STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS’ COMPENSATION,
Petitioner,
vs.
C AND C AGRICULTURAL FARMS, LLC,
Respondent.
/
Case No. 13-1668
RECOMMENDED ORDER
Pursuant to notice, a final hearing was initially held on August 1, 2013, in Naples, Florida, and completed by video teleconference at sites in Tallahassee, Florida, and West Palm Beach, Florida, on August 16, 2013, before Thomas P. Crapps, a designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Alexander Brick, Esquire
Department of Financial Services Division of Legal Services
200 East Gaines Street Tallahassee, Florida 32399-4229
For Respondent: Kristian E. Dunn, Esquire
Dickens and Dunn, P.L.
517 East College Avenue Tallahassee, Florida 32301
STATEMENT OF THE ISSUES
Whether Respondent violated the provisions of chapter 440, Florida Statutes (2012),1/ by failing to obtain workers’ compensation insurance coverage for farm workers, as alleged in the Stop-Work Order and Second Amended Order of Penalty Assessment; and, if so, the appropriate penalty.
PRELIMINARY STATEMENT
On April 16, 2013, the Florida Department of Financial Services, Division of Workers’ Compensation (Department) hand- delivered a Stop-Work Order to Respondent, C & C Agricultural Farms, L.L.C. (referred to as Respondent or C & C Farms), based on the alleged failure to provide workers’ compensation coverage.
On April 22, 2013, Respondent requested an administrative hearing and the case was transmitted to DOAH. A final hearing was held on August 1, 2013, in Naples, Florida, and continued on August 16, 2013, by video teleconference.
The Department presented the testimony of Carlos Rodriguez, Jeanette Lesca, Ernesto Codero, Kristie Gilford, Robert Aponte, Tiffany Greene, and Victoria Burkley. The Department offered into evidence Exhibits numbered 1, 2, 5, 7, 8, 9 through 14, 17,
19 through 24, 26 sections D and E, 27, 28, 30, 35, and 41 through 45, and 46. Respondent presented the testimony of Carlos Rodriguez, Ernesto Cordero, Leesday San Martin, and Carrina Bozzolasco, and offered into evidence two exhibits.
A two-volume Trial Transcript was filed on August 16, 2013, for the first part of the hearing, and the third volume of the Trial Transcript was filed on September 3, 2013. The parties submitted proposed recommended orders on September 20, 2013.
FINDINGS OF FACT
The Department is the state agency responsible for enforcing the requirement that employers secure workers’ compensation insurance coverage for their employees.
C & C Farms is a Florida-limited liability company engaged in farming during the relevant time period of April 2010 through April 2013. C & C Farms is located in Clewiston, Florida, and is co-owned and managed by Carlos Rodriguez (Rodriguez) and Ernesto Cordero (Cordero). According to the State of Florida, Division of Corporations, C & C Farms was formed as a Florida entity in December 2008.
C & C Farms operates nearly year-round growing zucchini, yellow squash, eggplants, green bell peppers and cucumbers. The year-long work requires the laying of plastic as a weed barrier, planting the crops, tending the crops by watering, applying herbicides and pesticides, and finally harvesting. The planting and harvesting of the vegetables follows a planting schedule provided to Respondent from its buyer, C.H. Robinson Company.
C.H. Robinson Company required Respondent to plant yellow squash on or near February 6 and February 20, 2013, with a 50-day
growing period before harvesting. Similarly, green bell peppers were to be planted by February 11, 2013, with a 75-day growing period and harvested between April 27 and May 4, 2013. Of course, weather may change some of the dates, but C & C Farms tried to adhere to the schedule of its buyer. The number of workers at C & C Farms fluctuated based on the needs of the farm, with more workers being needed to harvest the crops than during the growing period.
On November 27, 2012, Estefina Medina (Medina) began working for C & C Farms as a vegetable packer. Unfortunately, on December 1, 2012, Medina was injured at work when Cordero accidentally hit her foot while driving a fork lift. Cordero administered Medina rudimentary first-aid, and wrote her a check for $285.93 to cover her losses. Two days later on December 3, 2012, Medina was at home and her foot became swollen and painful. Consequently, she sought medical attention at the local hospital where Medina was diagnosed with a severe foot sprain. The hospital referred Medina to its corporate health department for billing, and provided her with a form in order to obtain workers’ compensation insurance information from her employer. The next day, Medina returned to C & C Farms to obtain the coverage information from Cordero. When Medina presented herself to Cordero, he became angry with her, and disputed the injury and responsibility. Cordero and Medina exchanged words, each
threatening legal action. Medina subsequently sought legal advice and learned that C & C Farms did not have workers’ compensation insurance that covered her injury.
On January 22, 2013, Medina filed a complaint with the One-Stop Career Center of the U.S. Department of Labor Employment and Training Administration alleging that she was injured on the job and that her employer, C & C Farms, did not have workers’ compensation insurance. The federal agency referred Medina’s complaint to Florida Department of Economic Opportunity, which in turn referred the allegations to the Department.
On February 8, 2013, Robert Aponte (Aponte), an investigator with the Department conducted a site visit at C & C Farms. He arrived at the farm’s office and spoke with Jeanette Lesca (Lesca), an office employee. During the interview, Lesca provided Aponte with a list of nine employees. Further, she contacted Cordero who spoke with Aponte.2/
Cordero informed Aponte that C & C Farms’ employees had workers’ compensation coverage through Direct HR Service Services, a professional employer organization. While on the site, Aponte reviewed the Department’s data base, the Coverage and Compliance Automated System, and contacted Direct HR Service Leasing Company. Aponte confirmed that the employees listed by Lesca had workers’ compensation insurance coverage.
Although Aponte confirmed that the listed employees had coverage, he did not see Estefina Medina listed as an employee. Consequently, he asked Cordero about Medina. Cordero stated that she had worked only a couple of days, got injured, and had not returned to work. Based on this answer, Aponte decided to issue a Request for Production of Business Records. Specifically, Aponte requested C & C Farms produce documents concerning its payroll, workers’ compensation coverage, professional employer organization record, and any documentation of any exemptions for the time period covering November 9, 2012, through February 8, 2013.
Within a week, Cordero provided Aponte with the business records. However, Aponte found these records unresponsive because the records did not correlate with C & C Farms.
Aponte contacted Cordero, and requested the business records again. Before any other steps were taken, Aponte left the Department for another job on March 15, 2013.
In April 2013, Tiffany Greene (Greene), an investigator with the Department, was assigned the C & C Farms case. She reviewed the Department’s data base and learned that C & C Farms’ workers’ compensation insurance coverage had lapsed.
Direct HR Services had terminated its agreement with
C & C Farms to provide payroll and workers’ compensation coverage services on February 25, 2013, based on non-payment. Direct HR
Services had provided coverage from February 8 through February 24, 2013.
On April 16, 2013, Greene made a site visit to C & C Farms and spoke with Lesca in the farm office. Lesca provided Greene with a list of 26 persons who were working at C & C Farms on that date. Greene then examined the farm’s packing house and went into the fields where she observed workers harvesting yellow or summer squash. Although she observed the workers, Greene did not interview any of the workers to determine who they worked for or how they were being paid.
Greene returned to the farm office where she talked with Cordero. Cordero stated that the leasing company had cancelled C & C Farms’ workers’ compensation coverage, and that he was in the process of trying to obtain coverage.
Based on her observations, Greene determined that C & C Farms had more than five regular employees working and more than
12 seasonal employees working without proper coverage.
Therefore, she issued a Stop-Work Order and hand-delivered it to Cordero. Greene also served C & C Farms with a Request for Business Records for Penalty Assessment Calculation. The records requested the covered time period of April 17, 2010, through April 16, 2013. The Department sought records concerning payroll documents, account documentation, proof of workers’ compensation coverage, information provided to or used by the professional
employer organization, and proof of any independent contractor services. The Department’s request required C & C Farms to produce the records within five days.
On April 22, 2013, C & C Farms filed for an administrative hearing challenging the Stop-Work Order.
Again, C & C Farms failed to timely provide the requested business records.
On May 6, 2013, Greene, in follow-up to the Department’s business records request, returned to C & C Farms. At the work site, Greene observed workers in the packing area as well as in the fields. Further, she photographed time cards for four workers which showed that the workers had worked the time period from April 15 through April 22, 2013.
On May 6, 2013, C & C Farms was harvesting its yellow squash crop in violation of the Stop-Work Order issued on April 16, 2013.
Cordero and Carina Bezzolasco, a worker in the office, informed Greene that C & C Farms had applied for workers’ compensation insurance.
C & C Farms had completed a leasing contract with South East Personnel Leasing, Inc., on April 29, 2013, seeking coverage for eight listed employees. However, C & C Farms’ workers’ compensation insurance coverage did not begin until May 7, 2013, one day after Greene’s visit.
Greene contacted the Department’s Division of Fraud, and Cordero was arrested and charged with insurance fraud for violating the Stop-Work Order.
Concerning the calculation of the penalty assessment, Greene supplied information to Victoria Burkley (Burkley), a penalty assessment auditor. Greene supplied Burkley with the names of the workers that had signed in to work at C & C Farms on April 16, 2013, the type of produce she observed being harvested, and the list of employees confirmed by C & C Farms in its contract with Direct HR Service Services from February 2013.
Based on C & C Farms’ failure to provide the required business records, the Department imputed the payroll for 26 workers, and used the statutory penalty, which contained a penalty for violating the Stop-Work Order. The initial assessed penalty was for $404,409.54, which was provided to C & C Farms on May 7, 2013.
On May 10, 2013, C & C Farms entered into an Order of Conditional Release from the Stop-Work Order with the Department. C & C Farms paid a down-payment equal to 10 percent of the contested assessed penalty. Upon entry of the conditional release, C & C Farms was able to finish its harvest.
C & C Farms eventually provided the Department with bank records that included check images for the time period of April 2010 through April 2013. In addition to the check images,
C & C Farms supplied a document entitled Income Tax Detail, which appears to be a compilation of check dates, check numbers, names of check recipients, the check amounts and a categorization of the type of account or designation. C & C Farms, however, did not provide any other payroll documents, proof of workers’ compensation insurance, or proof of independent contractor services. Based on C & C Farms’ failure to provide the required business records, the Department properly determined to impute Respondent’s payroll for the time period of April 17, 2010, through April 16, 2013.
On April 16, 2013, C & C Farms was an “employer” and engaged in “employment,” as defined by chapter 440, Florida Statutes.
The undersigned finds Rodriguez’s testimony believable that on April 16, 2013, C & C Farms had the following employees:
1) Roberto Salas Analise; 2) Leesday San Martin; 3) Antonio Perez; 4) Jaime Perez; 5) Baltazar Padilla; and 6) Jeanette Lesca.
Further, the undersigned finds that Cordero, who is a co-owner or member of the limited liability company, is also an employee under the facts. He worked a variety of jobs on the farm, such as operating the tractor, spraying herbicide and pesticides, and received payments from C & C Farms for the past three years. These payments are for services, as opposed to
repayments of loans or a return on his investment, which according to Rodriguez and Cordero has been operating at a loss.
On April 16, 2013, C & C Farms failed to provide its seven employees with workers’ compensation insurance coverage.
The undersigned credits Rodriguez’s testimony that the remaining 21 individuals listed in the Department’s Second Amended Penalty Assessment were working for independent farm labor contractors, Star Agricultural and Sigma Harvesting to harvest and pack vegetables.3/
The factual finding that individuals, who worked the harvesting and packing, are independent farm laborers is supported by three facts: first, the crew leaders from the farm labor contractors supervise, determine the number of workers to be used in each task, and how each task was performed; second, Star Agricultural and Sigma Harvesting were paid by the bin for the squash harvested by these workers, and any losses caused by packing squash that fell below “grade” or defective quality were taken from payments made to Star Agricultural and Sigma Harvesting, as farm labor contractors; and third, the bank records show payments to farm labor contractors rather than individual workers.
The bank records show check images supporting Rodriguez’s testimony that on April 16, 2013, the farm hired Star Agricultural Contractor and Sigma Harvesting to provide workers.
The check images show checks written to Star Agricultural on April 19, 2013, for $4,367.00 and April 27, 2013, for the amount of $7,832.00. Similarly, C & C Farms wrote a check on April 17, 2013, to Sigma Harvesting for the amount of $2,980.00 and a debit on the account on April 17, 2013, in the amount of $10,132.00 payable to Sigma Harvesting, replacing two checks. Notably, absent from the review are any checks made payable to the 21 individuals listed in the Department’s Second Amended Penalty Assessment.4/
The undersigned does not credit or find believable the deposition testimony of Roberto Renderos Mendoza that fees paid by C & C Farms to Star Agricultural did not include any workers’ compensation coverage, and that Star Agricultural only acted as a pass through for paying the workers as designated by Cordero. Mendoza’s testimony is not believable because it is unsupported by any documentary evidence.
After receiving the additional records and deposition testimony during the pendency of this case, the Department entered a Second Amended Order of Penalty Assessment correcting the number of employees to 28. The second amended penalty assessment totaled $416,862.30.
The Class Code found in the penalty worksheet attached to the Department’s Second Amended Penalty Assessment for harvest crops, 0037, is the correct occupational classification for the
raising of crops in the National Council on Compensation Insurance Scopes® Manual.5/
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and subject matter of this proceeding. §§ 120.57(1) and 120.569, Fla. Stat.
The Department seeks to penalize Respondent for failing to secure the payment of workers’ compensation insurance coverage pursuant to section 440.107(7). Because the Department seeks a penalty here, the Department has the burden of proving its allegations by clear and convincing evidence.6/ See In re Davey, 645 So. 2d 398, 405 (Fla. 1994); Dep't of Banking & Fin. v. Osborne Stern & Co., Inc., 670 So. 2d 932 (Fla. 1996).
The Department is statutorily responsible for enforcing the law that employers secure the payment of workers’ compensation insurance for the benefit of employees.
§ 440.107(3), Fla. Stat. The law requires “[e]very employer coming within the provisions of this chapter shall be liable for, and shall secure, the payment to his or her employees . . . compensation payable under ss. 440.13, 440.15, and 440.16.”
§ 440.10(1)(a), Fla. Stat.
The term “employer” is defined by statute as “every person carrying on any employment . . . .” § 440.02(16)(a), Fla. Stat. In turn, “employment” is defined as “any service performed by an employee for the person employing him or her[,]” and
includes “[a]ll private employments in which four or more employees are employed by the same employer ”
§ 440.02(17)(a), (b). The term “employment,” however, expressly does not include:
Agricultural labor performed on a farm in the employ of a bona fide farmer, or association of farmers, that employs 5 or fewer regular employees and that employs fewer than 12 other employees at one time for seasonal agricultural labor that is completed in less than 30 days, provided such seasonal employment does not exceed 45 days in the same calendar year . . . .
§ 440.02(17)(c)2.
The term “employee” is defined as “any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment ”
§ 440.02(15)(a), Fla. Stat. The term “employee,” however, does not include an “independent contractor who is not engaged in the construction industry.” § 440.02(15)(d). The statute further sets out criteria that must be met for determining if an individual is an independent contractor. § 440.02(15)(d)1.a.(I)- (VI), (15)(d)1.b.(I)-(VII).7/ The individual “claiming to be an independent contractor has the burden of proving that he or she is an independent contractor for purposes of this chapter.” § 440.02(15)(c.)
Finally, whenever the Department determines that an employer has failed to provide its employees with workers’
compensation coverage, the failure is considered “an immediate serious danger to public health, safety, or welfare sufficient to justify service by the department of a stop-work order ”
§ 440.107(7)(a), Fla. Stat.
Applying the rules of law to the facts in the instant case, the Department proved by clear and convincing evidence that the C & C Farms is an “employer” and that it had failed to provide workers’ compensation insurance coverage to its employees. Further, the Department properly entered its Stop- Work Order on April 16, 2013, and C & C Farms violated that Stop- Work Order by continuing to work on May 6, 2013. Finally, the Department, however, did not prove by clear and convincing evidence that it correctly calculated the assessed penalty because it included persons who were shown to be employees of independent farm labor contractors, not employees, into the Second Amended Penalty Assessment. Thus, the penalty must be re- calculated.
At the onset, C & C Farms fits the definition of an “employer” and is engaged in “employment” of its seven employees. C & C paid its employees and the employees worked in a variety of jobs on the farm: from Padilla working as the night watchman; Lesca as an office worker; and the other individuals working a variety of jobs such as supervising pickers, packers, and laying plastic for the year’s planting. Because C & C Farms had more
than five regular employees on April 16, 2013, it is not entitled to the agricultural exclusion outlined in the definition of “employment” in section 440.17(c)2.
Moreover, it is undisputed that on April 16, 2013, that C & C Farms did not have workers’ compensation coverage for its employees. Consequently, the Department properly entered the Stop-Work Order, and issued a Request for Business Records for Penalty Assessment.
The Department failed to prove by clear and convincing evidence that C & C Farms had additional employees that it claimed in the Second Amended Order of Penalty Assessment. C & C Farms brought forward evidence showing that the individuals, with the exception of the seven employees identified in the Findings of Fact, were with independent farm labor contractors working with either Star Agricultural or Sigma Harvesting. The facts showed that C & C Farms paid both Star Agricultural and Sigma Harvesting,8/ rather than individual workers for harvesting the yellow squash crop. Moreover, additional facts showing that the workers were independent farm laborers are that the pay was based on the number of bins of squash picked; the crew chiefs determined how many workers were needed for harvesting and how many workers were needed for packing, thus, controlling how the job was performed; and that Star Agricultural and Sigma Harvesting would lose money if the produce harvested and packed
fell below grade. See 440.02(15)(d)1.a. (III), 1.b.(I),(III),(IV), and (V). Consequently, the undersigned finds that the Department should recalculate the assessed penalty for
seven employees.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that:
Respondent violated section 440.10 by failing to provide workers’ compensation coverage for seven employees;
Department properly entered the Stop-Work Order on April 16, 2013, and that Respondent violated the Stop-Work Order by continuing to work on May 6, 2013; and
Department should re-calculate the Order of Penalty Assessment for seven regular employees for the three-year period of April 17, 2010, through April 16, 2013, and include the
$1,000.00 penalty for violating the Stop-Work Order.
DONE AND ENTERED this 28th day of October, 2013, in Tallahassee, Leon County, Florida.
S
THOMAS P. CRAPPS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2013.
ENDNOTES
1/ References to Florida Statutes shall be the 2012 edition, unless otherwise stated in the Recommended Order.
2/ At the final hearing, Cordero testified with the aid of an interpreter. The Department suggests in its Proposed Recommended Order that Cordero’s understanding of English was greater than one would believe based on his use of an interpreter at the hearing. However, considering the important nature of the proceeding and the significant penalty involved, the undersigned does not find Cordero’s use of a translator at the hearing as evidencing that he was feigning his ability to understand English. The use of a translator was well-advised so that no misunderstanding would occur during the testimony.
3/ The names of the persons working at C & C Farms on April 16, 2013, as independent farm laborers were the following: Manuel Suron, Foresa Jusso, Misael Perez, Santiago Castro,
Elias Alvarez, Sergio Mitiz, Rodolfo Rodriguez, Maurillo Hernandez, Vicente Solano, Victorio Jimenez, Nelson Lopez, Calixto Lopez, Rogello Navarro, Javier Pena Flor, A. Solorio Garibay, Ziferino Fiores, Polo Castenade, Miguel Tum, Emelio Tum, Edgar Tum and Francisco Tum.
4/ On the day of the hearing, the Department attempted to introduce into evidence records from a Stop and Shop check cashing store, proposed Exhibit 32. These records had not been previously disclosed to Respondent’s counsel, and appeared to have been gathered outside of the discovery process. There was no showing that the Department obtained the records through a third party discovery subpoena that would have notified Respondent concerning the records. Moreover, the Department had not taken a deposition of the Stop and Shop records custodian, that would have attached the record and authenticated the documents. Rather the records were offered with an affidavit stating that the records were authentic. Respondent objected to the admission of the records as prejudicial. (R- 109-112). The Department represented that Respondent had not been available for document exchange, so the parties had not complied with the Pre- Hearing Instructions. Based on the lack of notice of the records, the undersigned excluded the records. In any event, the undersigned found that Cordero’s testimony that the checks written to Abul Rahim or Stop and Shop as repayment for short- term high interest loans for keeping the farm operating, as opposed to any payroll, was credible.
5/ The Florida Administrative Code Rule 69L-6.031(6), effective October 29, 2006, incorporates by reference the SCOPES Manual Classifications (October 2005) published by National Council on Compensation Insurance. SCOPES Manual incorporates that Class Code 0037 as applying to all acreage devoted to raising crops. Respondent argues that Class Code 0008 should apply because summer or yellow squash has a quick growing cycle, and that the SCOPES Manual recognizes that Class Code 0037 contemplates crops with longer growing cycles. While this may have some merit, the SCOPES Manual does not show that Florida has adopted Class Code 0008 as an exception to the general rule that Class Code 0037 applies to crops. Therefore, the Department’s use of Class Code 0037 is proper in its imputation of Respondent’s payroll.
6/ “Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
7/ Section 440.02(15)(d)b sets out the following facts as demonstrating that a person is acting as an independent contractor: Importantly, an individual may be “presumed to be an independent contractor and not an employee” based on conditions identified in the statute. § 440.02(15)(d)1. (I)-(VII).
Specifically, an individual may be presumed to be an independent contractor when any of the following conditions are found:
d) “Employee” does not include:
An independent contractor who is not engaged in the construction industry.
In order to meet the definition of independent contractor, at least four of the following criteria must be met:
The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations;
The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal regulations;
The independent contractor receives compensation for services rendered or work performed and such compensation is paid to a business rather than to an individual;
The independent contractor holds one or more bank accounts in the name of the business entity for purposes of paying business expenses or other expenses related to services rendered or work performed for compensation;
The independent contractor performs work or is able to perform work for any entity in addition to or besides the employer at his or her own election without the necessity of completing an employment application or process; or
The independent contractor receives compensation for work or services rendered on a competitive-bid basis or completion of a task or a set of tasks as defined by a contractual agreement, unless such contractual agreement expressly states that an employment relationship exists.
If four of the criteria listed in sub- subparagraph a do not exist, an individual may still be presumed to be an independent contractor and not an employee based on full consideration of the nature of the individual situation with regard to satisfying any of the following conditions:
The independent contractor performs or agrees to perform specific services or work for a specific amount of money and controls the means of performing the services or work.
The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform.
The independent contractor is responsible for the satisfactory completion of the work or services that he or she performs or agrees to perform.
The independent contractor receives compensation for work or services performed for a commission or on a per-job basis and not on any other basis.
The independent contractor may realize a profit or suffer a loss in connection with performing work or services.
The independent contractor has continuing or recurring business liabilities or obligations.
The success or failure of the independent contractor’s business depends on
the relationship of business receipts to expenditures.
Notwithstanding anything to the contrary in this subparagraph, an individual claiming to be an independent contractor has the burden of proving that he or she is an independent contractor for purposes of this chapter.
8/ The undersigned recognizes that under section 450.30(1), Florida Statutes, no person may act as a farm labor contractor without a certificate of registration by the Florida Department of Business and Professional Regulation. Further, the Department is correct in its Proposed Recommended Order, citing section 450.35, Florida Statutes, that it is “unlawful for any person to contract with or employ any farm labor contractor as defined in this act, for matters relating to farm labor, until the labor contractor displays to him or her a current certificate of registration issued by the department pursuant to the requirements of this part. A violation of this section is subject to the penalties provided for violations in s.
450.38(1).” The facts showed that Star Agricultural was a properly certified farm labor contractor. However, Sigma Harvesting, while a legal Florida entity, had not received the proper certificate from the Florida Department of Business and Professional Regulation. Although there may be a violation of chapter 450 by C & C Farms and Sigma Harvesting, the instant case only concerns violations of chapter 440. Therefore, the issue concerning any potential chapter 450 violation is not before the undersigned. Moreover, unlike a construction case, the failure of Sigma Harvesting and Star Agricultural to secure workers’ compensation coverage here does not make C & C Farms the statutory employer required to provide coverage. See generally Wood v. Southern Crane Serv., Inc., 117 So. 3d 65 (Fla. 1st DCA 2013)(reversing summary judgment in favor of subcontractor on issue of workers’ compensation immunity where the evidence did not support the conclusion that the injured plaintiff was a statutory employee of the general contractor).
COPIES FURNISHED:
Alexander Brick, Esquire Department of Financial Services
200 East Gaines Street Tallahassee, Florida 32399
Kristian Eiler Dunn, Esquire Dickens and Dunn, P.L.
517 East College Avenue Tallahassee, Florida 32301
Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services
200 East Gaines Street Tallahassee, Florida 32399-0390
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 16, 2013 | Agency Final Order | |
| Oct. 28, 2013 | Recommended Order | Respondent failed to provide workers' compensation coverage for seven employees, and was not entitled to the agricultural exemption of definition of employment. |
