The Issue Whether Respondent owes Petitioner $14,080 on account for vegetables sold and delivered at the request of Respondent.
Findings Of Fact Petitioner, M.O. "Buster" Williams, is an agent for the producers of agricultural products, carrots, red radishes and white corn. Respondent, Dougal M. Buie, III, d/b/a Blue Star Citrus and Vegetables, is a dealer of such products in the normal course of its business activity. Respondent is licensed by the Department of Agriculture and Consumer Services and is bonded by First Union National Bank of Florida. Petitioner sold Respondent carrots, red radishes and white corn by the truck load between the period May 19, 1993 and June 14, 1993, and was given a Bill of Lading therefor. Respondent was sent an Invoice for each shipment and payment was due in full following receipt of the Invoice. As of the date of the formal hearing, each invoice for shipments made between May 19 and June 14, 1993 remains due and owing and unpaid. The total amount of indebtedness owed by Respondent, Buie, to Petitioner is $14,080.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $14,080.00 DONE and ENTERED this 16th day of March, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1994. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Robert F. Vason, Jr., Esquire Potter, Vason and Clements 308 East Fifth Avenue Mount Dora, Florida 32757 M.O. Buster Williams 1412 Raintree Lane Mount Dora, Florida 32757 Lewis Stone, Esquire P. O. Box 2048 Eustis, Florida 32727-2048 First Union National Bank of Florida 21 North Grove Street Eustis, Florida 32726
The Issue Whether Respondent committed the alleged violations.
Findings Of Fact At the hearing of this case, the Petitioner's Motion that the request for admissions be deemed admitted was granted, resulting in the following facts being admitted: Waldron Produce of Citra, Florida, paid Respondent to supervise farmworkers harvesting peanuts on August 7, 1986. Respondent did not present to each farmworker he employed a notice of payment, showing the amount of compensation, number of hours worked, the rate of compensation, the name and federal identification number of legal employers of the farmworkers during the pay period, in detail, each and every deduction made from wages. Respondent did not retain for a period of three years an exact copy of each notice of payment form or a copy of the detachable part of the check, draft, or voucher that had been issued to each farmworker he employed. Respondent supervised a crew of farmworkers hand-harvesting peanuts approximately five miles east of Highway 301 on the north side of county road 319 in Marion County, Florida, on August 7, 1986. Respondent did not post his application for a certificate of registration at the work site of the farmworkers on August 7, 1986. Respondent did not post a working conditions statement at the work site of the farmworkers showing the rate of compensation the grower paid him and the rate of compensation he was paying the farmworkers on August 7, 1986. Respondent contracted with Waldron Produce for the employment and supervision of farmworkers without first displaying to Waldron Produce a current certificate of registration issued by the Bureau. In addition, the following facts are based upon evidence introduced at hearing: Respondent did not give wage statements to his workers. On August 20, 1986, Respondent met with CCCO Parker for a payroll audit. The audit revealed that Respondent was not giving wage statements to workers. Respondent did not make social security deductions and forward them to the social security administration. The audit revealed that Petitioner was not keeping the records by last name of each farmworker, or in a condition to facilitate inspection by the Bureau. (See testimony of Parker.) Respondent's records showed that he had paid Mr. Stanley Davy $77.00 for work during the week of August 4 through August 8, 1986. Mr. Davy received only half of the $77.00 and he worked approximately 11 to 12 hours per day. (See testimony of Davy.)
Recommendation Having found Respondent guilty of violating Sections 450.301, 450.33(7), 450.33(4)(a) and (b) , and 450.33(6), it is RECOMMENDED that Petitioner issue a Final Order imposing an administrative fine of $2,500 against Respondent. DONE and ORDERED this 5th day of March, 1987, in Tallahassee, Florida. STEPHEN F. DEAN 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 5th day of March, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152 Nathaniel Manns, Jr. Route 4, Box 4852 Citra, Florida 32627 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152
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 The issue in this case is whether Petitioner, Greg Davenport Enterprises, Inc., d/b/a Container Grown, is entitled to payment from an Agricultural Bond issued to Respondent, A.W. Kelley’s Gardens, Inc., and, if so, the amount owed to Petitioner.
Findings Of Fact Petitioner is a licensed producer of an agricultural product: Nursery plants and flowers. Petitioner is duly incorporated by the State of Florida and is in good standing. Greg Davenport is listed as Director and President of the corporation in the Division of Corporations’ web-based records. Respondent is a duly incorporated Florida corporation. Its business address is 6901 Hendry Creek Drive, Ft. Myers, Florida. The directors of the corporation are listed as Dixie Kelley, Drew Kelley, and Kent Kelley. Respondent is a plant retail business. Respondent has been a customer of Petitioner for many years, going back as far as 2006 according to evidence submitted at final hearing. During that time, Respondent has purchased approximately $91,000.00 worth of goods from Petitioner. (In its PRO, Respondent says the relationship goes back 25 years or more, but there was no sworn testimony to that effect.) During the period March 22 through May 24, 2012, Respondent ordered numerous items from Petitioner for which he was billed in accordance with standard practices. The following invoices provide the invoice number, date of invoice, and amount of purchase: Invoice 1399 - March 22, 2012 - $1,570.00 Invoice 1818 – March 27, 2012 - $2,105.00 Invoice 1391 – April 10, 2012 - $1,130.00 Invoice 1303 – April 25, 2012 - $ 850.00 Invoice 1419 – May 16, 2012 - $1,145.00 Invoice 1431 – May 24, 2012 - $1,175.00 TOTAL - $7,975.00 Petitioner contacted Respondent on numerous occasions to request payment on the outstanding invoices. Those efforts were in vain. At first, Respondent would make empty promises to pay, but ultimately just refused to accept Petitioner’s calls. Meanwhile, Respondent’s owner relocated to North Carolina, causing Petitioner to fear that payment may never be forthcoming. Respondent made some promises to make payments “whenever he could” to satisfy the debt. He said, however, that even if he could not pay, Petitioner should not attach his agriculture bond. Respondent’s failure to make any promised payments was the basis for Petitioner seeking payment by way of the bond. Respondent does not deny his failure to pay the outstanding invoices. He does not dispute that the products he received were of acceptable quality. He does, in fact, admit his indebtedness to Petitioner. Respondent does not feel his bond should be attached for payment of this debt. He cites, as reasons, that: 1) his business suffered during the national financial crisis; 2) there was some embezzlement going on in his business that affected his ability to pay obligees; 3) there is a related civil lawsuit underway in circuit court relating to the embezzlement; and 4) Davenport and Kelley have been friends for a long time and thus he should be allowed more time to pay the invoices. Respondent’s PRO sets forth other bases for why he believes it would be improper to attach his agriculture bond. However, none of those bases was addressed by sworn witnesses at final hearing and are thus not evidence in this case. Further, Respondent contends that two witnesses he subpoenaed but failed to show up for final hearing prejudiced his case. He did not prove, however, that either of the supposed witnesses had been properly served. Respondent’s PRO also sets forth facts not elicited through testimony or documentary evidence during final hearing. Respondent relies in part on various documents exchanged between the parties during discovery, but none of those were offered into evidence and thus are not part of the record. Respondent acquired a bond through Suretec Insurance Company. The amount of the bond was not disclosed at final hearing but, per statute, must be at least $5,000.00. The surety company was not represented at final hearing. No defense was raised by the surety company concerning Petitioner’s attempt to attach the bond. Petitioner is entitled to payment in the amount of $7,975.00 for the products it provided to Respondent. Besides the amount set forth above, Petitioner claims the sum of $100.00 paid for the filing of his two claims against Respondent’s bond. The total sum owed to Petitioner by Respondent is $8,075.00.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is hereby RECOMMENDED that: Respondent shall pay to Petitioner, within 15 days of the entry of the Final Order, the sum of $8,075.00; If Respondent fails to timely make the aforementioned payment, the Department shall call upon Suretec Surety Company to pay over to the Department the full amount of Respondent’s bond; and The Department shall then turn the proceeds of the bond over to Petitioner to satisfy the debt that has been established. DONE AND ENTERED this 26th day of March, 2013, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 26th day of March, 2013. COPIES FURNISHED: Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Michael Cronin SureTec Insurance Company Suite 320 9737 Great Hills Trail Austin, Texas 78759 Greg Davenport Greg Davenport Enterprises, Inc. d/b/a Container Grown 613 Corbel Drive Naples, Florida 34110-1106 Kent O. Kelley A. W. Kelley’s Gardens Inc. 6901 Hendry Creek Drive Fort Myers, Florida 33908 Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes (2012),1/ by failing to obtain workers’ compensation insurance coverage for farm workers, as alleged in the Stop-Work Order and Second Amended Order of Penalty Assessment; and, if so, the appropriate penalty.
Findings Of Fact The Department is the state agency responsible for enforcing the requirement that employers secure workers’ compensation insurance coverage for their employees. C & C Farms is a Florida-limited liability company engaged in farming during the relevant time period of April 2010 through April 2013. C & C Farms is located in Clewiston, Florida, and is co-owned and managed by Carlos Rodriguez (Rodriguez) and Ernesto Cordero (Cordero). According to the State of Florida, Division of Corporations, C & C Farms was formed as a Florida entity in December 2008. C & C Farms operates nearly year-round growing zucchini, yellow squash, eggplants, green bell peppers and cucumbers. The year-long work requires the laying of plastic as a weed barrier, planting the crops, tending the crops by watering, applying herbicides and pesticides, and finally harvesting. The planting and harvesting of the vegetables follows a planting schedule provided to Respondent from its buyer, C.H. Robinson Company. C.H. Robinson Company required Respondent to plant yellow squash on or near February 6 and February 20, 2013, with a 50-day growing period before harvesting. Similarly, green bell peppers were to be planted by February 11, 2013, with a 75-day growing period and harvested between April 27 and May 4, 2013. Of course, weather may change some of the dates, but C & C Farms tried to adhere to the schedule of its buyer. The number of workers at C & C Farms fluctuated based on the needs of the farm, with more workers being needed to harvest the crops than during the growing period. On November 27, 2012, Estefina Medina (Medina) began working for C & C Farms as a vegetable packer. Unfortunately, on December 1, 2012, Medina was injured at work when Cordero accidentally hit her foot while driving a fork lift. Cordero administered Medina rudimentary first-aid, and wrote her a check for $285.93 to cover her losses. Two days later on December 3, 2012, Medina was at home and her foot became swollen and painful. Consequently, she sought medical attention at the local hospital where Medina was diagnosed with a severe foot sprain. The hospital referred Medina to its corporate health department for billing, and provided her with a form in order to obtain workers’ compensation insurance information from her employer. The next day, Medina returned to C & C Farms to obtain the coverage information from Cordero. When Medina presented herself to Cordero, he became angry with her, and disputed the injury and responsibility. Cordero and Medina exchanged words, each threatening legal action. Medina subsequently sought legal advice and learned that C & C Farms did not have workers’ compensation insurance that covered her injury. On January 22, 2013, Medina filed a complaint with the One-Stop Career Center of the U.S. Department of Labor Employment and Training Administration alleging that she was injured on the job and that her employer, C & C Farms, did not have workers’ compensation insurance. The federal agency referred Medina’s complaint to Florida Department of Economic Opportunity, which in turn referred the allegations to the Department. On February 8, 2013, Robert Aponte (Aponte), an investigator with the Department conducted a site visit at C & C Farms. He arrived at the farm’s office and spoke with Jeanette Lesca (Lesca), an office employee. During the interview, Lesca provided Aponte with a list of nine employees. Further, she contacted Cordero who spoke with Aponte.2/ Cordero informed Aponte that C & C Farms’ employees had workers’ compensation coverage through Direct HR Service Services, a professional employer organization. While on the site, Aponte reviewed the Department’s data base, the Coverage and Compliance Automated System, and contacted Direct HR Service Leasing Company. Aponte confirmed that the employees listed by Lesca had workers’ compensation insurance coverage. Although Aponte confirmed that the listed employees had coverage, he did not see Estefina Medina listed as an employee. Consequently, he asked Cordero about Medina. Cordero stated that she had worked only a couple of days, got injured, and had not returned to work. Based on this answer, Aponte decided to issue a Request for Production of Business Records. Specifically, Aponte requested C & C Farms produce documents concerning its payroll, workers’ compensation coverage, professional employer organization record, and any documentation of any exemptions for the time period covering November 9, 2012, through February 8, 2013. Within a week, Cordero provided Aponte with the business records. However, Aponte found these records unresponsive because the records did not correlate with C & C Farms. Aponte contacted Cordero, and requested the business records again. Before any other steps were taken, Aponte left the Department for another job on March 15, 2013. In April 2013, Tiffany Greene (Greene), an investigator with the Department, was assigned the C & C Farms case. She reviewed the Department’s data base and learned that C & C Farms’ workers’ compensation insurance coverage had lapsed. Direct HR Services had terminated its agreement with C & C Farms to provide payroll and workers’ compensation coverage services on February 25, 2013, based on non-payment. Direct HR Services had provided coverage from February 8 through February 24, 2013. On April 16, 2013, Greene made a site visit to C & C Farms and spoke with Lesca in the farm office. Lesca provided Greene with a list of 26 persons who were working at C & C Farms on that date. Greene then examined the farm’s packing house and went into the fields where she observed workers harvesting yellow or summer squash. Although she observed the workers, Greene did not interview any of the workers to determine who they worked for or how they were being paid. Greene returned to the farm office where she talked with Cordero. Cordero stated that the leasing company had cancelled C & C Farms’ workers’ compensation coverage, and that he was in the process of trying to obtain coverage. Based on her observations, Greene determined that C & C Farms had more than five regular employees working and more than 12 seasonal employees working without proper coverage. Therefore, she issued a Stop-Work Order and hand-delivered it to Cordero. Greene also served C & C Farms with a Request for Business Records for Penalty Assessment Calculation. The records requested the covered time period of April 17, 2010, through April 16, 2013. The Department sought records concerning payroll documents, account documentation, proof of workers’ compensation coverage, information provided to or used by the professional employer organization, and proof of any independent contractor services. The Department’s request required C & C Farms to produce the records within five days. On April 22, 2013, C & C Farms filed for an administrative hearing challenging the Stop-Work Order. Again, C & C Farms failed to timely provide the requested business records. On May 6, 2013, Greene, in follow-up to the Department’s business records request, returned to C & C Farms. At the work site, Greene observed workers in the packing area as well as in the fields. Further, she photographed time cards for four workers which showed that the workers had worked the time period from April 15 through April 22, 2013. On May 6, 2013, C & C Farms was harvesting its yellow squash crop in violation of the Stop-Work Order issued on April 16, 2013. Cordero and Carina Bezzolasco, a worker in the office, informed Greene that C & C Farms had applied for workers’ compensation insurance. C & C Farms had completed a leasing contract with South East Personnel Leasing, Inc., on April 29, 2013, seeking coverage for eight listed employees. However, C & C Farms’ workers’ compensation insurance coverage did not begin until May 7, 2013, one day after Greene’s visit. Greene contacted the Department’s Division of Fraud, and Cordero was arrested and charged with insurance fraud for violating the Stop-Work Order. Concerning the calculation of the penalty assessment, Greene supplied information to Victoria Burkley (Burkley), a penalty assessment auditor. Greene supplied Burkley with the names of the workers that had signed in to work at C & C Farms on April 16, 2013, the type of produce she observed being harvested, and the list of employees confirmed by C & C Farms in its contract with Direct HR Service Services from February 2013. Based on C & C Farms’ failure to provide the required business records, the Department imputed the payroll for 26 workers, and used the statutory penalty, which contained a penalty for violating the Stop-Work Order. The initial assessed penalty was for $404,409.54, which was provided to C & C Farms on May 7, 2013. On May 10, 2013, C & C Farms entered into an Order of Conditional Release from the Stop-Work Order with the Department. C & C Farms paid a down-payment equal to 10 percent of the contested assessed penalty. Upon entry of the conditional release, C & C Farms was able to finish its harvest. C & C Farms eventually provided the Department with bank records that included check images for the time period of April 2010 through April 2013. In addition to the check images, C & C Farms supplied a document entitled Income Tax Detail, which appears to be a compilation of check dates, check numbers, names of check recipients, the check amounts and a categorization of the type of account or designation. C & C Farms, however, did not provide any other payroll documents, proof of workers’ compensation insurance, or proof of independent contractor services. Based on C & C Farms’ failure to provide the required business records, the Department properly determined to impute Respondent’s payroll for the time period of April 17, 2010, through April 16, 2013. On April 16, 2013, C & C Farms was an “employer” and engaged in “employment,” as defined by chapter 440, Florida Statutes. The undersigned finds Rodriguez’s testimony believable that on April 16, 2013, C & C Farms had the following employees: 1) Roberto Salas Analise; 2) Leesday San Martin; 3) Antonio Perez; 4) Jaime Perez; 5) Baltazar Padilla; and 6) Jeanette Lesca. Further, the undersigned finds that Cordero, who is a co-owner or member of the limited liability company, is also an employee under the facts. He worked a variety of jobs on the farm, such as operating the tractor, spraying herbicide and pesticides, and received payments from C & C Farms for the past three years. These payments are for services, as opposed to repayments of loans or a return on his investment, which according to Rodriguez and Cordero has been operating at a loss. On April 16, 2013, C & C Farms failed to provide its seven employees with workers’ compensation insurance coverage. The undersigned credits Rodriguez’s testimony that the remaining 21 individuals listed in the Department’s Second Amended Penalty Assessment were working for independent farm labor contractors, Star Agricultural and Sigma Harvesting to harvest and pack vegetables.3/ The factual finding that individuals, who worked the harvesting and packing, are independent farm laborers is supported by three facts: first, the crew leaders from the farm labor contractors supervise, determine the number of workers to be used in each task, and how each task was performed; second, Star Agricultural and Sigma Harvesting were paid by the bin for the squash harvested by these workers, and any losses caused by packing squash that fell below “grade” or defective quality were taken from payments made to Star Agricultural and Sigma Harvesting, as farm labor contractors; and third, the bank records show payments to farm labor contractors rather than individual workers. The bank records show check images supporting Rodriguez’s testimony that on April 16, 2013, the farm hired Star Agricultural Contractor and Sigma Harvesting to provide workers. The check images show checks written to Star Agricultural on April 19, 2013, for $4,367.00 and April 27, 2013, for the amount of $7,832.00. Similarly, C & C Farms wrote a check on April 17, 2013, to Sigma Harvesting for the amount of $2,980.00 and a debit on the account on April 17, 2013, in the amount of $10,132.00 payable to Sigma Harvesting, replacing two checks. Notably, absent from the review are any checks made payable to the 21 individuals listed in the Department’s Second Amended Penalty Assessment.4/ The undersigned does not credit or find believable the deposition testimony of Roberto Renderos Mendoza that fees paid by C & C Farms to Star Agricultural did not include any workers’ compensation coverage, and that Star Agricultural only acted as a pass through for paying the workers as designated by Cordero. Mendoza’s testimony is not believable because it is unsupported by any documentary evidence. After receiving the additional records and deposition testimony during the pendency of this case, the Department entered a Second Amended Order of Penalty Assessment correcting the number of employees to 28. The second amended penalty assessment totaled $416,862.30. The Class Code found in the penalty worksheet attached to the Department’s Second Amended Penalty Assessment for harvest crops, 0037, is the correct occupational classification for the raising of crops in the National Council on Compensation Insurance Scopes® Manual.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that: Respondent violated section 440.10 by failing to provide workers’ compensation coverage for seven employees; Department properly entered the Stop-Work Order on April 16, 2013, and that Respondent violated the Stop-Work Order by continuing to work on May 6, 2013; and Department should re-calculate the Order of Penalty Assessment for seven regular employees for the three-year period of April 17, 2010, through April 16, 2013, and include the $1,000.00 penalty for violating the Stop-Work Order. DONE AND ENTERED this 28th day of October, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2013.
Findings Of Fact 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
The Issue The issue in this case is whether Petitioner, H.P. Sod, Inc., is entitled to payment from an Agricultural Bond issued to Respondent, PLS Landscape Services, Inc., and, if so, the amount owed to Petitioner.
Findings Of Fact Petitioner is a licensed producer of an agricultural product, i.e., sod. Petitioner is a duly incorporated for-profit corporation in the State of Florida and is in good standing. Horacio Pereira is the putative owner of the company, referring to himself at final hearing as “the boss, the guy who tells people what to do.” Respondent is a duly incorporated Florida corporation. Its business address is 6132 Snook Court, Port St. Lucie, Florida. The only officer or director of the corporation is George J. Kijewski. Respondent is a landscaping business. From the period July 23, 2012, through October 16, 2012, Respondent purchased quantities of Bahia sod from Petitioner on numerous occasions. The dates of purchase, quantity of sod purchased, and ticket numbers for each purchase are as follows: 23 – Ticket 36930 – 10 pallets 23 - Ticket 36983 – 16 pallets 30 – Ticket 37185 – 10 pallets 1 – Ticket 36818 – 16 pallets 1 – Ticket 37276 – 16 pallets 1 – Ticket 37283 – 16 pallets 6 – Ticket 36872 – 16 pallets 8 – Ticket 37319 – 16 pallets July July July August August August August August August 10 – Ticket 37339 – 16 pallets September 4 – Ticket 37727 – 16 pallets October 15 – Ticket 38712 – 16 pallets October 16 – Ticket 38720 – 16 pallets Petitioner issued the following invoices to Respondent concerning the aforementioned purchases of Bahia sod: Invoice 6615 – July 26 – Tickets 36930, 36983 $620.20 Invoice 6640 – August 2 – Tickets 36818, 37185, 37276, 37283 - $1,420.96 Invoice 6671 – August 16 – Tickets 36872, 37319, 37339 - $1,104.24 Invoice 6735 – September 6 – Ticket 37727 - $445.12 Invoice 6875 – October 18 – Tickets 38712, 38720 - $890.24 TOTAL - $4,481.11 Respondent did not remit payments on any of the aforementioned invoices. Respondent contends that some of the sod which it purchased from Petitioner was of inferior quality or was in less quantity than ordered. Specifically, Respondent said some of the sod was wet and fell apart when being installed. He also said the wet sod resulted in some pallets containing 370 to 390 square feet of sod rather than the 400 feet that is standard on a pallet. Respondent’s testimony was general in nature, not specific to any particular shipment, and flies in the face of his on-going purchases of sod from Petitioner. Further, there was no credible evidence presented at final hearing that Respondent ever complained to Petitioner about the quality or quantity of the sod. Had he done so, Petitioner said it would have corrected the problem. Respondent did reportedly tell one of his drivers, Mr. Calloway, on occasion that the sod was wet or otherwise not up to par. However, that complaint was never provided to Petitioner so that action could be taken. Respondent acquired a bond in the sum of $5,000.00 through TD Bank, N.A. (also referred to in this matter as United States Corporation Company, as Surety). The bank was not represented at the final hearing held in this matter. No defense was raised by the bank concerning Petitioner’s attempt to attach the bond. Petitioner paid a fee of $50.00 to the Department of Agriculture to bring this action. Petitioner hired an attorney to represent its interest in this matter. The attorney charged $175.00 per hour and, as of the date of the final hearing, had billed approximately five hours of time or $875.00 in fees. Subsequent to the final hearing, the attorney submitted a post-hearing proposed order on behalf of Petitioner. The attorney expended $180.00 in costs for service of a subpoena and witness fees. The total sum demanded by Petitioner in its action against Respondent is $5,586.11. Respondent’s PRO filed in this matter asserts a number of “facts” which were not established by competent testimony at the final hearing. Those facts were not considered in the preparation of this Recommended Order.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is hereby RECOMMENDED that a Final Order be entered by the Department of Agriculture and Consumer Services as follows: Respondent shall pay to Petitioner, within 15 days of the entry of the Final Order, the sum of $5,586.11; or If Respondent fails to timely make the aforementioned payment, the Department shall call upon TD Bank, N.A., to pay over to the Department the full amount of Respondent’s bond; and The Department shall then turn the entire proceeds of the bond over to Petitioner. DONE AND ENTERED this 8th day of March, 2013, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 8th day of March, 2013.
The Issue By amended petition for hearing, the Petitioner requested a hearing on the Department's determination that the Petitioner is obligated to refund to the Department the sum of $53,724.00, which the Department asserts is the amount by which the Petitioner was overpaid pursuant to Wagner-Peyser Contract No. SA016. For numerous reasons recited in its Petition and argued in its post-hearing brief, the Petitioner contends that it should not be required to refund the disputed sum. At the formal hearing, both parties presented the testimony of witnesses and both parties offered exhibits in support of their respective positions. Following the hearing, a transcript was prepared and the parties were allowed until November 19, 1988, within which to file their proposed recommended orders. Thereafter, upon joint motion of the parties, the period for filing post-hearing briefs and/or proposed recommended orders was extended until December 6, 1988. Both parties timely filed post-hearing briefs in a format more customary to appellate than to administrative hearing proceedings. The parties' briefs have been carefully considered during the formulation of this recommended order. Specific rulings on the factual assertions of the parties are contained in the appendix to this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. In November of 1984 the Petitioner and the Respondent entered into a contract which has the following title: GOVERNOR'S WAGNER-PEYSER 10% DISCRETIONARY FUNDS FIXED-UNIT PRICE CONTRACT CONTRACT NO. SA016 "STATEWIDE FARMWORKERS JOB PLACEMENT PROJECT" Paragraph 1.A. of the subject contract contains the following description of the project activities: The Florida AFL-CIO United Labor Agency will operate a statewide job placement program to meet the increased employment needs of migrants/farmworkers and related workers in- volved in the processing of agricultural pro- ducts. The Agency will coordinate and work with farmworker advocacy organizations in Apopka and Dade City, Florida, to recruit and identify participants. Unsubsidized employ- ment opportunities will be developed with unions, apprenticeship programs, and private sector employers. The employment resources of the Agency will be coordinated and inte- grated with those of the Job Service and local PICs. Paragraph 2.A. of the subject contract contains a "work activity plan" described as follows: To recruit and provide employability counseling to migrants/farmworkers; To place 230 migrants/farmworkers into unsubsidized, non-agricultural employment with a duration of 30 days or more; To integrate the employment resources of unions and the United Labor Agency with those of the Job Service. Prepare and submit a final narrative report to DLET documenting the success and failures of the project. Paragraph 2.B. of the subject contract contains the following description of the performance units applicable to the contract: The contractor will make up to 230 place- ments in unsubsidized employment over the course of the contract period at $726.00 each, for a total amount not to exceed $166,980.00. A placement will be defined as employment by a participant engaged in work for at least 35 hours per week, in a job paying at least the minimum wage, for a period of at least 30 calendar days. At Paragraph 2.D. of the subject contract, under the subcaption "ACTIVITY/PAYMENT SCHEDULE OF PERFORMANCE UNITS," the contract provides, in pertinent part: The contractor will be advanced $37,062.00. The advance will be repaid monthly by deducting $6,177.00 per month from the amount of deliverables produced over a six month period, beginning with the November 1984 invoice and being completed with the April 1985 invoice. There will be one performance unit for this contract, and it will be for placement at the rate of $726.00 each. Paragraph 14.e. of the subject contract reads as follows: The Contractor is responsible for fulfilling all terms and conditions of this Contract. While the DLET shall monitor the Contrac- tor's performance under the Contract, the Contractor remains solely responsible for its performance. The DLET monitoring of the Contract shall not constitute a waiver or modification of any term or condition. Terms and conditions may only be modified by written contract amendment as specified herein. One of the documents used in the administration of the subject contract was a Form BRI-100, which was designed so that three individuals had to sign the form to certify that a valid job placement had been accomplished. The required signatures were those of the employer, the farmworker/employee, and a representative of the Petitioner. Early in the administration of the contract the Petitioner began to have problems obtaining employer signatures on Form BRI- 100, especially where employment was obtained through union hiring halls. At the behest of the Petitioner, the Respondent deleted the requirement that the employer sign the form and permitted the form to be signed by a representative of the union hiring hall. During the course of the Petitioner's performance of the subject contract, one of the Petitioner's employees submitted fraudulent documentation on numerous occasions. The fraudulent documentation purported to be evidence of successful job placements under the contract. The fraudulent documentation was submitted to the Respondent and the Respondent paid money to the Petitioner on the basis of the fraudulent documentation. A post-performance audit revealed that 74 of the job placements for which the Petitioner was paid were in fact fictitious placements supported by fraudulent documentation. As a result of the fraudulent documentation, the Petitioner was paid $726.00 for each of 74 fictitious job placements, a total of $53,724.00. The $53,724.00 which was paid on the basis of fraudulent documentation was paid to the Petitioner solely because at the time of making the payment the Respondent believed that the Petitioner had made 74 placements which, in fact, were never made. The Respondent's belief that the 74 placements had been made was based on the fact that the Petitioner submitted fraudulent documentation claiming payment for 74 job placements that had not been made. In fairness to the Petitioner it should be noted that at the time the fraudulent documentation was submitted the officers and managing agents of the Petitioner did not know that one of their employees was preparing fraudulent documentation. Further, as soon as the officers and managing agents of the Petitioner discovered that one of their employees had been submitting fraudulent documentation, they candidly reported the problem to the Respondent. The employee who prepared the fraudulent documentation described above did not abscond with the proceeds derived from his fraudulent actions. The $53,724.00 that was paid on the basis of the 74 fictitious job placements was paid to and retained by the Petitioner. The Respondent did very little in the way of monitoring the subject contract. More extensive monitoring might well have resulted in earlier detection of the fraudulent documentation submitted by Petitioner's employee.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order finding that the Petitioner has received $53,724.00 to which it is not entitled under the subject contract and ordering the Petitioner to repay that amount to the Respondent. DONE AND ENTERED this 20th day of January, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2755 The following are my specific rulings on all proposed findings of fact submitted by all of the parties. Findings proposed by Petitioner: The Brief of Petitioner does not contain any section specifically identified as proposed findings of fact. It does contain a distinct section captioned "STATEMENT OF THE FACTS," which I have treated as the Petitioner's proposed findings. The page numbers below refer to pages of the Brief Of Petitioner. Page 2: All but last four lines are rejected as subordinate and unnecessary background details. The last four lines are accepted in substance. Page 3: All but last five lines are accepted in substance. The last full paragraph on the page is rejected as unnecessary commentary. Page 4: First fourteen lines (plus last line on page 3) accepted in substance, but with most details omitted as unnecessary. The remainder of page 4 and the top four lines of page 5 are rejected as subordinate and unnecessary details, as for the most part irrelevant, and as containing implications contrary to the greater weight of the evidence. Page 5: First full paragraph is rejected as constituting subordinate and unnecessary details; I have found that little was done to monitor the contract performance. The last four lines are rejected as argument or unnecessary commentary rather than findings of fact. Page 6: First twenty lines rejected as irrelevant and as unnecessary details. Paragraph beginning at sixth line from bottom is accepted in substance. Page 7: Top four lines (and last line of page 6) rejected as Irrelevant. Lines five through twenty-two are for the most part rejected as irrelevant or as not supported by persuasive competent substantial evidence, with exception of proposed finding that an employee committed fraud and that Petitioner promptly reported the fraud when it was discovered. Last four lines rejected as irrelevant. Page 8: First full paragraph is rejected as being for the most part irrelevant and as in part contrary to the greater weight of the evidence. Second full paragraph is rejected as argument or unnecessary commentary. Third full paragraph is rejected as Irrelevant. Last four lines accepted in substance with some unnecessary details omitted. Page 9: Top two lines rejected; the greater weight of the evidence is that all "disallowed costs" were caused by the fraud of one employee. First full paragraph rejected as irrelevant. Second full paragraph is rejected as for the most 12 part irrelevant, although some details have been included. Last three lines rejected as irrelevant. Page 10: Rejected as irrelevant. Findings proposed by Respondent: The Brief Of Respondent does not contain any section specifically identified as proposed findings of fact. It does contain a distinct section captioned "STATEMENT OF THE CASE AND FACTS," which I have treated as the Respondent's proposed findings of fact. The page numbers below refer to pages of the Brief Of Respondent. Page 2: Rejected as subordinate and unnecessary background details. Page 3: Rejected as subordinate and unnecessary background details. Page 4: First paragraph accepted in substance. The remainder of this page is accepted in substance with some details and some argumentative passages omitted. Page 5: Accepted as correct statement, but omitted as unnecessary details. Page 6: First paragraph rejected as constituting subordinate and unnecessary details. Second paragraph rejected as constituting subordinate and unnecessary details. Third paragraph rejected as constituting subordinate and unnecessary details. Last paragraph accepted in substance with unnecessary details omitted. Page 7: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Sidney L. Matthew, Esquire Gorman & Matthew, P.A. Post Office Box 1754 Tallahassee, Florida 32302 David J. Busch, Esquire Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, Esquire General Counsel Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 =================================================================
The Issue The issue is whether respondent, Eugene Martinez, should have a $1,500 civil penalty imposed for allegedly violating Sections 450.33(5) and and 450.35, Florida Statutes (1989)
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on the morning of January 29, 1990, when Larry Coker, a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made a routine inspection of a citrus harvesting crew working in an orange grove owned by Adrian Chapman and located one-half mile east of State Road 39 in DeSoto County, Florida. The purpose of the inspection was to determine whether the crew and its supervising contractor were in compliance with state regulations. Upon entering the premises, Coker observed a crew of approximately seventeen workers harvesting fruit in the citrus grove. An individual by the name of Martin R. Olvera was operating a high lift at the work site. Coker approached Olvera and asked him who was the farm labor contractor for the crew. Olvera responded that the licensed farm contractor was respondent, Eugene Martinez, but that Martinez had authorized him (Olvera) to supervise the crew that day in Martinez's absence. Olvera acknowledged that he was being paid $40 per day by respondent to supervise the loading of fruit and transport the workers from LaBelle to the grove. Division records reflect that Olvera is not licensed by the Division to perform those activities. A few minutes after Coker completed his inspection, respondent arrived at the work site. He readily acknowledged that Olvera was acting as a farm labor contractor without a license. By allowing Olvera to supervise a crew without a proper license, respondent used an unregistered farm labor contractor in contravention of the law. Olvera had transported the workers to the field that day in respondent's 1973 Ford bus. Respondent acknowledged that he did not have the proper liability insurance on the vehicle or the required inspection sticker. Both are required by law and agency rules. After being issued a citation that morning, respondent obtained the necessary insurance on his vehicle that afternoon. A vehicle inspection was obtained two days later. In addition, respondent initiated the necessary paperwork for Olvera to become a registered farm labor contractor. Because of those prompt efforts to satisfy Division requirements, respondent asked that he be given leniency on any civil fine. He has been unable to work since losing his right leg in an accident in May 1990 and is presently experiencing financial problems. There is no evidence that respondent has ever been disciplined by the Division for a violation of the law or agency rules.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent Eugene Martinez has violated Sections 450.33(5) and (9) and 450.35, Florida Statutes (1989). It is further recommended that respondent be fined $600, such fine to be paid within thirty days from date of the final order entered by the Division. DONE and ENTERED this 9 day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of November, 1990. APPENDIX Petitioner: Partially adopted in findings of fact 1 and 2. Partially adopted in finding of fact 3. Partially adopted in finding of fact 4. Note - Where a finding of fact has been partially used, the remainder has been rejected as being unnecessary, cumulative, subordinate, irrelevant or not supported by the evidence. COPIES FURNISHED: Frances R. Rivera, Esquire The Hartman Building, Suite 307 2012 Capital Circle, S.E. Tallahassee, FL 32399-0657 Mr. Eugene Martinez P. O. Box 2194 LaBelle, FL 33935 Hugo Menendez, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658 Steven D. Barron, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658
