The Issue Whether Petitioner, Wallace Moorehand, was an employee of Respondent, State Farm Mutual Automobile Insurance Company, as defined by the Florida Civil Rights of 1992, at the time alleged discriminatory employment practice(s) took place.
Findings Of Fact Petitioner, Wallace Bruce Moorehand, is an African- American male residing in Ft. Walton Beach, Florida. Petitioner holds Florida insurance agent license A183690, which was issued on February 27, 1991. Petitioner studied extensively and was subject to a formal examination in order to obtain his license. Respondent, State Farm Mutual Automobile Insurance Company (State Farm),1/ is a private entity headquartered in Bloomington, Illinois, engaged in the business of selling and servicing various types of insurance products including auto, health, and fire insurance for personal and business customers. Petitioner maintains that he is an employee of State Farm, rather than an independent contractor therefore, allowing him to bring a claim of unlawful employment discrimination under the Florida Civil Rights Act of 1992. Between March 1991 and February 1993, Petitioner worked as a Trainee Agent with State Farm. It is undisputed that Petitioner was a State Farm employee during his tenure as a Trainee Agent. On March 1, 1993, Petitioner executed a State Farm Agent’s Agreement. Among the relevant contractual provisions are the following: The purpose of this Agreement is to reduce to writing the objectives, obligations, and responsibilities essential to the relationship between the Agent, operating as an independent contractor, and State Farm. [State Farm] believe[s] that agents operating as independent contractors are best able to provide the creative selling, professional counseling, and prompt and skillful service essential to the creation and maintenance of successful multiple-line companies and agencies. We do not seek, and will not assert, control of your daily activities, but expect you to exercise your own judgment as to the time, place, and manner of soliciting insurance, servicing policyholders, and otherwise carrying out the provisions of this Agreement. You have chosen this independent contractor relationship, with its opportunities for financial reward and personal satisfaction, in preference to one which would place you in an employee status. * * * Section 1 – MUTUAL CONDITIONS AND DUTIES * * * You are an independent contractor for all purposes. As such you have full control of your daily activities, with the right to exercise independent judgment as to time, place, and manner of soliciting insurance, servicing policyholders, and otherwise carrying out the provisions of this Agreement. State Farm will furnish you, without charge, manuals, forms, records, and such other materials and supplies as we may deem advisable to provide. All such property furnished by us shall remain the property of [State Farm]. * * * Information regarding names, addresses, and age of policyholders of [State Farm]; the description and locations of insured property; and expiration or renewal dates of State Farm policies acquired or coming into your possession during the effective period of this Agreement, or any prior Agreement, except information and records of policyholders insured by [State Farm] pursuant to any governmental or insurance industry plan or facility, are trade secrets wholly owned by [State Farm]. All forms and other materials, whether furnished by State Farm or purchased by you, upon which this information is recorded, shall be the sole and exclusive property of [State Farm]. The expense of any office, including rental, furniture, and equipment; signs; supplies not furnished by us; the salaries of your employees; telegraph; telephone; postage; advertising; and all other charges or expense incurred by you in the performance of this Agreement shall be incurred at your discretion and paid by you. * * * L. We retain the right to prescribe all policy forms and provisions; premiums, fees, and charges for insurance; and rules governing the binding, acceptance, renewal, rejection, or cancellation of risks, and adjustment and payment of losses. Petitioner testified that it was his intent to enter into an independent contractor relationship with State Farm. On January 1, 1997, Petitioner entered into a second State Farm Agent’s Agreement, containing similar, if not identical, provisions. The record was not clear why Petitioner entered into a second Agent’s Agreement in 1997. Petitioner testified that State Farm eliminated some retirement benefits in 1997, requiring all agents to execute a new Agreement. However, on cross-examination, Petitioner testified, “I misspoke”2/ and admitted that the original Agent’s Agreement does not refer to a pension or other retirement benefit. Petitioner has conducted business as an agent of State Farm at the same location in Mary Esther, Florida, for 21 years. State Farm compensates Petitioner through commission on sales of insurance policies and other products. According to the Agent’s Agreement, State Farm also offers a sales incentive of five percent of production earnings in the prior year. State Farm has never paid Petitioner a salary. Pursuant to the Agent’s Agreement, State Farm also compensates Petitioner by providing a life insurance policy of $100,000 payable to his designated beneficiary upon his death, provided that Petitioner has not obtained age 70 or terminated the Agent’s Agreement. Petitioner has his own Federal employer tax ID number. Petitioner owns the building in which his State Farm office is located. Petitioner pays all the expenses of his office, including telephone, electricity, water, furniture, office supplies, and office equipment. Petitioner currently has two employees, but has previously employed up to nine people at his State Farm office. Petitioner pays his employees a salary, rather than on an hourly basis, at his choosing. Petitioner sets his employees’ work schedules. Petitioner pays his employees’ payroll taxes, decides whether they will receive commissions, and, if so, the amount of said commissions. Petitioner offers his employees paid holidays, vacation time, and sick leave. Petitioner does not receive either vacation time or sick leave from State Farm. Petitioner has elected to secure health insurance through State Farm for himself and his family. Petitioner offers his employees the opportunity to participate in the same health insurance plan he has elected to purchase. State Farm reports Petitioner’s earnings to the Federal Government on IRS Form 1099, not Form W-2. State Farm does not withhold social security, Medicare, or federal income taxes, from Petitioner’s commission checks. Despite overwhelming evidence of Petitioner’s independent contractor relationship with State Farm, Petitioner maintains that State Farm exercises a degree of control over Petitioner’s livelihood that renders the independent contractor status a sham. Petitioner testified that State Farm controlled Petitioner’s business, not only by contract, but also “by innuendo, by assertion, by intimidation.”3/ First, Petitioner testified that there was no difference between the way State Farm managed Petitioner’s business as a Trainee Agent and as an independent contractor. However, Petitioner admitted that only as a Trainee Agent was he required to submit daily time logs and weekly accountings of his activities. Petitioner offered into evidence a letter in which a State Farm Agency Manager criticized Petitioner’s priorities, time utilization, attitude, and required him to attend a series of training meetings. However, the letter was clearly written when Petitioner was a Trainee Agent. Next, Petitioner argues that State Farm controls whom he hires at his agency, as well as the hours his agency must be open to the public. Any employee of Petitioner who will be licensed to sell State Farm products on behalf of Petitioner is required to undergo background screening and enter into an Agent’s Licensed Staff Agreement. The Agreement defines the nature of the employment as with the Agent, rather than State Farm; defines the scope of the employee’s authority, i.e., the Agent may delegate to employees in-office binding authority on motor vehicle, residential risks, and personal property-casualty insurance coverage. Petitioner’s clerical staff, and any other non- licensed staff, is not required to undergo background screening or enter into an Agent’s Licensed Staff Agreement. Petitioner’s office is open 9:00 a.m. to 5:00 p.m. each weekday. Petitioner testified that he chose those hours because those are the ones “clients most wanted.” State Farm does not dictate the particular hours Petitioner works. State Farm provides an after-hours call center from 5:00 p.m. to 9:00 a.m. on weekdays to take calls from clients and potential clients when Petitioner’s office is closed. Petitioner maintains that because the call center is only available after 5:00 p.m., State Farm dictates that his office remains open until 5:00 p.m. daily. If Petitioner chose to close his office before 5:00 p.m. on weekdays, the only consequence would be missed business opportunities. Next, Petitioner argues that State Farm controls his business by requiring Petitioner to sell “multiple lines” of insurance, rather than selling only automobile or homeowners’ policies. Petitioner testified that State Farm pressures him to sell life and health insurance policies, as well as banking products more recently-available through State Farm. State Farm does not set quotas for any product line. Agents are free to choose which products they will sell as part of their overall business decisions. State Farm encourages its Agents to sell all products offered by the company in order to service the needs of clients. Some State Farm products require special licenses, such as a securities license to sell mutual funds offered by State Farm. State Farm does not require agents to obtain any specialty license. Petitioner voluntarily obtained a securities license to offer mutual funds to his clients. Next, Petitioner argues that State Farm does not allow him to operate his agency in a truly independent manner. Rather, Petitioner maintains that he is required to submit a business plan for approval by State Farm and attend extensive trainings which interfere with the independent nature of his relationship with State Farm. State Farm requires agents to attend one training session per year. The training is on compliance with State Farm customer service guidelines. Agents may access the training online and do not need to travel to take the training. State Farm provides a number of incentives to encourage agents to maximize their performance. For example, if an agent submits a business plan, laying out the goals and direction for his or her agency, the agent is eligible to receive leads on prospective clients that are received through the State Farm website. However, there are no negative consequences to those agents who choose not to submit a business plan. Finally, Petitioner argues that State Farm restricts Petitioner from writing policies for other insurer’s products. The parties offered a great deal of testimony regarding Petitioner’s authority to write policies for “take-out companies” assuming coverage previously provided by Citizens’ Insurance, and flood insurance policies through the Federal Emergency Management Agency. The undersigned finds this testimony irrelevant to the issue at hand. Petitioner is an agent of State Farm insurance company. He chose that relationship. He could have chosen to work with an independent insurance agency which writes policies for any number of companies. Petitioner did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Complaint of Discrimination No. 2014-00242 filed by Wallace B. Moorehand on August 14, 2014. DONE AND ENTERED this 6th day of January, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2015.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the Statutes and Rules, cited in pertinent part below, designed to regulate the practice of farm labor contractors in the State of Florida, and with enforcing compliance with that authority and imposing sanctions for violation of it. There is no dispute that James Wilson is licensed as a farm labor contractor but, as will be seen below, he was not functioning as a farm labor contractor and thus is not chargeable for the violations alleged herein with regard to the activities observed by the Department's representatives on June 17, 1986, the date pertinent to this proceeding. On June 17, 1986, Mr. W. R. Brooks, an agent for the Department of Labor and Employment Security, had cause to make an inspection of an eggplant harvesting/grading operation near Summerfield, Florida. The farm is owned by Mr. Mark Arnold. Mr. Brooks, acting on his belief that the Respondent James Wilson was functioning as a farm labor contractor and recruiting and transporting workers to the eggplant field and supervising them, made an inspection of the farm and the grading shed where the eggplants harvested were graded by Wilson and other workers. Mr. Brooks was of the belief that Wilson was hired by Mr. Arnold to recruit and transport workers to the eggplant harvesting field and grading shed and to supervise them. He partially based this belief on the fact that Willie Davis, an employee of Mr. Arnold working at the site, informed him that Mr. Wilson was the "foreman." It was not shown, however, that Willie Davis informed Mr. Brooks of any details concerning any arrangement between Mr. Wilson and the farm owner, Mr. Arnold. Mr. Brooks' testimony, based in part upon discussions he had with Willie Davis and Mr. Wilson at the farm site, failed to establish that Mr. Wilson was paid any fee or consideration of any kind in return for transporting, recruiting or supervising workers. Ms. Rosie Jenkins was also called by the Department to testify. Mr. Brooks had interviewed Ms. Jenkins early one morning when she had been drinking most of the night, and by her own admission, was still drunk as she was talking to Mr. Brooks at the door of her residence. Ms. Jenkins testified that she was too intoxicated on the occasion of her interview with Mr. Brooks to understand clearly the nature of his questions or to understand or recall the precise nature of her answers. Her testimony at hearing establishes that Mark Arnold hired her for the job and was the only supervisor at the job site. Ms. Jenkins occasionally borrowed money from James Wilson and would repay him with interest and would also pay him a dollar per trip when he transported her to the field on some occasions. Ms. Jenkins' statement that the owner, Mr. Arnold, was the only supervisor at the job site is corroborated by Willie Davis, who was also employed at the harvesting and grading operation on the day in question. He established that there was no reason for any supervision because, as Ms. Jenkins put it, all the employees already knew their jobs and, according to Mr. Davis, they were working on "piece work" anyway, which means they were paid according to how many boxes of eggplants they prepared for transportation to the packing house. The more eggplant they graded correctly and packed for transportation, the more they were paid as wages, thus, inasmuch as the workers were already trained, there was no incentive for the owner to pay any person such as Wilson to supervise them. Ms. Dorothy Walker worked for Mark Arnold at the eggplant farm for approximately three years. She worked in the grading shed area grading eggplant and established that no supervision was needed for workers in that area since they were all trained in their jobs. She was hired by Mr. Mark Arnold and on some occasions "caught a ride" with James Wilson in order to get to work. This was not shown to be a regular practice, however. She also stated that Mr. Mark Arnold was her supervisor and that James Wilson was an employee just like any other employee without supervisory authority. Each of the workers would from time to time tell another worker, who was doing something improperly, the proper means of performing the job, including Wilson, but Mark Arnold was the only person with supervisory authority over the workers. Mr. Mark Arnold, the owner of the eggplant farm in question, established that there was no contract between him and James Wilson to recruit, transport or supervise employees. Mr. Wilson's employment was not conditioned upon his recruiting, transporting or hiring employees. Mr. Arnold stated that he did not pay Wilson a fee or other valuable consideration for transporting workers to his field and Wilson was not paid a fee or other consideration for supervising or controlling the workers at the job site. Wilson was paid on an hourly basis, the same as the other workers, and additionally was paid by the box for hauling eggplants to the packing house from the farm site. Mr. Wilson was expected to work the same hours as other employees. Mr. Arnold acknowledged that on some occasions, when he had to leave the field for any reason, he would sometimes tell Wilson to look after the operation while he was gone, but this was not a regular supervisory position and Mr. Wilson was not paid by Arnold for doing so. Mr. Arnold's testimony was not rebutted by the Department and it is noteworthy that at no time in the investigatory process was Mr. Arnold contacted personally by any Department personnel concerning the allegations at issue in this proceeding. Mr. Wilson's testimony corroborated that of Mr. Arnold in demonstrating that he was paid an hourly fee the same as other employees and did not direct, supervise or control the workers, whether or not he transported them to the eggplant farm. Wilson was compensated on a per box basis for transporting the eggplants to the packing house, but that was an arrangement solely between him and Arnold and involved no other employees in terms of transportation, supervision or hiring. In years past, Mr. Wilson has worked as a farm labor contractor in the citrus industry, at which time he did recruit his own crew and transport them to the job site. Although he maintains his farm labor contractor's license at the present time, he was not acting in that capacity at the job site in question. None of the employees he recruited in the citrus industry were the same employees at the eggplant farm. He renews his farm labor contractor's license annually and hopes eventually to return to employment in that capacity in the citrus industry, which he left as a result of the late, disastrous freeze which significantly curtailed citrus operations in the central Florida area involved. In summary, it has not been established that Mr. Wilson was paid by Mr. Arnold or any third party for transporting workers to the field. It was shown at most that occasionally Mr. Wilson was compensated by the employees themselves in return for him giving them rides to work, which is nothing more than a car pooling arrangement. Moreover, it was not demonstrated that Mr. Wilson exercised any supervisory authority over the workers at the eggplant harvesting and grading site. Because of his long history of successful employment with Mr. Arnold, Mr. Arnold did occasionally entrust him with oversight of the operation while he left the field to go on errands during a given work day. The point is, Mr. Wilson was not compensated any extra for such services and was paid the same hourly wage as other workers in the field and the grading shed. Although Mr. Wilson was paid on a per box basis for transporting the eggplant from the farm to the packing house, this was not a means of compensating him for transporting, recruiting or supervising employees because he performed an additional service with his own vehicle in return for that compensation, that is, he loaded the boxes on his vehicle, transported them to the packing house, and returned, paying his own expenses. It therefore cannot be found that the payment for transporting the boxes was merely a means of giving him additional compensation for the alleged supervision, transportation and recruitment of workers.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the charges against James Wilson be dismissed in their entirety. DONE and ENTERED this 11th day of 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 11th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3657 Department's Proposed Findings of Fact and Conclusions of Law Accepted, but not dispositive of the material issues presented. Rejected as to its second sentence, which is not in accordance with the preponderant testimony and evidence adduced. Accepted, but not dispositive of the material issues presented. Accepted, but not dispositive of the material issues presented. Respondent James Wilson's Proposed Findings of Fact Rejected as not constituting a Proposed Finding of Fact, but rather legal argument. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Room 117, Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399 Archie O. Lowry, Jr., Esquire PULLUM & JUDSON Post Office Drawer 2160 Leesburg, Florida 32748 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32301 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301
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 Respondent Charles W. Crowell, a State Farm agent under the terms of an agency agreement declaring him an independent contractor, has never employed 15 or more employees at any one time. During the 20 weeks next before petitioner Donna Clark left his employ, he had no more than three full-time and two part- time employees. As a State Farm agent, Mr. Crowell is contractually bound not to represent other insurance companies. State Farm, which has employed more than 15 persons at all pertinent times, prescribes policy forms, premiums, fees and charges for insurance, and prescribes underwriting rules its agents (and so their employees) must follow. Most premiums reach State Farm in the form of checks drawn by insured persons. But, as required by state law and his agreement with State Farm alike, Mr. Crowell maintains a separate premium fund account, into which customers' cash premium payments are deposited. Moneys are disbursed directly from this account to State Farm, which has the right to audit the account. State Farm determines Crowell's compensation based on the amount of premiums it receives on policies he has written, and writes him checks accordingly. At year's end, State Farm reports these payments to the IRS on a form 1099, not on a W-2 form. Mr. Crowell receives no compensation directly from the premium fund account. When an agent retires and in certain other instances, State Farm allocates policies among remaining agents, while honoring preferences policyholders express for particular agents. But it does not restrict agents to a particular territory or otherwise dictate where its agents conduct business. State Farm reserves the right to approve any advertising by an agency using State Farm's name or logo. But certain business cards bearing the logo are "pre-approved," except for the name of the agent or other employee in the agent's office which is to appear on the card. Mr. Crowell sets his own hours and it was he who decided the office would open at nine and close at five. Some days he does not open his office for business, even though State Farm offices are open. If he closes his office on days State Farm is closed, it may well be because he cannot do business with State Farm. But he is free to keep office hours on such days if he chooses. His compensation does not depend directly on the amount of time his office is open, or on the amount of time he spends at work. Mr. Crowell, not State Farm, decides whom to employ in his office, and sets hours, salaries and benefits for these employees. He, not State Farm, personally pays wages and benefits (if any), along with employment taxes for which employers are liable on account of their employees. But, on unemployment compensation tax forms, gives as the employer's name "CHARLES W. CROWELL STATE FARM INSURANCE COS" and signs as Charles W. Crowell Agent." Respondent's Exhibit No. 2. Mr. Crowell drew salary checks in favor of Ms. Clark and other employees in his office on his own business checking account, which is not subject to audit by State Farm. These salary checks did not bear State Farm's name or logo. The parties have stipulated, as follows: "5. Crowell's office is located at 908 Michigan Avenue in Pensacola, Florida, and he personally owns the property and building where his office is located. State Farm has no interest or property rights in this facility. The only forms, manuals, and other documents located in Crowell's office which are the property of State Farm are insurance product information, including names of policyholders. The equipment, furniture and other supplies located at or used in Crowell's office are owned or leased by Crowell, and not State Farm. Crowell personally hired Donna M. Clark, and State Farm took no part in, exercised no control over, and had no input regarding Crowell's decision to hire Ms. Clark. Crowell sets the work hours, wages and benefits of his employees, including the number of employees employed by his business, without consultation with or the approval of State Farm. Crowell personally pays the salaries or wages and employment taxes, including Florida Workers' Compensation, Unemployment Compensation, Social Security (FICA) and federal tax withholding, on all of his employees, including Ms. Clark, and State Farm pays no salaries to or taxes on behalf of any of Crowell's employees. State Farm provides no benefits to the employees of its State Farm agents, and Crowell decides whether employment benefits such as health or life insurance are provided to Crowell's employees, including whether there is any cost to the employee. Such policies can be purchased by the State Farm Agent from State Farm, if he chooses to do so. Crowell, not State Farm, maintains all personnel records on his employees, including Ms. Clark. State Farm does not have any personnel records as to petitioner Donna Clark. Crowell's business is to sell State Farm policies and service State Farm policyholders. State Farm prescribes policy forms, premiums, fees and charges for insurance, and prescribes underwriting rules pertaining to writing State Farm insurance. Employees of State Farm Agents such as Mr. Crowell are not required to attend State Farm meetings or training sessions. State Farm offers training on topics selected by State Farm Agents, to which the State Farm Agents, such as Mr. Crowell, may choose to send their employees, for a fee payable to State Farm. State Farm requires Crowell to maintain a premium fund account, which is a trust account for the deposit of insurance premiums which are the property of State Farm. All cash premiums from policyholders are deposited to the premium fund account, and premium funds are promptly forwarded to State Farm. Premiums paid by check are sent directly to State Farm, and the large majority of premiums received by Crowell are by check. The premium fund account is subject to auditing by State Farm. As part of the audit of the premium fund account, State Farm develops a profit and loss statement which compares the claims experience of policies serviced by the Agent to the premiums generated by those policies and thus reflects the profit or loss to State Farm. Such profit and loss statement is for State Farm's own use in determining its own profitability and does not show or indicate the success of Mr. Crowell in his personal business as an insurance agent. Crowell maintains separate accounts for his personal and business funds which are not subject to any auditing by State Farm. Crowell is not paid for his sales activities out of the premium fund account, but is paid on a commission basis after all premium funds have been deposited with State Farm. Crowell personally directed Clark to attend certain training courses conducted by the local district manager of State Farm on underwriting insurance and product knowledge only. State farm does not require State Farm Agents to send their employees to training courses conducted by State Farm. State Farm does not allow employees of State Farm Agents to attend training courses concerning financial management or conduct of the agency, and Clark did not attend any such courses." Although not stipulated by the parties, evidence showed that, at one of the training courses Ms. Clark attended, a speaker told employees in attendance that they comprised State Farm's "front line." State Farm decides, with input from its agents, which courses and seminars to offer, but it is up to individual agents to decide who, if anybody, attends from their offices. State Farm employees known as agency managers coordinate operations of agents in their assigned area. When the agency manager decides another agent is needed, he recruits a trainee, who works for State Farm for two years or so (unless discharged earlier.) After this period of training, State Farm offers most trainees the opportunity to terminate employment and become agents. With State Farm's permission, an agent may incorporate. Even as independent contractors, agents receive contributions from State Farm toward personal insurance premiums, which are treated as part of the agents' income. The State Farm manager for the Pensacola area while Ms. Clark worked in Mr. Crowell's office offered bonuses to agents' employees who won contests, although this violated company policy. Ms. Clark did not, however, participate in any contest or receive a bonus. A number of unlicensed people in Mr. Crowell's office sign policies when he is unavailable. Because this practice is widespread, Insurance Commissioner Gallagher has insisted that insurance agents see that more office staff are licensed. Accordingly, State Farm's agency manager has asked State Farm agents to identify office personnel for licensure. Employees of a State Farm agency must be approved by State Farm, in order to obtain licenses. After an agent identifies an employee and the employee sits for an examination, State Farm does a background check and makes its decision about sponsorship. Ms. Clark did not seek licensure as an insurance agent, although she was among those who signed policies. In the course or her work, she spoke directly with underwriting personnel in Jacksonville, on Mr. Crowell's behalf or with his acquiescance.
Recommendation It is, accordingly, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the petition. DONE and ENTERED this 3rd day of August, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of August, 1990. COPIES FURNISHED: Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, General Counsel Florida Commission on Human Realtions 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Karen Lessard, Esquire 15 West LaRua Street Pensacola, FL 32501 Kathryn Errington, Esquire HARRELL, WILTSHIRE, SWEARINGEN, WILSON & HARRELL, P.A. 201 East Government Street P.O. Drawer 1832 Pensacola, FL 32501 Mary Jarrett, Esquire 2065 Herschel Street P.O. Box 40089 Jacksonville, FL 32203
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 Whether Respondents, Ag-Mart Produce, Inc. (Ag-Mart), and its employees' Justin Oelman (in DOAH Case No. 06-0729) and Warrick Birdwell (in DOAH Case No. 06-0730), committed some, any, or all of the violations alleged in the Administrative Complaints detailed herein and, if so, what penalty should be imposed.
Findings Of Fact Based upon the evidence presented at the final hearing, the following relevant findings of fact are made: The Department is the state agency charged with administration of the Florida Pesticide Law, Chapter 487, Part I, Florida Statutes. Among the duties of the Bureau of Compliance Monitoring within the Division of Agricultural Environmental Services are the designation and regulation of restricted-use pesticides, the testing and licensure of certified pesticide applicators, and the enforcement of federal worker protection standards regarding the exposure of farm workers to pesticides. §§ 487.011, 487.042, 487.044, and 487.051, Fla. Stat.; Fla. Admin. Code R. 5E-2.039. The Administrative Complaints allege two types of violation of the Florida Pesticide Law. First, they allege that Ag-Mart harvested tomatoes prior to the end of the pre-harvest interval, the period of time that must pass after a pesticide is applied to a tomato plant before that plant's fruit may be safely harvested. The pre-harvest interval is specified on the labels of restricted-use pesticides. Second, they allege that Ag-Mart allowed workers to enter sprayed fields prior to the end of the restricted entry interval, the period of time that must pass after a pesticide is applied before it is safe for a worker to enter or remain in the treated area. The restricted entry interval is also specified on the labels of restricted-use pesticides. In 2004, Ag-Mart operated farms in several locations in Florida and North Carolina. Ag-Mart operated packing houses in Plant City, Florida, and in New Jersey. Ag-Mart grows, packages, and distributes grape tomatoes under the "Santa Sweets" label, and a round-type tomato marketed as "Ugly Ripe." During all times relevant to this proceeding, Ag-Mart's principal administrative offices were located in Plant City, Florida, and Ag-Mart's operations were managed by its president, Donald Long. At the final hearing, several Ag-Mart employees, including Mr. Long, testified as to Ag-Mart's practices in establishing planting and pesticide spraying schedules, carrying out those schedules in the field, and ensuring that legal restrictions on pesticide use are observed. This testimony is credited as to Ag-Mart's general pattern and practice, but does not disprove the Department's evidence as to particular instances of pre-harvest interval or restricted entry interval violations. Among other duties, Mr. Long was responsible for scheduling Ag-Mart's cultivation of tomato plants at the company's farms, so that product is available year-round. Mr. Long prepared a 2004 planting schedule that spaced the planting of new crops a week to ten days apart to ensure a continuous flow of tomatoes once the plants matured. For the 2004 season, the South Florida farm began planting in September 2003, with harvesting commencing in December 2003 and continuing through May 2004. The North Florida farm started its spring season plantings in March and April 2004, with harvest beginning in early June 2004 and lasting until August 2004. Each "planting" at Ag-Mart consists of a specific amount of acreage that is cultivated for a specific period of time to produce an expected yield of tomatoes. Mr. Long determines the size of each planting based on past yields and projected needs. A single planting of grape tomatoes is harvested multiple times. Depending on conditions, a planting of grape tomatoes at the South Florida farm can be harvested between ten and 15 times in the fall, with fewer harvesting opportunities in the spring. A planting of grape tomatoes at the North Florida farm may be harvested between eight and ten times. Each planting takes up portions of acreage called "fields," which are divided by land features and irrigation systems. Fields are of varying sizes, depending on the nature of the terrain and the irrigation system. The fields are numbered, and a planting is usually done in a certain number of roughly contiguous fields. A field is further divided into separately numbered "blocks," each block consisting of six rows of tomato plants, three rows on each side of a "drive area" through which tractors and harvest trucks can maneuver to reach the plants. The blocks are numbered in sequence from the beginning to the end of the field. At the South Florida farm in 2004, Ag-Mart cultivated ten separate plantings of between 79 and 376 gross acres. Each planting contained as few as three and as many as ten separate fields. At the North Florida farm in 2004, Ag-Mart cultivated five separate plantings of between 92 and 158 gross acres. Each planting contained either two or three separate fields.2 The cycle of farming activities at the Ag-Mart farms included ground preparation, planting, staking, tying, harvesting, and post-harvest clean-up. Farm laborers were recruited and transported to the fields by crew leaders, who must be registered as farm labor contractors with the Department of Business and Professional Regulation pursuant to Chapter 450, Part III, Florida Statutes, and Florida Administrative Code Rule 61L-1.004. The crew leaders supervised the field laborers and prepared their weekly time cards. The crew leaders were directed by Ag-Mart's labor supervisors as to where the laborers were to work and which tasks were to be performed at any given time. Crew leaders providing services to Ag-Mart in 2004 included: Sergio Salinas, d/b/a Salinas & Son, Inc.; Pascual Sierra; and Juan Anzualda, d/b/a Juan Anzualda Harvesting, Inc. Mr. Salinas and Mr. Anzualda were crew leaders at the South Florida farm in the spring 2004 season. Mr. Sierra was a crew leader at the North Florida farm in 2004. At the South Florida farm, Mr. Salinas and three or four supervisors called "field walkers" oversaw the daily work of the 150 to 200 farm laborers who worked in Mr. Salinas' crew. Mr. Salinas owned and operated buses that transported the workers to and within the farm. Mr. Salinas also operated trucks to haul the harvested tomatoes from the fields to the shipping dock on the South Florida farm. A truck was also needed to move portable toilets to the fields for the use of the laborers. Because of the amount of equipment necessary to conduct a harvest, and the intense hand labor required to pick a row of tomatoes, Mr. Salinas always kept his crew together in one location while harvesting. During the period of January through May 2004, Mr. Salinas' crew typically harvested in one or two fields per day, and never more than four fields in one day. Mr. Anzualda and his 15 field walkers supervised a crew of 150 laborers at the South Florida farm during March and April 2004. Mr. Anzualda always kept his crew together when performing harvesting activities, due to the amount of equipment and the time necessary to set up near the work areas. Mr. Anzualda estimated that it took between 45 and 90 minutes to set up his equipment and line up his workers along the rows before harvesting could commence in a given field. Mr. Anzualda's crew typically harvested in one or two fields per day at the South Florida farm during the peak harvest period of March and April 2004, and never in more than four fields in one day. Ag-Mart paid the farm laborers the piece rate of $2.50 per tub of grape tomatoes. A "tub" weighs about 21 pounds. Different piece rates applied to different forms of work. For tying activities, the laborers under Mr. Salinas were paid $0.75 per 100 linear feet of work, while those under Mr. Anzualda were paid $0.50 per 100 linear feet. The laborers were paid the minimum wage of $5.15 per hour for some work, such as weeding and the harvest of Ugly Ripe tomatoes. In any event, the laborers were guaranteed the minimum wage, and were paid $5.15 per hour if that amount was greater than their pay would have been under piece work rates. Planting activities are performed by hand. Tomato plants are started in greenhouses, and then transplanted to the field when they are six weeks old and about six inches high. Staking is performed manually and by machine, as stakes are placed between the tomato plants to support the plants as they mature. Tying is performed manually, from about the second week after planting until the eighth or ninth week. "Tying" involves tying the tomato plants with string to the stakes to allow them to grow up the stakes as they mature. The tomato plants are six to seven feet tall at maturity. After the tomatoes were planted in 2004, Ag-Mart's farms began the application of pesticides according to a company-wide spray program devised by Mr. Long prior to the season. The spray program outlined the type and volume of pesticide products to be applied to the maturing tomato plants from the first week of planting through the end of the harvest. Once tying and harvesting activities began, Ag-Mart's spray program called for the application of pesticides "behind the tying" or "behind the harvest," meaning that spraying was done immediately after tying or harvesting was completed in a field. The spraying was done behind the workers because picking and tying opens up the plants, which enables the pesticide to better penetrate the plant. The timing of the spraying also allows fungicide to cover wounds from broken leaves caused by picking, thus preventing infection. Harvesting is performed manually by the farm laborers, who pick the ripe fruit from the tomato plants and place it into containers. The crew leader lines up the laborers with one person on each side of a row of tomatoes, meaning that a crew of 150 laborers can pick 75 rows of tomatoes at a time. The farm workers pick all of the visible fruit that is ripe or close to ripe on the blocks that are being harvested. Once the picking is complete on a block, it takes seven to ten days for enough new fruit to ripen on that block to warrant additional harvesting. Justin Oelman was Ag-Mart's crop protection manager at the South Florida farm in 2004. Mr. Oelman worked for Ag-Mart for eight years as a farm manager and crop protection manager before leaving in 2005 and had three years prior experience as a crop protection manager for another tomato grower. As crop protection manager in 2004, Mr. Oelman was the licensed pesticide applicator responsible for ordering chemicals and directing the application of pesticides. His job included writing up the "tomato spray ticket" for each pesticide application. The spray ticket is a document that, on its face, indicates the date and time of a pesticide application and its location according to planting, field, and block numbers. The spray ticket also states the name of the tractor driver who physically applies the pesticide, the type and amount of the pesticide applied, and the number of acres treated. Licensed pesticide applicators are required by Department rule to record the information included on the spray ticket. Fla. Admin. Code R. 5E-9.032. In applying pesticides to the South Florida farm's grape tomato crop in 2004, Mr. Oelman followed the spraying program designed by Mr. Long before the season. Because the pesticides were applied behind the farm workers' field activity, Mr. Oelman maintained close communications with Josh Cantu, the Ag-Mart labor supervisor in charge of tying activities on the South Florida farm, and with Eduardo Bravo, the labor supervisor in charge of grape tomato harvesting. Mr. Bravo in turn directed crew leaders such as Mr. Salinas and Mr. Anzualda on where to take their crews to conduct harvesting work. These communications kept Mr. Oelman apprised of where the crews were working and how much progress the tying or harvesting activities were expected to make by the end of the day. Mr. Oelman was then able to plan the next day's pesticide applications so that his tractor drivers would be ready to enter the field and apply the pesticides soon after the tying or harvesting activities were completed. Mr. Oelman typically wrote the spray tickets on the day before the actual pesticide application, based on the information gathered from Mr. Bravo and Mr. Cantu. Thus, the starting times shown on the tickets are times that were projected by Mr. Oelman on the previous afternoon, not necessarily the time that spraying actually commenced. Spraying could be delayed for a number of reasons. At times, the work in the fields would not progress as quickly as Mr. Cantu or Mr. Bravo had anticipated, due to the heaviness of the harvest. Pesticides are not applied to wet plants; therefore, rain could delay a planned spray application. Mr. Oelman's practice was to write a new spray ticket if a day's planned application was completely cancelled. However, if the planned spray application was merely delayed for a time, Mr. Oelman did not create a new spray ticket or update the original ticket to reflect the actual starting time. Mr. Oelman failed to explain why he did not always create a new ticket when the information on the existing ticket ceased to be accurate. Mr. Oelman directly supervised the Ag-Mart employees who drove the tractors and operated the spray rigs from which pesticides were applied to the tomato plants. Mr. Oelman trained the tractor drivers not to spray where people were working, but to wait until the tying or harvesting activities in designated fields had been completed. Once the fields had been sprayed, Mr. Oelman would orally notify Mr. Bravo and Mr. Cantu of the location of the pesticide applications. Mr. Oelman would also post copies of the spray tickets at the farm's central posting board, on which was posted relevant information regarding the pesticides being used at the farm, the restricted entry intervals and pre-harvest intervals for the pesticides, and other safety information.3 When restricted-use pesticides4 were to be applied, Mr. Oelman posted the entrances to the field with warning signs before the application began. The signs, which stated "Danger/Pesticides/Keep Out" in English and Spanish, were left in place until twelve hours after the expiration of the restricted entry interval for the applied pesticide. Mr. Oelman attested that he always made these postings when restricted-use pesticides such as Monitor and Danitol were applied at the South Florida farm. Mr. Salinas and Mr. Anzualda testified that they never harvested tomatoes from fields posted with pesticide warning signs. Mr. Anzualda checked for warning signs every day to ensure that his crew was not being sent into fields where pesticides had recently been applied. The restricted entry interval (REI) and the pre- harvest interval (PHI) are set forth on the manufacturer's label of each restricted-use pesticide, in accordance with 40 C.F.R. Parts 156 (labeling requirements for pesticides and devices) and 170 (worker protection standard). The REI, a worker safety standard, is the time period after application of a restricted- use pesticide that must elapse before workers are allowed to enter the treated area. The PHI, a food safety standard, is the time period that must elapse after a spray application before harvesting can begin. The REI and PHI vary according to individual pesticides. In 2004, Warrick Birdwell was the farm manager at Ag- Mart's North Florida farm in Jennings. Prior to 2004, Mr. Birdwell had worked ten years for other tomato growers in Virginia and Florida. As farm manager, Mr. Birdwell was responsible for all operations from ground preparation through post-harvest clean-up at the North Florida farm. Mr. Birdwell was also a licensed restricted-use pesticide applicator and was responsible for the application of pesticides at the North Florida farm. In 2004, Mr. Birdwell was assisted in carrying out the spray program by Dale Waters, who supervised the tractor drivers and equipment.5 During 2004, grape tomatoes were harvested at the North Florida farm on a rotation of at least seven days per block, meaning that it would take at least seven days after a harvest, in a given field, to grow enough vine ripe fruit to warrant another harvest. Mr. Birdwell prepared the spray tickets for the planned application of pesticides. He created his spray tickets a day or two before the actual date that the application was scheduled to take place. At times, delays occurred due to weather, equipment failures, or slower than anticipated progress in the harvest. Mr. Birdwell's practice was to create a new ticket and destroy the old one if the delay prevented a scheduled application from occurring on the scheduled date. However, if the spraying was commenced on the scheduled date, but had to be completed on the next day, Mr. Birdwell kept the original spray ticket without amendment. Mr. Birdwell failed to give a reason why a new ticket was not created each time the information, included in the original ticket, ceased to be accurate. Mr. Birdwell communicated throughout the day with Charles Lambert, the North Florida farm's labor supervisor, to monitor the progress of the harvesting activities and ensure that workers did not enter fields where REIs or PHIs were in effect. Mr. Birdwell also directed that warning postings be placed at the entrances to fields where restricted-use pesticides had been applied. Farm labor crews were allowed to move on the farm property only at the specific direction of Mr. Lambert, whose constant communication with Mr. Birdwell helped ensure that labor crews stayed out of treated fields until it was safe to enter them. Harvested product received at Ag-Mart's packing houses is tracked by foreman receiving reports, which identify the product and its quantity, the name of the crew leader responsible for harvesting the product, the farm from which the product was shipped, and the planting number from which the product was harvested. The receiving reports are used to calculate the commission payments due to the Ag-Mart crew leaders, who are paid based on the amount of fruit their crews harvest, and to analyze the yields of specific plantings. The "date received" column on the receiving reports showed the date the product was shipped from the farm to the packinghouse. In March 2005, the Palm Beach Post published an article stating that three women, who harvested tomatoes for Ag- Mart in 2004, bore children who suffered from birth defects. The article questioned whether the birth defects were connected to the pesticides used by Ag-Mart on its tomatoes. The women had worked at both the South Florida and North Florida farms, and at an Ag-Mart farm in North Carolina. In response to the article, the Collier County Health Department began an inquiry to determine the cause of the birth defects and asked for the Department's help in performing a pesticide use inspection at the South Florida farm, where the three women, identified as Francisca Herrera, Sostenes Salazar, and Maria de la Mesa (also called Maria de la Mesa Cruz), worked from February through July 2004. The Department's investigation commenced with a work request sent from Tallahassee to Environmental Specialist Neil Richmond in Immokalee on March 7, 2005.6 Mr. Richmond regularly conducts inspections at golf courses, farms, chemical dealers, and fertilizer plants throughout Collier County. The work request directed Mr. Richmond to obtain pesticide use records for Ag-Mart covering the period of February through July 2004 and employee records showing the names of the three employees and the dates they worked in 2004. The work request further directed Mr. Richmond to conduct a pesticide use inspection at the South Florida farm to document the pesticide products used in the field. Finally, the work request directed Mr. Richmond to conduct a full worker protection standard inspection to document the posting of fields, central posting information, and REIs at the South Florida farm. Mr. Richmond initially visited Ag-Mart's South Florida farm on March 28, 2005, accompanied by two persons from the Collier County Health Department. During the course of the inspection, Ag-Mart's farm manager, Doug Perkins, produced spray tickets for both the South Florida and North Florida farms for the period February through July 2004. Mr. Perkins also produced a spreadsheet identifying the dates worked and the farm locations for each of the three women named in the newspaper article. This spreadsheet was prepared at the direction of Ag- Mart's human resources manager, Angelia Cassell, and was derived from the three workers' timesheets for 2004. On March 30, 2005, Mr. Richmond filed a written report with the documents he received from Ag-Mart. The Department's Bureau of Compliance Monitoring then assigned the matter to Case Reviewer Jessica Fernandez in Tallahassee. Ms. Fernandez was given the task of reviewing all the information gathered by the Department's inspectors to determine whether Ag-Mart had violated the Florida Pesticide Law or any of the Department's implementing rules. On April 12, 2005, Ms. Fernandez sent a request for additional information to Mr. Richmond, which stated in relevant part: According to the work log included in this file, Ms. Fransisca [sic] Herrera, Ms. Maria de la Mesa Cruz and Ms. Sostenes Salazar worked at the Ag-Mart farm located in Immokalee between January 2004 and October 2004. Please obtain as much information as possible regarding the specific Planting, Field and Block numbers in which these workers worked during the period of February 2004 through June 2004. Mr. Richmond went to the South Florida farm on March 13, 2005, and communicated this request for additional information to Mr. Oelman, who responded that it would take several days to gather the requested information. Mr. Richmond returned to the farm on April 15, 2005. On that date, Mr. Oelman explained to Mr. Richmond the sequencing of harvesting and spray activities at the South Florida farm. Mr. Oelman told Mr. Richmond that Ag-Mart's harvest records indicate, only, which planting the laborers were working in on a given day and that a planting includes more than one field. Mr. Oelman also told Mr. Richmond that Ag-Mart's spray records are kept according to field and block numbers and that his practice was to spray behind the picking. On April 22, 2005, Ms. Cassell faxed to Mr. Richmond a spreadsheet entitled "Field Locations for SFL 2/04 thru 6/04." All involved understood that "SFL" referred to the South Florida farm.7 With the assistance of subordinates in her office, Ms. Cassell produced this document to show, in her words, "the total of what field locations the [three] women might have worked in." Ms. Cassell started with time cards, which indicated the dates and hours the three women worked. Then she obtained foreman receiving reports, which she understood to tell her which plantings were harvested on which dates. Finally, she obtained, from the farm, a handwritten document showing which fields were included in each planting. From this information, Ms. Cassell was able to fashion a spreadsheet indicating the range of fields each woman could have worked in from February through June 2004. Mr. Richmond testified that he read the spreadsheet's title and understood the document to show where the women actually worked each day. The document appeared self- explanatory. No one from Ag-Mart told Mr. Richmond that the spreadsheet showed only where the women could have worked, or "possible" locations. Mr. Richmond passed the spreadsheet on to Ms. Fernandez, with a report stating that it showed "the field locations for Ms. Herrera, Ms. Salazar, and Ms. de la Mesa where they worked on respective dates." Ms. Fernandez also operated on the assumption that the spreadsheet showed what its title indicated, the actual field locations of the three women on any given day from February through June 2004. Ms. Cassell testified that she put the title on the spreadsheet without much thought, simply as an identifier for the file on her computer's hard drive. Ms. Cassell understood that she was creating a spreadsheet of all the fields the women could possibly have worked in on a given day. She could be no more precise, because Ag-Mart did not keep records that would show the specific fields where an individual worked on a given day. The president of Ag-Mart, Mr. Long, confirmed that Ag- Mart does not keep records on which fields a worker is in on a given day. At the time the Department made its request, Mr. Long told Ms. Cassell that there was no way Ag-Mart could provide such precise worker location data. The closest they could come would be to correlate harvest or receiving data, which showed what plantings a crew had harvested from, with the workers' time cards. Ag-Mart knew whose crew each woman had worked in; so the spreadsheet listed all the fields in the planting worked by the crew, as a way of showing which fields the women might have worked in. On May 4, 2005, Ms. Fernandez sent Compliance Monitoring Bureau Chief Dale Dubberly a request for additional information, which Mr. Dubberly forwarded to Mr. Richmond the next day. Ms. Fernandez first requested the time work started and ended for each worker in each field on every date listed in the spreadsheet provided on April 22, 2005. Ms. Fernandez next asked for the field location for each worker from July 2004 to November 2004. She asked for the block numbers corresponding to each of the fields in North Florida, South Florida, and North Carolina during the 2004 season and a map showing the distribution of blocks, fields and plantings for those farms during the 2004 season. She asked for spray records for South Florida for October and November 2004. Finally, Ms. Fernandez requested a more legible copy of the spreadsheet, which she stated "shows each worker's field location." Upon receiving this request through Mr. Richmond, Ms. Cassell, her staff, and Ag-Mart farm compliance manager, Amanda Collins created a new spreadsheet, which Ms. Cassell titled "Field Locations for 3 Employees for 2004." This spreadsheet was identical in format to the earlier document, but was expanded to include the dates the three women worked for all of 2004. For each worker, the spreadsheet provided a cell for each day worked, and within that cell a list of field numbers. Again, the Department took these field numbers to represent fields in which the women actually worked, when Ag-Mart actually intended them to represent fields in which the women possibly worked. Some of the cells listed as many as 23 field numbers for one day. The method of developing this spreadsheet was similar to that employed for the first one. The weekly time cards of the three women were used to provide the days they worked. Ag-Mart's weekly time cards show the name of the employee, the rounded hours worked each week, the number of piece units worked, the hours worked for minimum wage, and the initials of the crew leader for whom the employee worked that week. For their South Florida farm work in 2004, Ms. Herrera and Ms. Salazar worked exclusively for crew leader Sergio Salinas. Ms. de la Mesa worked at South Florida for crew leader Juan Anzualda and at North Florida for crew leader Pascual Sierra.8 To identify the fields where the three women might have worked on a given day, Ms. Cassell and her staff again used foreman receiving reports and planting schedules. The receiving reports were understood to provide the dates of shipping for harvested product, and these were correlated to the dates on which the three women worked. Again, Ms. Cassell listed every field within a planting as a possible work location, because Ag-Mart kept no data that identified the fields in which the women actually worked on a given date. On May 6, 2005, Mr. Richmond met with Ms. Cassell and Ms. Collins at Ag-Mart's Plant City administrative offices. The meeting lasted no more than 15 minutes and consisted of Ag-Mart employees turning over various documents to Mr. Richmond, along with some explanatory conversation. Ms. Cassell specifically recalled explaining to Mr. Richmond that the field location spreadsheet indicated the "total possible fields that the three employees could have worked in." Mr. Richmond denied that Ms. Cassell gave him any such explanation. Ms. Collins recalled that Mr. Richmond and Ms. Cassell had some discussion about the spreadsheet, but could recall no particulars.9 Mr. Richmond forwarded the documents received at the May 6, 2005, meeting to Ms. Fernandez in Tallahassee. His written summary, also dated May 6, 2005, represents Mr. Richmond's contemporaneous understanding of the meaning of the documents he was given at the Plant City meeting. The summary stated, in relevant part: Ms. Collins provided the times which the three ladies worked at the various locations which came from the three ladies time cards (See Exhibits V-1 through V-3, copies of time worked information). Ms. Collins stated that this has the start and finished [sic] times, but does not have which fields they worked at a particular time as they may pick in several fields throughout the day. Ms. Collins provided another copy of the field locations for each of the three ladies (See Exhibits W-1 and W-2, copies of field locations of workers). Ms. Collins also provided maps with field locations depicting blocks and plantings (See Exhibits X-1 through X-13, maps depicting field locations with blocks and plantings). The field no. is the main number in each block, the first two numbers are the numbers of the planting, while the remaining number in the set is the block number. . . . At the hearing, Mr. Richmond testified that he "absolutely" would have communicated to Ms. Fernandez any conversation he had with, either, Ms. Cassell or Ms. Collins indicating that the field location spreadsheet was anything other than a document showing where the women worked on a given day. This testimony is credible and, coupled with Mr. Richmond's contemporaneous written statement, leads to the finding that Mr. Richmond's testimony regarding the May 6, 2005, meeting in Plant City should be credited. On May 12, 2005, Ms. Cassell sent Mr. Dubberly an e- mail with an attachment correcting some aspects of the spreadsheet. Ms. Cassell's e-mail message stated: I have attached the the [sic] revision to the original sheet given on the 3 woman's [sic] field locations. I included which field location for NC. There was one revision I made for Francisca on week ending 4/24/05 [Ms. Cassell clearly means 2004]. She was in NC that week and on the last two days of that week I had SFL field numbers and it should of [sic] been NC [sic] please discard old report and replace with revised one. The Department cites this e-mail as further indication that Ag-Mart represented the spreadsheet as indicating actual field locations for the three women, or at least that Ag-Mart said nothing to clarify that the spreadsheet showed something other than the fields where the women actually worked. Ms. Fernandez, the case reviewer whose analysis led to the filing of the Administrative Complaints against Ag-Mart, believed that the field location spreadsheets prepared by Ms. Cassell and her staff reflected the actual work locations for Ms. Herrera, Ms. Salazar, and Ms. de la Mesa. As a case reviewer, Ms. Fernandez receives files compiled by the field staff and reviews the files to determine whether a violation of the Florida Pesticide Law has occurred. The procedure of the Bureau of Compliance Monitoring appears designed to ensure that the case reviewers have no contact with the subjects of their investigation and, instead, rely on field inspectors to act as conduits in obtaining information from companies such as Ag-Mart. As a result, Ms. Fernandez had no direct contact with anyone from Ag-Mart and, thus, had no direct opportunity to be disabused of her assumptions regarding the field location spreadsheet. Ms. Fernandez conceded that she had never been on a tomato farm at the time she conducted her review of the Ag-Mart case. She did not take into consideration the acreage of the fields or the size of the work crews and their manner of operation. She made no attempt to visualize the effort it would take for one worker to harvest in ten or 20 fields in one day. She assumed that each woman worked in at least part of each field listed on the spreadsheet for each day listed. Ms. Fernandez believed that the spreadsheet was clear on its face and saw no need to make further inquiries as to the plausibility of the assumption that it reflected actual, not possible, field locations. As found above, Ag-Mart made no statement to any Department employee to qualify that the spreadsheet meant only possible field locations. Nonetheless, common sense should have caused someone in the Department to question whether this spreadsheet really conveyed the information that its title appeared to promise. On some days, the spreadsheet places a single field worker in 23 fields. Ag-Mart's crew leaders credibly testified that their crews never worked in more than four fields in one day and more often worked in only one or two. Even granting Ms. Fernandez' ignorance, Mr. Dubberly or some other superior in the Department should have had enough knowledge of farm operations to question the plausibility of Ms. Fernandez' assumptions. While Ag-Mart is at fault for not explaining itself clearly, the Department is also at fault for insisting that the spreadsheet be taken at face value, no matter how implausible the result.10 At the hearing, Ms. Fernandez explained how she used the documents provided by Ag-Mart to draft the Administrative Complaints. As an example, Counts I and II of the North Florida Complaint provide: Count I On June 6, 2004, Mr. Cesar Juarez and Mr. Alexis Barrios treated approximately 157.6 acres of grape tomatoes, planted in fields 7-8, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The Monitor 4 Spray supplemental label states: "REMARKS . . . Do not apply more than a total of 10 pints per acre per crop season, nor within 7 days of harvest." Worker field location records show that tomatoes were harvested from fields 7 and 8 on June 7, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre- harvest interval stated on the Monitor 4 Spray label. Count II The Danitol 2.4 EC Spray label states: "TOMATO . . . Do not apply the DANITOL + MONITOR 4 Spray tank mix within 7 days of harvest." As noted in the previous paragraph, fields 7-8 were treated with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray on June 6, 2004. Tomatoes were harvested from these same fields on June 7, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Danitol 2.4 EC Spray label. Ms. Fernandez obtained the information regarding the date, time, and manner of pesticide application from the spray tickets described above. She obtained the Monitor and Danitol PHI information from the product label. She obtained the harvest information from the spreadsheet, which indicated that Ms. de la Mesa worked in fields 7 and 8 on June 7, 2004. Counts I and II alleging violations of the PHIs for Monitor and Danitol had an accompanying Count XIX, alleging a violation of the REI for Monitor arising from the same set of facts: Count XIX The Monitor 4 Spray and the Danitol 2.4 EC Spray labels contain the following language: "AGRICULTURAL USE REQUIREMENTS. Use this product only in accordance with its labeling and with the Worker Protection Standard, 40 CFR part 170. This Standard contains requirements for the protection of agricultural workers on farms, forests, nurseries, and greenhouses, and handlers of agricultural pesticides. It contains requirements for training, decontamination, notification, and emergency assistance. It also contains specific instructions and exceptions pertaining to the statements on this label about personal protective equipment (PPE) and restricted entry interval. The requirements in this box only apply to users of this product that are covered by the Worker Protection Standard." On June 6, 2004, Mr. Cesar Juarez and Mr. Alexis Barrios treated approximately 157.6 acres of grape tomatoes, planted in fields 7-8, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The application started at 11:30 am and ended at 5:30 pm on June 6, 2004. The Monitor 4 Spray label states: "Do not enter or allow worker entry into treated areas during the restricted entry interval (REI) of 48 hours." Work records show that Ms. de la Mesa, directed by licensed applicators Mr. Charles Lambert (PV38793)11 and Mr. Warrick Birdwell (PV36679), worked in fields 7 and 8 on June 7, 2004, and that her working hours for June 7, 2004, were 8:00 am to 6:30 pm. Therefore, Ms. de la Mesa and other workers were instructed, directed, permitted or not prevented by the agricultural employer, Ag-Mart Produce, Inc. from entering treated fields before the expiration of the REI stated on the Monitor 4 Spray label. Throughout the hearing, Ag-Mart contended (and the Department did not dispute) that no statute or rule requires Ag-Mart to keep a daily log of the fields where its employees work. The Department also conceded that Ag-Mart was cooperative throughout its investigation.12 Ag-Mart contends that all counts should be dismissed because of the Department's reliance on the field location spreadsheet, which shows only the possible field locations of the workers. This contention goes to far. For example, the counts set forth above are well taken, because the spray tickets indicate that fields 7 and 8 were sprayed on June 6, 2004, and the field location spreadsheet indicates that Ms. de la Mesa worked only in fields 7 and 8 on June 7, 2004. Ag-Mart further attacked the spreadsheet by suggesting the unreliability of the dates on the foreman receiving reports. As found above, the receiving reports generally showed the date the product was shipped from the farm to the packinghouse, as well as the crew leader who provided the tomatoes and the planting from which the tomatoes were harvested. At the hearing, Ag-Mart contended that the date the product was shipped was not always the same date it was harvested. Further, Ag-Mart demonstrated that one of the receiving reports relevant to this proceeding showed the date the product was received at the packing house, rather than the date the product was shipped from the farm, due to a clerical error. Ag-Mart argued that this example showed that the receiving reports were not a reliable source for determining the precise dates of harvest in a given field on the North Florida farm. Ag-Mart's evidence is insufficient to demonstrate the unreliability of the receiving reports, where Ag-Mart itself relied on the reports to provide the Department with the spreadsheet showing possible field locations of the three workers. Ag-Mart had ample opportunity to make a thorough demonstration of the reports' alleged unreliability and failed to do so. Ag-Mart also attempted to cast doubt on the accuracy of the spray tickets through the testimony of Mr. Oelman and Mr. Birdwell, both of whom stated that the spray tickets are written well in advance of the pesticide applications and are not invariably rewritten or corrected when the spraying schedule is pushed back due to rain or slow harvest. However, the pesticide applicator is required by law to maintain accurate records relating to the application of all restricted-use pesticides, including the date, start time and end time of the treatment, and the location of the treatment site. Fla. Admin. Code R. 5E-9.032(1). The Department is entitled to inspect these records. Fla. Admin. Code R. 5E-9.032(6). Ag-Mart may not attack records that its own employee/applicators were legally required to keep in an accurate fashion. The Department is entitled to rely on the spray tickets as accurate indicators of when and where pesticide applications occurred. Thus, the undersigned has accepted the accuracy of the spray records and the receiving reports, but not of the field location spreadsheet. However, there are some dates on which the fields shown on the spreadsheet perfectly match the fields shown on the spray tickets, as in Counts I, II, and XIX of the North Florida Complaint set forth above. It is found that the Department has proven these counts by clear and convincing evidence. In addition to Counts I, II, and XIX of the North Florida Complaint, the Department has proven the following counts of the North Florida Complaint by clear and convincing evidence: Counts XI, XII, and XXII (spraying in fields 7 and 8 on June 17, 2004; Ms. de la Mesa worked only in fields 7 and 8 on June 19, 2004); and Count XIII (spraying Agrimek 0.15 EC Miticide/Insecticide, with PHI of seven days, in fields 7 and 8 on June 3, 2005; Ms. de la Mesa worked only in fields 7 and 8 on June 7, 2004). The Department has proven none of the counts in the South Florida Complaint by clear and convincing evidence. Some explanation must be made for the finding that Counts XXXI and XXXII were not proven by clear and convincing evidence. Those counts allege as follows: Count XXXI On April 17, 2004, Mr. Lorenzo Reyes, Mr. Demetrio Acevedo and Mr. Francisco Vega treated approximately 212.5 acres of grape tomatoes, planted in fields 11, 6 and 4, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The Monitor 4 Spray supplemental label states: "REMARKS . . . Do not apply more than a total of 10 pints per acre per crop season, nor within 7 days of harvest." Worker field location records show that tomatoes were harvested from fields 11, 6 and 4 on April 21, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Monitor 4 Spray label. Count XXXII The Danitol 2.4 EC Spray label states: "TOMATO . . . Do not apply the DANITOL + MONITOR 4 Spray tank mix within 7 days of harvest." As noted in the previous paragraph, fields 11, 6 and 4 were treated with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray on April 17, 2004. Tomatoes were harvested from these same fields on April 21, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Danitol 2.4 EC Spray label. These counts base their allegation that tomatoes were harvested from fields 11, 6, and 4 on April 21, 2004, on the field location spreadsheet, which indicates that Ms. Salazar possibly worked in fields 4, 6, 9, 10, and/or 11 on April 21, 2004. Thus, the spreadsheet does not definitely prove that Ms. Salazar harvested tomatoes in the three sprayed fields within the PHI. At the final hearing, the Department introduced a spray ticket showing that Monitor and Danitol were also applied to fields 9 and 10 on April 15, 2004. This additional spray ticket completed the Department's demonstration that every field in which Ms. Salazar harvested tomatoes on April 21, 2004, had been sprayed with Monitor and Danitol within the seven-day PHI. However, the Department did not amend the South Florida Complaint to allege the fact of the second spray ticket, and, so, must be held to the allegations actually made in the complaint. Ag-Mart may not be found guilty of facts or violations not specifically alleged in the South Florida Complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (facts not alleged in the Administrative Complaint). See also B.D.M. Financial Corporation v. Department of Business and Professional Regulation, 698 So. 2d 1359, 1362 (Fla. 1st DCA 1997) (violations not alleged in the Administrative Complaint). In similar fashion, Counts XLI and XLII of the South Florida Complaint allege that fields 21, 22, 18, and 19 were sprayed with Monitor and Danitol on May 15, 2004, and allege PHI violations in fields 21, 22, 18, and 19 on May 20, 2004, based on the field location spreadsheet's indication that Ms. Salazar possibly worked in one or more of fields 18 through 25 on that date. Thus, the spreadsheet does not definitely prove that Ms. Salazar harvested tomatoes in the four sprayed fields within the PHI. At the final hearing, the Department introduced a spray ticket showing that Monitor and Danitol were, also, applied to fields 20, 23, 24, and 25 on May 14, 2004. This additional spray ticket completed the Department's demonstration that every field in which Ms. Salazar harvested tomatoes on May 20, 2004, had been sprayed with Monitor and Danitol within the seven-day PHI. Again, however, the Department failed to amend the South Florida Complaint to reflect its subsequently developed evidence. Subsection 487.175(1)(e), Florida Statutes, provides that the Department may enter an order imposing an administrative fine not to exceed $10,000 for each violation. The statute further provides as follows: When imposing any fine under this paragraph, the department shall consider the degree and extent of harm caused by the violation, the cost of rectifying the damage, the amount of money the violator benefited from by noncompliance, whether the violation was committed willfully, and the compliance record of the violator. Mr. Dubberly testified that the Department does not have a rule for determining the amount of fines, but uses a matrix, attaching a rating of 0 to 5 for each of the criteria named in the quoted portion of the statute, with 5 representing the most egregious violation. The extent of harm caused by the violation is divided into two classifications: (A) the degree and extent of harm related to human and environmental hazards and (B) the degree and extent of harm related to the toxicity of the pesticide(s). The remaining criteria considered in the matrix are: (C) the estimated cost of rectifying the damage, (D) the estimated amount of money the violator benefited by noncompliance, whether the violation was committed willfully, and (F) the compliance record of the violator. Each factor is given its numerical value. The values for factors (B) through (F) are added, then the total is multiplied by the value for factor (A). The resulting number is then multiplied by $100.00 to determine the amount of the fine. The PHI violations were primarily food safety violations, the concern being that there might be an unacceptable pesticide residue on the tomatoes if they were harvested within the PHI. The REI violations were based on concerns for worker safety from pesticide exposure. In determining the fines for PHI violations, the Department assigned a numerical value of 2 for factor (A). In determining the fines for REI violations, the Department assigned a numerical value of 3 for factor (A), based on a reasonable probability of human or animal death or injury, or a reasonable probability of serious environmental harm. For purposes of this proceeding, all the pesticides used by Ag-Mart were restricted-use pesticides. In considering the value to be assigned to factor (B), the Department relied on the pesticide labels, which contain signal words for the category of potential hazard to human or animal life posed by that pesticide. Monitor contained the signal word "Danger," which represents the highest level of potential hazard. A value of 5 was assigned for factor (B) in the alleged violations involving the use of Monitor. Danitol and Agrimek contained the signal word "Warning," which indicated a lesser potential hazard. A value of 3 was assigned for factor (B) in the alleged violations involving Danitol or Agrimek. Because the estimated cost of rectifying the damage and the estimated amount of money the violator benefited by noncompliance was unknown, the Department assigned a value of 0 to factors (C) and (D). As to factor (E), dealing with the willfulness of the violation, the Department assigns a value of 0 if there is no evidence of willfulness, a value of 1 if there is apparent evidence of willfulness, and a value of 5 if it determines the violation was intentional. Because of the large number of alleged PHI and REI violations, the Department assigned a value of 1 for factor (E), finding apparent evidence of willful intent for each alleged violation. As to factor (F), dealing with the violator's compliance history, the Department considers the three years immediately preceding the current violation. The Department assigns a value of 0 if there are no prior violations, a value of 1 for a prior dissimilar violation, a value of 2 for multiple prior dissimilar violations, a value of 3 for a prior similar violation, and a value of 4 for multiple prior similar violations. Because Ag-Mart had one prior dissimilar violation within the preceding three years, the Department assigned a value of 1 for factor (F) for each alleged violation. Because the sole basis for finding apparent evidence of willful intent was the number of alleged violations, the Department calculated its recommended fines in two ways: by assigning a value of 0 based on no evidence of willful intent and by assigning a value of 1 based on apparent evidence of willful intent. In DOAH Case No. 06-0730, the North Florida Complaint, the Department recommended a fine of either $1,200 (no evidence of willful intent) or $1,400 (apparent evidence of willful intent) for each of the PHI violations alleged in Counts I, III, V, VII, IX, and XI, which involved the use of Monitor. The Department recommended a fine of either $800 (no evidence) or $1,000 (apparent evidence) for Counts II, IV, VI, VIII, X, and XII, involving the use of Danitol, and for Counts XIV, XV, and XVI, involving the use of Agrimek. For each of the REI violations alleged in Counts XIX through XXII, the Department recommended a fine of either $1,800 (no evidence) or $2,100 (apparent evidence). The Department established by clear and convincing evidence seven of the 20 counts of the North Florida Complaint that remained at issue at the time of the hearing, and none of the 58 counts of the South Florida Complaint that remained at issue at the time of the hearing. The undersigned accepts the Department's calculation of the recommended fines for these violations and recommends that the Department apply the lower calculation for each of the violations. Thus, the recommended fines are as follows: Count I, PHI violation involving the use of Monitor, $1,200; Count II, PHI violation involving the use of Danitol, $800; Count XI, PHI violation involving the use of Monitor, $1,200; Count XII, PHI violation involving the use of Danitol, $800; Count XIII, PHI violation involving the use of Agrimek, $800; Count XIX, REI violation, $1,800; and Count XXII, REI violation, $1,800. Thus, the total recommended fine for the seven proven violations is $8,400. In conclusion, it is observed that these cases demonstrate a gap in the enforcement mechanism of the Florida Pesticide Law, at least as it is currently understood and practiced by the Department. The law requires licensed applicators to comply with the PHI and REI restrictions on the labels of the restricted-use pesticides they apply to these crops. The law requires the applicators to keep accurate records of when and where they apply pesticides and of the kind and quantity of pesticides applied in each instance. Yet all parties to this proceeding agreed that the law does not require either the applicators or the growers to keep accurate records of when and where farm workers enter the fields and conduct the harvest. This failure to complete the record- keeping circle makes it extremely difficult for the Department to prove by clear and convincing evidence that a PHI or REI violation has taken place. The PHI and REI restrictions appear virtually unenforceable through company records, except when some fluke of record keeping allows the Department to establish that a given worker could only have been in a recently sprayed field on a given day. It does little good to know when the pesticides were applied to a field if there is no way of knowing when workers first entered the field or harvested tomatoes after the spraying. Ag-Mart credibly demonstrated that its general practices are designed to minimize worker exposure and guarantee safe harvest, but the company keeps no records to demonstrate to its customers that it observes these practices in particular instances and is under no legal obligation to keep such records. This state of regulatory affairs should be as disturbing to Ag-Mart as to the Department, because purchasers of tomatoes in Florida's grocery stores do not require clear and convincing evidence in order to switch brands.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department enter a final order that provides as follows: That Ag-Mart committed the violations alleged in Counts I, II, XI, XII, and XIII of the North Florida Complaint, for which violations Ag-Mart should be assessed an administrative fine totaling $8,400; That Ag-Mart pay to the Department $3,000 to resolve Counts L through LIV of the South Florida Complaint and Counts XVII and XVIII of the North Florida Complaint; and That all other counts of the North Florida Complaint and the South Florida Complaint be dismissed. DONE AND ENTERED this 16th day of March, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2007.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: On January 9, 1986, Ron Brooks, Crew Chief Compliance Officer for the Bureau of Agricultural Programs performed a compliance check in a citrus grove on Lindsey Road, Indian River County, owned by Hamilton Groves of Vero Beach, Florida. Brooks observed Hector Florez and Juan Florez apparently supervising two crews harvesting crops across the road from one another. When Brooks confronted the two men, neither Hector nor Juan Florez could produce a certificate of registration and there were no "Work Conditions Statement" postings at either worksite. Both Hector and Juan Florez stated that the Respondent, Noe Florez, was the contractor and that they worked for him. They stated that Respondent was running another crew at a different location. Later that day, Brooks' investigation revealed that Richard Kirkland was the primary contractor. When Brooks spoke with Kirkland, Kirkland stated that the workers were split up into three crews and that Respondent worked for him and was in charge of all three crews. On January 9, 1986, the Respondent was not registered as a farm labor contractor with the Department of Labor and Employment Security. Brooks subsequently issued violation citations to Richard Kirkland for working an unregistered crewleader and to Respondent, for failure to register as a farm labor contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a civil penalty of $1,000 be assessed against Respondent. DONE and ORDERED this 17th day of April, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4344M The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Rejected as unnecessary and/or subordinate. Addressed in Procedural Backgrounds Section. COPIES FURNISHED: Moses E. Williams, Esquire. Department of Labor and Employment Security The Montgomery Bldg., Suite 117 2562 Executive Center, East Tallahassee, Florida 32399-0658 Noe B. Florez 6990 45th Street Vero Beach, Florida 32960 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0658 Hugo Menendez Secretary Department of Labor and Employment Security 206 Berkeley Bldg. 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue The issues presented in this action concern the Petitioner's failure to renew the Respondent's Florida Farm Labor Contractor Certificate of Registration for the year 1981. The refusal to renew the certificate is premised upon the alleged failure on the part of the Respondent to furnish Felix Munoz and others with an itemized statement of deductions made from their payments for rent, and loans owed to the Petitioner, and by doing so purportedly acting contrary to Subsection 450.33(7), Florida Statutes. In addition, it is alleged, as a ground for refusal to renew the certificate, that Raul Saldivar, Jr., failed to distribute when due all monies or other items of value entrusted him by third persons for such purpose in violation of Subsection 450.33(2), Florida Statutes, and Rule 385-4.08(8)(a), Florida Administrative Code, by receiving payroll checks payable to Arnulfo Ramirez, Esteban Guerraro, Carmen Cruz, Juan Cruz, Santos Martinez, and Leonel Flores; further, that Respondent took the payroll checks in the absence of the farm workers, endorsed and deposited the checks to his bank account. FINDINGS OF FACT 1/ In the years 1979 and 1980, the Respondent had been granted a Florida Farm Labor Contractor Certificate of Registration from the State Department of Labor and Employment Security in keeping with the terms and conditions of Chapter 450, Florida Statutes. When Saldivar applied for the renewal of his Florida Farm Labor Contractor Certificate of Registration for 1981, he was refused renewal for the reasons set forth in the issues statement of this Recommended Order. The Respondent has, in all other respects, complied with the necessary conditions for his relicensure. Beginning in August, 1979, and continuing into 1980, the Respondent was a member of a partnership known as R & S Sons. Particularly in the year 1980, Saldivar, as a member of the partnership, was involved in providing farm labor employees to various tomato growers (Corkscrew Growers, Greener's Farm, C & G Farms, Johnson's Farm, Harvey Brothers, and R & S Sons, which was the partnership farm.) There was no written contract between the growers and Saldivar. Each grower would pay Saldivar for transporting the farm laborers to the growers' farms, and in addition, pay Saldivar for running a labor camp, that is, the place at which the farm laborers resided when they were not employed picking tomatoes. This latter item was the payment for rent for the laborers. The Respondent was also paid by the growers for the units of tomatoes picked by the laborers on an increment payment basis known as a "bin." The Respondent maintained a list of farm laborers through the device of a time card for each employee that worked for a week or mere for one of the growers. Those farm employees had Social Security cards and the growers furnished Workers' Compensation Insurance coverage for the benefit of the farm laborers. There were approximately 200 farm laborers in the category being provided by the Respondent's organization. The drivers of the tomato hauling trucks worked for the growers but the trucks belonged to the Saldivar organization and the picking buckets were also provided by this latter group. The farm laborers were paid by checks issued by the various growers. They were made up from time records maintained by the Respondent's organization. The check had attached to it a stub indicating the amount of pay, and the amount of Social Security deductions and the stub was available to be maintained by the employee. The information placed on the time records was gained from field supervisors who were employees of the growers. (Although the growers had field supervisors immediately in charge of the farm laborers, Saldivar was the overall coordinator for the activities of these laborers.) No withholding amount was taken out of the checks of the laborers other than Social Security. The payroll records of the Respondent would indicate the net earnings and gross amount paid to each farm laborer. Payment to the farm laborers was made at the farm labor camp managed by the Respondent. The process for disbursing the checks was to call the laborer by name and Saldivar would hand the check to the laborer. One of the farm laborers who lived at the Saldivar camp and picked tomatoes for a grower in the area was Felix Munoz. Munoz arrived at the Saldivar camp in August, 1979. Saldivar, at that point, loaned Munoz money to pay for Munoz's transportation to Florida. There was no repayment of the travel loan for a period of time for reason of unavailability of work for Munoz. In late September, Munoz began to repay the loan, and the method of repayment was at the time wherein the Respondent disbursed the payroll check from the grower to Munoz. Munoz would in turn endorse the check over to the Respondent and receive cash in the face amount of the check, and then give the Respondent some of that cash as repayment for the loan. Munoz was not provided a statement of the amount repaid on the loan. Respondent did have the amount written on a piece of paper over which he had control. The same loan arrangements for transportation that were involved with the laborer Munoz occurred with other farm laborers living in the Saldivar camp, and the same method was utilized for handling the manner of repayment of the indebtedness, and for recording the matters of the indebtedness. Munoz and other farm laborers also paid the Respondent rent for living at the Respondent's farm labor camp and the rent was paid from the proceeds of the checks for their efforts as tomato pickers. Munoz and others were not given statements of the amount they had paid to Saldivar for rent. Arnulfo Ramirez, Esteban Guerrero, Carnen Cruz, Juan Cruz, Santos Martinez and Leonel Flores were farm laborers who arrived at the Saldivar camp in December, 1979. These individuals, as with others spoken to above, were loaned money to pay for their transportation costs to Florida. The Respondent loaned them the money, and they in turn, agreed to repay the transportation loan from salaries earned and by the method identified before. These individuals had left the area of the State when the growers issued their last paycheck. Therefore, Respondent picked up the paychecks from the growers, and acting on the advice of counsel, endorsed the farm laborers' names to the checks and deposited them in the Respondent's account and the proceeds were used as credit against the transportation loans owed by these individuals.
The Issue Whether the Petitioner proved the elements necessary to demonstrate that she was subject to an unlawful employment practice as a result of Respondent, Bradford County Farm Bureau, maintaining a sexually-hostile work environment.
Findings Of Fact At all times material to this proceeding, Petitioner was employed by Respondent, Bradford County Farm Bureau (BCFB or Respondent). She worked for the BCFB from December 15, 2006 until January 1, 2012. The BCFB is an organization created to work for and provide support to farmers in Bradford County. The BCFB has its office in Starke, Florida. At all times relevant to this proceeding, James Gaskins was the President of the BCFB Board of Directors. He served in that capacity as an unpaid volunteer. The alleged actions of Mr. Gaskins towards the Petitioner form the basis for her claim of employment discrimination. Section 760.10(1), provides that: It is an unlawful employment practice for an employer: To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual?s race, color, religion, sex, national origin, age, handicap, or marital status. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual?s status as an employee, because of such individual?s race, color, religion, sex, national origin, age, handicap, or marital status. Section 760.02(7) defines "employer" as follows: „Employer? means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person. The threshold issue in this proceeding is whether the BCFB had the requisite number of employees to bring it under the jurisdiction of the Florida Civil Rights Act of 1992 as Petitioner?s “employer.” If Petitioner fails in her proof of that issue, any discussion of acts that may have constituted sexual harassment or resulted in the creation of a sexually- hostile work environment become superfluous and unnecessary. Facts Regarding the BCFB as an “Employer” At all times relevant to this proceeding, the BCFB had two paid employees. Ms. Griffith was the office manager and bookkeeper. Ms. Linzy was a part-time secretary and receptionist, although she worked full-time when Ms. Griffith was out. Ms. Linzy retired in October, 2012. In addition to the foregoing employees, the BCFB has a five-member board of directors. Although Mr. Gaskins, who was a member of the Board, served as an unpaid volunteer, there was no evidence as to whether the remaining members were paid for their services. For purposes of this Recommended Order, it will be presumed that they were. Based solely on the number of its employees, BCFB is not an “employer” as defined by section 760.10. Therefore, in order to prove the threshold element of her claim for relief, Petitioner must establish that employees of other entities should be imputed to the BCFB due to integrated activities or common control of BCFB?s operations or employees. Petitioner presented evidence of the relationship between the BCFB, the Florida Farm Bureau, and the Florida Farm Bureau Insurance Company (FFBIC) to establish the requisite integration or common control necessary to impute their employees to the BCFB. Florida Farm Bureau The Florida Farm Bureau has more than 15 employees. The Florida Farm Bureau has a mission similar to that of the BCFB of providing goods, services, and other assistance to farmers, though on a state-wide basis. Each county in Florida has an independent county farm bureau. The Florida Farm Bureau has no common corporate identity with the BCFB. The BCFB is incorporated as a legal entity unto itself. The Florida Farm Bureau and the BCFB have no common officers, directors, or employees. The Florida Farm Bureau does not share or comingle bank accounts with the BCFB. The BCFB maintains its own finances, and has a bank account with the Capital City Bank Group. The Florida Farm Bureau has no operational control over the BCFB. The BCFB Board of Directors makes all employment decisions for the BCFB, has exclusive authority to hire and fire employees of the BCFB, and has exclusive control over the pay and the terms and conditions of BCFB employees. Employees of the BCFB are paid by the BCFB, and not by the Florida Farm Bureau. The Florida Farm Bureau has the telephone numbers of all of the county farm bureaus, and can transfer calls received by the Florida Farm Bureau to any of the county farm bureaus. Other than that, as stated by Ms. Linzy, the county farm bureaus “are all on their own.” Florida Farm Bureau Insurance Company The Florida Farm Bureau Insurance Company is affiliated with the Florida Farm Bureau. The nature and extent of the relationship between those entities was not established. The relationship between those two entities does not affect their relationship, or lack thereof, with the BCFB. Petitioner introduced no evidence as to the FFBIC?s total number of employees. The FFBIC has no common officers or directors with the BCFB, nor do they share or comingle bank accounts. Brent Huber and Travis McAllister are insurance agents authorized to transact business on behalf of the FFBIC. They are self-employed independent contractors. Mr. Huber does business as “Brent Huber, Inc.” Neither Mr. Huber nor Mr. McAllister is an employee of the FFBIC. Mr. Huber is not employed by the BCFB, and does not perform duties on behalf of the BCFB. The evidence suggests that Mr. McAllister?s status, vis-à-vis the BCFB, is the same as that of Mr. Huber. Local FFBIC agents are selected by the FFBIC. Given the close relationship with local farmers/customers, the FFBIC selection of a local agent must be ratified by the county farm bureau in the county in which the agent is to transact business. Once ratified, an FFBIC agent cannot be terminated by the county farm bureaus. Mr. Huber and Mr. McAllister, having been appointed to transact business in Bradford County as agents of the FFBIC, maintain an office at the BCFB office in Starke. There being only four persons in the office, the relationship among them was friendly and informal. Mr. Huber described the group as “tight-knit” and “like a family.” Mr. Huber had no supervisory control over Petitioner or her work schedule. Due to the small size of the BCFB office, and limited number of persons to staff the office, Ms. Griffith?s absences would cause problems for the office as a whole. However, Mr. Huber never evaluated Ms. Griffith?s performance and never disciplined Ms. Griffith. The FFBIC provided sexual harassment, employment discrimination, workers? compensation, and minimum wage informational signs that were placed in the BCFB office break room. Those signs were “shared” between the Florida Farm Bureau Insurance Company and the BCFB. Thus, the BCFB did not maintain a separate set of signs. The BCFB office has a single telephone number, and calls are routed internally. If Mr. Huber was out of the office, Petitioner or Ms. Linzy would take messages for him. If Mr. Huber was alone in the office, he would answer the telephone. Petitioner or Ms. Linzy would occasionally make appointments for Mr. Huber, and assist him when clients visited the office. Mr. Huber did not pay Petitioner or Ms. Linzy for those services. At some point, Mr. Huber and Ms. Griffith determined that it would be mutually advantageous if Ms. Griffith were allowed to speak with FFBIC customers about insurance when Mr. Huber was out of the office. To facilitate that arrangement, Ms. Griffith, at Mr. Huber?s suggestion, obtained a license as a customer service representative, which allowed her to sell policies under Mr. Huber?s insurance agent license. The customer service representative license was not a requirement of Ms. Griffith?s position with the BCFB. Ms. Griffith would sell insurance policies only when Mr. Huber was out of the office. Mr. Huber compensated Ms. Griffith for writing insurance policies through “Brent Huber, Inc.” Ms. Griffith continued to be paid as a full-time employee of the BCFB because she thought the BCFB “would be OK with it.”
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations that, based upon Petitioner's failure to meet her burden of proof to establish that Respondent, Bradford County Farm Bureau, is an “employer” as defined in section 760.02(7), the Employment Complaint of Discrimination be dismissed. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Robert E. Larkin, III, Esquire Allen, Norton and Blue, P.A. Suite 100 906 North Monroe Street Tallahassee, Florida 32303 Jamison Jessup 557 Noremac Avenue Deltona, Florida 32738 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
