The Issue The issue is whether the claims of $98,935.20 and $19,147.70, filed by Petitioner under the Agricultural Bond and License Law, are valid. §§ 604.15 - 604.34, Fla. Stat. (2008).
Findings Of Fact At all material times, Petitioner has been a producer of agricultural products located in Plant City, Florida. At all material times, American Growers has been a dealer in agricultural products. Respondent Lincoln General Insurance Company, as surety, issued a bond to American Growers, as principal. American Growers is licensed by the Department of Agriculture and Consumer Services ("DACS"). Between December 16, 2008, and February 4, 2009, Petitioner sold strawberries to American Growers, each sale being accompanied by a Passing and Bill of Lading. Petitioner sent an Invoice for each shipment, and payment was due in full following receipt of the Invoice. Partial payments have been made on some of the invoices, and as of the date of this Recommended Order, the amount that remains unpaid by American Growers to Petitioner is $117,982.90, comprising: Invoice No. Invoice Date Amount Balance Due 103894 12/16/08 $7,419.00 $1,296.00 103952 12/22/08 $18,370.80 $1,944.00 103953 12/23/08 $3,123.60 $648.00 193955 12/26/08 $8,164.80 $1,728.00 103984 12/28/08 $28,764.40 $28,764.40 104076 12/31/08 $17,236.80 $17,236.80 104077 1/5/09 $17,658.00 $17,658.00 104189 1/5/09 $1,320.90 $1,320.90 104386 1/20/09 $16,480.80 $16,480.80 104517 1/29/09 $17,449.20 $17,449.20 104496 2/4/09 $13,456.80 $13,456.80 TOTAL $117,982.90
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring Respondent, American Growers, Inc., and/or its surety, Respondent, Lincoln General Insurance Company, to pay Petitioner, Crown Harvest Produce Sales, LLC, the total amount of $117,982.90. DONE AND ENTERED this 18th day of May, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 18th day of May, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture and Consumer Services The Capital, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, Mail Station 38 Tallahassee, Florida 32399-0800 Glenn Thomason, President American Growers, Inc. 14888 Horseshoe Trace Wellington, Florida 33414 Katy Koestner Esquivel, Esquire Meuers Law Firm, P.L. 5395 Park Central Court Naples, Florida 34109 Renee Herder Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Boulevard, Suite 155 Tampa, Florida 33634 Glenn C. Thomason, Registered Agent American Growers, Inc. Post Office Box 1207 Loxahatchee, Florida 33470
The Issue Whether the Petitioner established that it is entitled to compensation pursuant to sections 604.15 through 604.34, Florida Statutes (2013).1/
Findings Of Fact The Petitioner grows and sells grass sod in the State of Florida, thus, meeting the statutory definition of a "producer of agricultural products."2/ Respondent is a licensed "dealer in agricultural products," as defined by chapter 604, Florida Statutes.3/ Sometime in November 2013, the Petitioner and American Sod entered into a verbal contract, where the Petitioner would furnish bahia grass sod for Respondent. The initial invoices for deliveries to American Sod on November 7, 8, 11 and 14, 2013, show that the Petitioner charged American Sod $0.055 for each sod square delivered. However, the price increased to $0.065 for each sod square on November 15, 17, 21, December 10, and 17, 2013, based on the agreement of the parties that the price would increase if American Sod failed to timely pay the invoices. Here, it is not disputed that American Sod failed to timely pay the Petitioner for its sod. The invoices and testimony show that the Petitioner charged American Sod for sod, as well as for deposits on the wooden pallets used for delivery of the sod. The total amount owed by American Sod is $4,378.92. Out of this total amount owed, the facts show that $3,016.92 is attributed to American Sod's failure to pay for the sod and $1,362.00 is for the pallets.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, American Sod Services, Inc., pay the Petitioner, Other Side Sod Company, LLC, the sum of $3,016.92. It is further RECOMMENDED that if American Sod fails to timely pay the Petitioner, as ordered, that the Respondent, Auto-Owners Insurance Company, as surety, be ordered to pay the Department of Agriculture and Consumer Services as required by section 604.21, Florida Statutes, and the Department reimburse the Petitioner as set out in section 604.21, Florida Statutes. DONE AND ENTERED this 20th day of August, 2014, 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 20th day of August, 2014.
The Issue Petitioner claims that Respondent owes approximately $6,000.00 for the purchase of grass sod. Respondent argues that the funds claimed by Petitioner are for repairs on equipment, not sod, and that its only indebtedness to Petitioner is $6.00, mistakenly omitted from a payment. The issue is whether Petitioner's claim is proper and cognizable under section 604.31, F.S., related to complaints of breach of agreement by a licensed dealer in agricultural products.
Findings Of Fact Hillside Sod Farms, Inc. (Hillside) produces grass sod for sale to landscaping firms and similar customers. Its business address is 1620 East State Road 46, Geneva, Florida. Bill Hatfield Enterprises, Inc. d/b/a Bill's Landscaping (Hatfield) is a licensed dealer in agricultural products, bonded by Ohio Casualty Insurance Company, as surety. Hatfield's business address is 1116 State Road 434, Winter Springs, Florida. Sometime around April 1989, Hatfield began purchasing sod from Hillside. Hatfield uses a lot of sod in his landscaping business. The arrangement between the parties was that Hillside would charge an extra 1/2 cent a square foot on his price for the sod for the use of heavy equipment (forklifts). Hillside owns twenty-seven such machines and loaned three out to Hatfield. The equipment stayed at Hatfield's job sites and was operated by Hatfield's crew. When the equipment broke down, Hatfield notified Hillside, who had it repaired. At least some of the repair bills were sent to Hatfield, who paid them. Sometime around the end of September 1989, Avery Wisdom complained to Bill Hatfield about what he thought was an excessive amount of repairs on his equipment. He felt Hatfield's workers were rough on the machines. He suggested several alternatives, including pulling the machines off the jobs and letting Hatfield provide his own machines. He also suggested that he could purchase new equipment and let Hatfield pay all its expenses over a period of time, ultimately buying the equipment, in a lease-purchase type of arrangement. Another suggestion was that he would get the equipment overhauled and let Hatfield pay all the repair bills. Suggestions one and two were apparently rejected, and it is not clear that suggestion three was formally accepted. Nothing was put in writing. Hatfield claims now that he offered to pay an additional 1/2 cent per square foot of sod for the use of the equipment. Avery Wisdom claims that he did raise the price of his sod, but that it was an across-the-board price increase for all of his customers due to increased costs of production, and not related to rental. The October 9, 1989 invoice #13290 from Hillside to Bill's Nursery reflects an increase of $2.00 per pallet of Bahia sod and $2.50 per pallet of Floratam sod, or 1/2 cent per square foot increase. Debra Ludewig, the bookkeeper and general office manager for Hatfield, asked Hatfield why the price" went up, and he told her it was for the equipment. Hillside continued to bill Hatfield for repairs on the equipment after October 1989. These repair costs are reflected on invoices to Bill's Landscaping and are backed up by separate special "repair order" forms itemizing each repair bill. The "special repair order" forms were also furnished to Bill's Landscaping. The repairs are listed on the invoices with a date, reference to the "special repair order" (SRO number), and a total cost which is calculated into the purchaser's running total at the bottom of the invoice. Payments were made on a continuing basis by Hatfield in varying amounts, and rarely in an exact amount to correspond to the total on an invoice. That is, Bill's Nursery maintained a running balance of its account with Hillside, sometimes totalling as much as $20,000.00. Each time she made a payment to Hillside, Debra Ludewig wrote the invoice number on the check. Sometimes more than one check would reflect a single invoice number. After October 1989, Debra Ludewig started deducting the repair bill portion of the invoices when she computed her payments to Hillside. She did this on her own initiative, without direction from Hatfield, because she understood that the 1/2 cent price increase was to cover the repairs. She did not question why the repair bills were being sent and were still being included on the invoices; she just deducted them without any notice to Hillside. In the meantime, the invoices kept coming from Hillside, showing the running balance on Hatfield's account. The top of the invoices reflected the prior outstanding balance, then payments since the last invoice, then additional charges for sod, then repair orders (if any), and then the total amount outstanding. It is clear from the invoices maintained by Hillside and provided to Hatfield, that Hillside was applying Hatfield's checks to the total outstanding balance, which balance included any repair bills, as well as sod delivered. On the other hand, the invoice numbers referenced on Hatfield's checks to Hillside substantiate that Ms. Ludewig was unilaterally deducting sums from certain invoices, which sums corresponded to the amounts being charged for repairs. It is not clear that Hillside was aware of the bookkeeping discrepancy, as nothing was said about deducting the repair bills until the parties' relationship came to an end in June 1990. Hatfield found a new sod producer, claiming that a customer complained about the quality of Hillside's sod. The total amount of repairs charged by Hillside to Hatfield between October 1, 1989, and June 1990, was $7150.25, compared to approximately $300,000.00 for sod,. The final invoice from Hillside to Bill's Landscaping reflected a total balance due of $13,872.59. This invoice #14070 is dated June 18, 1990. On June 21, 1990 and June 29, 1990, payments were made by Hatfield in the amounts of $3,000.70 and $4,641.00 respectively. This left a balance due of $6,230.89. Avery Wisdom concedes that this total should be adjusted: an invoice #13256 (9/22/89) charged $4.50 sales tax in error, and invoice #13406 (11/13/89) included a math error in the amount of $206.70. The proper adjusted total is $6,019.69. The last invoice to include repairs to equipment is dated April 16, 1990. After that date, according to invoices dated from April 23, 1990 to June 18, 1990, Hatfield purchased $39,943.98 in sod from Hillside. The most recent $6,019.69, therefore, is not attributable to repairs.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department enter its final order finding Respondent indebted to Petitioner in the amount of $6,019.69 and requiring payment within fifteen (15) days after the order becomes final as provided in Section 604.21(7), F.S. DONE and ORDERED this 9th day of April, 1991, in Tallahassee, Florida. MARY CLARK 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 this 9th day of April, 1991. COPIES FURNISHED: Avery P. Wisdom, President Hillside Sod Farms, Inc. 1620 E. State Road 46 Geneva, FL 32732 Bill Hatfield, President Bill Hatfield Enterprises, Inc. d/b/a Bills Landscaping 1116 State Road 434 Winter Springs, FL 32708 Ohio Casualty Insurance Company 136 North Third Street Hamilton, OH 45025 Clinton H. Coulter, Jr., Senior Counsel Dept. of Agriculture & Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800 The Honorable Bob Crawford Commissioner of Agriculture Dept. of Agriculture & Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Dept. of Agriculture & Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800
The Issue The issue in this case is whether Petitioner is entitled to payment from Respondent for sod that it sold.
Findings Of Fact Petitioner grows sod and sells it to persons who are in the business of installing sod. Respondent installs sod for its customers, such as homeowners, businesses, and schools. Both parties are experienced in the sod business, although Respondent has more experience than Petitioner with Floratam sod. Respondent is a large user of sod. Petitioner sold from 3-6 loads daily to Respondent from July to October, 1993. Until the loads in question, there were no problems, and Respondent paid for the sod. On October 5, 1993, Petitioner sold Respondent 18 pallets of Floratam sod. At the agreed-upon rate of 6 cents per square foot, the price of this sod was $432. The next day, Petitioner sold Respondent 36 pallets of Floratam Sod for $864. On October 11, Petitioner sold Respondent 34 pallets for $816. The next day, Petitioner sold Respondent 18 pallets for $432. And on October 14, Petitioner sold Respondent 18 pallets for $432. The total price of the Floratam sod sold to Respondent was thus $2976. For each sale, Petitioner cut the sod and loaded it on the truck of an independent contractor hired by Respondent to transport the sod to the customer's site for installation. For each load, the driver signed an invoice indicating the amount of sod and stating: Your signature acknowledges acceptance. Any claims must be made within 24 hours of delivery or pick up. A 1.5 percent (18 percent per annual) service charge will be added to all accounts 30 days past the invoice date. In the event it is necessary to turn the invoice over for collection or the same has to be collected upon demand of an attorney[,] purchaser agrees to pay all attorney's fees and costs for such collection. The sod was in below-average condition. Petitioner agreed to sell it, and Respondent agreed to buy it, in "as is" condition. The sole warranty attaching to the sod was that Respondent could assert a claim against Petitioner if the claim was asserted within 24 hours of pick up. Sod harvested in early October has undergone the stress of summer weather, in which heat and moisture can damage the grass and leave it in weakened condition. There was little sod left in the area, Respondent's demand for sod due to contractual commitments was great, and Respondent was left with few options but to try to use Petitioner's sod. The price paid by Respondent was somewhat reduced to reflect the below-average condition of the sod. Several factors militate against Respondent's claim that the sod was of such poor quality as to warrant cancellation of the invoiced amounts. First, Respondent did not timely assert a claim against the sod. Respondent did not assert a claim within the 24 hours set forth in the invoices. More important, Respondent ignored subsequent billings for the sod and did not complain about the sod until Petitioner's president spoke with Respondent's president and demanded payment. This conversation took place about 70-80 days after the sales. Other important factors undercutting Respondent's defense are the satisfaction of other purchasers of sod in the same time period and the questionable cultivation practices of some of Respondent's customers. Several persons bought Floratam sod from Petitioner in late September and early October. In most cases acknowledging that the sod was in below-average condition, these purchasers reported that they knew that the sod was purchased in "as is" condition and that, with appropriate irrigation and fertilizing, the sod was successfully established in the customers' property. The record suggests that the some of Respondent's customers, including a major institutional customer, may not have been as careful in maintaining the newly installed sod that was already in somewhat stressed condition.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding Respondent liable for the sum of $2976, plus interest at 18 percent annually, and, if Respondent does not pay said amount, ordering the surety to pay said amount, up to the amount of the bond. ENTERED on April 20, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 20, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-8: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3-6: rejected as subordinate. 7-8: adopted or adopted in substance. 9: rejected as subordinate. 10-14: adopted or adopted in substance. 15: rejected as subordinate. 16-22: rejected as unsupported by the appropriate weight of the evidence. 23: rejected as unsupported by the appropriate weight of the evidence to the extent of implication that Respondent initiated the call to express his concerns about the sod quality. 24-26: rejected as subordinate. 27: rejected as recitation of evidence and subordinate. 28-30: rejected as subordinate. 31: [omitted from proposed recommended order]. 32: rejected as irrelevant given "as is" nature of subject transaction, as well as limitation of this remedy to sod against which timely claims are made. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Attorney Kristy C. Shaffer P.O. Drawer 1820 LaBelle, FL 33935 John Charles Coleman Coleman & Coleman 2300 McGregor Blvd. Ft. Myers, FL 33901 Ohio Casualty Insurance Co. Legal Department 136 North Third St. Hamilton, OH 45025
The Issue 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.
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/
Recommendation 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.
Findings Of Fact Petitioner, Hillside Sod Farms, Inc., is a producer of agricultural products, grass sod. Respondent, S. J . Harper Landscaping Enterprises, Inc., is a dealer of such products in the normal course of its landscaping business activity. Petitioner generally deals on a cash basis with customers, unless the customer is licensed by the Department of Agriculture and Consumer Services for the sale of agricultural products. Customers who are licensed may maintain an open account status with Petitioner. Respondent is licensed by the Department. The Respondent has maintained an open account with Petitioner since 1986. Petitioner sold Respondent grass sod by the truck load for various projects, and was given an invoice therefor. Under the terms of the account, payment was due in full the week following receipt of the sod. On November 21, 1988, including invoice number 12284, Respondent's account balance was $2,098.80. On November 25, 1988, the account balance was $3,129.12. On December 12, 1988, Respondent paid on the account the sum of $2,594.88, leaving a balance due, owing and unpaid of $534.24. Respondent's alleged that in early November, 1988 several trucks loads that were accepted by Respondent were short of sod by approximately eight pallets (each pallet contains 400 square feet of sod) Simon J. Harper, Respondent'S president, reported this fact to Petitioner's foreman, Larry Poole, at night after the work day. He did not reject the trucks with the lesser amount of sod on them, but accepted them. Respondent did not file a complaint or objection to the billing, verbally or in writing, to an officer in the Petitioner's company, although he had dealt with the company for years. Respondent estimated the amount of sod it believed they had been shorted and sent a check for the unpaid balance, less the charges for shorted sod. The amount withheld was the sum of $534.24.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $534.24. DONE AND ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 January, 1990. COPIES FURNISHED: Avery P. Wisdom Vice President Hillside Sod Farms, Inc. 1620 East State Road 46 Geneva, FL 32732 Simon J. Harper President S. J. Harper Landscaping Enterprises, Inc. 205 Zenith Point Geneva, FL 32732 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Ben H. Pridgeon, Jr. Chief Bureau of License and Bond Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32399-0810 Mallory Horne General Counsel 515 Mayo Building Tallahassee, FL 32399-0800
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: On January 9, 1986, Ron Brooks, Crew Chief Compliance Officer for the Bureau of Agricultural Programs performed a compliance check in a citrus grove on Lindsey Road, Indian River County, owned by Hamilton Groves of Vero Beach, Florida. Brooks observed Hector Florez and Juan Florez apparently supervising two crews harvesting crops across the road from one another. When Brooks confronted the two men, neither Hector nor Juan Florez could produce a certificate of registration and there were no "Work Conditions Statement" postings at either worksite. Both Hector and Juan Florez stated that the Respondent, Noe Florez, was the contractor and that they worked for him. They stated that Respondent was running another crew at a different location. Later that day, Brooks' investigation revealed that Richard Kirkland was the primary contractor. When Brooks spoke with Kirkland, Kirkland stated that the workers were split up into three crews and that Respondent worked for him and was in charge of all three crews. On January 9, 1986, the Respondent was not registered as a farm labor contractor with the Department of Labor and Employment Security. Brooks subsequently issued violation citations to Richard Kirkland for working an unregistered crewleader and to Respondent, for failure to register as a farm labor contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a civil penalty of $1,000 be assessed against Respondent. DONE and ORDERED this 17th day of April, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4344M The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Rejected as unnecessary and/or subordinate. Addressed in Procedural Backgrounds Section. COPIES FURNISHED: Moses E. Williams, Esquire. Department of Labor and Employment Security The Montgomery Bldg., Suite 117 2562 Executive Center, East Tallahassee, Florida 32399-0658 Noe B. Florez 6990 45th Street Vero Beach, Florida 32960 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0658 Hugo Menendez Secretary Department of Labor and Employment Security 206 Berkeley Bldg. 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue The issue is whether respondent, Eugene Martinez, should have a $1,500 civil penalty imposed for allegedly violating Sections 450.33(5) and and 450.35, Florida Statutes (1989)
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on the morning of January 29, 1990, when Larry Coker, a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made a routine inspection of a citrus harvesting crew working in an orange grove owned by Adrian Chapman and located one-half mile east of State Road 39 in DeSoto County, Florida. The purpose of the inspection was to determine whether the crew and its supervising contractor were in compliance with state regulations. Upon entering the premises, Coker observed a crew of approximately seventeen workers harvesting fruit in the citrus grove. An individual by the name of Martin R. Olvera was operating a high lift at the work site. Coker approached Olvera and asked him who was the farm labor contractor for the crew. Olvera responded that the licensed farm contractor was respondent, Eugene Martinez, but that Martinez had authorized him (Olvera) to supervise the crew that day in Martinez's absence. Olvera acknowledged that he was being paid $40 per day by respondent to supervise the loading of fruit and transport the workers from LaBelle to the grove. Division records reflect that Olvera is not licensed by the Division to perform those activities. A few minutes after Coker completed his inspection, respondent arrived at the work site. He readily acknowledged that Olvera was acting as a farm labor contractor without a license. By allowing Olvera to supervise a crew without a proper license, respondent used an unregistered farm labor contractor in contravention of the law. Olvera had transported the workers to the field that day in respondent's 1973 Ford bus. Respondent acknowledged that he did not have the proper liability insurance on the vehicle or the required inspection sticker. Both are required by law and agency rules. After being issued a citation that morning, respondent obtained the necessary insurance on his vehicle that afternoon. A vehicle inspection was obtained two days later. In addition, respondent initiated the necessary paperwork for Olvera to become a registered farm labor contractor. Because of those prompt efforts to satisfy Division requirements, respondent asked that he be given leniency on any civil fine. He has been unable to work since losing his right leg in an accident in May 1990 and is presently experiencing financial problems. There is no evidence that respondent has ever been disciplined by the Division for a violation of the law or agency rules.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent Eugene Martinez has violated Sections 450.33(5) and (9) and 450.35, Florida Statutes (1989). It is further recommended that respondent be fined $600, such fine to be paid within thirty days from date of the final order entered by the Division. DONE and ENTERED this 9 day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER 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 this 9 day of November, 1990. APPENDIX Petitioner: Partially adopted in findings of fact 1 and 2. Partially adopted in finding of fact 3. Partially adopted in finding of fact 4. Note - Where a finding of fact has been partially used, the remainder has been rejected as being unnecessary, cumulative, subordinate, irrelevant or not supported by the evidence. COPIES FURNISHED: Frances R. Rivera, Esquire The Hartman Building, Suite 307 2012 Capital Circle, S.E. Tallahassee, FL 32399-0657 Mr. Eugene Martinez P. O. Box 2194 LaBelle, FL 33935 Hugo Menendez, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658 Steven D. Barron, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658
Findings Of Fact During January and February, 1987, Respondent acted as a farm labor contractor without a certificate of registration having been issued to him by Petitioner. Specifically, he was hired by Goodson Farms as a farm labor contractor, after holding himself out as such, and did act as a farm labor contractor by supplying and transporting 55 to 75 farm workers for the harvesting of cauliflower at Goodson Farms. He received payment for his services and disbursed payments to these workers. Respondent has failed to possess, for a period of three years, proof of payments he has made to each farm worker for whom he has acted as a farm labor contractor. Records he did provide to Herb Mize, crew chief compliance officer, were incomplete and did not include a record of payments for social security, income taxes withheld, and deductions for food and transportation.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing an administrative penalty of $1400.00 against Respondent. DONE AND ENTERED this 23rd day of October, 1987, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle East Montgomery Building, Suite 117 Tallahassee, Florida 32399-2152 James Quillen, II, Esquire 509 North Morgan Street Tampa, Florida 33602 Hugo Menendez, Secretary Department of Labor and Employment Security 2590 Executive Center Circle East 206 Berkeley Building Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 2562 Executive Center Circle East 131 Montgomery Building Tallahassee, Florida 32399-2151
