STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1466

)

ERIC J. POWERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on July 26, 1994. The parties, attorneys, witnesses, and court reporter attended the hearing in Ft. Myers. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Eugenie G. Rehak

District Legal Counsel Department of Health and

Rehabilitative Services Post Office Box 60085

Ft. Myers, Florida 33906

For Respondent: Wayne E. Rowlee

30 Hardee Street LaBelle, Florida 33935

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of violating provisions governing resident migrant farmworker housing and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Citation C-8, Petitioner alleged that Respondent operated an establishment at 521 Marion St. that constituted a migrant labor camp or residential migrant farmworker housing without a valid permit and that Respondent failed to comply with written instructions to correct inspection items within a specific timeframe. Citation C-8 describes the violations as those set forth in inspection sheets dated November 5 and December 14, 1993, and in a letter dated December 15, 1993. Citation C-8 seeks an administrative fine of $450.

By Citation C-10, Petitioner alleged that Respondent operated an establishment on Hand Ave., more particularly described as Block 12, Lots 26-32 and the west five feet of Lot 33. Citation C-10 alleges that Respondent housed five seasonal workers without a valid permit, as described in an inspection sheet dated December 28, 1993. Citation C-10 seeks an administrative fine of

$500.

Respondent requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence eight exhibits. Respondent called two witnesses and offered into evidence three exhibits. All exhibits were admitted.

Neither party ordered a transcript. Each party filed a proposed recommended order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. At no material time has Respondent ever had a Residential Migrant Housing Permit for any residential rental property that he owns on Marion St. or Hand Ave. in LaBelle. At all material times, Respondent spoke and corresponded directly with Petitioner's representatives concerning their claims of violations.

   
   

2. Based on a preliminary investigation, Petitioner's environmental health specialist, Saul Gonzalez, determined that more than five unrelated migrant farmworkers were living in property owned by Respondent on Marion St. in LaBelle.

   
   

3. Mr. Gonzalez telephoned Respondent and offered him an opportunity to obtain the required permit to rent residential housing to migrant farmworkers. By letter dated October 22, 1993, Mr. Gonzalez confirmed that he would give Respondent until October 27 within which to file an application for a Residential Migrant Housing Permit.

   
   

4. Following the receipt of an application for a Residential Migrant Housing Permit for a "rental unit" located at "521 Marion," Petitioner's representatives conducted prelicense inspections of the property. They inspected four separate inhabitable structures, which were all owned by Respondent. The structures were located at 495, 497, 519, and 521 Marion St.

   
   

5. The only structure at which Petitioner's representatives ever found at least five unrelated migrant farmworkers residing was 497 Marion St. At no time did Petitioner's representatives determine that five or more unrelated migrant farmworkers were residing at the three other Marion St. addresses.

   
   

6. The violations cited by Petitioner's representatives in Citation C-8 actually were intended for 497 Marion St., not 521 Marion St., as set forth in the citation. Additionally, one of Petitioner's representatives gave Respondent until January 1, 1994, within which to correct the deficiencies and obtain a permit, but Petitioner filed Citation C-8 on December 28, 1993.

   
   

7. On December 28, 1993, Mr. Gonzalez and another employee of Petitioner visited three inhabitable structures located at 204, 212, and 234 Hand Ave. These structures are three separate mobile homes owned by Respondent. Petitioner's representatives found over five unrelated migrant farmworkers residing in the westernmost trailer.

8. In defense of both citations, Respondent, based on advice of counsel, argued that state regulation of migrant farmworker housing is preempted by federal regulation. He reasoned that federal law meant that he was not required to obtain a Residential Migrant Housing Permit in order to rent to migrant farmworkers.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

10. Section 381.0081(2) requires a permit for the operation of any "residential migrant housing" in Florida. Section 381.0081(4) provides that Petitioner may impose a fine of up to $1000 per violation of Section 381.0081. Section 381.0081(4) adds: "In determining the amount of the fine to be imposed, [Petitioner] shall consider any corrective actions taken by the violator and any previous violations."

11. Section 381.008(8) defines "residential migrant housing" as a: building, structure, barracks, or dormitory,

    and the land appertaining thereto, that is

    rented or reserved for the occupancy by five or more migrant farmworkers, except:

    * * *

    (b) A single-family residence or mobile home dwelling unit that is not under the same ownership, management, or control as other farmworker housing to which it is adjacent or contiguous[.]

12. Section 381.008(4) defines a "migrant farmworker" as: a person who is or has been employed in hand

    labor operations in planting, cultivating, or harvesting agricultural crops within the last 12 months and who has changed residence for purposes of employment in agriculture within the last 12 months.

    
    

13. In its proposed recommended order, Petitioner voluntarily dismissed the allegations concerning Citation C-8. Petitioner explained that the citation was premature because it was filed prior to the expiration of the time allowed Respondent within which to make corrections. Additionally, Citation C-8 is deficient because it cites the wrong address.

    
    

14. Petitioner has proved the allegations concerning one of the cited addresses on Hand Ave. The requisite number of unrelated migrant farmworkers resided in one of the trailers on Hand Ave. Respondent had no permit, and failed to establish his exemption under federal law.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order finding Respondent guilty of operating residential migrant housing at one of his properties on Hand Ave. and imposing an administrative fine of

$500.

ENTERED on August 17, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on August 17, 1994.

APPENDIX

Rulings on Petitioner's Proposed Findings

1: adopted or adopted in substance. 2: rejected as irrelevant.

3: adopted or adopted in substance.

4: adopted as to the nine migrant farmworkers, whom Petitioner proved were unrelated. However, Petitioner failed to prove that the requisite number of unrelated migrant farmworkers resided in the other trailer.

5-8: adopted or adopted in substance. 9: rejected as irrelevant.

Rulings on Respondent's Proposed Findings 1: rejected as irrelevant.

2: adopted or adopted in substance.

3-4: rejected as irrelevant. 5-9: rejected as irrelevant.

10: rejected as unsupported by the appropriate weight of the evidence, although, as to the easternmost trailer, Petitioner proved that the residents were migrant farmworkers, but not that at least five of the residents were unrelated.

11 and 13: rejected as irrelevant. 12: adopted or adopted in substance.

COPIES FURNISHED:

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Robert L. Powell Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Eugenie G. Rehak District Legal Counsel Department of Health and

Rehabilitative Services

P.O. Box 60085

Ft. Myers, FL 33906

Wayne E. Rowlee

30 Hardee St.

LaBelle, FL 33935

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: 94-001466

Orders for Case No: 94-001466