Findings Of Fact On September 17, 1987, the Petitioner entered a nolo contendere plea to two felonies: possession of cocaine and possession of marijuana. The plea was entered in Case No. 86-342-CF, in the Circuit Court of DeSoto County, Florida, and the Petitioner was adjudged guilty of the offenses. In the Court's judgment of guilt, it was found to the Court's satisfaction that the Petitioner was not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that RICHARD EPPS should suffer the penalty authorized by law. As a result of the Court's findings, the Petitioner, RICHARD EPPS, was sentenced to three years probation. He was ordered to serve five months in the county jail as a condition of that probation. On January 25, 1988, the Petitioner completed an application for a Florida Farm Labor Contractor Certificate of Registration. The purpose of the application was to obtain a new certificate as he was no longer eligible for a renewal of his prior certificate. On March 16, 1988, the Respondent notified the Petitioner of its intent to refuse to issue the certificate of registration. The reasons given were: 1) The U.S. Department of Labor recommended against it due to the felony convictions. 2) By rule, the Respondent is required to cooperate with any federal agency. 3) Once a certificate is obtained, each contractor must comply with all applicable statutes, rules, and regulations for the protection or benefit of labor. The Petitioner has used marijuana in the past. He has never used it during working hours, and his work crew was unaware that he has ever used marijuana. He has never allowed drugs in the work place and he no longer uses marijuana. The Petitioner has never used cocaine or other illegal drugs, except for the marijuana. The Petitioner's arrest on November 6, 1986, for the possession of cocaine and marijuana was a result of his location in the wrong place at the wrong time. When he went to his marijuana supplier's home to purchase marijuana for his personal use, the house was raided by the Arcadia Police Department. Originally, all of the people within the house where individually charged with possession of all of the drugs stored there. The Petitioner's plea of nolo contendere was a result of a plea bargain agreement. The Petitioner is aware that his former drug activity was criminal in nature, and he has stopped his marijuana use with the help of voluntary counseling, his family, the fact that he is on probation, and the fact that his habit got him into serious trouble. The Petitioner will not endanger the safety of a work crew as a result of his past use of marijuana. There is no evidence that the safety of the work crew was ever endangered as a result of the Petitioner's past habit or that his presence in the fields will be harmful to farm workers. The Petitioner has never engaged in transporting farm workers beyond state lines. His crew leader activities are confined to less than twenty workers and he works for one farmer, Mr. Bobby Williams in Arcadia, Florida.
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 acting as a farm labor contractor without a certificate of registration.
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 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 respondent, Abel Flores (Abel), standing by a pickup truck in the same field where the laborers were harvesting the peppers. The two were acquainted from several meetings over the prior years. Symonette asked respondent what he was doing, and respondent answered that he was helping his brother, Alfredo, who is a registered farm labor contractor. Respondent also volunteered that he was being paid by his brother 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's brother, Alfredo, 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 filled out a summary of violations which cited Abel for failing to register as a contractor. After discussing the summary with Abel, Symonette had Abel sign the document. He also prepared a site review and inspection check list which Abel reviewed and signed. On April 27, 1990, or almost a year later, the Division issued an administrative complaint charging Abel with acting as a farm labor contractor without having a certificate of registration. On June 7, 1990, Symonette sent 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. In this regard, it is noted that at hearing Abel produced pay stubs from April and May 1989 which indicate that his salary was either $4.325 per hour or $5.00 per hour, depending on whether he was driving a tractor in the fields or a truck from the fields to the packing house. The former amount is the same as was being paid a number of other farm workers whose job responsibilities were not disclosed. Abel's testimony on compensation is accepted as being credible and comports with the statement made by Abel to Symonette that he was being paid around $40 per day for a full day's work. 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 the extent the allegation is relevant, there is insufficient evidence to establish that Abel received double compensation during May 1989 by being paid by both his brother and Barnett at the same time. To bolster Abel's contention that he was not acting as a farm labor contractor on May 1, 1989, a supervisor at Barnett's farm established that Abel was driving 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 Abel was not performing the duties of a 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. APPENDIX Petitioner: 1-3 Partially adopted in finding of fact 2. 4. Partially adopted in finding of fact 4. Note - Where a finding has been partially used, the remainder has been rejected as being irrelevant, cumulative, a conclusion of law, unnecessary, subordinate, or not supported by the evidence. 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 Abel Flores P. O. Box 1611 Immokalee, FL 33934 Steven D. Barron, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658
The Issue Whether Respondents, Ag-Mart Produce, Inc. (Ag-Mart), and its employees' Justin Oelman (in DOAH Case No. 06-0729) and Warrick Birdwell (in DOAH Case No. 06-0730), committed some, any, or all of the violations alleged in the Administrative Complaints detailed herein and, if so, what penalty should be imposed.
Findings Of Fact Based upon the evidence presented at the final hearing, the following relevant findings of fact are made: The Department is the state agency charged with administration of the Florida Pesticide Law, Chapter 487, Part I, Florida Statutes. Among the duties of the Bureau of Compliance Monitoring within the Division of Agricultural Environmental Services are the designation and regulation of restricted-use pesticides, the testing and licensure of certified pesticide applicators, and the enforcement of federal worker protection standards regarding the exposure of farm workers to pesticides. §§ 487.011, 487.042, 487.044, and 487.051, Fla. Stat.; Fla. Admin. Code R. 5E-2.039. The Administrative Complaints allege two types of violation of the Florida Pesticide Law. First, they allege that Ag-Mart harvested tomatoes prior to the end of the pre-harvest interval, the period of time that must pass after a pesticide is applied to a tomato plant before that plant's fruit may be safely harvested. The pre-harvest interval is specified on the labels of restricted-use pesticides. Second, they allege that Ag-Mart allowed workers to enter sprayed fields prior to the end of the restricted entry interval, the period of time that must pass after a pesticide is applied before it is safe for a worker to enter or remain in the treated area. The restricted entry interval is also specified on the labels of restricted-use pesticides. In 2004, Ag-Mart operated farms in several locations in Florida and North Carolina. Ag-Mart operated packing houses in Plant City, Florida, and in New Jersey. Ag-Mart grows, packages, and distributes grape tomatoes under the "Santa Sweets" label, and a round-type tomato marketed as "Ugly Ripe." During all times relevant to this proceeding, Ag-Mart's principal administrative offices were located in Plant City, Florida, and Ag-Mart's operations were managed by its president, Donald Long. At the final hearing, several Ag-Mart employees, including Mr. Long, testified as to Ag-Mart's practices in establishing planting and pesticide spraying schedules, carrying out those schedules in the field, and ensuring that legal restrictions on pesticide use are observed. This testimony is credited as to Ag-Mart's general pattern and practice, but does not disprove the Department's evidence as to particular instances of pre-harvest interval or restricted entry interval violations. Among other duties, Mr. Long was responsible for scheduling Ag-Mart's cultivation of tomato plants at the company's farms, so that product is available year-round. Mr. Long prepared a 2004 planting schedule that spaced the planting of new crops a week to ten days apart to ensure a continuous flow of tomatoes once the plants matured. For the 2004 season, the South Florida farm began planting in September 2003, with harvesting commencing in December 2003 and continuing through May 2004. The North Florida farm started its spring season plantings in March and April 2004, with harvest beginning in early June 2004 and lasting until August 2004. Each "planting" at Ag-Mart consists of a specific amount of acreage that is cultivated for a specific period of time to produce an expected yield of tomatoes. Mr. Long determines the size of each planting based on past yields and projected needs. A single planting of grape tomatoes is harvested multiple times. Depending on conditions, a planting of grape tomatoes at the South Florida farm can be harvested between ten and 15 times in the fall, with fewer harvesting opportunities in the spring. A planting of grape tomatoes at the North Florida farm may be harvested between eight and ten times. Each planting takes up portions of acreage called "fields," which are divided by land features and irrigation systems. Fields are of varying sizes, depending on the nature of the terrain and the irrigation system. The fields are numbered, and a planting is usually done in a certain number of roughly contiguous fields. A field is further divided into separately numbered "blocks," each block consisting of six rows of tomato plants, three rows on each side of a "drive area" through which tractors and harvest trucks can maneuver to reach the plants. The blocks are numbered in sequence from the beginning to the end of the field. At the South Florida farm in 2004, Ag-Mart cultivated ten separate plantings of between 79 and 376 gross acres. Each planting contained as few as three and as many as ten separate fields. At the North Florida farm in 2004, Ag-Mart cultivated five separate plantings of between 92 and 158 gross acres. Each planting contained either two or three separate fields.2 The cycle of farming activities at the Ag-Mart farms included ground preparation, planting, staking, tying, harvesting, and post-harvest clean-up. Farm laborers were recruited and transported to the fields by crew leaders, who must be registered as farm labor contractors with the Department of Business and Professional Regulation pursuant to Chapter 450, Part III, Florida Statutes, and Florida Administrative Code Rule 61L-1.004. The crew leaders supervised the field laborers and prepared their weekly time cards. The crew leaders were directed by Ag-Mart's labor supervisors as to where the laborers were to work and which tasks were to be performed at any given time. Crew leaders providing services to Ag-Mart in 2004 included: Sergio Salinas, d/b/a Salinas & Son, Inc.; Pascual Sierra; and Juan Anzualda, d/b/a Juan Anzualda Harvesting, Inc. Mr. Salinas and Mr. Anzualda were crew leaders at the South Florida farm in the spring 2004 season. Mr. Sierra was a crew leader at the North Florida farm in 2004. At the South Florida farm, Mr. Salinas and three or four supervisors called "field walkers" oversaw the daily work of the 150 to 200 farm laborers who worked in Mr. Salinas' crew. Mr. Salinas owned and operated buses that transported the workers to and within the farm. Mr. Salinas also operated trucks to haul the harvested tomatoes from the fields to the shipping dock on the South Florida farm. A truck was also needed to move portable toilets to the fields for the use of the laborers. Because of the amount of equipment necessary to conduct a harvest, and the intense hand labor required to pick a row of tomatoes, Mr. Salinas always kept his crew together in one location while harvesting. During the period of January through May 2004, Mr. Salinas' crew typically harvested in one or two fields per day, and never more than four fields in one day. Mr. Anzualda and his 15 field walkers supervised a crew of 150 laborers at the South Florida farm during March and April 2004. Mr. Anzualda always kept his crew together when performing harvesting activities, due to the amount of equipment and the time necessary to set up near the work areas. Mr. Anzualda estimated that it took between 45 and 90 minutes to set up his equipment and line up his workers along the rows before harvesting could commence in a given field. Mr. Anzualda's crew typically harvested in one or two fields per day at the South Florida farm during the peak harvest period of March and April 2004, and never in more than four fields in one day. Ag-Mart paid the farm laborers the piece rate of $2.50 per tub of grape tomatoes. A "tub" weighs about 21 pounds. Different piece rates applied to different forms of work. For tying activities, the laborers under Mr. Salinas were paid $0.75 per 100 linear feet of work, while those under Mr. Anzualda were paid $0.50 per 100 linear feet. The laborers were paid the minimum wage of $5.15 per hour for some work, such as weeding and the harvest of Ugly Ripe tomatoes. In any event, the laborers were guaranteed the minimum wage, and were paid $5.15 per hour if that amount was greater than their pay would have been under piece work rates. Planting activities are performed by hand. Tomato plants are started in greenhouses, and then transplanted to the field when they are six weeks old and about six inches high. Staking is performed manually and by machine, as stakes are placed between the tomato plants to support the plants as they mature. Tying is performed manually, from about the second week after planting until the eighth or ninth week. "Tying" involves tying the tomato plants with string to the stakes to allow them to grow up the stakes as they mature. The tomato plants are six to seven feet tall at maturity. After the tomatoes were planted in 2004, Ag-Mart's farms began the application of pesticides according to a company-wide spray program devised by Mr. Long prior to the season. The spray program outlined the type and volume of pesticide products to be applied to the maturing tomato plants from the first week of planting through the end of the harvest. Once tying and harvesting activities began, Ag-Mart's spray program called for the application of pesticides "behind the tying" or "behind the harvest," meaning that spraying was done immediately after tying or harvesting was completed in a field. The spraying was done behind the workers because picking and tying opens up the plants, which enables the pesticide to better penetrate the plant. The timing of the spraying also allows fungicide to cover wounds from broken leaves caused by picking, thus preventing infection. Harvesting is performed manually by the farm laborers, who pick the ripe fruit from the tomato plants and place it into containers. The crew leader lines up the laborers with one person on each side of a row of tomatoes, meaning that a crew of 150 laborers can pick 75 rows of tomatoes at a time. The farm workers pick all of the visible fruit that is ripe or close to ripe on the blocks that are being harvested. Once the picking is complete on a block, it takes seven to ten days for enough new fruit to ripen on that block to warrant additional harvesting. Justin Oelman was Ag-Mart's crop protection manager at the South Florida farm in 2004. Mr. Oelman worked for Ag-Mart for eight years as a farm manager and crop protection manager before leaving in 2005 and had three years prior experience as a crop protection manager for another tomato grower. As crop protection manager in 2004, Mr. Oelman was the licensed pesticide applicator responsible for ordering chemicals and directing the application of pesticides. His job included writing up the "tomato spray ticket" for each pesticide application. The spray ticket is a document that, on its face, indicates the date and time of a pesticide application and its location according to planting, field, and block numbers. The spray ticket also states the name of the tractor driver who physically applies the pesticide, the type and amount of the pesticide applied, and the number of acres treated. Licensed pesticide applicators are required by Department rule to record the information included on the spray ticket. Fla. Admin. Code R. 5E-9.032. In applying pesticides to the South Florida farm's grape tomato crop in 2004, Mr. Oelman followed the spraying program designed by Mr. Long before the season. Because the pesticides were applied behind the farm workers' field activity, Mr. Oelman maintained close communications with Josh Cantu, the Ag-Mart labor supervisor in charge of tying activities on the South Florida farm, and with Eduardo Bravo, the labor supervisor in charge of grape tomato harvesting. Mr. Bravo in turn directed crew leaders such as Mr. Salinas and Mr. Anzualda on where to take their crews to conduct harvesting work. These communications kept Mr. Oelman apprised of where the crews were working and how much progress the tying or harvesting activities were expected to make by the end of the day. Mr. Oelman was then able to plan the next day's pesticide applications so that his tractor drivers would be ready to enter the field and apply the pesticides soon after the tying or harvesting activities were completed. Mr. Oelman typically wrote the spray tickets on the day before the actual pesticide application, based on the information gathered from Mr. Bravo and Mr. Cantu. Thus, the starting times shown on the tickets are times that were projected by Mr. Oelman on the previous afternoon, not necessarily the time that spraying actually commenced. Spraying could be delayed for a number of reasons. At times, the work in the fields would not progress as quickly as Mr. Cantu or Mr. Bravo had anticipated, due to the heaviness of the harvest. Pesticides are not applied to wet plants; therefore, rain could delay a planned spray application. Mr. Oelman's practice was to write a new spray ticket if a day's planned application was completely cancelled. However, if the planned spray application was merely delayed for a time, Mr. Oelman did not create a new spray ticket or update the original ticket to reflect the actual starting time. Mr. Oelman failed to explain why he did not always create a new ticket when the information on the existing ticket ceased to be accurate. Mr. Oelman directly supervised the Ag-Mart employees who drove the tractors and operated the spray rigs from which pesticides were applied to the tomato plants. Mr. Oelman trained the tractor drivers not to spray where people were working, but to wait until the tying or harvesting activities in designated fields had been completed. Once the fields had been sprayed, Mr. Oelman would orally notify Mr. Bravo and Mr. Cantu of the location of the pesticide applications. Mr. Oelman would also post copies of the spray tickets at the farm's central posting board, on which was posted relevant information regarding the pesticides being used at the farm, the restricted entry intervals and pre-harvest intervals for the pesticides, and other safety information.3 When restricted-use pesticides4 were to be applied, Mr. Oelman posted the entrances to the field with warning signs before the application began. The signs, which stated "Danger/Pesticides/Keep Out" in English and Spanish, were left in place until twelve hours after the expiration of the restricted entry interval for the applied pesticide. Mr. Oelman attested that he always made these postings when restricted-use pesticides such as Monitor and Danitol were applied at the South Florida farm. Mr. Salinas and Mr. Anzualda testified that they never harvested tomatoes from fields posted with pesticide warning signs. Mr. Anzualda checked for warning signs every day to ensure that his crew was not being sent into fields where pesticides had recently been applied. The restricted entry interval (REI) and the pre- harvest interval (PHI) are set forth on the manufacturer's label of each restricted-use pesticide, in accordance with 40 C.F.R. Parts 156 (labeling requirements for pesticides and devices) and 170 (worker protection standard). The REI, a worker safety standard, is the time period after application of a restricted- use pesticide that must elapse before workers are allowed to enter the treated area. The PHI, a food safety standard, is the time period that must elapse after a spray application before harvesting can begin. The REI and PHI vary according to individual pesticides. In 2004, Warrick Birdwell was the farm manager at Ag- Mart's North Florida farm in Jennings. Prior to 2004, Mr. Birdwell had worked ten years for other tomato growers in Virginia and Florida. As farm manager, Mr. Birdwell was responsible for all operations from ground preparation through post-harvest clean-up at the North Florida farm. Mr. Birdwell was also a licensed restricted-use pesticide applicator and was responsible for the application of pesticides at the North Florida farm. In 2004, Mr. Birdwell was assisted in carrying out the spray program by Dale Waters, who supervised the tractor drivers and equipment.5 During 2004, grape tomatoes were harvested at the North Florida farm on a rotation of at least seven days per block, meaning that it would take at least seven days after a harvest, in a given field, to grow enough vine ripe fruit to warrant another harvest. Mr. Birdwell prepared the spray tickets for the planned application of pesticides. He created his spray tickets a day or two before the actual date that the application was scheduled to take place. At times, delays occurred due to weather, equipment failures, or slower than anticipated progress in the harvest. Mr. Birdwell's practice was to create a new ticket and destroy the old one if the delay prevented a scheduled application from occurring on the scheduled date. However, if the spraying was commenced on the scheduled date, but had to be completed on the next day, Mr. Birdwell kept the original spray ticket without amendment. Mr. Birdwell failed to give a reason why a new ticket was not created each time the information, included in the original ticket, ceased to be accurate. Mr. Birdwell communicated throughout the day with Charles Lambert, the North Florida farm's labor supervisor, to monitor the progress of the harvesting activities and ensure that workers did not enter fields where REIs or PHIs were in effect. Mr. Birdwell also directed that warning postings be placed at the entrances to fields where restricted-use pesticides had been applied. Farm labor crews were allowed to move on the farm property only at the specific direction of Mr. Lambert, whose constant communication with Mr. Birdwell helped ensure that labor crews stayed out of treated fields until it was safe to enter them. Harvested product received at Ag-Mart's packing houses is tracked by foreman receiving reports, which identify the product and its quantity, the name of the crew leader responsible for harvesting the product, the farm from which the product was shipped, and the planting number from which the product was harvested. The receiving reports are used to calculate the commission payments due to the Ag-Mart crew leaders, who are paid based on the amount of fruit their crews harvest, and to analyze the yields of specific plantings. The "date received" column on the receiving reports showed the date the product was shipped from the farm to the packinghouse. In March 2005, the Palm Beach Post published an article stating that three women, who harvested tomatoes for Ag- Mart in 2004, bore children who suffered from birth defects. The article questioned whether the birth defects were connected to the pesticides used by Ag-Mart on its tomatoes. The women had worked at both the South Florida and North Florida farms, and at an Ag-Mart farm in North Carolina. In response to the article, the Collier County Health Department began an inquiry to determine the cause of the birth defects and asked for the Department's help in performing a pesticide use inspection at the South Florida farm, where the three women, identified as Francisca Herrera, Sostenes Salazar, and Maria de la Mesa (also called Maria de la Mesa Cruz), worked from February through July 2004. The Department's investigation commenced with a work request sent from Tallahassee to Environmental Specialist Neil Richmond in Immokalee on March 7, 2005.6 Mr. Richmond regularly conducts inspections at golf courses, farms, chemical dealers, and fertilizer plants throughout Collier County. The work request directed Mr. Richmond to obtain pesticide use records for Ag-Mart covering the period of February through July 2004 and employee records showing the names of the three employees and the dates they worked in 2004. The work request further directed Mr. Richmond to conduct a pesticide use inspection at the South Florida farm to document the pesticide products used in the field. Finally, the work request directed Mr. Richmond to conduct a full worker protection standard inspection to document the posting of fields, central posting information, and REIs at the South Florida farm. Mr. Richmond initially visited Ag-Mart's South Florida farm on March 28, 2005, accompanied by two persons from the Collier County Health Department. During the course of the inspection, Ag-Mart's farm manager, Doug Perkins, produced spray tickets for both the South Florida and North Florida farms for the period February through July 2004. Mr. Perkins also produced a spreadsheet identifying the dates worked and the farm locations for each of the three women named in the newspaper article. This spreadsheet was prepared at the direction of Ag- Mart's human resources manager, Angelia Cassell, and was derived from the three workers' timesheets for 2004. On March 30, 2005, Mr. Richmond filed a written report with the documents he received from Ag-Mart. The Department's Bureau of Compliance Monitoring then assigned the matter to Case Reviewer Jessica Fernandez in Tallahassee. Ms. Fernandez was given the task of reviewing all the information gathered by the Department's inspectors to determine whether Ag-Mart had violated the Florida Pesticide Law or any of the Department's implementing rules. On April 12, 2005, Ms. Fernandez sent a request for additional information to Mr. Richmond, which stated in relevant part: According to the work log included in this file, Ms. Fransisca [sic] Herrera, Ms. Maria de la Mesa Cruz and Ms. Sostenes Salazar worked at the Ag-Mart farm located in Immokalee between January 2004 and October 2004. Please obtain as much information as possible regarding the specific Planting, Field and Block numbers in which these workers worked during the period of February 2004 through June 2004. Mr. Richmond went to the South Florida farm on March 13, 2005, and communicated this request for additional information to Mr. Oelman, who responded that it would take several days to gather the requested information. Mr. Richmond returned to the farm on April 15, 2005. On that date, Mr. Oelman explained to Mr. Richmond the sequencing of harvesting and spray activities at the South Florida farm. Mr. Oelman told Mr. Richmond that Ag-Mart's harvest records indicate, only, which planting the laborers were working in on a given day and that a planting includes more than one field. Mr. Oelman also told Mr. Richmond that Ag-Mart's spray records are kept according to field and block numbers and that his practice was to spray behind the picking. On April 22, 2005, Ms. Cassell faxed to Mr. Richmond a spreadsheet entitled "Field Locations for SFL 2/04 thru 6/04." All involved understood that "SFL" referred to the South Florida farm.7 With the assistance of subordinates in her office, Ms. Cassell produced this document to show, in her words, "the total of what field locations the [three] women might have worked in." Ms. Cassell started with time cards, which indicated the dates and hours the three women worked. Then she obtained foreman receiving reports, which she understood to tell her which plantings were harvested on which dates. Finally, she obtained, from the farm, a handwritten document showing which fields were included in each planting. From this information, Ms. Cassell was able to fashion a spreadsheet indicating the range of fields each woman could have worked in from February through June 2004. Mr. Richmond testified that he read the spreadsheet's title and understood the document to show where the women actually worked each day. The document appeared self- explanatory. No one from Ag-Mart told Mr. Richmond that the spreadsheet showed only where the women could have worked, or "possible" locations. Mr. Richmond passed the spreadsheet on to Ms. Fernandez, with a report stating that it showed "the field locations for Ms. Herrera, Ms. Salazar, and Ms. de la Mesa where they worked on respective dates." Ms. Fernandez also operated on the assumption that the spreadsheet showed what its title indicated, the actual field locations of the three women on any given day from February through June 2004. Ms. Cassell testified that she put the title on the spreadsheet without much thought, simply as an identifier for the file on her computer's hard drive. Ms. Cassell understood that she was creating a spreadsheet of all the fields the women could possibly have worked in on a given day. She could be no more precise, because Ag-Mart did not keep records that would show the specific fields where an individual worked on a given day. The president of Ag-Mart, Mr. Long, confirmed that Ag- Mart does not keep records on which fields a worker is in on a given day. At the time the Department made its request, Mr. Long told Ms. Cassell that there was no way Ag-Mart could provide such precise worker location data. The closest they could come would be to correlate harvest or receiving data, which showed what plantings a crew had harvested from, with the workers' time cards. Ag-Mart knew whose crew each woman had worked in; so the spreadsheet listed all the fields in the planting worked by the crew, as a way of showing which fields the women might have worked in. On May 4, 2005, Ms. Fernandez sent Compliance Monitoring Bureau Chief Dale Dubberly a request for additional information, which Mr. Dubberly forwarded to Mr. Richmond the next day. Ms. Fernandez first requested the time work started and ended for each worker in each field on every date listed in the spreadsheet provided on April 22, 2005. Ms. Fernandez next asked for the field location for each worker from July 2004 to November 2004. She asked for the block numbers corresponding to each of the fields in North Florida, South Florida, and North Carolina during the 2004 season and a map showing the distribution of blocks, fields and plantings for those farms during the 2004 season. She asked for spray records for South Florida for October and November 2004. Finally, Ms. Fernandez requested a more legible copy of the spreadsheet, which she stated "shows each worker's field location." Upon receiving this request through Mr. Richmond, Ms. Cassell, her staff, and Ag-Mart farm compliance manager, Amanda Collins created a new spreadsheet, which Ms. Cassell titled "Field Locations for 3 Employees for 2004." This spreadsheet was identical in format to the earlier document, but was expanded to include the dates the three women worked for all of 2004. For each worker, the spreadsheet provided a cell for each day worked, and within that cell a list of field numbers. Again, the Department took these field numbers to represent fields in which the women actually worked, when Ag-Mart actually intended them to represent fields in which the women possibly worked. Some of the cells listed as many as 23 field numbers for one day. The method of developing this spreadsheet was similar to that employed for the first one. The weekly time cards of the three women were used to provide the days they worked. Ag-Mart's weekly time cards show the name of the employee, the rounded hours worked each week, the number of piece units worked, the hours worked for minimum wage, and the initials of the crew leader for whom the employee worked that week. For their South Florida farm work in 2004, Ms. Herrera and Ms. Salazar worked exclusively for crew leader Sergio Salinas. Ms. de la Mesa worked at South Florida for crew leader Juan Anzualda and at North Florida for crew leader Pascual Sierra.8 To identify the fields where the three women might have worked on a given day, Ms. Cassell and her staff again used foreman receiving reports and planting schedules. The receiving reports were understood to provide the dates of shipping for harvested product, and these were correlated to the dates on which the three women worked. Again, Ms. Cassell listed every field within a planting as a possible work location, because Ag-Mart kept no data that identified the fields in which the women actually worked on a given date. On May 6, 2005, Mr. Richmond met with Ms. Cassell and Ms. Collins at Ag-Mart's Plant City administrative offices. The meeting lasted no more than 15 minutes and consisted of Ag-Mart employees turning over various documents to Mr. Richmond, along with some explanatory conversation. Ms. Cassell specifically recalled explaining to Mr. Richmond that the field location spreadsheet indicated the "total possible fields that the three employees could have worked in." Mr. Richmond denied that Ms. Cassell gave him any such explanation. Ms. Collins recalled that Mr. Richmond and Ms. Cassell had some discussion about the spreadsheet, but could recall no particulars.9 Mr. Richmond forwarded the documents received at the May 6, 2005, meeting to Ms. Fernandez in Tallahassee. His written summary, also dated May 6, 2005, represents Mr. Richmond's contemporaneous understanding of the meaning of the documents he was given at the Plant City meeting. The summary stated, in relevant part: Ms. Collins provided the times which the three ladies worked at the various locations which came from the three ladies time cards (See Exhibits V-1 through V-3, copies of time worked information). Ms. Collins stated that this has the start and finished [sic] times, but does not have which fields they worked at a particular time as they may pick in several fields throughout the day. Ms. Collins provided another copy of the field locations for each of the three ladies (See Exhibits W-1 and W-2, copies of field locations of workers). Ms. Collins also provided maps with field locations depicting blocks and plantings (See Exhibits X-1 through X-13, maps depicting field locations with blocks and plantings). The field no. is the main number in each block, the first two numbers are the numbers of the planting, while the remaining number in the set is the block number. . . . At the hearing, Mr. Richmond testified that he "absolutely" would have communicated to Ms. Fernandez any conversation he had with, either, Ms. Cassell or Ms. Collins indicating that the field location spreadsheet was anything other than a document showing where the women worked on a given day. This testimony is credible and, coupled with Mr. Richmond's contemporaneous written statement, leads to the finding that Mr. Richmond's testimony regarding the May 6, 2005, meeting in Plant City should be credited. On May 12, 2005, Ms. Cassell sent Mr. Dubberly an e- mail with an attachment correcting some aspects of the spreadsheet. Ms. Cassell's e-mail message stated: I have attached the the [sic] revision to the original sheet given on the 3 woman's [sic] field locations. I included which field location for NC. There was one revision I made for Francisca on week ending 4/24/05 [Ms. Cassell clearly means 2004]. She was in NC that week and on the last two days of that week I had SFL field numbers and it should of [sic] been NC [sic] please discard old report and replace with revised one. The Department cites this e-mail as further indication that Ag-Mart represented the spreadsheet as indicating actual field locations for the three women, or at least that Ag-Mart said nothing to clarify that the spreadsheet showed something other than the fields where the women actually worked. Ms. Fernandez, the case reviewer whose analysis led to the filing of the Administrative Complaints against Ag-Mart, believed that the field location spreadsheets prepared by Ms. Cassell and her staff reflected the actual work locations for Ms. Herrera, Ms. Salazar, and Ms. de la Mesa. As a case reviewer, Ms. Fernandez receives files compiled by the field staff and reviews the files to determine whether a violation of the Florida Pesticide Law has occurred. The procedure of the Bureau of Compliance Monitoring appears designed to ensure that the case reviewers have no contact with the subjects of their investigation and, instead, rely on field inspectors to act as conduits in obtaining information from companies such as Ag-Mart. As a result, Ms. Fernandez had no direct contact with anyone from Ag-Mart and, thus, had no direct opportunity to be disabused of her assumptions regarding the field location spreadsheet. Ms. Fernandez conceded that she had never been on a tomato farm at the time she conducted her review of the Ag-Mart case. She did not take into consideration the acreage of the fields or the size of the work crews and their manner of operation. She made no attempt to visualize the effort it would take for one worker to harvest in ten or 20 fields in one day. She assumed that each woman worked in at least part of each field listed on the spreadsheet for each day listed. Ms. Fernandez believed that the spreadsheet was clear on its face and saw no need to make further inquiries as to the plausibility of the assumption that it reflected actual, not possible, field locations. As found above, Ag-Mart made no statement to any Department employee to qualify that the spreadsheet meant only possible field locations. Nonetheless, common sense should have caused someone in the Department to question whether this spreadsheet really conveyed the information that its title appeared to promise. On some days, the spreadsheet places a single field worker in 23 fields. Ag-Mart's crew leaders credibly testified that their crews never worked in more than four fields in one day and more often worked in only one or two. Even granting Ms. Fernandez' ignorance, Mr. Dubberly or some other superior in the Department should have had enough knowledge of farm operations to question the plausibility of Ms. Fernandez' assumptions. While Ag-Mart is at fault for not explaining itself clearly, the Department is also at fault for insisting that the spreadsheet be taken at face value, no matter how implausible the result.10 At the hearing, Ms. Fernandez explained how she used the documents provided by Ag-Mart to draft the Administrative Complaints. As an example, Counts I and II of the North Florida Complaint provide: Count I On June 6, 2004, Mr. Cesar Juarez and Mr. Alexis Barrios treated approximately 157.6 acres of grape tomatoes, planted in fields 7-8, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The Monitor 4 Spray supplemental label states: "REMARKS . . . Do not apply more than a total of 10 pints per acre per crop season, nor within 7 days of harvest." Worker field location records show that tomatoes were harvested from fields 7 and 8 on June 7, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre- harvest interval stated on the Monitor 4 Spray label. Count II The Danitol 2.4 EC Spray label states: "TOMATO . . . Do not apply the DANITOL + MONITOR 4 Spray tank mix within 7 days of harvest." As noted in the previous paragraph, fields 7-8 were treated with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray on June 6, 2004. Tomatoes were harvested from these same fields on June 7, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Danitol 2.4 EC Spray label. Ms. Fernandez obtained the information regarding the date, time, and manner of pesticide application from the spray tickets described above. She obtained the Monitor and Danitol PHI information from the product label. She obtained the harvest information from the spreadsheet, which indicated that Ms. de la Mesa worked in fields 7 and 8 on June 7, 2004. Counts I and II alleging violations of the PHIs for Monitor and Danitol had an accompanying Count XIX, alleging a violation of the REI for Monitor arising from the same set of facts: Count XIX The Monitor 4 Spray and the Danitol 2.4 EC Spray labels contain the following language: "AGRICULTURAL USE REQUIREMENTS. Use this product only in accordance with its labeling and with the Worker Protection Standard, 40 CFR part 170. This Standard contains requirements for the protection of agricultural workers on farms, forests, nurseries, and greenhouses, and handlers of agricultural pesticides. It contains requirements for training, decontamination, notification, and emergency assistance. It also contains specific instructions and exceptions pertaining to the statements on this label about personal protective equipment (PPE) and restricted entry interval. The requirements in this box only apply to users of this product that are covered by the Worker Protection Standard." On June 6, 2004, Mr. Cesar Juarez and Mr. Alexis Barrios treated approximately 157.6 acres of grape tomatoes, planted in fields 7-8, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The application started at 11:30 am and ended at 5:30 pm on June 6, 2004. The Monitor 4 Spray label states: "Do not enter or allow worker entry into treated areas during the restricted entry interval (REI) of 48 hours." Work records show that Ms. de la Mesa, directed by licensed applicators Mr. Charles Lambert (PV38793)11 and Mr. Warrick Birdwell (PV36679), worked in fields 7 and 8 on June 7, 2004, and that her working hours for June 7, 2004, were 8:00 am to 6:30 pm. Therefore, Ms. de la Mesa and other workers were instructed, directed, permitted or not prevented by the agricultural employer, Ag-Mart Produce, Inc. from entering treated fields before the expiration of the REI stated on the Monitor 4 Spray label. Throughout the hearing, Ag-Mart contended (and the Department did not dispute) that no statute or rule requires Ag-Mart to keep a daily log of the fields where its employees work. The Department also conceded that Ag-Mart was cooperative throughout its investigation.12 Ag-Mart contends that all counts should be dismissed because of the Department's reliance on the field location spreadsheet, which shows only the possible field locations of the workers. This contention goes to far. For example, the counts set forth above are well taken, because the spray tickets indicate that fields 7 and 8 were sprayed on June 6, 2004, and the field location spreadsheet indicates that Ms. de la Mesa worked only in fields 7 and 8 on June 7, 2004. Ag-Mart further attacked the spreadsheet by suggesting the unreliability of the dates on the foreman receiving reports. As found above, the receiving reports generally showed the date the product was shipped from the farm to the packinghouse, as well as the crew leader who provided the tomatoes and the planting from which the tomatoes were harvested. At the hearing, Ag-Mart contended that the date the product was shipped was not always the same date it was harvested. Further, Ag-Mart demonstrated that one of the receiving reports relevant to this proceeding showed the date the product was received at the packing house, rather than the date the product was shipped from the farm, due to a clerical error. Ag-Mart argued that this example showed that the receiving reports were not a reliable source for determining the precise dates of harvest in a given field on the North Florida farm. Ag-Mart's evidence is insufficient to demonstrate the unreliability of the receiving reports, where Ag-Mart itself relied on the reports to provide the Department with the spreadsheet showing possible field locations of the three workers. Ag-Mart had ample opportunity to make a thorough demonstration of the reports' alleged unreliability and failed to do so. Ag-Mart also attempted to cast doubt on the accuracy of the spray tickets through the testimony of Mr. Oelman and Mr. Birdwell, both of whom stated that the spray tickets are written well in advance of the pesticide applications and are not invariably rewritten or corrected when the spraying schedule is pushed back due to rain or slow harvest. However, the pesticide applicator is required by law to maintain accurate records relating to the application of all restricted-use pesticides, including the date, start time and end time of the treatment, and the location of the treatment site. Fla. Admin. Code R. 5E-9.032(1). The Department is entitled to inspect these records. Fla. Admin. Code R. 5E-9.032(6). Ag-Mart may not attack records that its own employee/applicators were legally required to keep in an accurate fashion. The Department is entitled to rely on the spray tickets as accurate indicators of when and where pesticide applications occurred. Thus, the undersigned has accepted the accuracy of the spray records and the receiving reports, but not of the field location spreadsheet. However, there are some dates on which the fields shown on the spreadsheet perfectly match the fields shown on the spray tickets, as in Counts I, II, and XIX of the North Florida Complaint set forth above. It is found that the Department has proven these counts by clear and convincing evidence. In addition to Counts I, II, and XIX of the North Florida Complaint, the Department has proven the following counts of the North Florida Complaint by clear and convincing evidence: Counts XI, XII, and XXII (spraying in fields 7 and 8 on June 17, 2004; Ms. de la Mesa worked only in fields 7 and 8 on June 19, 2004); and Count XIII (spraying Agrimek 0.15 EC Miticide/Insecticide, with PHI of seven days, in fields 7 and 8 on June 3, 2005; Ms. de la Mesa worked only in fields 7 and 8 on June 7, 2004). The Department has proven none of the counts in the South Florida Complaint by clear and convincing evidence. Some explanation must be made for the finding that Counts XXXI and XXXII were not proven by clear and convincing evidence. Those counts allege as follows: Count XXXI On April 17, 2004, Mr. Lorenzo Reyes, Mr. Demetrio Acevedo and Mr. Francisco Vega treated approximately 212.5 acres of grape tomatoes, planted in fields 11, 6 and 4, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The Monitor 4 Spray supplemental label states: "REMARKS . . . Do not apply more than a total of 10 pints per acre per crop season, nor within 7 days of harvest." Worker field location records show that tomatoes were harvested from fields 11, 6 and 4 on April 21, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Monitor 4 Spray label. Count XXXII The Danitol 2.4 EC Spray label states: "TOMATO . . . Do not apply the DANITOL + MONITOR 4 Spray tank mix within 7 days of harvest." As noted in the previous paragraph, fields 11, 6 and 4 were treated with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray on April 17, 2004. Tomatoes were harvested from these same fields on April 21, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Danitol 2.4 EC Spray label. These counts base their allegation that tomatoes were harvested from fields 11, 6, and 4 on April 21, 2004, on the field location spreadsheet, which indicates that Ms. Salazar possibly worked in fields 4, 6, 9, 10, and/or 11 on April 21, 2004. Thus, the spreadsheet does not definitely prove that Ms. Salazar harvested tomatoes in the three sprayed fields within the PHI. At the final hearing, the Department introduced a spray ticket showing that Monitor and Danitol were also applied to fields 9 and 10 on April 15, 2004. This additional spray ticket completed the Department's demonstration that every field in which Ms. Salazar harvested tomatoes on April 21, 2004, had been sprayed with Monitor and Danitol within the seven-day PHI. However, the Department did not amend the South Florida Complaint to allege the fact of the second spray ticket, and, so, must be held to the allegations actually made in the complaint. Ag-Mart may not be found guilty of facts or violations not specifically alleged in the South Florida Complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (facts not alleged in the Administrative Complaint). See also B.D.M. Financial Corporation v. Department of Business and Professional Regulation, 698 So. 2d 1359, 1362 (Fla. 1st DCA 1997) (violations not alleged in the Administrative Complaint). In similar fashion, Counts XLI and XLII of the South Florida Complaint allege that fields 21, 22, 18, and 19 were sprayed with Monitor and Danitol on May 15, 2004, and allege PHI violations in fields 21, 22, 18, and 19 on May 20, 2004, based on the field location spreadsheet's indication that Ms. Salazar possibly worked in one or more of fields 18 through 25 on that date. Thus, the spreadsheet does not definitely prove that Ms. Salazar harvested tomatoes in the four sprayed fields within the PHI. At the final hearing, the Department introduced a spray ticket showing that Monitor and Danitol were, also, applied to fields 20, 23, 24, and 25 on May 14, 2004. This additional spray ticket completed the Department's demonstration that every field in which Ms. Salazar harvested tomatoes on May 20, 2004, had been sprayed with Monitor and Danitol within the seven-day PHI. Again, however, the Department failed to amend the South Florida Complaint to reflect its subsequently developed evidence. Subsection 487.175(1)(e), Florida Statutes, provides that the Department may enter an order imposing an administrative fine not to exceed $10,000 for each violation. The statute further provides as follows: When imposing any fine under this paragraph, the department shall consider the degree and extent of harm caused by the violation, the cost of rectifying the damage, the amount of money the violator benefited from by noncompliance, whether the violation was committed willfully, and the compliance record of the violator. Mr. Dubberly testified that the Department does not have a rule for determining the amount of fines, but uses a matrix, attaching a rating of 0 to 5 for each of the criteria named in the quoted portion of the statute, with 5 representing the most egregious violation. The extent of harm caused by the violation is divided into two classifications: (A) the degree and extent of harm related to human and environmental hazards and (B) the degree and extent of harm related to the toxicity of the pesticide(s). The remaining criteria considered in the matrix are: (C) the estimated cost of rectifying the damage, (D) the estimated amount of money the violator benefited by noncompliance, whether the violation was committed willfully, and (F) the compliance record of the violator. Each factor is given its numerical value. The values for factors (B) through (F) are added, then the total is multiplied by the value for factor (A). The resulting number is then multiplied by $100.00 to determine the amount of the fine. The PHI violations were primarily food safety violations, the concern being that there might be an unacceptable pesticide residue on the tomatoes if they were harvested within the PHI. The REI violations were based on concerns for worker safety from pesticide exposure. In determining the fines for PHI violations, the Department assigned a numerical value of 2 for factor (A). In determining the fines for REI violations, the Department assigned a numerical value of 3 for factor (A), based on a reasonable probability of human or animal death or injury, or a reasonable probability of serious environmental harm. For purposes of this proceeding, all the pesticides used by Ag-Mart were restricted-use pesticides. In considering the value to be assigned to factor (B), the Department relied on the pesticide labels, which contain signal words for the category of potential hazard to human or animal life posed by that pesticide. Monitor contained the signal word "Danger," which represents the highest level of potential hazard. A value of 5 was assigned for factor (B) in the alleged violations involving the use of Monitor. Danitol and Agrimek contained the signal word "Warning," which indicated a lesser potential hazard. A value of 3 was assigned for factor (B) in the alleged violations involving Danitol or Agrimek. Because the estimated cost of rectifying the damage and the estimated amount of money the violator benefited by noncompliance was unknown, the Department assigned a value of 0 to factors (C) and (D). As to factor (E), dealing with the willfulness of the violation, the Department assigns a value of 0 if there is no evidence of willfulness, a value of 1 if there is apparent evidence of willfulness, and a value of 5 if it determines the violation was intentional. Because of the large number of alleged PHI and REI violations, the Department assigned a value of 1 for factor (E), finding apparent evidence of willful intent for each alleged violation. As to factor (F), dealing with the violator's compliance history, the Department considers the three years immediately preceding the current violation. The Department assigns a value of 0 if there are no prior violations, a value of 1 for a prior dissimilar violation, a value of 2 for multiple prior dissimilar violations, a value of 3 for a prior similar violation, and a value of 4 for multiple prior similar violations. Because Ag-Mart had one prior dissimilar violation within the preceding three years, the Department assigned a value of 1 for factor (F) for each alleged violation. Because the sole basis for finding apparent evidence of willful intent was the number of alleged violations, the Department calculated its recommended fines in two ways: by assigning a value of 0 based on no evidence of willful intent and by assigning a value of 1 based on apparent evidence of willful intent. In DOAH Case No. 06-0730, the North Florida Complaint, the Department recommended a fine of either $1,200 (no evidence of willful intent) or $1,400 (apparent evidence of willful intent) for each of the PHI violations alleged in Counts I, III, V, VII, IX, and XI, which involved the use of Monitor. The Department recommended a fine of either $800 (no evidence) or $1,000 (apparent evidence) for Counts II, IV, VI, VIII, X, and XII, involving the use of Danitol, and for Counts XIV, XV, and XVI, involving the use of Agrimek. For each of the REI violations alleged in Counts XIX through XXII, the Department recommended a fine of either $1,800 (no evidence) or $2,100 (apparent evidence). The Department established by clear and convincing evidence seven of the 20 counts of the North Florida Complaint that remained at issue at the time of the hearing, and none of the 58 counts of the South Florida Complaint that remained at issue at the time of the hearing. The undersigned accepts the Department's calculation of the recommended fines for these violations and recommends that the Department apply the lower calculation for each of the violations. Thus, the recommended fines are as follows: Count I, PHI violation involving the use of Monitor, $1,200; Count II, PHI violation involving the use of Danitol, $800; Count XI, PHI violation involving the use of Monitor, $1,200; Count XII, PHI violation involving the use of Danitol, $800; Count XIII, PHI violation involving the use of Agrimek, $800; Count XIX, REI violation, $1,800; and Count XXII, REI violation, $1,800. Thus, the total recommended fine for the seven proven violations is $8,400. In conclusion, it is observed that these cases demonstrate a gap in the enforcement mechanism of the Florida Pesticide Law, at least as it is currently understood and practiced by the Department. The law requires licensed applicators to comply with the PHI and REI restrictions on the labels of the restricted-use pesticides they apply to these crops. The law requires the applicators to keep accurate records of when and where they apply pesticides and of the kind and quantity of pesticides applied in each instance. Yet all parties to this proceeding agreed that the law does not require either the applicators or the growers to keep accurate records of when and where farm workers enter the fields and conduct the harvest. This failure to complete the record- keeping circle makes it extremely difficult for the Department to prove by clear and convincing evidence that a PHI or REI violation has taken place. The PHI and REI restrictions appear virtually unenforceable through company records, except when some fluke of record keeping allows the Department to establish that a given worker could only have been in a recently sprayed field on a given day. It does little good to know when the pesticides were applied to a field if there is no way of knowing when workers first entered the field or harvested tomatoes after the spraying. Ag-Mart credibly demonstrated that its general practices are designed to minimize worker exposure and guarantee safe harvest, but the company keeps no records to demonstrate to its customers that it observes these practices in particular instances and is under no legal obligation to keep such records. This state of regulatory affairs should be as disturbing to Ag-Mart as to the Department, because purchasers of tomatoes in Florida's grocery stores do not require clear and convincing evidence in order to switch brands.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department enter a final order that provides as follows: That Ag-Mart committed the violations alleged in Counts I, II, XI, XII, and XIII of the North Florida Complaint, for which violations Ag-Mart should be assessed an administrative fine totaling $8,400; That Ag-Mart pay to the Department $3,000 to resolve Counts L through LIV of the South Florida Complaint and Counts XVII and XVIII of the North Florida Complaint; and That all other counts of the North Florida Complaint and the South Florida Complaint be dismissed. DONE AND ENTERED this 16th day of March, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 16th day of March, 2007.
The Issue Whether petitioner should assess a civil money penalty against respondent for failing to provide wage statements to workers or to keep records of any type in violation of Section 450.38(2), Florida Statutes (1986 Supp.), and Rule 38B- 4.12(1), Florida Administrative Code?
Findings Of Fact When respondent Herbert A. Dockery originally applied for registration as a Florida Farm Labor Contractor, on March 19, 1986, he certified that he had read and understood "the Florida Farm Contractor Rules and Regulations. Petitioner's Exhibit No. 8. On June 25, 1986, Marshall Alexander Carroll and Henry Jefferson Parker, crew chief compliance officers in DLES' employ, discovered that Mr. Dockery was keeping no records of moneys he paid agricultural workers. They told him such recordkeeping was legally required and gave him blank forms, like those that came in as Petitioner's Exhibit No. 6, which he could use, by keeping the originals for himself and giving the workers duplicates. On November 3, 1986, in the course of a scheduled payroll audit, Mr. Parker again asked Mr. Dockery about his recordkeeping, and asked him to produce his social security records, receipts or "anything he had." But Mr. Dockery was unable to produce any records and admitted that he had kept none, saying he had only worked three days 35 as a farm labor contractor in 1986. Petitioner's Exhibit No. 1. Beginning June 1, 1986, Tommy Price worked with Mr. Dockery "a short while" picking and loading watermelons and driving a truck hauling watermelons. Mr. Price worked for the respondent about a month all told but some of that time was in Missouri. During all the time he worked for Mr. Dockery, Mr. Price, who was paid in cash, never received any statements. Mr. Dockery didn't keep track of people's hours and might not even have known, at any one point, who was in the field working for him. The only records he kept were notations of how much he promised to pay different people for truckloads of watermelons.
Recommendation It is, accordingly, RECOMMENDED: That petitioner fine respondent two hundred and fifty dollars ($250.00). DONE and ENTERED this 15th day of June, 19B7, at Tallahassee, Florida. ROBERT T. BENTON, II 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 15th day of June, 1987. COPIES FURNISHED: Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Moses E. Williams, Esquire Suite 117, Montgomery Building 2562 Executive Center Circle Tallahassee, Florida 32399-0658 Herbert A. Dockery Post Office Box 664 Chiefland, Florida 32626
Findings Of Fact At all pertinent times, respondent Beach Landscaping, Inc. d/b/a Landscape Technologies or Landscape Technologies, Inc. or as Land Tech (Beach) operated as a dealer in agricultural products under license No. 2889 issued by the Department of Agriculture and Consumer Services (DACS). On Beach's behalf, respondent Regency Insurance Company posted a surety bond with DACS, No. SF00356 in the amount of $3,000, effective September 24, 1988, through September 23, 1989, to secure payment for Florida agricultural products. Testimony of Brooks. On August 30, 1989, Beach took delivery from petitioners of seven live oak trees petitioners grew near Chiefland, Florida, agreeing to pay $125 for each which, with sales tax, aggregated $927.50. Petitioners's Exhibit No. 1, Inv. No. 716280. Testimony of Cochran. Having earlier made a deposit of $637.50, Beach took delivery from petitioners on September 18, 1989, of 15 Florida-grown live oak trees, agreeing to pay $170 for each. With sales tax (but less the deposit) Beach owed petitioners $2,065.50 on account of this transaction. Petitioners's Exhibit No. 1, Inv. No. 716788. Testimony of Cochran. The next day Beach took delivery from petitioners of 15 more Florida- grown trees again agreeing to pay $170 for each. Again with sales tax and less an earlier deposit, indebtedness on account of the transaction aggregated $2,065.50. Petitioners's Exhibit No. 1, Inv. No. 716790. Testimony of Cochran. Finally, on September 20, 1989, Beach took delivery from petitioners of 16 Florida-grown live oak trees, agreeing to pay $170 for each, which with sales tax and less an earlier deposit, amounted to $2,203.20. Petitioners's Exhibit No. 1, Inv. No. 716791. Testimony of Cochran. On March 3, 1990, Beach or Landscape Technologies, Inc. paid petitioners $1,000, thereby reducing indebtedness to petitioners on account of the foregoing transactions from $7,261.70 to $6,261.70. Petitioners applied a check in the amount of $1,500 to reduce the indebtedness to $4,761.70, even though the check purported to be in payment of another invoice. In the answer it filed with DACS, Landscape Technologies, Inc., admitted indebtedness of $4,661.10.
Recommendation It is, accordingly, RECOMMENDED: That DACS order Beach to pay petitioners four thousand seven hundred sixty-one dollars and seventy cents ($4,761.70) within fifteen (15) days of the final order. That, in the event Beach fails to pay petitioners four thousand seven hundred sixty-one dollars and seventy cents ($4,761.70) within fifteen (15) days of the final order, DACS order Regency Insurance Company to pay three thousand dollars ($3,000) or such lesser sum as satisfies the requirements of Section 604.21(8), Florida Statutes (1989), for disbursal to petitioners. DONE and ENTERED this 19th day of April, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 19th day of April, 1991. COPIES FURNISHED TO: CHRISTOPHER B. PHILLIPS LANDSCAPE TECHNOLOGIES, INC. 523 LAKEVIEW ROAD CLEARWATER, FL 34616 REGENCY INSURANCE COMPANY POST OFFICE BOX 190 HALLANDALE, FL 33009-0190 CLINTON H. COULTER, JR., ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES TALLAHASSEE, FL 32399-0800 J. COCHRAN & RUSSELL STRANGE C & S TREE FARM ROUTE 1, BOX 738 CHIEFLAND, FL 32626 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE DEPARTMENT OF AGRICULTURAL AND CONSUMER SERVICES THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURAL AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800
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
The Issue Whether the Petitioner proved the elements necessary to demonstrate that she was subject to an unlawful employment practice as a result of Respondent, Bradford County Farm Bureau, maintaining a sexually-hostile work environment.
Findings Of Fact At all times material to this proceeding, Petitioner was employed by Respondent, Bradford County Farm Bureau (BCFB or Respondent). She worked for the BCFB from December 15, 2006 until January 1, 2012. The BCFB is an organization created to work for and provide support to farmers in Bradford County. The BCFB has its office in Starke, Florida. At all times relevant to this proceeding, James Gaskins was the President of the BCFB Board of Directors. He served in that capacity as an unpaid volunteer. The alleged actions of Mr. Gaskins towards the Petitioner form the basis for her claim of employment discrimination. Section 760.10(1), provides that: It is an unlawful employment practice for an employer: To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual?s race, color, religion, sex, national origin, age, handicap, or marital status. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual?s status as an employee, because of such individual?s race, color, religion, sex, national origin, age, handicap, or marital status. Section 760.02(7) defines "employer" as follows: „Employer? means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person. The threshold issue in this proceeding is whether the BCFB had the requisite number of employees to bring it under the jurisdiction of the Florida Civil Rights Act of 1992 as Petitioner?s “employer.” If Petitioner fails in her proof of that issue, any discussion of acts that may have constituted sexual harassment or resulted in the creation of a sexually- hostile work environment become superfluous and unnecessary. Facts Regarding the BCFB as an “Employer” At all times relevant to this proceeding, the BCFB had two paid employees. Ms. Griffith was the office manager and bookkeeper. Ms. Linzy was a part-time secretary and receptionist, although she worked full-time when Ms. Griffith was out. Ms. Linzy retired in October, 2012. In addition to the foregoing employees, the BCFB has a five-member board of directors. Although Mr. Gaskins, who was a member of the Board, served as an unpaid volunteer, there was no evidence as to whether the remaining members were paid for their services. For purposes of this Recommended Order, it will be presumed that they were. Based solely on the number of its employees, BCFB is not an “employer” as defined by section 760.10. Therefore, in order to prove the threshold element of her claim for relief, Petitioner must establish that employees of other entities should be imputed to the BCFB due to integrated activities or common control of BCFB?s operations or employees. Petitioner presented evidence of the relationship between the BCFB, the Florida Farm Bureau, and the Florida Farm Bureau Insurance Company (FFBIC) to establish the requisite integration or common control necessary to impute their employees to the BCFB. Florida Farm Bureau The Florida Farm Bureau has more than 15 employees. The Florida Farm Bureau has a mission similar to that of the BCFB of providing goods, services, and other assistance to farmers, though on a state-wide basis. Each county in Florida has an independent county farm bureau. The Florida Farm Bureau has no common corporate identity with the BCFB. The BCFB is incorporated as a legal entity unto itself. The Florida Farm Bureau and the BCFB have no common officers, directors, or employees. The Florida Farm Bureau does not share or comingle bank accounts with the BCFB. The BCFB maintains its own finances, and has a bank account with the Capital City Bank Group. The Florida Farm Bureau has no operational control over the BCFB. The BCFB Board of Directors makes all employment decisions for the BCFB, has exclusive authority to hire and fire employees of the BCFB, and has exclusive control over the pay and the terms and conditions of BCFB employees. Employees of the BCFB are paid by the BCFB, and not by the Florida Farm Bureau. The Florida Farm Bureau has the telephone numbers of all of the county farm bureaus, and can transfer calls received by the Florida Farm Bureau to any of the county farm bureaus. Other than that, as stated by Ms. Linzy, the county farm bureaus “are all on their own.” Florida Farm Bureau Insurance Company The Florida Farm Bureau Insurance Company is affiliated with the Florida Farm Bureau. The nature and extent of the relationship between those entities was not established. The relationship between those two entities does not affect their relationship, or lack thereof, with the BCFB. Petitioner introduced no evidence as to the FFBIC?s total number of employees. The FFBIC has no common officers or directors with the BCFB, nor do they share or comingle bank accounts. Brent Huber and Travis McAllister are insurance agents authorized to transact business on behalf of the FFBIC. They are self-employed independent contractors. Mr. Huber does business as “Brent Huber, Inc.” Neither Mr. Huber nor Mr. McAllister is an employee of the FFBIC. Mr. Huber is not employed by the BCFB, and does not perform duties on behalf of the BCFB. The evidence suggests that Mr. McAllister?s status, vis-à-vis the BCFB, is the same as that of Mr. Huber. Local FFBIC agents are selected by the FFBIC. Given the close relationship with local farmers/customers, the FFBIC selection of a local agent must be ratified by the county farm bureau in the county in which the agent is to transact business. Once ratified, an FFBIC agent cannot be terminated by the county farm bureaus. Mr. Huber and Mr. McAllister, having been appointed to transact business in Bradford County as agents of the FFBIC, maintain an office at the BCFB office in Starke. There being only four persons in the office, the relationship among them was friendly and informal. Mr. Huber described the group as “tight-knit” and “like a family.” Mr. Huber had no supervisory control over Petitioner or her work schedule. Due to the small size of the BCFB office, and limited number of persons to staff the office, Ms. Griffith?s absences would cause problems for the office as a whole. However, Mr. Huber never evaluated Ms. Griffith?s performance and never disciplined Ms. Griffith. The FFBIC provided sexual harassment, employment discrimination, workers? compensation, and minimum wage informational signs that were placed in the BCFB office break room. Those signs were “shared” between the Florida Farm Bureau Insurance Company and the BCFB. Thus, the BCFB did not maintain a separate set of signs. The BCFB office has a single telephone number, and calls are routed internally. If Mr. Huber was out of the office, Petitioner or Ms. Linzy would take messages for him. If Mr. Huber was alone in the office, he would answer the telephone. Petitioner or Ms. Linzy would occasionally make appointments for Mr. Huber, and assist him when clients visited the office. Mr. Huber did not pay Petitioner or Ms. Linzy for those services. At some point, Mr. Huber and Ms. Griffith determined that it would be mutually advantageous if Ms. Griffith were allowed to speak with FFBIC customers about insurance when Mr. Huber was out of the office. To facilitate that arrangement, Ms. Griffith, at Mr. Huber?s suggestion, obtained a license as a customer service representative, which allowed her to sell policies under Mr. Huber?s insurance agent license. The customer service representative license was not a requirement of Ms. Griffith?s position with the BCFB. Ms. Griffith would sell insurance policies only when Mr. Huber was out of the office. Mr. Huber compensated Ms. Griffith for writing insurance policies through “Brent Huber, Inc.” Ms. Griffith continued to be paid as a full-time employee of the BCFB because she thought the BCFB “would be OK with it.”
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations that, based upon Petitioner's failure to meet her burden of proof to establish that Respondent, Bradford County Farm Bureau, is an “employer” as defined in section 760.02(7), the Employment Complaint of Discrimination be dismissed. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 6th day of May, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Robert E. Larkin, III, Esquire Allen, Norton and Blue, P.A. Suite 100 906 North Monroe Street Tallahassee, Florida 32303 Jamison Jessup 557 Noremac Avenue Deltona, Florida 32738 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact During late 1987 and early 1988, the Respondent, Javier Melendez, was registered by the Petitioner, the Department of Labor and Employment Security (DLES), as a farm labor contractor with authorization to transport migrant and seasonal farm workers. In March, 1988, Melendez applied to renew his registration as a farm labor contractor. On or about April 5, 1988, the DLES entered a Final Order imposing $1400 of fines on Melendez for two violations: one, a violation of Section 450.33(5), Florida Statutes, and Rule 38B-4.005(1), Florida Administrative Code, for not carrying required liability insurance on the 1979 Ford van in which he was transporting migrant and seasonal farm workers on December 10, 1987; the second, a violation of Section 450.33(9), Florida Statutes, and Rule 38B-4.004(5), Florida Administrative Code, for not having a current valid inspection on the same vehicle on the same day. Melendez did not take steps to bring his 1979 Ford van into compliance with the requirements for using it to transport migrant and seasonal farm workers. On January 11, 1988, another registered farm labor contractor named Emmett Hunter was using a 1975 Ford van that Melendez owned and had loaned to Hunter for a rental charge to transport migrant and seasonal farm workers. The 1975 Ford van did not have required liability insurance for use in transporting migrant and seasonal farm workers. Melendez still has not brought either of the two vans into compliance with the requirements for use in transporting migrant and seasonal farm workers. Melendez has paid no part of the $1400 of fines that were imposed by Final Order in April 1988. Melendez did not appear at the final hearing in this case.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, the Department of Labor and Employment Security, enter a final order denying the application of the Respondent, Javier Melendez, for renewal of his certificate of registration as a farm labor contractor. RECOMMENDED this 3rd day of August, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 3rd day of August, 1988. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Suite 117, Montgomery Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Mr. Javier Melendez Post Office Box 2052 Haines City, Florida 33844 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 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue Whether Petitioner's application for a real estate salesman's license should be approved?
Findings Of Fact Sometime in late February or early March, 1988, Petitioner submitted an application for licensure as a real estate salesman. Petitioner's answers to questions 6 and 7 of the application reflected that in June or July 1987, he had pled guilty to conspiring to defraud the United States and was sentenced to serve 2 years on probation and assessed a $5,000 fine. Based on Petitioner's answers to questions 6 and 7 of the application, Respondent denied Petitioner's application for licensure. Petitioner's conviction for conspiring to defraud the United States was due to his involvement with two Farmers Home Administration projects to build low-income housing in Michigan. In 1983, the Farmers Home Administration had allotted approximately $500,000 to fund each of 2 low-income housing projects consisting of 18 units each. The funding had been committed to a developer other than Petitioner. The developer had been unable to arrange for the projects to be built. The developer had let out bids on both projects. The bid on one project came back under the amount allotted; however, the bid for the other project came back at approximately $105,000 over the amount allotted. At this point, Petitioner was contacted by the developer and became a partner in the development of the two projects. Petitioner's job was to get the projects built. Petitioner determined that it might be possible to construct the two projects for the total amount allotted, $1,000,000, if both projects were bid out together, since efficiencies should be achieved by bidding both projects as one. Petitioner let out a bid for the construction of both projects. The bid came back at a slightly higher amount than that allotted. However, after some negotiations with the Farmers Home Administration the two projects were allowed to proceed. However, the fact still remained that one project was more expensive than the other to build, and that the costs of the more expensive project exceeded the amount allotted by the Farmer's Home Administration. In order to resolve this problem, Petitioner falsified some documents to make the accounting for each project show that both projects came in under the amount allotted even though this was not true. In effect, Petitioner used money allotted to the less expensive project to pay for the more expensive project. In 1985, the Federal Bureau of Investigation began an investigation of all Farmers Home Administration projects in Michigan. Out of this investigation, Petitioner's involvement with the two projects was uncovered, and his subsequent plea of guilty and conviction were due to his falsifying the documents. Petitioner held a real estate salesman's license in Michigan from 1975 to 1978. From 1978 to the present time, Petitioner has held a real estate broker's license in Michigan. No disciplinary action has been taken by the State of Michigan on account of Petitioner's actions which led to his conviction. Also, no action has ever been brought in Michigan arising out of Petitioner's activities representing buyers and sellers of real estate. Petitioner has paid $150.00 of the $5,000.00 fine imposed by the Federal government. He has paid when he has had work. Petitioner is in the process of filing for Chapter 11 reorganization in order to facilitate the payment of some debts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission issue a Final Order approving Petitioner's application for license as a real estate salesman. DONE and ORDERED this 14th day of November, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3479 The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph Accepted. Accepted. Accepted. Rejected as not a finding of fact. Accepted. Rejected as not a finding of fact, but see Conclusions of Law section of RO. Rejected as not a finding of fact. Respondent's PRO posed Findings of Fact PRO posed Finding of Fact Number Ruling and RO Paragraph Accepted as modified in RO 1. Accepted as modified in RO 3. Subordinate. Accepted as modified in RO 2, 4 and 12. Accepted as modified in RO 11 and 12. Accepted as modified in RO 16 and 17. First 7 words are not a finding of fact; remainder of sentence is Rejected as contrary to the weight of the evidence. COPIES FURNISHED: George Joseph Laufersky 7 Oak Lane Lady Lake, Florida 32659 Lawrence S. Gendzier Assistant Attorney General 400 West Robinson Room 212 Orlando, Florida 32801 Darlene F. Keller, Executive Director Division of Real Estate 400 West Robinson Orlando, Florida 32801 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent possessed a Certificate of Registration as a Farm Labor Contractor, issued under the provisions of Chapter 450, Part III, Florida Statutes. The Certificate number is C-04-387166-D-88-R. It was issued on June 15, 1987, and expired on April 30, 1988. The Department of Labor and Employment Security is the state agency charged with regulating farm labor contractors. At the time Respondent applied for his certificate, on June 4, 1987, he gave as the address for sending documents, P.O. Box 2186, Lake Placid, Florida, 33852. At approximately 9:00 am on June 4, 1987, Larry Coker, a DLES Compliance Officer, observed the Respondent drive his 1980 Ford van up to a convenience store in the town of Ona, on State Road 64, in Hardy County, Florida. At the time, Respondent had thirteen migrant workers in the van with him. Mr. Coker's examination of the van at the time revealed that the seats in the van were not secured to the floor or the frame of the vehicle, and the vehicle was not insured. Mr. Coker attempted to discuss the matter with the Respondent, who had stopped at the store to purchase gas and ice, and to give the workers an opportunity to purchase food for lunch. However, Respondent indicated that he had to get to work, and Mr. Coker followed Respondent to a watermelon field where he and the other workers were to cut watermelons. Though at the hearing, Respondent denied that he was the contractor for the workers in question, at the field, on June 4, 1987, he had indicated that he paid his workers in cash on a daily basis, did not deduct for social security, did not keep names, addresses, or other records, nor did he give a wage statement to the workers. At the hearing, Mr. Crowl admitted making the statement, but contended that he was referring to his routine practice on those occasions when he served as a labor contractor. He unequivocally denies, however, that the workers in his van on June 4, 1987, were his employees. He insists they were the employees of another contractor whose van had broken down beside the road and to whom he was giving a ride, merely to assist them in getting to work. When Mr. Coker discussed the matter with the grower, Randall Roberts, and the crew leader in the field, Mr. McGahey, Roberts indicated that he had just hired Respondent, and that he paid Respondent, who was responsible for paying the workers. Under the circumstances, and considering the relative probabilities of the testimony, it is found that the workers in question were Respondent's employees, and that he did improperly manage them under the terms of Chapter 450, Florida Statutes. It is also found that Mr. Crowl's prior Farm Labor Contractor Certificate of Registration expired in February, 1987. Even though expired, it should have been posted either at the work site or in the van, but was not. Respondent, also, was not authorized to transport workers in his van. As a result, Mr. Coker cited Respondent for failing to register as a contractor, (based on the expired certificate); failing to make, keep or preserve records; failing to provide wage statements to workers; failing to assure the safety of transportation vehicles; failing to obtain prescribed vehicle insurance; and failing to post his certificate of registration as required. The complaint was forwarded to DLES headquarters in Tallahassee. On June 29, 1987, Rod Willis, Chief of the Bureau of Agricultural Programs for the DLES, by letter, notified Respondent that the Department was assessing a civil money penalty against him for the above cited six violations in the total amount of $2,450.00. Under the terms of the letter, Mr. Crowl was given twenty-one days to remit the amount of penalty due, or to request a hearing under Section 120.57, Florida Statutes. The letter was sent by certified mail to the address listed by Mr. Crowl in his application for registration, but was subsequently returned undelivered. Mr. Crowl contends that he never received the letter because shortly after the date of the incident here, he left for New York and did not return until November, 1987. Because requirements outlined in the certified letter referenced above were not complied with, on January 25, 1988, the acting director of the DLES entered a Final Order imposing the $2,450.00 fine, and advising Respondent of his right to appeal. No appeal was taken. On January 28, 1988, Mr. Willis, again by letter, notified Respondent of the Division's intention to revoke his Florida Farm Labor Contractor's Certificate of Registration, citing his failure to pay the previously assessed civil money penalty or to request a hearing. Mr. Crowl was again advised of his right to request a hearing on the revocation, and this hearing was the result. At the hearing, counsel for Petitioner indicated that if Respondent was willing to make arrangements for the payment of the $2,450.00 civil money penalty assessed, he would consider recommending to the Division Director a settlement that might result in allowing Respondent to retain his Contractor's Certificate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED, that Respondent, Erastious Crowl, be ordered to pay the previously assessed civil money penalty in the amount of $2,450.00, with the condition that if the payment of the penalty is not paid within a time period satisfactory to the Department, his Certificate be revoked. Recommended in Tallahassee, Florida, this 9th day of May, 1988. ARNOLD H. POLLOCK 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 9th day of May, 1988. COPIES FURNISHED: MOSES E. WILLIAMS, ESQUIRE DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY MONTGOMERY BUILDING, SUITE 117 2562 EXECUTIVE CENTER CIRCLE TALLAHASSEE, FLORIDA 32399 ERASTIOUS CROWL POST OFFICE BOX 2186 LAKE PLACID, FLORIDA 33852 HUGO MENENDEZ, SECRETARY DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 206 BERKELEY BUILDING 2590 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152
