Findings Of Fact On March 14, 1973, Wesnofske Farms, Inc., of Crescent City, Florida, entered into an agreement with Richard Weller of Warehouse Point, Connecticut, as receiver and Morgan Produce, Inc., of Lincoln, Delaware, as agent/Broker for the receiver. Wesnofske agreed to deliver 10,000 hundredweight of potatoes at an agreed price of $4.10 per hundredweight f.o.b. Wesnofske Farms in Crescent City, Florida. The contract provided, inter alia, that the deliveries were to be prorated over or about seven week harvest period which began at the time of digging or about April 15, 1978, subject, of course, to weather, digging conditions and crop maturity. The contract also provided that in the event of crop failure due to drought, etc., or any act of God, the contract was to be probated in accordance with acreage yield, etc. (See Exhibit A). William B. Morgan, President of Morgan Produce, Inc. served as the broker for the parties. Mr. Morgan testified that due to the extended cold weather season, digging commenced on or about May 3, 1978. On that date, May 3, 1978, Morgan telephoned Respondent, Richard Weller, and advised him that the first deliveries were ready and inquired of Weller when his first trucks would be arriving to accept delivery. Weller indicated that marketing conditions extant at the time forced him to decline delivery of potatoes and instructed Morgan to contact Mr. Jack Rubin and offer his deliveries to him. Morgan contacted Rubin and offered the potatoes for $6.80 per hundredweight, whereupon Rubin advised that he had at that time more contracts at lower price that he could handle. Weller was advised of Rubin's response and instructed Morgan to sell his deliveries to the best of his ability on the open market. Beginning on May 6, 1978, Morgan began selling potatoes from the Weller contract to various co-ops and distributors at a profit through approximately May 16, 1978, when there existed a glut in the potato market. Weller was advised by Morgan that he would not be able to continue showing him a profit on his contract if the then present market conditions continued. Weller was advised by Morgan that the potatoes were presently bringing approximately $3.75 per hundredweight to the open market, which, of course, would represent a loss to him of 35 cents per hundred pounds. At that time, it appeared that the depressed market conditions would continue throughout the digging season and, this being the first contract that Petitioner had entered with Respondent, Morgan contacted Petitioner's farm manager, Joseph Froehlich. Morgan and Froehlich discussed the matter and decided that it would be advantageous to release Respondent from his contractual obligations with no loss to him and to credit Respondent's account for all profits accrued as of that date. According to Morgan, Weller agreed and was pleased with this proposal of being rid of the contractual obligations due to the depressed market conditions. From the period May 6, 1978, through June 1, 1978, when Weller was released from his, contract, Weller had earned a net profit of approximately $1,900 (See Exhibit B). During the period of May 16 through May 26, 1978, Morgan sold approximately 921,960 hundredweights at $3.75 per hundredweight, which had been grown for Richard Weller and Orlowski Produce Company, another contracting entity (See Exhibit C). However, on or about May 18, 1978, the market conditions turned around due to low acreage yields of area farms which caused a potato shortage with a resultant rise in market prices. At that time, Weller contacted Morgan and demanded a load of potatoes allegedly due on his contract on May 18, 1978. Morgan discussed the matter with farm manager Froehlich, and it was agreed that Petitioner would provide deliveries to Respondent from purchases of other area farms although Petitioner was of the opinion that it was not obligated to do so, inasmuch as Respondent had been released when market conditions were depressed. Deliveries to Weller resumed on May 18, 1978, and continued through June 7, 1978. From the period June 6 through June 8, 1978, Petitioner was unable to provide shipments from its supplies and, therefore, purchased on the open market, three shipments for the Weller contract at a price of $7.85 per hundred pounds. Based on these bulk loads purchased on the open market, the difference between the contract price and the open market price resulted in a deficiency of approximately $4,865.25 which was charged to Richard Weller's account when an invoice was forwarded him pursuant to contract. On June 26, 1978, Weller was invoiced for $32,202.41, of which amount Weller paid $27,337.16 on July 15, 1978, pursuant to the $4.18 per hundredweight contracted price for all deliveries (See Exhibit E). Joseph Froehlich testified that due to the inclement weather conditions, the late acreage yields were down to approximately 40 hundred pounds per acre, which was substantially less than the other acreage had yielded. Froehlich testified that had Respondent accepted deliveries of potatoes when offered during the early digging season, his contractual allotment could have been fulfilled; however, he opted to be released at a time when market conditions were poor. Thus, Froehlich contends, that Petitioner was not obligated to purchase potatoes on the open market for Weller and sustain a loss when market conditions dictated higher prices. This was so Froehlich contends, first of all because Respondent failed to accept delivery of the potatoes when they were available to him pursuant to the terms of the contract and, secondly, inasmuch as Respondent was relieved from the terms and obligations of the contract when market conditions were poor. During the course of the hearing, Petitioner's representative, Morgan, indicated that the Wesnofskes were not negotiating the partial tender of payment by Respondent in the amount of $27,337.16 until the administrative hearing herein was completed. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, hereby, RECOMMENDED: That the State of Florida, Department of Agriculture and Consumer Services uphold the claim of the Petitioner, Wesnofske Farms, Inc., in the amount of $32,202.41, plus normal interest accruing from July 15, 1978, as provided in the contract, plus a reasonable amount for costs and fees for preparation of this administrative claim. Based upon the testimony offered during the course of the hearing, a reasonable amount appears to be approximately $1,000. RECOMMENDED this 12th day of June, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Petitioner, Hillside Sod Farms, Inc., is a producer of agricultural products, grass sod. Respondent, S. J . Harper Landscaping Enterprises, Inc., is a dealer of such products in the normal course of its landscaping business activity. Petitioner generally deals on a cash basis with customers, unless the customer is licensed by the Department of Agriculture and Consumer Services for the sale of agricultural products. Customers who are licensed may maintain an open account status with Petitioner. Respondent is licensed by the Department. The Respondent has maintained an open account with Petitioner since 1986. Petitioner sold Respondent grass sod by the truck load for various projects, and was given an invoice therefor. Under the terms of the account, payment was due in full the week following receipt of the sod. On November 21, 1988, including invoice number 12284, Respondent's account balance was $2,098.80. On November 25, 1988, the account balance was $3,129.12. On December 12, 1988, Respondent paid on the account the sum of $2,594.88, leaving a balance due, owing and unpaid of $534.24. Respondent's alleged that in early November, 1988 several trucks loads that were accepted by Respondent were short of sod by approximately eight pallets (each pallet contains 400 square feet of sod) Simon J. Harper, Respondent'S president, reported this fact to Petitioner's foreman, Larry Poole, at night after the work day. He did not reject the trucks with the lesser amount of sod on them, but accepted them. Respondent did not file a complaint or objection to the billing, verbally or in writing, to an officer in the Petitioner's company, although he had dealt with the company for years. Respondent estimated the amount of sod it believed they had been shorted and sent a check for the unpaid balance, less the charges for shorted sod. The amount withheld was the sum of $534.24.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $534.24. DONE AND ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990. COPIES FURNISHED: Avery P. Wisdom Vice President Hillside Sod Farms, Inc. 1620 East State Road 46 Geneva, FL 32732 Simon J. Harper President S. J. Harper Landscaping Enterprises, Inc. 205 Zenith Point Geneva, FL 32732 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Ben H. Pridgeon, Jr. Chief Bureau of License and Bond Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32399-0810 Mallory Horne General Counsel 515 Mayo Building Tallahassee, FL 32399-0800
Findings Of Fact 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
Findings Of Fact Respondent is a registered farm labor contractor with social security number 264-86-0916 and certificate number 4-3266-K 86 I. He is part owner of Highlands Harvest Corporation and is registered with Petitioner as the Corporation's representative. Respondent signs payroll checks for Highlands Harvest, hires and fires its workers, and was referred to as the "bossman" by his brothers, Stanley and Nathaniel Hawthorne, and Zephrin Augustine. On or about February 18, 1987, and March 2, 1987, Respondent recruited and hired farm workers for a fee, and directed, controlled and supervised their work as well as that of farm labor contractors who were not registered with Petitioner. Specifically, he hired and supervised Ortland Williams and Stanley Hawthorne as farm labor contractors, neither of whom had current and valid certificates of registration at the time. Respondent contracted with Ortland Williams and Stanley Hawthorne, who were acting as farm labor contractors, for the employment of farmworkers in February and March, 1987 before said contractors displayed to him a current certificate of registration issued by Petitioner. Respondent's actions were taken on behalf of Highlands Harvest Corporation for growers in Highlands County, Florida. However, as registered agent of the Corporation and based upon his role as the principal managing partner of the Corporation, Respondent is responsible for these actions. Therefore, his argument that the Corporation, not he, should be held responsible is rejected. Ortland Williams and Stanley Hawthorne functioned as "goat drivers," as the term is used in the industry, at all times material hereto. Specifically, they gave directions to, and controlled the daily work of up to 15 farm workers under their direct supervision. They received a fee based upon the number of boxes picked each day by their crew. Williams transported such workers to the groves in February, 1987, and Stanley Hawthorne was responsible for recruiting and hiring the workers, according to a statement, he gave to Larry Coker, compliance officer, on March 2, 1987. As such, Williams and Stanley Hawthorne were acting as farm labor contractors. An administrative penalty of $1000 has previously been assessed against Respondent for violating Section 450.35, Florida Statutes, following an administrative hearing in DOAH Case Number 87-1644.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order assessing an administrative penalty of $2000.00 against Respondent. DONE AND ENTERED this 3rd day of November, 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 3rd day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3636 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Findings of Fact 1 and 6, but otherwise rejected as irrelevant to this case. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 2 and 5. Adopted in Finding of Fact 3. Ruling on Respondent's Proposed Findings of Fact: 1. Rejected in Finding of Fact 4. 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 Andrew B. Jackson, Esquire 150 North Commerce Avenue Sebring, Florida 33870 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 An administrative complaint dated January 24, 1991, alleges that Respondent violated Chapter 450, F.S., Part III, by acting as a farm labor contractor without an active certificate of registration and by contracting with an unregistered individual. The issue for disposition is whether those violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Gabriel Bain, the Respondent, has worked in citrus fields for 37 years. At various times he has been registered as a farm labor contractor. He had his own company, Mid-Florida Harvesting, but became bankrupt in 1990 after the citrus freeze disaster. Bain's business address is 30 South Ivey Lane, Orlando, Florida. On or about December 14, 1990, Compliance Officers, Henry Parker and Marshall Carroll were at Nevins Fruit Company in Mims, Brevard County, checking leads on unregistered farm labor contractors. In the course of an interview with Steve Schaffer, Harvest Manager for Nevins, Gabriel Bain was called in as the man who was in charge of the harvesting job. Bain identified himself to the officers with a driver's license and did not have his certificate of registration with him. Schaffer produced the certificate that Bain had submitted when he was hired by Nevins. The certificate was in the name of General Traders, Inc., and had an expiration date of February 28, 1991. "G. Bain" was handwritten on the signature line. During the meeting with Carroll and Parker, on December 14, 1990, Bain freely admitted hiring Jerome Pender as a sub-contractor. Pender was not registered as a farm labor contractor, but had shown Bain papers that he had applied for his certificate. Bain signed a notarized statement attesting to this fact and gave it to the compliance officers. The compliance officers issued a summary of violations to Bain for utilization of an unregistered crewleader. At the time, they were unaware that Bain was, himself, unregistered. Gabriel Bain's registration in the name of Mid-Florida Harvesting expired on June 30, 1990. His application, in the name of General Traders, Inc., was approved on March 1, 1991. In December 1990, he was working for General Traders but was not included in that company's registration. He was not registered in any other name in December 1990, and a subsequent summary of violations was issued, citing "fail to register." In December 1990, at the time of the compliance officers' investigation, Gabriel Bain was working for Nevins Fruit Company as a farm labor contractor and was paid for his work in that capacity. In this work he subcontracted with other labor contractors who provided crews. At the hearing Bain claimed that he lied to the compliance officers about hiring Jerome Pender. He claimed he lied because he had actually hired Willie Simmons, someone whom the Nevins people had told him they did not want "within 100 miles" of their groves. This self-impeachment in no way advances Respondent's averment of innocence.
Recommendation Based upon the foregoing, it is hereby recommended that a final order be entered, finding Gabriel Bain guilty of violating Sections 450.30(1), F.S. and 450.35, F.S., and assessing a civil fine of $1250.00 to be paid within thirty (30) days. RECOMMENDED this 22nd day of July, 1992, at Tallahassee, Florida. MARY W. CLARK 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 22nd day of July, 1991. COPIES FURNISHED: Francisco Rivera, Sr. Atty. Department of Labor and Employment Security 2012 Capital Circle, S.E. 307 Hartman Building Tallahassee, Florida 32399-0658 Gabriel Bain 30 S. Ivey Lane Orlando, Florida 32811 Frank Scruggs, Secretary 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Cecilia Renn Chief Legal Counsel 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152
The Issue The issue is whether respondent should have a $1,000 civil penalty imposed for allegedly violating Section 450.30, Florida Statutes (1989) and Rule 38H-11.003, Florida Administrative Code (1989) by contracting for the employment of an unregistered farm labor contractor.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on May 1, 1989, when Don R. Symonette, who is a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made an inspection of a farm owned by Ovid Barnett on State Road 846 some seven or eight miles east of Immokalee, Florida. The testimony as to what transpired during the course of the inspection is sharply in dispute. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and that testimony is embodied in the findings below. As Symonette drove by the farm that day, he observed a crew of approximately eighteen workers picking bell peppers in a field. Thereafter, Symonette drove his vehicle onto the premises for the purpose of determining if pertinent statutes and Division rules were being followed. He initially observed one Abel Flores (Abel) standing by a pickup truck in the same field where the laborers were harvesting the peppers. Abel is the brother of respondent, Alfredo Flores (Alfredo). Symonette and Abel were acquainted from several meetings over the prior years. Symonette asked Abel what he was doing, and Abel answered that he was helping his brother, Alfredo, who is a registered farm labor contractor. Abel also volunteered that he was being paid by Alfredo and received approximately $40 per day in compensation. Abel further acknowledged, and the Division records show, that he is not certified as a farm labor contractor. At that point, Symonette decided to give Abel the benefit of the doubt and to interview respondent, who was supervising a crew in an adjacent field. During the course of the interview, Alfredo advised Symonette that he (Alfredo) was the supervisor in charge of the crew and it was he who had contracted with the farm to supply the workers. Even so, Symonette concluded that because Abel was the only person standing in the other field, he was "supervising" the other crew and was doing so without a certificate of registration. Accordingly, Symonette cited Alfredo for using an unregistered contractor. On April 27, 1990, or almost a year later, the Division issued an administrative complaint charging Alfredo with using an unregistered farm labor contractor. On June 7, 1990, Symonette performed a "payroll audit" by sending by mail a form to Ovid Barnett requesting information regarding Abel's employment. On an undisclosed date, the form was returned to Symonette and contains what purports to be Barnett's signature However, the contents of the completed form are hearsay in nature and cannot serve as the basis for a finding of fact. Moreover, even if the response was not hearsay, it fails to disclose the nature of Abel's employment with the farm and whether the hourly compensation allegedly given Abel was being paid at the time the form was completed in June 1990 or when the inspection occurred thirteen months earlier. All compensation received by Abel was from his employer, Ovid Barnett. In some cases, he was paid by check from the farm, and in other cases, he was paid by his brother who had in turn been paid by the farm. To bolster the contention that Abel was not acting as a farm labor contractor on May 1, 1989, a supervisor at Barnett's farm established that Abel's job was to drive trucks between the field and the packing house when the inspection occurred, and as such, it was necessary for Abel to stand by his truck while the workers loaded the truck with produce. As a driver, Abel had the responsibility of overseeing the loading of produce on his truck and, when necessary, to direct the workers on how to properly do so. It is noted that at hearing, Symonette did not describe the activities being performed by Abel except that Abel was simply "standing" around his truck and "appeared" to be supervising the work crew. Accordingly, it is found that Alfredo was not using an unregistered farm labor contractor on May 1, 1989.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint, with prejudice. DONE and ENTERED this 20th day of August, 1990, in Tallahassee, Florida. DONALD ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. Copies Furnished: Hugo Menendez, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658 Moses E. Williams, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658 Alfredo Flores P. O. Box 1611 Immokalee, FL 33934 Steven D. Barron, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658
The Issue Does Respondent Consolidated Services, Inc. (CSI) owe Petitioner Richard Sapp Farms, Inc. (Sapp Farms) $24,677.66 as alleged in the Amended Complaint filed herein by Sapp Farms?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At times pertinent to this proceeding, Sapp Farms was a "producer," as defined in Section 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Squash and eggplant come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. CSI is a Florida Corporation, owned entirely by Robert "Bo" Allen, and located in Pompano Beach, Florida. At times pertinent to this proceeding, CSI was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. CSI was issued License Number 8873 by the Department, which is supported by Bond Number L&P 66186 in the amount of $25,000.00 written by Respondent New York Surety Company, as Surety, with an Inception Date of November 18, 1997, and an Expiration Date of November 17, 1998. Sometime in early April or May 1998, Sapp Farms entered into a verbal contract with CSI, through its agents, to furnish CSI with fresh vegetables during the spring and summer of 1998. From early May 1998 through July 1998, Sapp Farms furnished CSI with eggplant and squash. From June 1, 1998 through August 8, 1998, CSI paid Sapp Farms a total of $51,300.00 for eggplant and squash furnished to CSI. The Complaint was timely filed by Sapp Farms in accordance with Section 604.21(1), Florida Statutes. Sapp Farms alleges in its Complaint that CSI owes Sapp Farms $24,677.06 for eggplant and squash furnished to CSI from early May 1998 through July 1998, for which CSI has not made any payment or has only made partial payment. Sapp Farms failed to present sufficient evidence to establish facts to show an accurate or reliable market price for eggplant or squash during the period in question. Michelle Sapp, the person who gathered the information concerning the market prices, testified that she: (a) did not view the market reports for each day in question; (b) did not remember what geographic area the market reports she viewed pertained to; (c) did not know whether the market prices she viewed were "shipping point" or "terminal point" prices; (d) did not know what the range was for market price each day; and (e) did not know where in the range she chose to establish the market price. Sapp Farms contends that CSI agreed to pay a minimum price of $4.00 for squash and $5.00 for eggplant. Richard Sapp testified that CSI agreed to pay Sapp Farms a minimum price of $4.00 for squash and $5.00 for eggplant. However, I find that Richard Sapp's testimony lacks credibility in this regard due to the fact that this alleged "minimum price" applied regardless of the grade, which is highly unlikely. There is insufficient evidence to establish facts to show that CSI agreed to pay Sapp Farms a minimum price for eggplant and squash. The following is a listing of the eggplant and squash delivered to CSI by Sapp Farms for which CSI has failed to pay Sapp Farms: Date Product Grade Quantity *Price Amount Owed Ticket 6/10/98 Eggplant Fancy 208 $ 4.75 $ 988.00 422 6/10/98 Squash (CN) No. 2 4 $ 6.75 $ 27.00 425 6/15/98 Eggplant Fancy 160 $ 4.40 $ 704.00 443 6/16/98 Squash (SN) Fancy 80 $ 6.25 $ 500.00 447 6/16/98 Squash (SN) Medium 80 $ 4.25 $ 340.00 447 6/16/98 Squash (CN) No. 1 10 $ 8.50 $ 85.00 447 6/20/98 Squash (SN) Medium 47 $ 4.50 $ 211.50 466 6/27/98 Squash (CN) No. 1 126 $ 4.90 $ 617.40 497 6/27/98 Squash (CN) No. 2 59 $ 3.75 $ 221.25 497 6/29/98 Squash (CN) No. 1 113 $10.00 $1,130.00 502 6/29/98 Squash (SN) Fancy 154 $ 2.00 $ 308.00 502 7/07/98 Squash (CN) No. 2 20 $ 5.25 $ 105.00 509 7/08/98 Squash (CN) No. 1 13 $ 9.50 $ 123.50 515 7/08/98 Squash (CN) No. 2 20 $ 5.75 $ 115.00 515 Total $5,475.65 *Prices used in this calculation are the same as the price paid by CSI to Sapp Farms for the same product, with the same grade, on the same day or the nearest day to that day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating circumstances, it is recommended that the Department enter a final order granting Sapp Farms relief by ordering CSI to pay Sapp Farms the sum of $5,475.65. DONE AND ENTERED this 27th day of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1999. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 David H. Galloway, P.A. Attorney at Law 506 North Alexander Street Post Office Box 848 Plant City, Florida 33564-0848 Robert E. Goldman, Esquire 1543 Seventh Street, Suite 202 Santa Monica, California 90401 Joseph Monahan New York Surety Company 123 William Street New York, New York 10038-3804
Findings Of Fact The Respondent, Ralph Woodson, requested a formal administrative hearing on or about March 6, 1987, with respect to civil penalties which the Petitioner proposed to levy on the Respondent. P. Ex. 5. A formal administrative hearing was initially set for June 23, 1987, by notice of hearing mailed to the Respondent at his address at Route 1, Box 410B, Groveland, Florida 32236. This was the address that was recorded for Ralph Woods on the Farm Labor Contractor Registration Complaint which was forwarded to the Division of Administrative Hearings by the Department of Labor and Employment Security as pertaining to the request for hearing by the Respondent. That same document is P. Ex. 1. On May 26, 2987, a continuance was granted in the case, and an amended notice of hearing was sent to the Respondent, Ralph Woodson, at the same address. The amended notice of hearing scheduled the case for 9:00 A.M., December 4, 1987, room 532, Curtis Petersen Building, 200 N. Kentucky, Lakeland, Florida. The Hearing Officer was in the above hearing room until after 10:00 A.M. on December 4, 1987, but the Respondent did not attend the hearing. The Respondent had adequate notice of the formal hearing. On May 13, 1986, Mr. Woodson was observed by the compliance officer, William R. Brooks, driving a Ford van carrying three workers. When he arrived, Mr. Woodson gave directions to the workers as to where to go in the grove and what to pick. Mr. Woodson admitted to Mr. Brooks that he was the crew leader for those workers as well as other workers in the grove at that time. On May 13, 1986, the Respondent was working as a labor crew leader or farm labor contractor in an orange grove in Indian River County. The Ford van had numerous safety defects. There were rust holes in the floor boards, the tires were slick (no tread) so as to be likely to cause failure, and the benches upon which the workers were sitting as they rode into the grove were not secured to the floor properly. The Ford van had been used by Mr. Woodson to transport workers 120 miles one-way on the day in question. Mr. Woodson had an expired state registration with him but was not registered with the State of Florida as a farm labor contractor on May 13, 1986. Mr. Woodson had a State of Florida registration application in his possession stating that he intended to be a farm labor contractor and not transport workers. Notwithstanding that fact, he was transporting workers. The van in which Mr. Woodson was transporting workers was not covered by any motor vehicle insurance. Mr. Woodson was aware that he was supposed to have postings in his vehicle and at the work site, but did not.
Recommendation It is therefore recommended that the Department of Labor and Employment Security enter its final Order finding that the Respondent, Ralph Woodson, has violated the above enumerated statutes and assessing a civil penalty of $2,600. DONE and RECOMMENDED this 14th day of December, 1987, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Suite 117, Montgomery Building 590 Executive Center Circle East Tallahassee, Florida 32399-2152 Ralph Woodson Route 1, Box 410B Groveland, Florida 32236 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
