The preponderance of the evidence establishes that, as alleged in this paragraph of the Administrative Complaint, as amended, on October 21, 1991, Respondent was acting as a "farm labor contractor," within the meaning of Section 450.28(1), Florida Statutes, and, in violation of Section 450.33(4), Florida Statutes, and Rule 38H-11.008, Florida Administrative Code, displayed in the area where her crews were working neither a copy of her application for a farm labor contractor certificate of registration nor the requisite statement concerning the compensation that she was receiving from Okeelanta for her recruitment activities. 7/ For this violation, Respondent may be assessed a civil penalty of not more than $1,000.00. Section 450.38(2), Fla. Stat.; Rule 38H-11.012(1), Fla. Admin. Code.

    
    

90. In determining the precise amount of the civil penalty that should be assessed, it is necessary to consult Rule 38H-11.012(2), Florida Administrative Code, which provides as follows:

    
    

    In determining the amount of any penalty, the Division will consider the type of violation committed and other relevant factors, including but not limited to:

    1. Previous history of violation or violations;

    2. The number of workers affected by the violation or violations;

    3. The gravity of the violation or violations;

    4. Efforts made in good faith to comply with these rules and Chapter 450, Part III, F.S.;

    5. Explanation of person charged with violation or violations;

    6. Commitment to future compliance, taking into account public health, interest or safety, and whether the person has had previous violations;

    7. The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury to the workers.

    
    

    Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

    
    

91. Having considered the facts of the instant case in light of the foregoing provisions of Rule 38H-11.012(2), Florida Administrative Code, it is

the view of the Hearing Officer that the appropriate punishment for the one alleged violation proven by the Department in the instant case is the imposition of a civil penalty in the amount of $100.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order (1) imposing upon Respondent a civil penalty in the amount of $100.00 for having violated Section 450.33(4), Florida Statutes, and Rule 38H-11.008, Florida Administrative Code, as alleged in paragraph (4)(h) of the Administrative Complaint, as amended, by displaying in the area where her crews were working on October 21, 1991, neither a copy of her application for a farm labor contractor certificate of registration nor the requisite statement concerning the compensation that she was receiving from Okeelanta for her recruitment activities, and (2) dismissing the remaining allegations advanced in the Administrative Complaint, as amended.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of February, 1993.

STUART M. LERNER

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 10th day of February, 1993.

ENDNOTES

1/ The Hearing Officer disagrees with Respondent that Velasquez's failure to provide such a warning during this noncustodial interview renders evidence of the statement inadmissible in the instant noncriminal proceeding. See e.g.

State v. Crosby, 599 So.2d 138, 140 (Fla. 5th DCA 1992)(even in criminal case, Miranda warnings need not be given where suspect is not in custody); Adams v. School Board of Brevard County, 470 So.2d 760, 762 n.2 (Fla. 5th DCA 1985)(Miranda "has not been extended to a student questioned by school officials in furtherance of their disciplinary duties;" students' statements made "voluntarily and without promises of lenience" to administrative deans admissible at expulsion hearing). Respondent has not cited, nor has the Hearing Officer's research revealed, any case supporting Respondent's position on this point.

2/ There was conflicting evidence adduced at hearing as to what, if anything, Respondent told Velasquez and Callobre regarding her paying the owners or drivers of the vehicles that the members of her Indiantown crews used for transportation to commute to and from work. Having carefully considered the matter, the Hearing Officer has resolved the conflict by finding that, while

Respondent may have admitted to "usually" making such payments for gasoline during the 1990-91 planting season and to intending to continue her practice during the 1991-92 planting season, she never told either Velasquez or Callobre that she had yet actually made or agreed to make any such payments that season.

3/ While members of one of her crews were using the station wagon to commute to work that day, they apparently were doing so on their own, without Respondent's involvement.

4/ The posting requirements referenced in this paragraph of the Administrative Complaint, as amended, apply only where the vehicle in question is being used by the registrant to transport farm workers. They do not apply where the subject vehicle is being used by the registrant's crew or crews to get to and from work as part of a "carpool" arrangement.

5/ Although members of two of her crews were using the van for transportation to and from work, they apparently were doing so on their own, without Respondent's involvement.

6/ The record reflects that Respondent merely recruited Paiz to work for an employer other than herself, namely Okeelanta. Moreover, it does not appear that there was any lack of due diligence on the part of those who were involved in the hiring of Paiz inasmuch as Paiz was hired only after he had gone to the Department's Belle Glade Job Service office at Respondent's behest and obtained, and later produced, a "yellow" card signifying that the Department had deemed him qualified to do the work he was subsequently hired to perform. Lack of due diligence is an essential element that must be proven in any case involving an alleged violation of Section 450.081, Florida Statutes. Cf. Cohen v. Schott, 48 So.2d 154, 155 (Fla. 1950)("[t]he law places the responsibility on the licensee [authorized to sell alcoholic beverages] to determine who are under the age of twenty-one, but to ascertain this there must be some reasonable standard of diligence to bound his inquiry;" "[i]t would seem that when one operates a cocktail bar or lounge, makes it generally known that minors are not admitted for drinking purposes, frequently instructs his employees to challenge those who appear to be within the prohibited age, they are in fact challenged in the manner shown here, and assert that they are twenty-one, which is by all outward appearances true, he has made such efforts as the law contemplates to comply with its requirements"); Surf Attractions, Inc. v. Department of Business Regulation, 480 So.2d 1354, 1355-56 (Fla. 1st DCA 1985)("the agency must show a lack of due diligence on the part of the beverage licensee before [a fine] may be imposed" for violating the law prohibiting the sale of alcoholic beverages to underaged persons).

7/ The statement that Respondent was obligated to post did not have to include information regarding compensation members of Respondent's crews were receiving. This is so because these crew members were employees of, and being paid by, Okeelanta, not Respondent. Accordingly, to the extent that paragraph (4)(h) of the Administrative Complaint, as amended, alleges that Respondent committed a violation of the law by failing to post a notice containing such information, it should be dismissed.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3392

The following are the Hearing Officer's specific rulings on the "findings of fact" set forth in the Department's "corrected" proposed recommended order and in Respondent's proposed recommended order:

The Department's Proposed "Findings of Fact"

1-7. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. To the extent that this proposed finding suggests that Respondent had recruited and supervised some of the occupants of the station wagon, it has been accepted and incorporated in substance. To the extent that it states that all of the vehicle's occupants had been recruited and supervised by Respondent, it has been rejected because it is not supported by persuasive competent substantial evidence.

9-11. Accepted and incorporated in substance.

12-13. Rejected because they are not supported by the greater weight of the evidence.

14-17. Accepted and incorporated in substance.

18. To the extent that this proposed finding states that Respondent "employed" Corince, it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that it asserts that Corince was "a fifteen year old minor" and that Respondent "did not keep on record, proof of the child's age," it has been accepted and incorporated in substance.

19-21. Accepted and incorporated in substance.

22-23. To the extent that these proposed findings state that Paiz was the driver of the van and that he indicated that he was being paid by Lopez $10.00 a day to drive the van, they have been accepted and incorporated in substance. In all other respects, they have been rejected because they are not supported by the greater weight of the evidence.

1. Accepted and incorporated in substance.

2. To the extent that this proposed finding states that Respondent "employed" Paiz, it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that it asserts that Paiz was "a 17 year old minor" and that he worked "during school hours," it has been accepted and incorporated in substance.

3. Accepted and incorporated in substance.

4. Before comma: Accepted and incorporated in substance; After comma: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

5. Accepted and incorporated in substance.

29-30. Rejected as findings of fact because they constitute argument concerning the state of the evidentiary record and the credibility of the witnesses who testified at hearing.

Respondent's Proposed "Findings of Fact"

1. Accepted and incorporated in substance.

2-4. Rejected as findings of fact because they are more in the nature of statements of the law.

5-7. Accepted and incorporated in substance.

8. First and second sentences: Rejected as findings of fact because they are more in the nature of statements of the law; Third sentence: Accepted and incorporated in substance; Fourth sentence: To the extent that this proposed finding states that the Department did not at any time prior to the events at issue in the instant case provide Respondent with training, it has been rejected because it is contrary to the greater weight of the evidence. To the extent that it asserts that at no time prior to these events was Respondent required "to take any examination regarding the duties and obligations of maintaining a Farm Labor Contractor license," it has been rejected because such assertion is not germane to any of the issues in dispute in the instant case.

9-10. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Rejected because, even if true, it would have no bearing on the outcome of the instant case.

3. Rejected as a finding of fact because it is more in the nature of a statement of the law.

4. First sentence: Rejected as a finding of fact because it is more in the nature of a statement of the law; Second sentence: Rejected because, even if true, it would have no bearing on the outcome of the instant case.

5. Rejected because, even if true, it would have no bearing on the outcome of the instant case.

16-16A. Accepted and incorporated in substance.

16B. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

16C-17. Accepted and incorporated in substance.

18. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

19-21. Accepted and incorporated in substance.

22. To the extent that this proposed finding states that Respondent monitored the activities of five, rather than four, crews and that each of her crews had nine, rather than eight, workers, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.

23-24. Rejected because they would add only unnecessary detail

to the factual findings made by the Hearing Officer.

25. To the extent that this proposed finding references the timekeeper and her duties, it has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

26-32. Accepted and incorporated in substance.

1. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a conclusion of law.

3. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. Rejected as a finding of fact because it is more in the nature of a statement of the law.

5. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

6. Accepted and incorporated in substance.

39-46. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

47-48. Accepted and incorporated in substance.

49-50. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

51-56. Accepted and incorporated in substance.

1. Last sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Remaining sentences: Accepted and incorporated in substance.

2. Rejected as a finding of fact because it is more in the nature of argument regarding the state of the evidentiary record.

3. Fourth sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Accepted and incorporated in substance.

60-61. Accepted and incorporated in substance.

62-63. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

64-65. Accepted and incorporated in substance.

1. Rejected because it is not supported by persuasive competent substantial evidence.

2. Rejected as a finding of fact because it is more in the nature of a statement of the law.

3. Rejected because it is not supported by persuasive competent substantial evidence.

69-70. Accepted and incorporated in substance.

71-72. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

73. Rejected as a finding of fact because it is more in the nature of argument concerning the state of the evidentiary record.

74-78. Accepted and incorporated in substance.

79. First and fourth sentences: Accepted and incorporated in substance; Second and third sentences: Rejected because they would add only unnecessary detail to the

factual findings made by the Hearing Officer.

80-81. Accepted and incorporated in substance.

82. Rejected as a finding of fact because it is more in the nature of argument concerning the state of the evidentiary record.

83-84. Accepted and incorporated in substance.

85-86. Rejected because, even if true, they would have no bearing on the outcome of the instant case.

87-88a. Accepted and incorporated in substance.

88b-88c. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

88d. Accepted and incorporated in substance.

88e. Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

88f-88j. Accepted and incorporated in substance.

88k. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding states that Respondent and her daughter were "in shock," it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that it asserts that they were in "a highly emotional state," it has been accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

88l-88m. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. Rejected because it is contrary to the greater weight of the evidence.

   89A. Accepted and incorporated in substance.

   89B. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second and third sentences: Rejected because they are contrary to the greater weight of the evidence which establishes that all, not just most, "of the factual statements in that statement are correct and accurately reflect Respondent's discussion with Velasquez;" Fourth sentence: To the extent that this proposed finding suggests that Respondent intended, but had not yet entered into any agreement, "to pay for gasoline," it has been accepted and incorporated in substance. To the extent that it suggests that Respondent's written statement reflects that she told Velasquez that she had already entered into such an agreement, it has been rejected because it is not supported by persuasive competent substantial evidence.

   89C. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   89D-89E. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

   89F. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second and fourth sentences: Accepted and incorporated in substance; Third

   sentence: Rejected because, even if true, it would have no bearing on the outcome of the instant case.

   The greater weight of the evidence establishes that, at the very least, Respondent's daughter read the written statement to her "line by line." That Velasquez may not have also done so is therefore inconsequential.

   89G. First sentence: Rejected because, even if true, it would have no bearing on the outcome of the instant case; Second sentence: To the extent that this proposed finding suggests that Respondent's daughter did not read the written statement to Respondent, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Fourth sentence: Insofar as this proposed finding suggests that Respondent signed the written statement without being aware of its contents, it has been rejected because it is contrary to the greater weight of the evidence. To the extent that it states that "Respondent trusted Mr. Velasquez and believed 'his word,'" it has been rejected because, even if true, it would have no bearing on the outcome of the instant case; Fifth sentence: Rejected as a finding of fact because it is more in the nature of commentary regarding the credibility of testimony given at hearing.

   89H. Accepted and incorporated in substance.

2. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

91-92. Accepted and incorporated in substance.

93. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

94-101. Accepted and incorporated in substance.

102-103. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

104. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted and incorporated in substance.

105-108. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Insofar as this proposed finding states that "Respondent did not tell Mr. Callobre that [during the 1991-92 planting season] she gave $100 a week to her crews for transportation," it has been accepted and incorporated in substance.

2. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. First sentence: Rejected because it would add only

   unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of legal argument.

4. Accepted and incorporated in substance.

5. Third sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Accepted and incorporated in substance.

6. Rejected because it is not supported by persuasive competent substantial evidence.

7. Accepted and incorporated in substance.

116-117. Rejected because, even if true, they would have no bearing on the outcome of the instant case.

COPIES FURNISHED:

Francisco Rivera, Esquire Department of Labor and

Employment Security

2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189

I. Jeffrey Pheterson, Esquire Sally Still, Esquire

400 South Dixie Highway Suite 420

Boca Raton, Florida 33432

Shirley Gooding, Acting Secretary Department of Labor and

Employment Security

2012 Capital Circle, Southeast Suite 303, Hartman Building Tallahassee, Florida 32399-2189

Cecilia Renn, Esquire Chief Legal Counsel Department of Labor and

Employment Security

2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189

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 of time 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: 92-003392

Orders for Case No: 92-003392