STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDA FOWLER MARTINEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0858

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 24, 1996, in Haines City, Florida.

APPEARANCES

For Petitioner: Freda Fowler Martinez, pro se

Post Office Box 2211

Haines City, Florida 33845-2211

For Respondent: Roland Reis, Esquire

Department of Health and Rehabilitative Services

270 Bartow Municipal Airport Bartow, Florida 33830

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner should pay a $500 fine to the Polk County Health Unit for operating residential migrant housing without a permit.

PRELIMINARY STATEMENT

On January 18, 1996, Respondent issued a citation to Petitioner for operating residential migrant housing without permit. Petitioner timely requested a formal hearing.

At the formal hearing, Petitioner testified in her own behalf, presented the testimony of three witnesses, and submitted one exhibit for admission in evidence. Respondent called two witnesses and submitted five exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the record of the formal hearing. Respondent timely filed its proposed recommended order ("PRO") on April 30, 1996. Petitioner did not file a

PRO. Proposed findings of fact in Respondent's PRO are accepted in this Recommended Order.

FINDINGS OF FACT

1. Respondent is the governmental agency responsible for issuing permits for residential migrant housing in accordance with Section 381.0081(2), Florida Statutes. 1/ Respondent is also responsible for inspecting residential migrant housing through Respondent's local county health units.

   
   

2. Roger Burgere, an environmental specialist for the Polk County Public Health Unit, responded to a nuisance complaint on January 18, 1996. The complaint alleged that residential migrant housing was being operated on Petitioner's property at 2550 Smith Road in Haines City, Florida.

   
   

3. There are four dwelling units on Petitioner's property. One dwelling unit is a house. The other three dwelling units are mobile homes located between the house and the roadway.

   
   

4. Raw sewage from the mobile home nearest the road was on the ground within 15 feet of the mobile home. The sewage covered an area of approximately

   20 square feet.

   
   

5. At the third mobile home from the roadway, a pipe leading to the septic tank had broken. Raw sewage covered an area approximately five feet by four feet. Approximately two- thirds of this area was under the mobile home.

   
   

6. The house had washing machine waste, or "gray water," on the ground in the vicinity of the house. Windows were broken. There were multiple holes in the ceilings and walls.

   
   

7. Four or five bags commonly used by migrant workers in picking citrus fruit from trees were located outside the dwelling units. The bags were made of tough plastic or fabric and made so that they can be worn from the neck like an apron. Each bag holds about 80 pounds of fruit.

   
   

8. Fruit groves are located within one mile of Petitioner's property. Many other groves are located within a 20 mile radius of Petitioner's property.

   
   

9. Approximately three cars were parked in the driveways of the dwelling units. All of the vehicles were licensed in states other than Florida.

   
   

10. A family occupied the house. Approximately 12 men occupied the mobile homes.

    
    

11. The 12 men are migrant farmworkers within the meaning of Section 381.008(4). Each man is employed to harvest fruit by hand labor, and each man changes his residence to do so. Within the last 12 months, each man has been employed to harvest fruit by hand labor and has changed his residence for such purposes.

    
    

12. Petitioner operated residential migrant housing within the meaning of Section 381.008(8). Petitioner rented dwelling units on her property for occupancy by five or more migrant workers. Petitioner does not have a permit to operate residential migrant housing.

13. Petitioner rents to single women who take in migrant workers as borders. Petitioner has engaged in this method of operation for many years.

    
    

14. Petitioner knew or should have known upon reasonable inquiry that her property was being used for residential migrant housing. Evidence that Petitioner's property was used for residential migrant housing was obvious to anyone on the property. Petitioner resides on the property.

    
    

15. Mr. Burgere issued a citation to Petitioner that imposed a $500 fine. Mr. Burgere also advised Petitioner that the fine would be waived if Petitioner applied for a permit within 48 hours of the citation and agreed to correct the inadequacies in her residential migrant housing.

    
    

16. Petitioner never applied for a permit and evicted the migrant farmworkers from her property. Over the next 14 days, Petitioner made the repairs necessary to correct leaking sewage and to repair the holes in the ceiling and walls of the house. Petitioner is no longer operating residential migrant housing on her property.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. The parties were duly noticed for the formal hearing.

    
    

18. Respondent stipulated that it has the burden of proof in this proceeding. Respondent must show by a preponderance of the evidence that Petitioner operated residential migrant housing on her property. Respondent satisfied its burden of proof.

    
    

19. Section 381.008(4) defines a "migrant farmworker," in relevant part,

    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.

    
    

    Respondent showed by a preponderance of the evidence that the 12 men occupying mobile homes on Petitioner's property were migrant farmworkers.

    
    

20. Section 381.008(8) defines "residential migrant housing," in relevant part as:

    
    

    A building, structure, barracks, or dormitory, and the land appertaining thereto, that is rented or reserved for occupancy by five or more migrant farmworkers.

    
    

    Respondent showed by a preponderance of the evidence that Petitioner operated residential migrant housing without a permit.

    
    

21. Section 381.0081(2) makes the operation of residential migrant housing without a permit a first degree misdemeanor within the meaning of Sections

    775.082 and 775.083. Section

    381.0081(3) makes the unpermitted operation of residential migrant housing without adequate personal hygiene facilities a third degree felony within the meaning of Sections

    775.082 and 775.083.

    
    

22. Section 381.0081(4) authorizes a fine of up to $1,000 for Petitioner's operation of residential migrant housing without a permit. Section 381.0081(4) provides in relevant part:

    
    

    If the owner of land on which a violation of this section occurs is other than the person committing the violation and the owner knew or should have known upon reasonable inquiry that this section was being violated on the

    land, the fine may be applied against the owner.

    
    

    Petitioner knew or should have known upon reasonable inquiry that the dwelling units on her property were being used for occupancy by migrant farmworkers.

    
    

23. As an alternative means of enforcing Sections 381.008 and 381.0081, Sections 381.0087(1), (3), and (8) authorize fines of up to $500 for each violation of Sections 381.008-381.00895. Each day that a violation persists is separate violation. Respondent was authorized to fine Petitioner $500 for each of the 14 days for which a violation existed, or aggregate fines of $7,000.

    
    

24. Section 381.0087(5) authorizes Respondent to reduce or waive fines to encourage those who operate residential migrant housing to obtain permits, to correct housing deficiencies, and to retain migrant farmworkers in adequate housing rather than evict migrant farmworkers and force them to find alternative housing that may be inadequate. Residing in inadequate housing increases health hazards to residents and those who come in contact with them as well as the cost of health care.

    
    

25. Petitioner frustrated the legislative and administrative policy underlying applicable statutes and rules. Petitioner corrected her inadequate housing but evicted the farmworkers and refused to obtain a residential migrant housing permit. Respondent issued a citation and imposed a fine of $500. The penalty imposed by Respondent was reasonable and lenient when all of the facts and circumstances are considered together with the potential fines and criminal sanctions.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding Petitioner guilty

of operating migrant residential housing without a permit and requiring

Petitioner to pay a fine of $500 in the manner and place prescribed by Respondent.

RECOMMENDED this 31st day of May, 1996, in Tallahassee, Florida.

DANIEL S. MANRY, 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 31st day of May, 1996.

ENDNOTE

1/ All references to statutory chapters and sections are to Florida Statutes (1995) unless otherwise stated.

COPIES FURNISHED:

Richard Doran General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 7 - Suite 728

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Freda Fowler Martinez, pro se Post Office Box 2211

Haines City, Florida 33845-2211

Roland Reis, Esquire Department of Health and

Rehabilitative Services

270 Bartow Municipal Airport Bartow, Florida 33830

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: 96-000858

Orders for Case No: 96-000858