The Issue The issue is whether the application filed by Mr. Johnson for a certificate of registration as a Florida Farm Labor Contractor should be issued by the Department.
Findings Of Fact Mr. Johnson had been the subject of a prior administrative complaint by the Department of Labor and Employment Security Case No. 88-3795. In that proceeding he was represented by Mr. Thomas Montgomery, Esquire, of Belle Glade, Florida. That proceeding involved an earlier application by Mr. Johnson for a certificate of registration as a Florida Farm Labor Contractor, which the Department denied because Mr. Johnson was liable for unpaid unemployment compensation taxes in the amount of $1,400, and under Rule 38B-4.06(5), Florida Administrative Code, he was ineligible for registration until those unemployment compensation taxes had been paid. The parties had reached a stipulated settlement in that action, under which Mr. Johnson agreed to pay $100.00 per month until the balance due had been paid in full. That stipulation had been signed by Mr. Montgomery, the lawyer for Mr. Johnson. The stipulation was filed on November 18, 1988, with the Division of Administrative Hearings, and consequently an Order Closing File was entered in Case No. 88-3795. Mr. Johnson failed to make payments in accordance with the stipulation agreement. Given the accrued interest and penalties, Mr. Johnson is currently indebted to the State of Florida for unpaid employment compensation taxes, interest, penalties and filing fees in the amount of $2,213.94. Mr. Johnson's failure to make payment as required under the stipulation which he entered into in settlement of Case No. 88-3795, his prior application for a certificate of registration as a Farm Labor Contractor, causes the Hearing Officer to disbelieve that Mr. Johnson was mistaken as to the location of the hearing. The Notice of Hearing was clear. Mr. Johnson has also failed to answer requests for admissions and interrogatories served upon him in this proceeding. Mr. Johnson is continuing to engage in a pattern of conduct designed to evade his responsibility to pay unemployment compensation taxes which he owes. His application for a certificate of registration filed June 4, 1990, should be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of James Johnson for a certificate of registration as a Florida Farm Labor Contractor. DONE and ENTERED this 30th day of November, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 30th day of November, 1990. Copies furnished: Francisco Rivera, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-0658 James Johnson 391 Shirley Drive Pahokee, Florida 33034 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-0658
Findings Of Fact Respondent is currently a registered farm labor contractor with Social Security Number 248-92-9496 and certificate number 4-92-9496-G87R. On or about February 11, 1986, Respondent acted as a farm labor contractor without a certificate of registration which was in full force and effect, and in her possession. While acting as a farm labor contractor in February, 1986, she failed to display prominently at the site where work was to be performed, and also failed to display on all vehicles she used to transport employees, a written statement in the workers' language showing the rate of compensation she received from the grower, and the rate of compensation she was paying her employees. In connection therewith, Respondent also failed to submit evidence to Petitioner that each vehicle she used to transport employees complied with the requirements of Chapters 316 or 320, Florida Statutes, prior to transporting farmworkers, or in lieu thereof, bore a valid inspection sticker showing the vehicle had passed the inspection in the state in which it was registered. She also failed to submit proof that she had taken out a policy of insurance to insure against liability for damage to persons or property arising out of the operation or ownership of a vehicle she used in February, 1986, to transport workers in connection with her acting as a farm labor contractor. Respondent failed to prominently display a copy of her application for a certificate of registration at the site where work was being performed in February, 1986 and also on all vehicles she used to transport employees. Prior to contracting for the employment of farmworkers, Respondent did not insure that the farm labor contractor displayed to her a current certificate of registration issued by Petitioner.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing an administrative penalty of $2600.00 against Respondent. DONE AND ENTERED this 8th day of June, 1987, in Tallahassee, Leon County, Florida. DONALD 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 8th day of June, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32399-2152 Mary L. White 13 Garvey Lane Frostproof, Florida 33843 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2151
Findings Of Fact At all times pertinent to this proceeding, Respondent was a registered farm labor contractor whose Social Security number is 266-30-9569. Respondent worked as a farm labor contractor only during the potato season which usually begins in March or April. Therefore, Respondent did not apply for certification as a farm labor contractor until March 31, 1986 even though his previous certification as a farm labor contractor had expired on December 31, 1985. There was credible evidence that Respondent had been using a 1968 Chevrolet vehicle to transport farm workers which carried a valid inspection sticker and was covered by Respondent's liability insurance. The 1968 Chevrolet "broke down" and was replaced by a 1974 Dodge Van on May 6, 1986 which had passed inspection on May 6, 1986 and added to Respondent's liability insurance policy on the same date. There was credible evidence that a valid inspection certificate and insurance certificate for the 1974 Dodge Van had been furnished to Petitioner's local office in Palatka on May 1986 but was not received in Petitioner's Tallahassee Office where the official files are maintained until a later date. On May 6, 1986, Respondent was cited for failure to have the 1974 Dodge Van properly insured and inspected. There were other violations cited but the Petitioner resolved those in favor of Respondent. There was credible evidence that Respondent had operated as a farm labor contractor for a substantial number of years without being cited for any violations under the Farm Labor Registration Law, Chapter 450, Part III, Florida Statutes. Respondent is a farm labor contractor as that term is defined in Section 450.2(1), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, enter a Final Order dismissing all charges filed against the Respondent. Respectfully submitted and entered this 9th day of July, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 9th day of July, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Security Tallahassee, Florida 32301 Willis Glover 21 North Main Street Crescent City, Florida 32012 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue Whether respondent's license as a registered residential contractor and a registered plumbing contractor should be disciplined on charges that he unlawfully (1) diverted funds received for the purchase of a lot and construction of a home; (2) acted in the capacity of a contractor and used a name other than that appearing on his license; (3) aided and abetted an uncertified or unregistered person to violate the Construction industry Licensing Law; and (4) failed to properly qualify percent business organization.
Findings Of Fact Respondent Is a Licensed Contractor At all times material to the charges, respondent John W. Powell was licensed as a registered residential contractor (license no. RR 0002745) and a registered plumbing contractor (license no. RF 0038050). (Prehearing Stipulation; P-7) Respondent's Sale and Conveyance of Real Property In October, 1978, Joseph J. D'Antoni, a resident of Baltimore, Maryland, visited Indian Lake Estates Subdivision ("Subdivision") in Polk County, Florida, with the intention of purchasing a lot. Respondent, who owned numerous lots in the Subdivision, agreed to sell two lots to Mr. D'Antoni (and his brother-in-law) for the sum of $7,500. Mr. D'Antoni gave him a $1,000 payment, then mailed him the $6,500 balance after returning to Maryland. (Testimony of D'Antoni; P-2) Respondent then executed and mailed a warranty deed conveying Lot 5, Block 340, Indian Lake Estates Subdivision, Unit II, to Mr. D'Antoni and his wife. He used a standard warranty deed form printed for Lawyers' Title Guaranty Fund, Orlando, Florida, and conforming to Section 689.02, Florida Statutes. As grantor, he "fully warrant[ed] the title to said land, and [promised to] defend the same against the lawful claims of all persons whomsoever." (Testimony of D'Antoni; P-2) The deed was prepared by John P. White, an attorney in Lake Wales, Florida. Although respondent, as grantor, did not limit his warranty except for a standard limitation relating to taxes, easements, restrictions, and conditions of record), the preparer of the deed included a personal disclaimer indicating that he (the preparer) was expressing no opinion as to the condition of title: The preparer of this instrument was neither furnished with or requested to review an abstract on the described property and therefore expresses no opinion as to the condition of title. (P-2) Mr. D'Antoni was unaware that the property was encumbered by a mortgage held by the First Highlands Service Corporation. The mortgage had been executed by respondent in 1973. It covered numerous lots in the Subdivision and secured a loan of $330,000. Mr. D'Antoni, who trusted respondent, thought that he was receiving the property free and clear of encumbrances. Respondent did not tell him otherwise. Although the title disclaimer was not read by Mr. D'Antoni, it, by its terms, applied only to Mr. White, the identified preparer of the deed. It did not affect the warranty of title given by respondent, the grantor. (Testimony of D'Antoni; P-2) A year later, in December, 1979, First Highlands Service Corporation sued the D'Antonis, Joseph Giardina, (his brother-in-law), and 19 other owners, seeking to foreclose its mortgage covering the Subdivision lots. In order to obtain release from the mortgage, the D'Antonis and Mr. Giardina paid First Highland Service Corporation $4,000 each. Respondent neither defended their title to the property, nor repaid them the $4,000. (Testimony of D'Antoni; P-4, P-5) Respondent's Construction of a House for the D'Antonis On November 6, 1978, after the deed to lot 5 was executed and delivered, the D'Antonis executed a construction contract with J. W. Powell and Sons, Inc. Respondent, who signed as President of J. W. Powell and Sons, Inc., had not qualified that company with the Florida Construction Industry Licensing Board. (Testimony of D'Antoni; Prehearing Stipulation, P-6) Under the contract, respondent agreed-to build a house on lot 5, in accordance with certain specifications, for $42,000. Item 10 of Article 8 specifies that the price includes "city water." The home was built; the D'Antonis paid the purchase price, then moved in. Some time later, they were sued by Consolidated Utility Company for $425, the waterline connection fee. They subsequently paid that amount, plus court costs, to the utility company. (Testimony of D'Antoni; P-6) At the time respondent built the D'Antonis' house, Wilbur Sheffer was employed by Consolidated Utility Company to install waterlines along Fort Meyers Drive, the road where the D'Antonis' house was located. Mr. Sheffer installed the waterlines up to the individual property boundaries. It was standard practice for contractors to pay sewer charges and water meter deposit and connection (or tap-in) fees when they obtained their building permits, after which he would install the meter. The contractors would then lay waterline from the meter to the home, leaving the line uncovered for later inspection. Property owners were not allowed to connect to the adjacent waterlines unless fees were paid and the meters installed. Respondent paid the meter fee on the D'Antonis' home, but the meter was not installed because he did not pay the connection fee. Nevertheless, respondent, without authorization from the utility company, connected the D'Antonis' house to the utility's adjacent waterlines. (Testimony of Sheffer; P-8) On block 340 of the subdivision, where Ft. Meyers Drive was located, respondent was responsible for paying the water tap fees when the water was available. Records of the utility company show that respondent paid two of the four water tap fees he was billed for on block 340. At the time the D'Antonis' home was under construction, the utility company sometimes negotiated with contractors, who were building homes in the Subdivision, and waived tap fees in exchange for their constructing adjacent waterlines. However, such line extension agreements were usually handled through the office of the company's engineer, Richard Madaus. Mr. Madaus had no record of any agreement with respondent regarding waterline extensions to block 340, where the D'Antonis' home was being constructed. Instead, the records show that respondent was billed for connection fees on block 340 as early as October 26, 1978, and that, thereafter, he paid tap fees for two of the four homes on that block in March and July of 1979. (Testimony of Madaus; P-9a, P-9c, P-9d, P-9e) Respondent's testimony that he was never billed for water connection fees in block 340 and that it was not his responsibility to pay those fees because he had already paid for installing the adjacent waterline, is not credible given the fact that he paid two such connection fees and that the utility company requested these connection fees from him before he began building the D'Antonis' home. The only change in the utility company's policy occurring around the time the D'Antonis' home was constructed was to request the health department to notify the company when septic tank permits for homes in the Subdivision were paid for so that the company could request tap fees at the same time. (P-9a-F) Respondent's Failure to Qualify J. W. Powell and Sons, Inc. It is undisputed that respondent failed to qualify J. W. Powell and Sons, Inc. with the Construction Industry Licensing Board. He did not know that such action was required. The attorney who formed the corporation did not tell him of this requirement. Neither did the county tax collector who Issued him occupation licenses under both his and the corporation's name. (Testimony of respondent)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be fined $500. DONE and ENTERED this 16th day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 16th day of February, 1983.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a registered farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes with Social Security number 426-98-6045 and certificate number 06506 with an expiration date of March 31, 1987. On November 20, 1986, at 8:30 a.m. at a road block north of Zolfo Springs, Florida at the intersection of State Highway number 64 and U.S. Highway number 17 in Hardee County, Florida a 1978 Ford pickup truck registered to Edgar T. Coleman, Post Office Box 5, Umatilla, Florida, license number 778 ETK, Vehicle Identification Number F15HKACA8834, driven by Joe Carl Stephens, was found to be transporting seven (7) farm workers. There was no application for certification for either Joe Carl Stephens or Edgar T. Coleman posted in the 1978 Ford pickup truck referred to in paragraph 2 and the truck at that time was not registered with Petitioner under Chapter 450, Florida Statutes. Although Joe Carl Stephens later obtained certification as a farm labor contractor, he was not a certified farm labor contract as that term is defined in Section 450.28(1), Florida Statutes at the time he was stopped in the road block. At the time Larry Coker, Compliance Officer, prepared the complaint against Joe Carl Stephens, approximately 8:30 a.m., November 20, 1986, there was no evidence filed with Petitioner showing the 1978 Ford pick-up being covered by the liability insurance policy of Respondent or Joe Carl Stephens. Additionally, the Petitioner had no evidence that the truck had been inspected for compliance with the requirements and specifications established in Section 316.620, Florida Statutes and there was no valid inspection sticker displayed on the truck. An inspection of the truck at the road block revealed that: (a) the seats for the passenger in the back of the truck were not secured; (b) the camper top covering the bed of the truck was less than 60 inches above the floor; (c) the tailgate (exit for workers in back) would not close properly and was held closed with a rope and; (d) there was no communication device between the back area of truck and front area of the truck where driver was located. At 1:00 p.m. on November 20, 1986, Edgar T. Coleman arrived at Petitioner's Wauchula, Florida office with an inspection certificate and, although undated, there was credible evidence that it was completed on November 20, 1986 after the complaint was filed, and an insurance binder completed at 11:00 a.m. on November 20, 1986 adding Respondent's 1978 Ford truck identified in paragraph 2 above to his existing vehicle liability insurance policy. At 1:00 p.m. on November 20, 1986, Larry Coker filed a Farm Labor Contractor Registration Complaint on Respondent listing violations under Sections 450.33(4)(a),(5) and (9) and 450.35, Florida Statutes. Although there was evidence that Joe Carl Stephens was employed by Respondent and that Respondent paid the fee of $35.00 to Petitioner for Stephens to obtain his farm labor contractor's certificate, there was credible testimony from Respondent that he was not contracting with Stephens as a farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes on November 20, 1986 but was dealing with Stephens as a farm worker and there was no extra compensation being paid to Stephens for driving the truck. There was insufficient evidence to show that Respondent was contracting with Stephens as a farm labor contractor. There was credible evidence that Respondent at all times material to this proceeding had hired, supervised and transported more than one (1) farm worker and had received compensation for such activities.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, enter a Final Order assessing an administrative fine of $750.00 against Respondent for violation of the requirements of Section 450.33(4)(a), (5) and (9), Florida Statutes and dismissing the charges of violating Section 450.35, Florida Statutes. Respectfully submitted and entered this 10th day of July, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of July, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Security Tallahassee, Florida 32301 Mr. Edgar Coleman Post Office Box 5 Umatilla, Florida Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue The issue is whether respondent should have a $1,000 civil penalty imposed for allegedly violating Section 450.30, Florida Statutes (1989) and Rule 38H-11.003, Florida Administrative Code (1989) by contracting for the employment of an unregistered farm labor contractor.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on May 1, 1989, when Don R. Symonette, who is a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made an inspection of a farm owned by Ovid Barnett on State Road 846 some seven or eight miles east of Immokalee, Florida. The testimony as to what transpired during the course of the inspection is sharply in dispute. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and that testimony is embodied in the findings below. As Symonette drove by the farm that day, he observed a crew of approximately eighteen workers picking bell peppers in a field. Thereafter, Symonette drove his vehicle onto the premises for the purpose of determining if pertinent statutes and Division rules were being followed. He initially observed one Abel Flores (Abel) standing by a pickup truck in the same field where the laborers were harvesting the peppers. Abel is the brother of respondent, Alfredo Flores (Alfredo). Symonette and Abel were acquainted from several meetings over the prior years. Symonette asked Abel what he was doing, and Abel answered that he was helping his brother, Alfredo, who is a registered farm labor contractor. Abel also volunteered that he was being paid by Alfredo and received approximately $40 per day in compensation. Abel further acknowledged, and the Division records show, that he is not certified as a farm labor contractor. At that point, Symonette decided to give Abel the benefit of the doubt and to interview respondent, who was supervising a crew in an adjacent field. During the course of the interview, Alfredo advised Symonette that he (Alfredo) was the supervisor in charge of the crew and it was he who had contracted with the farm to supply the workers. Even so, Symonette concluded that because Abel was the only person standing in the other field, he was "supervising" the other crew and was doing so without a certificate of registration. Accordingly, Symonette cited Alfredo for using an unregistered contractor. On April 27, 1990, or almost a year later, the Division issued an administrative complaint charging Alfredo with using an unregistered farm labor contractor. On June 7, 1990, Symonette performed a "payroll audit" by sending by mail a form to Ovid Barnett requesting information regarding Abel's employment. On an undisclosed date, the form was returned to Symonette and contains what purports to be Barnett's signature However, the contents of the completed form are hearsay in nature and cannot serve as the basis for a finding of fact. Moreover, even if the response was not hearsay, it fails to disclose the nature of Abel's employment with the farm and whether the hourly compensation allegedly given Abel was being paid at the time the form was completed in June 1990 or when the inspection occurred thirteen months earlier. All compensation received by Abel was from his employer, Ovid Barnett. In some cases, he was paid by check from the farm, and in other cases, he was paid by his brother who had in turn been paid by the farm. To bolster the contention that Abel was not acting as a farm labor contractor on May 1, 1989, a supervisor at Barnett's farm established that Abel's job was to drive trucks between the field and the packing house when the inspection occurred, and as such, it was necessary for Abel to stand by his truck while the workers loaded the truck with produce. As a driver, Abel had the responsibility of overseeing the loading of produce on his truck and, when necessary, to direct the workers on how to properly do so. It is noted that at hearing, Symonette did not describe the activities being performed by Abel except that Abel was simply "standing" around his truck and "appeared" to be supervising the work crew. Accordingly, it is found that Alfredo was not using an unregistered farm labor contractor on May 1, 1989.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint, with prejudice. DONE and ENTERED this 20th day of August, 1990, in Tallahassee, Florida. DONALD ALEXANDER 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 20th day of August, 1990. Copies Furnished: Hugo Menendez, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658 Moses E. Williams, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658 Alfredo Flores P. O. Box 1611 Immokalee, FL 33934 Steven D. Barron, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658
Findings Of Fact The Respondent, Ralph Woodson, requested a formal administrative hearing on or about March 6, 1987, with respect to civil penalties which the Petitioner proposed to levy on the Respondent. P. Ex. 5. A formal administrative hearing was initially set for June 23, 1987, by notice of hearing mailed to the Respondent at his address at Route 1, Box 410B, Groveland, Florida 32236. This was the address that was recorded for Ralph Woods on the Farm Labor Contractor Registration Complaint which was forwarded to the Division of Administrative Hearings by the Department of Labor and Employment Security as pertaining to the request for hearing by the Respondent. That same document is P. Ex. 1. On May 26, 2987, a continuance was granted in the case, and an amended notice of hearing was sent to the Respondent, Ralph Woodson, at the same address. The amended notice of hearing scheduled the case for 9:00 A.M., December 4, 1987, room 532, Curtis Petersen Building, 200 N. Kentucky, Lakeland, Florida. The Hearing Officer was in the above hearing room until after 10:00 A.M. on December 4, 1987, but the Respondent did not attend the hearing. The Respondent had adequate notice of the formal hearing. On May 13, 1986, Mr. Woodson was observed by the compliance officer, William R. Brooks, driving a Ford van carrying three workers. When he arrived, Mr. Woodson gave directions to the workers as to where to go in the grove and what to pick. Mr. Woodson admitted to Mr. Brooks that he was the crew leader for those workers as well as other workers in the grove at that time. On May 13, 1986, the Respondent was working as a labor crew leader or farm labor contractor in an orange grove in Indian River County. The Ford van had numerous safety defects. There were rust holes in the floor boards, the tires were slick (no tread) so as to be likely to cause failure, and the benches upon which the workers were sitting as they rode into the grove were not secured to the floor properly. The Ford van had been used by Mr. Woodson to transport workers 120 miles one-way on the day in question. Mr. Woodson had an expired state registration with him but was not registered with the State of Florida as a farm labor contractor on May 13, 1986. Mr. Woodson had a State of Florida registration application in his possession stating that he intended to be a farm labor contractor and not transport workers. Notwithstanding that fact, he was transporting workers. The van in which Mr. Woodson was transporting workers was not covered by any motor vehicle insurance. Mr. Woodson was aware that he was supposed to have postings in his vehicle and at the work site, but did not.
Recommendation It is therefore recommended that the Department of Labor and Employment Security enter its final Order finding that the Respondent, Ralph Woodson, has violated the above enumerated statutes and assessing a civil penalty of $2,600. DONE and RECOMMENDED this 14th day of December, 1987, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 14th day of December, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Suite 117, Montgomery Building 590 Executive Center Circle East Tallahassee, Florida 32399-2152 Ralph Woodson Route 1, Box 410B Groveland, Florida 32236 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed by the Construction Industry Licensing Board (CILB) as a certified contractor and has held license CGC 13316. At all times relevant to this proceeding, Coastal Structures, LCC (Coastal Structures) has possessed a certificate of authority as a contractor qualified to do business in the State of Florida and has held license QB39088. At all times relevant to this proceeding, Respondent has been the primary qualifying agent for Coastal Structures. At times relevant to this proceeding, Ruth Schumacher was the owner of a residence located in Martin County at 2880 Southwest Brighton Way, Palm City, Florida (the subject property). Ms. Schumacher passed away on June 17, 2008. Prior to her mother’s death, Ms. Macey assisted Ms. Schumacher with her affairs. After her death, all of Ms. Schumacher’s estate, including the subject property, was placed in a trust with Ms. Macey as the trustee. In late October 2005, a screened porch on the subject property was damaged by Hurricane Wilma. In November 2005, Ms. Macey, on behalf of her mother, contacted Coastal Structures about making repairs to the damaged porch. In November 2005, David and Donna Williams, on behalf of Coastal Structures, visited the subject property, made temporary repairs to the damaged porch, and discussed with Ms. Macey and Ms. Schumacher the replacement of the porch. On November 28, 2005, Coastal Structures entered into a written contract with Ms. Schumacher to remove the damaged porch and to replace it with a new screened porch over the existing concrete slab. The written contract failed to contain a written statement explaining to Ms. Schumacher her rights under the Florida Homeowners’ Construction Recovery Fund as required by Section 489.1425(1), Florida Statutes. When Ms. Schumacher contracted with Coastal Structures on November 25, 2005, her insurance company had accepted her claim, but had not completed the damage assessment. The scope of the work was to be based on the allowances provided in the insurance adjuster’s statement of loss once the damage assessment was completed. The insurance company’s damage assessment for the damaged porch was completed December 3, 2005. The total replacement cost was valued at $21,190.10, with a deductible of $2,960.00, for a net claim value of $18,230.10. On March 8, 2006, Respondent submitted to the Martin County Building Department an application for a permit for a screen enclosure over an existing slab. The Martin County Building Department approved the permit application and issued permit number BSCE-2006030334 (the subject permit) to Respondent on March 8, 2006. The subject permit required one inspection, which was to be a final inspection after the completion of the work. Respondent failed to request the required inspection and the subject permit expired. After the execution of the contract with Coastal Structures and the completion of the damage assessment by the insurance company, Ms. Schumacher and Coastal Structures agreed to change the scope of the work from a screened enclosure to a glass enclosure with windows. Ms. Schumacher and Coastal Structures did not execute a written change order or any other written amendment to the written contract. Coastal Structures completed its work on the porch in May 2006. Pursuant to its verbal agreement with Ms. Schumacher, Coastal Structures replaced the damaged screen porch with a glass enclosure with windows. On May 17, 2006, Ms. Schumacher paid Coastal Structures the sum of $25,363.00 in full payment for the work it had done. After payment had been made, Ms. Macey observed several problems with the project including leaks from the ceiling panels and tile work that was not flush with the bottom of the exterior doorway, which allowed water to seep into the structure. In response to complaints from Ms. Macey, Mr. Williams returned to the subject property in May 2006 and applied caulking to the ceiling and along the floor of the structure. That work did not resolve the problems with the project. Ms. Macey made further complaints to Mr. Williams, but he did not respond to those complaints. Ms. Macey and Ms. Schumacher asked Palm City Screening, LLC (Palm City Screening) to determine the problems with the project and to provide an estimate to repair those problems. On February 13, 2007, Palm City Screening provided Ms. Schumacher with an estimate of $19,785.00 to replace the existing porch. In May 2007, Respondent visited the subject property in response to complaints from Ms. Macey. Ms. Macey pointed out to Respondent problems with the porch and Respondent inspected the structure. Respondent told Ms. Macey that he would send someone named George to the subject property to make repairs. Respondent left the subject property and Ms. Macey heard nothing further from him. No one returned to the property on behalf of Respondent. At no time did Ms. Schumacher or Ms. Macey terminate the contract with Coastal Structures or prevent Coastal Structures from correcting the problems with the porch. On July 2, 2008, Palm City Screening provided a second estimate to Ms. Macey in the amount of $23,230.00 to replace the structure. Palm City Screening’s representative told Ms. Macey that the structure could not be repaired as built, but would have to be replaced. The scope of work and estimated costs excluded electrical work for the structure. On July 11, 2008, Jimmy Rowell Electric Service provided Ms. Macey with a written estimate in the amount of $1,520.00 for the electrical work that would be required if the structure were to be replaced. No one on behalf of Palm City Screening or Jimmy Rowell Electric Service testified at the formal hearing. The total investigative costs of this case to Petitioner, excluding costs associated with attorney’s time, was $176.39. On October 8, 1995, Petitioner filed an Amended Administrative Complaint against Respondent in DBPR Case 91- 00022. The Amended Administrative set forth certain factual allegations pertaining to Respondent’s dealings with a person named Donald H. Shaffer. Based on those allegations, Petitioner charged Respondent with abandonment of a project (Count I); committing mismanagement or misconduct in the practice of contracting that caused financial harm to a customer by allowing liens to be placed against the project (Count II); failure to supervise (Count III); mismanagement or misconduct in the practice of contracting that caused financial harm to a customer by abandoning the project (Count IV); and by having committed fraud, deceit, gross negligence, incompetence, or misconduct in the practice of contracting (Count V). DBPR Case 91-00022 was resolved by stipulation. As part of the stipulation, Respondent agreed to pay a fine and make restitution to the customer. The stipulation contained the following provision: Respondent neither admits nor denies the allegations of fact contained in the Amended Administrative Complaint attached hereto as Exhibit “A”. The CILB entered a Final Order Approving Settlement Stipulation on August 2, 1966, which “. . . approved and adopted in toto . . .” the settlement stipulation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint. It is further RECOMMENDED that the final order impose against Respondent administrative fines as follows: $500.00 for Count I; $5,000.00 for Count II; $5,000.00 for Count III; and $5,000.00 for Count IV, for the aggregate amount of $15,500.00. It is further RECOMMENDED that Respondent’s licensure be revoked. DONE AND ENTERED this 20th day of August, 2008, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 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, 2008.
The Issue Whether Respondent committed the violations described in the Administrative Complaint, as amended? If so, what civil penalty or penalties should be assessed?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made to supplement the factual stipulations into which the parties have entered: Respondent was born in Mexico. She has lived in the United States since October of 1974. Respondent has a fourth grade education that she received in her native land. She is unable to read or write English and speaks and understands very little of the language. She communicates primarily in Spanish. Respondent lives with her husband and five of her six children, including her 21-year old daughter, Anna, who unlike her mother, is fluent in both English and Spanish. Recently, due at least in part to the inability of family members to find work and to the lengthy hospitalization of Raphael, Jr., one of Respondent's sons, the Rivera family has experienced serious financial problems and has been unable to pay all of its bills. As a result, the family home is in foreclosure and water service to the home has been terminated. The family's plight should improve to some extent, however, inasmuch as Respondent's husband started working again approximately a week before the final hearing in this case. Respondent, though, remains unemployed, as does her daughter Anna, although they are both actively seeking employment. At all times material to the instant case, Respondent has been a Florida-registered farm labor contractor. She received the first of her farm labor contractor certificates of registration in 1990. To date, she has an unblemished disciplinary record. Since becoming registered, the only statutory and rule violations with which she has been charged are those that are the subject of the instant case. To obtain her certificates, Respondent simply had to fill out application forms. The application forms were in English. She therefore went to the local Department Job Service office to obtain the assistance of a bilingual Department employee fluent in English and Spanish to help her complete these forms. In each instance, the Department employee assisting Respondent filled out the form after obtaining the necessary information from Respondent and, after doing so, presented the completed form to Respondent for her signature. Jesus Velasquez was the Department employee who helped Respondent complete the application form for her initial certificate of registration. Velasquez has been a Compliance Officer with the Department for the past nine years. During his meeting with Respondent, Velasquez briefly described to her some of the duties and obligations of registered farm labor contractors. Andre Jeudy, who was then an Agricultural Service Representative with the Department, but is now a Department Compliance Officer, helped Respondent complete the application form she submitted to obtain her second certificate of registration. The form was completed, signed and submitted on November 20, 1990. Item 7 of the form requested the applicant to "Check Each Activity to be performed Involving Migrant and/or Seasonal Agricultural Workers for Agricultural Employment." Two "activities" were listed. The first was "Recruit, solicit, hire, employ, furnish, pay." The second was "Transport." Based upon what he had been told by Respondent, Jeudy checked the first, but not the second, of these listed activities. Item 9 of the form asked, "Will Transportation be Provided the Workers?" If the response was in the affirmative, the applicant was further instructed to "Give number and type of vehicles used to transport migrant and seasonal agricultural workers." Based upon the information that he had been provided by Respondent, Jeudy marked the "Yes" box and wrote only the following to supplement this affirmative response: "TRANSP will be provide [sic] By company Bus (Okeelanta)." By her signature, Respondent certified on the form that "all representations made by me in this application are true to the best of my knowledge and belief" and that "I have read or had explained to me and fully understand the State of Florida Farm Labor Registration Law and its implementing regulations, and will fully comply with the requirements therein." By letter dated December 4, 1990, Respondent was advised by the Department that it had issued her the new certificate of registration (hereinafter referred to as the "1990-91 Certificate") for which she had applied. The certificate, which had an "expiration date" of "11/91," was enclosed with letter. Respondent's 1990-91 Certificate indicated that Respondent was "Transportation Unauthorized." The certificate provided the following explanation as to what it meant to be "Transportation Unauthorized:" Transportation Unauthorized- You are not permitted to arrange and/or provide transportation of migrant and seasonal agricultural workers. To obtain a certificate authorizing the transportation of workers within the meaning of the Act, you must file evidence of compliance with applicable safety and health requirements as stated in the Act and regulations and with the insurance of financial responsibility requirements provided therein. On September 18, 1991, Respondent went to the local Job Service office to apply for a successor certificate. The Department employee who assisted Respondent on this occasion was Mary Ann Ruiz. Ruiz accurately conveyed on the application form the information with which she had been provided by Respondent. The application form that Ruiz helped Respondent fill out was identical to the one Respondent had used to obtain her 1990-91 Certificate. With respect to Item 7, Ruiz checked the first ("Recruit, solicit, hire, employ, furnish, pay"), but not the second ("Transport"), of the farm labor contractor activities listed. As to Item 9, Ruiz marked the "Yes" box and gave the following written explanation: "trans provided by Okeelanta." No further information regarding such transportation was furnished on the form. As she had done the year before, Respondent certified the accuracy of the information contained in the application and her knowledge of, and her intention to fully comply with, the "Florida Farm Labor Registration Law and its implementing regulations." At the time of her application, she did not intend to transport any farm workers. By letter dated December 19, 1991, Respondent was advised by the Department that it had issued her the successor certificate of registration (hereinafter referred to as the "1991-92 Certificate") for which she had applied. The certificate, which had an "expiration date" of "11/92," was enclosed with letter. Respondent's 1991-92 Certificate indicated that Respondent was again "Transportation Unauthorized" and it repeated the explanation of the term that had been set forth in the 1990-91 Certificate. In 1990 and 1991, Respondent recruited farm workers to plant sugar cane seed and perform related tasks for the Okeelanta Sugar Corporation (hereinafter referred to as "Okeelanta"). Okeelanta has substantial land holdings in the Everglades Agricultural Area on which it grows and harvests sugar cane that it then processes and converts into refined sugar for sale. Okeelanta paid Respondent a total of $10,958.90 for her services ($4,550.40 for services rendered in 1990 and $6,408.50 for services rendered in 1991). Okeelanta treated Respondent as an independent contractor. The workers she recruited, on the other hand, were considered by Okeelanta to be employees of the corporation. They were paid directly by Okeelanta, which made appropriate deductions from their paychecks. The workers were organized into planting crews made up of eight or nine persons each. At any given time during the 1990-91 and 1991-92 planting seasons, there were several crews comprised of workers Respondent had recruited for Okeelanta (hereinafter referred to as "Respondent's crews"). Okeelanta employed timekeepers to maintain records of the work performed by each of the crews in its fields. Anna Rivera, Respondent's daughter, was the timekeeper responsible for maintaining the records of the work done by Respondent's crews. Respondent's crews were supervised and directed in the field by another Okeelanta employee, Zone Supervisor Raphael Colunga. As the Zone Supervisor, Colunga had the authority to discharge any crew member under his supervision. Respondent frequently went out in the field to monitor the activities of her crews. She did so because the amount of compensation she received from Okeelanta was dependent upon the work performed by her crews. Respondent used her own vehicle to make the trip to the field. There was an Okeelanta bus that drove crew members from the Okeelanta employee parking lot to the field in the morning and back to the parking lot in the afternoon. Respondent's crews did not always arrive early enough in the morning to catch these buses. On those occasions that they missed the bus, the transportation that they used to commute to work was the transportation that they used to get to the field. Every employee that Respondent recruited for Okeelanta for the 1991-92 planting season, before being hired, was screened by the Department at its Belle Glade Job Service office pursuant to a written agreement between Okeelanta and the Department, which provided as follows: RECRUITING ARRANGEMENT Okeelanta Corporation It is the intent of Belle Glade Job Service (hereafter the Job Service) and Okeelanta Corporation (hereafter the "Employer") to bring together individuals, who are seeking employment, and the Employer, who is seeking workers without charging a fee. Therefore, The Job Service and the Employer enter into this arrangement: Assist job seekers in obtaining employment from the employer; Allow the Job Service to facilitate the match between the job seekers and the employer. Both parties enter into this arrangement with the understanding that each will comply with all applicable federal and state laws, rules, and regulations (please see attached addendum of specific responsibilities) pursuant to Title 20 of the Code of Federal Regulations. Part 652, 655 and 658. BOTH PARTIES AGREE THAT THIS RECRUITING ARRANGEMENT WILL - Continue for no longer than one year from the date both parties have signed the document. Constitute the sole exclusive arrangement indicating how they will work together. Terminate upon either party's written notice for the other party that the arrangement will be cancelled in 30 days. Abide by the attached addendums of JS and Employer obligations. Addendum I to the agreement listed the Department's obligations. These obligations were as follows: Provide the Employer notice to renew this arrangement at least 60 days prior to ending date of this arrangement or prior to the expected beginning of the season, whichever is earlier. The notice will contain a request to the employer for written response as to their satisfaction with the arrangement, information on any problem that have [sic] developed and meeting date to renew the arrangement. Provide the employer daily a log summarizing job placement activities for each day in which one or more individuals were referred to the employer. Provide I-9 Certification on individuals hired no later than 48 hours from date JS is notified of hire. Designate one Employment representative to be stationed on daily basis or as needed, to serve as the liaison responsible for working with Okeelanta Corporation. Provide the Okeelanta Corporation with reverse referral recruitment cards to give the applicants. Maintain a pool of qualified applicants for the positions listed with Job Service, who have been screened against the selection criteria of the company. Provide Okeelanta with a list of qualified applicants on file whenever an opening arises. Refer applicants from the pool, with a completed I.D. card, a completed W-4 form, JS Referral Card, (a completed I-9 on recalls) upon receipt of a job order. Addendum II to the agreement listed Okeelanta's obligations. These obligations were as follows: List all job openings for which they wish Job Service to recruit. Provide the Belle Glade JS office a supply of W-4 forms applications for completion by qualified applicants desiring to work for the company. On a daily basis inform the Belle Glade JS office of the hiring decision made on each applicant referred by the JS. Designate one of its employees, within one week of the starting date of this arrangement, to serve as the liaison responsible for working with the JS. Provide a working space for the employee designated to be stationed at the employer premises. Acknowledge receipt of the above referenced regulations as a part of this arrangement, which it will furnish the above referenced employee. The job order Okeelanta placed with the Department's Belle Glade Job Service office in accordance with the foregoing agreement for sugar cane seed planters and other agricultural workers needed for the 1991-92 planting season specified that these employees would be expected to work six days a week, from 7:00 a.m. to 3:00 or 4:00 p.m., weather permitting. Okeelanta hired only those prospective employees who were deemed qualified and given a referral or "yellow" card by the Department. These prospective employees were required to present their card to the Zone Supervisor. After doing so and being accepted for employment, they received an Okeelanta employee identification number and their names appeared on the Okeelanta Day Haul Master List for each day they worked. Prospective employees unable to produce a "yellow" card for the Zone Supervisor were referred to the Department's Belle Glade Job Service office. In light of Okeelanta's policy of turning away prospective employees who did not have "yellow" cards, Respondent advised every employee that she recruited for Okeelanta during the 1991-92 planting season that they had to go to the Department's Belle Glade Job Service office and obtain such a card before they could begin working for Okeelanta. Respondent was never told that she had to verify the qualifications of members of her crews who had been screened and referred to Okeelanta by the Department. She therefore believed that there was no need for her to do so. Miguel Paiz was a member of one of Respondent's crews. He was interviewed at the Department's Belle Glade Job Service office prior to the commencement of the 1991-92 planting season and, although, as he made the interviewer aware, he was only 17 years of age at the time, he was given a "yellow" card. The W-4 form that was completed during his interview indicates that, at least at the time of the interview, Paiz was married. On the morning of Friday, October 18, 1991, three or four days after the start of the 1991-92 planting season, Cruz Hernandez Alvarez, lost control of the 1978 station wagon he was driving on a private road on Okeelanta property and the vehicle went into a canal on the side of the road. Seven of the eight occupants of the vehicle were killed. Alvarez did not have a valid driver's license at the time of the accident. The vehicle he was driving belonged to Juan Andres. Its V.I.N. was 1L35U8S167733. Alvarez and some, but not all, of the other occupants of the vehicle, including the lone survivor of the accident, were members of one of Respondent's crews. Julio Mendoza Corince, a 15-year old boy, was one of the occupants of the vehicle who perished in the accident. Earlier that month, Corince had gone to the Department's Belle Glade Job Service office to obtain a "yellow" card. The Department employee with whom he interviewed, however, refused to refer him because he was underage. Corince was not a member of any of Respondent's crews. Indeed, at no time before the accident had Respondent ever met or spoken with him. After the bodies were recovered from the canal, Respondent, and later her daughter Anna, were called to the scene and asked by the police if they were able to identify any of the victims. Viewing the dead bodies was a very emotionally upsetting experience for both of them. They spent the remainder of the day at home. No work was done by any of Respondent's crews that day. State and federal investigators began their investigation shortly after the accident was reported. Compliance Officer Velasquez was the Department's lead investigator. Rene Callobre, an Assistant District Administrator with the United States Department of Labor, Wage and Hour Division, who, like Velasquez, is fluent in both English and Spanish, conducted the federal investigation. A short time after beginning his investigation on the day of the accident, Velasquez went to the Okeelanta property and asked to speak with Respondent. After being told that Respondent had left for the day, Velasquez proceeded to Respondent's home, where he interviewed Respondent. Velasquez and Respondent conversed in Spanish during the interview. Respondent was still emotionally upset at the time of the interview, but not to the extent that she was irrational or unable to effectively communicate with Velasquez. At no time did she provide an inappropriate response to his inquiries. During the interview, Respondent freely and voluntarily gave a statement in Spanish to Velasquez. Velasquez had not warned Respondent before she gave the statement that what she said could be used against her in an administrative proceeding such as the instant one. 1/ Velasquez wrote down in English what Respondent had told him in Spanish. This written, English translation of the statement, which accurately reflected Respondent's discussion with Velasquez, was then read back to Respondent in Spanish. Respondent thereupon signed the written statement, which read as follows: I am a farm labor contractor with cert # 29482 & expiration date of Nov. 1992. At present I am employed by Okeelanta Sugar Corp. My duties are to recruit & supervise farm workers to plant sugar cane. My fee for this task is $1.10 per row of cane planted by the crew. I recruited my crews by word of mouth. They know I am a contractor, so they come to my house to ask for work. The first thing I tell any worker that comes here to my house is that they must go the Job Service Office in Belle Glade and register. When they are properly registered, they go to the Okeelanta parking lot and there they are transported by company bus to the work site. I tell all the workers they must provide their own transportation to the Okeelanta parking lot. I tell all my workers this because I do not own a vehicle big enough to transport them from their home and back. I tell them that if they want to work, they must come on their own. I recruited 4 crews consisting of 8 workers each crew. Three of the crews were coming from Indiantown (Guatemalans) and one crew from this area (Mexicans). These crews, the ones from Indiantown, worked with me last year. I usually give the driver or the owner of the vehicle $100 per week for gasoline. I did this last year and was intending to do this this year also. The three crews from Indiantown came by car (station wagon) and a van. The station wagon carried 1 crew (8 workers) and the van carried 2 crews (16 workers). On this date, only one crew leader showed up, the station wagon. The van with the 2 crews did not show up. These crews started to work on Tuesday October 15, 1991. I do not pay the workers, Okeelanta does. The statement was in all respects factually accurate. Respondent had not yet during the 1991-92 planting season paid or loaned or agreed to pay or loan anyone "$100 for gasoline" in connection with the transporting of her crews. At no time did Respondent tell any state or federal investigator, including Velasquez or Callobre, otherwise. 2/ On Monday, October 21, 1991, Velasquez went out in the field to visit with Respondent and the members of her crews. Velasquez was accompanied by Compliance Officer Jeudy. Jeudy was being trained by Velasquez. Velasquez and Jeudy observed a 1977 Chevrolet van in the field. The van's V.I.N was CGL257U218651. Neither on the van nor anywhere else in the field was there posted a copy Respondent's application for a certificate of registration or a statement, in English and Spanish, showing Respondent's and her crews' rates of compensation. Velasquez asked Respondent if any of the members of her crews had been transported in the van. Respondent responded in the affirmative and indicated that two of her crews from Indiantown had travelled in the van. Velasquez then asked to speak to the driver of the van. Respondent thereupon retrieved Miguel Paiz, who was working in the field. Although he was 17 years of age and it was during normal school hours, Paiz was at work and not in school. Velasquez asked to see Paiz's driver's license and his farm labor contractor's certificate of registration. Paiz showed Velasquez his driver's license and the "yellow" card he had received from the Department. Paiz advised Velasquez that he did not have, and therefore was unable to produce, a farm labor contractor's certificate of registration. Paiz told Velasquez that Juan Lopez was paying him $10.00 a day for driving the van. During his conversation with Velasquez, Paiz erroneously identified Lopez as the owner of the van. The actual owner of the van was Julio Puentes. After speaking with Paiz, Velasquez interviewed Lopez. Based upon what he understood Lopez to have said during the interview, Velasquez prepared a written statement for Lopez's signature which provided as follows: I borrowed the (vehicle) van that this date transported 16 workers to Okeelanta Sugar Corp. to work in the planting of sugar cane. I was recruited by Araceli Rivera. I am paid $100 per week for the gasoline I use in the vehicle. I am also paid $1.00 per row of sugar cane planted by Okeelanta. I am not registered as a F.L.C. Lopez refused to sign the statement. To the extent that the statement suggests that Lopez was then being paid by Respondent for "the gasoline [Lopez] use[d] in the ['transporting'] vehicle," it is inaccurate. No such payments were made by Respondent to Lopez during the 1991-92 planting season.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) imposing upon Respondent a civil penalty in the amount of $100.00 for having violated Section 450.33(4), Florida Statutes, and Rule 38H-11.008, Florida Administrative Code, as alleged in paragraph (4)(h) of the Administrative Complaint, as amended, by displaying in the area where her crews were working on October 21, 1991, neither a copy of her application for a farm labor contractor certificate of registration nor the requisite statement concerning the compensation that she was receiving from Okeelanta for her recruitment activities, and (2) dismissing the remaining allegations advanced in the Administrative Complaint, as amended. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of February, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1993.
The Issue Whether Respondent is indebted to Petitioners for agricultural products and, if so, in what amount?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties Petitioners are producers and sellers of tomatoes. They own and operate Sunfresh Farms in Florida City, Florida. Respondent is a dealer in agricultural products. The Controversy The instant case involves two separate transactions involving the sale of tomatoes pursuant to verbal agreements between Petitioners (as the sellers) and Respondent (as the buyer). Both transactions occurred in January of 1995. The First Transaction (Petitioners' Invoice Number 5270) Under the terms of the first of these two verbal agreements (First Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 96 boxes of cherry tomatoes for $12.65 a box (which was the market price at the time). In accordance with the terms of the First Agreement, Petitioners delivered 96 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 23, 1995. Respondent accepted the delivery. Respondent sold these 96 boxes of cherry tomatoes to a local produce house, which subsequently sold the tomatoes to another local produce house. The tomatoes were eventually sold to a company in Grand Rapids, Michigan. On January 28, 1995, five days after Petitioners had delivered the 96 boxes of cherry tomatoes to Respondent, the tomatoes were inspected in Grand Rapids, Michigan. According to the inspection certificate, the inspection revealed: "Decay (3 to 28 percent)(mostly early, some advanced stages);" "Checksum;" and "Average approximately 85 percent light red to red." Petitioners have yet to be paid any of $1,214.40 Respondent owes them (under the terms of the First Agreement) for the 96 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the agreement. The Second Transaction (Petitioners' Invoice Number 5299) Under the terms of the second verbal agreement at issue in the instant case (Second Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 132 boxes of ("no grade") cherry tomatoes for $12.65 a box. In accordance with the terms of the Second Agreement, Petitioners delivered 132 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 27, 1995. Respondent accepted the delivery. Respondent sold 84 of these 132 boxes of cherry tomatoes to a Florida produce house, which subsequently sold the tomatoes to a company in Houston, Texas. These 84 boxes of cherry tomatoes were inspected in Houston, Texas, on January 31, 1995, four days after Petitioners had delivered them to Respondent. The defects found during the inspection were noted on the inspection certificate. Petitioners have yet to be paid in full for the 132 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the Second Agreement. Respondent tendered payment (in the form of a check) in the amount of $811.20, but Petitioners refused to accept such payment because it did not represent the full amount ($1,669.80) Respondent owed them (under the terms of the Second Agreement) for these cherry tomatoes. (Although they have not endorsed or cashed the check, Petitioners are still holding it in their possession.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that Respondent is indebted to Petitioners in the amount of $2,884.20, (2) directing Respondent to make payment to Petitioners in the amount of $2,884.20 within 15 days following the issuance of the order, (3) indicating that the $811.20 check that was previously tendered to Petitioners by Respondent (and is still in Petitioners' possession) will be considered partial payment of this $2,884.20 indebtedness, if Respondent advises Petitioners, in writing, that it desires the check to be used for such purpose and if it provides Petitioners written assurance that the check is still a valid negotiable instrument; and (4) announcing that if payment in full of this $2,884.20 indebtedness is not timely made, the Department will seek recovery from the Farm Bureau, Respondent's surety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1996.
