The Issue Whether the Petitioner is eligible to receive a certificate to contract with farm laborers pursuant to Chapter 450, Florida Statutes.
Findings Of Fact In June 1983, the Petitioner Williams recruited migrant farm workers in Florida for the purpose of picking pickle cucumbers and long green cucumbers in Salisbury, Maryland. The information about the wages and working conditions in Maryland were reduced to writing and placed upon the U.S. Department of Labor Form WH-416, as required by the Farm Labor Contractor Registration Act. This form was written in English and Creole on June 24, 1983, and was furnished to each worker at the time of recruitment. According to the written information, the farm workers were to receive the minimum wage of $3.35 an hour. The piece rate for pickle cucumbers was forty-five cents per five eighths basket. The piece rate for long green cucumbers was fifty cents per bushel. Transportation and insurance were to be provided to the farm workers. It was represented that housing was available in the area at the cost of $25.00 per person, per week. Work was to begin on June 30, 1983, and would continue until September 15, 1983. Based upon the representations made within the U.S. Department of Labor Form WH-416, the Petitioner Williams was able to hire a crew of twenty people in Florida for the Maryland contract. A copy of the Form WH-416 was posted in each bus provided by the Petitioner during the trip from Florida to Maryland. The form remained posted in the buses during the term of employment. When the buses reached Salisbury, Maryland, housing was not available. The Petitioner inspected the area prior to contracting with the farm workers, and was surprised to find different conditions upon arrival. The Petitioner Williams remained with the farm workers until they were able to obtain housing after the Fourth of July holiday. The farm workers and the Petitioner lived in the buses for a one week period. When housing became available, the cost of $20.00 per person, per week, was less than the anticipated rate. The workers paid their rent payments directly to their respective landlords. The farm workers received the forty-five cents per basket rate at the Bradford farm for pickle cucumbers during most of the harvest. During the payroll period of July 14, 1983 to July 21, 1983, the farm workers were paid thirty cents per basket at the Bradford farm. The reason for the price reduction during this time period was not made known to the Hearing Officer. However, testimony showed that the workers were aware that this price decrease was a change in contract, and they were given the opportunity to leave the job by the Petitioner. The workers decided to continue work at the farm for the new piece rate. This renegotiation took place in the State of Maryland. The change in the price of the piece work was initiated by the crop owner and not the Petitioner Williams. It is unknown if a Form WH-416 was completed to reflect this change. During the Maryland contract, farm workers received their wages in cash in pay envelopes. It is unknown whether the envelopes contained an itemized statement of deductions in pay or whether any deductions were taken from the pay. The Respondent Williams was legally required to keep the 1983 payroll records for three years. The records were not available at the 1989 hearing.
The Issue Whether Respondent, Sanford Housing Authority (Respondent), committed an unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Jimitre Smith (Petitioner), be granted.
Findings Of Fact Petitioner is a female who was pregnant during a portion of the time events occurred related to her employment with Respondent. At the time of Petitioner’s initial employment with Respondent, the Sanford Housing Authority operated public housing complexes within its geographical area pursuant to a HUD program to provide housing assistant to low income, qualified residents. At some point, the Orlando Housing Authority stepped in to take over the management of Respondent’s properties. Due to the deteriorating condition of Respondent’s properties, residents were provided Section 8 vouchers so that they could obtain private rental opportunities. In the midst of the transition period, Petitioner’s employment with Respondent ended. Petitioner was initially hired by Respondent to replace a receptionist who was out on maternity leave. The assignment was part-time and temporary. It began on or about March 31, 2010. When the receptionist returned to work, Petitioner was offered a second part-time job as leasing clerk. Although the record is not clear when this second job started, it is undisputed that Petitioner sought and was granted maternity leave due to her own pregnancy on September 27, 2010. It was during this time period that the Orlando Housing Authority stepped in to take over Respondent’s responsibilities. Mr. Fleming, an employee of the Orlando Housing Authority, served as the Interim Executive Director for Respondent. In November 2010 residents were advised of the plan to demolish the substandard housing units. Since the units would not be leased, a leasing clerk was no longer required. Although Petitioner had been told she could return to work after her maternity leave, there was no position available for her at that time. Once the Orlando Housing Authority took over management, all of the day-to-day work was assigned to its employees. Respondent kept a handful of maintenance workers, but there is no evidence Petitioner sought and/or was denied that type of job. Petitioner claimed she should have been offered or allowed to apply for a job with the Orlando Housing Authority. There is no evidence that entity was required to hire her or that it refused to hire her because of her gender or pregnancy or that Respondent refused to recommend Petitioner for employment due to her gender or pregnancy. When Petitioner was cleared for return to work in December 2010, there was not a job to return to as Respondent did not have a position for her. There is no evidence that Respondent hired anyone during or after Petitioner’s pregnancy or that Petitioner was refused a job that she was qualified to perform. Had a suitable job been available, it most likely would have come through the Orlando Housing Authority. In January of 2011, Respondent formally eliminated Respondent’s part-time position through a reduction in workforce decision. At that time, Petitioner received a severance payment from Respondent and an offer for other job training opportunities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing her employment discrimination complaint. DONE AND ENTERED this 3rd day of January, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 3rd day of January, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Jimitre Rochelle Smith 804 South Bay Avenue Sanford, Florida 32771 Ricardo L. Gilmore, Esquire Saxon, Gilmore, Carraway and Gibbons, P.A. Suite 600 201 East Kennedy Boulevard Tampa, Florida 33602 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent violated Sections 450.33(5), (6), (9), and (10) and 450.35, Florida Statutes (1997), by failing to make, keep, or preserve payroll records; failing to maintain the required inspection of a vehicle used to transport workers; failing to maintain insurance on such a vehicle; utilizing an unregistered crew leader; allowing an unlicensed driver to transport workers; driving without authorization; transporting workers without authorization; and, if so, what penalty, if any, should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating farm labor in the state. Respondent is a registered farm labor contractor and crew leader pursuant to certificate of registration CO4-957228I98R. Respondent’s certificate of registration was effective through September 30, 1999. On December 10 and 11, 1998, Respondent and his crew were harvesting fruit in Polk County, Florida. Compliance Officer Teresa McCutchen approached the crew and asked for the crew leader. Respondent identified himself as the crew leader and produced his certificate of registration. The registration did not authorize Respondent to drive or transport farm workers. Respondent transported his crew to the field on December 10, 1998, through Respondent’s employee, Mr. Roberto Gomez-Gonzalez. Mr. Gomez-Gonzalez is an unlicensed driver and acted as a farm labor contractor, within the meaning of Section 450.28(1)(a), without being registered as a farm labor contractor. At Respondent’s direction, Mr. Gomez-Gonzalez drove Respondent’s crew to the field on December 10, 1998, in a blue 1984 Chevrolet van. The license plate on the van was issued to Respondent for a 1994 Pontiac two-door sedan. The 1984 Chevrolet lacked insurance coverage for the transportation of farm workers and had not received the required safety inspections. Respondent did not maintain required payroll records for his crew. On December 11, 1998, Officer McCutchen returned to the field with Compliance Officer Joe Machado to interview the Spanish-speaking crewmembers. That morning, Respondent had driven the crewmembers to the field in the 1984 blue Chevrolet van. Respondent has a prior history of similar violations. On January 7, 1997, Respondent entered into a settlement agreement with Petitioner. Petitioner had assessed a civil penalty of $1,250 against Respondent for failure to maintain insurance on a vehicle used to transport workers, failure to maintain safety inspections, and the unauthorized transportation of workers. Pursuant to the settlement agreement, Respondent paid a civil penalty of $1,000. Section 450.35 authorizes Petitioner to impose a civil penalty up to $7,000 for the seven violations in the Administrative Complaint. The $5,750 civil penalty is reasonable based on the facts in this case and Respondent’s prior disciplinary history involving similar violations. Failure to impose a civil penalty would result in an economic inducement for Respondent to violate state requirements to maintain vehicle insurance, safety inspections, and payroll records. Respondent could reduce the cost of goods sold by evading the cost of insurance premiums, vehicle maintenance required to comply with safety inspections, and accounting fees for record keeping. A civil penalty operates to negate the economic benefit to Respondent from violating applicable law and also tends to reduce the competitive advantage Respondent’s violations give him over other businesses which comply with state law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the allegations in the Administrative Complaint and imposing a civil penalty of $5,750. DONE AND ENTERED this 7th day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 7th day of December, 1999. COPIES FURNISHED: Mary Hooks, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Francisco R. Rivera, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Porfirio Loredo Post Office Box 5503 Eloise, Florida 33880
Findings Of Fact For more than 20 years, petitioner has worked as a state employee in law enforcement or as a teacher of persons' training for law enforcement work. From November of 1955 until September of 1976, he was employed as a special agent by the Florida Sheriffs' Bureau. From October of 1965 to March of 1972, he taught at Florida State University, first as an instructor in criminology, then as an assistant professor. On March 20, 1972, petitioner began working for respondent, in its Division of Animal Industry, as an agricultural investigator supervisor in the livestock theft program. Six months later petitioner attained career service status in this position, which has position number 0959. Position number 0959 is the only position within the single agency class of agricultural investigator supervisor. During the 1976 legislative session, and even before the session began, at committee hearings conducted in the course of the appropriations process, there was talk of abolishing the livestock theft program, a proposal which respondent's personnel resisted to the extent practicable. Although petitioner's name was never mentioned in these deliberations, on at least one occasion a legislator made specific reference to abolishing the position of agricultural investigator supervisor. After passage of the appropriations bill by the 1976 legislature, the Hon. Jack D. Gordon, Chairman, Senate Committee on Ways and Means, and the Hon. Edmond M. Fortune, Chairman, House Committee on Appropriations, wrote a letter to the Hon. J. H. Williams, Lieutenant Governor and Secretary of Administration, and the Hon. Ernest Ellison, Auditor General, to which they attached "computerized program component work papers for . . . use in development of the agencies' approved operating budgets for 1976-77." Respondent's Exhibit No. 1. The fourth item on the attachment reads, as follows: REDUCTION IN LIVESTOCK THEFT PROGRAM AGRICULTURAL INVESTIGATOR SPECIALIST; AGRICULTURAL INVESTIGATORS At no time has there been a position within respondent department called "agricultural investigator specialist." Notwithstanding the use of the title "agricultural investigator specialist," the legislature intended to abolish the position of "agricultural investigator supervisor." Mr. C. Douglas Shelby, now assistant director of administration for respondent, was respondent's personnel officer in June of 1976; the Hon. Doyle Conner, head of respondent, had delegated to Mr. Shelby authority to deal with personnel matters generally. When the appropriations bill passed, Mr. Shelby and Jerry Gullo, a training manager for respondent, began work on implementing the legislation. After considering Emergency Rule 22 AER 76-1, which took effect on June 15, 1976, Mr. Gullo drafted a letter to petitioner for Mr. Shelby's signature, dated June 16, 1976, notifying petitioner that his job would no longer exist as of the close of business on June 30, 1976. The letter was mailed on June 16, 1976; petitioner received notice of the letter's arrival on June 17, 1976, but actually saw it and read it for the first time on June 18, 1976. A copy of the letter was admitted in evidence as respondent's exhibit No. 5. In part, the letter advised petitioner that "you have the right to request a demotion to a class in which you previously held permanent status or reassignment in a class in which you held permanent status in lieu of layoff . . ." On receipt of the letter dated June 16, 1976, petitioner drafted a letter requesting reassignment or demotion, but when, on June 21, 1976, Mr. Gullo told petitioner that there would be no possibility of reassignment or demotion under Emergency Rule 22 AER 76-1, because, said Mr. Gullo, petitioner had not attained career service status in any class other than that of agricultural investigator supervisor, petitioner decided there would be no point in submitting the letter he had drafted and did not do so. Also on June 21, 1976, official notice of the abolition of respondents position number 0959 was mailed by respondent to Mr. Kennison. (Respondent's exhibit No. 3) Petitioner had no further discussion with respondent's personnel about the layoff before he left respondent's employ. On June 30, 1976, Lieutenant Governor William, acting as Secretary of Administration, and in response to a letter from Mr. Shelby, which was received in evidence as respondent's exhibit No. 3, approved "[s]tatewide within the Division of Animal Industry," respondent's exhibit No. 4, as the competitive area for purposes of Emergency Rule 22 AER 76-1. Id. On July 1, 1976, petitioner was out of a job, despite the good work he had done in the livestock theft program and his many years of state employment. Petitioner filed a timely appeal with the Career Service Commission. Respondent notified the State Personnel Director of the layoff by letter dated July 12, 1976, which came in evidence as respondent's exhibit No. 2. STATEMENT REQUIRED BY STUCKEY'S OF EASTMAN, GEORGIA v. DEPARTMENT OF TRANSPORTATION, 340 So.2d 119 (Fla. 1st DCA 1976) Respondent submitted no proposed findings of fact. Paragraphs two, three, and five through twelve of petitioner's proposed findings of fact have been adopted, in substance. Paragraph one of petitioner's proposed fact findings has been adopted, in substance, assuming "at all times material hereto" is intended to mean from September 21, 1972, until June 30, 1976, or some portion of that time period. Paragraph four of petitioner's proposed fact findings has been adopted, in substance, except for the reference to respondent's exhibit No. 3, which is a copy of a letter from Mr. Shelby to Mr. Kennison, dated June 21, 1976. Paragraphs thirteen and fourteen of petitioner's proposed fact findings accurately reflect the evidence, but are irrelevant to resolution of the dispute.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's layoff of petitioner be upheld. That petitioner be deemed to have made timely request for demotion or reassignment to a position in a class (other than agricultural investigator supervisor) in which he has held permanent career service status, if any there be. That respondent pay petitioner two weeks' pay at the hourly rate petitioner was earning at the time of the layoff. DONE and ENTERED this 20th day of June, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay Hendrickson, Esquire 836 East Lafayette Street Tallahassee, Florida 32301 Robert A. Chastain, Esquire Room 513, Mayo Building Tallahassee, Florida 32304 Conley M. Kennison Attn: Mrs. Dorothy Roberts Career Service Commission Department of Administration Room 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact The Petitioner Farm Workers Rights Organization is an educational and charitable nonprofit corporation which has been organized under the provisions of Chapter 617, Florida Statutes. The purposes of the organization as provided in its Articles of Incorporation are as follows: To raise the economic, educational, and social levels of migrant and seasonal farm workers . . . who are seasonally unemployed, underemployed, or whose income is below federal poverty guidelines and to foster and promote community wide interest and concern for the problems of said farm workers to the end that (a) educational and economic opportunities may be expanded; (b) sickness, poverty, crime, and environmental degradation may be lessened; and (c) racial tensions, prejudice, and discrimination, economic and otherwise, may be eliminated. The organization is authorized under its Articles of Incorporation to do all lawful activities for the furtherance of its purposes. The Farm Workers Rights Organization is an active organization which has more than one thousand members. About three thousand persons are loosely associated with the organization. Many members of the organization reside in or around Immokalee, Florida, but members come from all over the state. Approximately ninety percent of the members are nonwhite, and most earn low or irregular incomes. Health problems are both a symptom and a cause of many of the problems that migrant farm workers face. The Farm Workers Rights Organization is active in promoting improved health care services for its members. The organization has actively opposed the issuance of Certificates of Need by the Department of Health and Rehabilitative Services to health care providers which the organization contends do not adequately address the health care needs of poor and minority persons. A substantial number of the organization's members have experienced difficulty in obtaining access to needed health care services. The Petitioner Carmen Torres is a member of the Farm Workers Rights Organization. She is a low income person of Hispanic background who resides near Immokalee, Florida. She participates in the Medicaid Program. She has experienced some difficulty in obtaining adequate medical assistance for illnesses that she has suffered because many physicians and health care facilities do not accept Medicaid patients. Petitioner would like to have better access to hospital facilities such as those at Lehigh General Hospital. She has never applied for services at Lehigh General Hospital. Friends have advised her that Lehigh General Hospital would not accept her as a patient. No competent evidence was offered as to the identity or status of the other persons who are named as Petitioners in this proceeding. The Department of Health and Rehabilitative Services is responsible for administering Florida's Certificate of Need program under the provisions of Section 381.494, Florida Statutes. The Department is Florida's state health planning and development agency designated pursuant to the provisions of federal law. 42 U.S.C. s3000M. The Department has adopted rules setting criteria to apply to applications for Certificates of Need. These criteria are set out in Rule 10- 5.11, Florida Administrative Code. The rule does not specifically require that the Department consider the extent to which an applicant's proposed service would meet the needs of low income or minority persons, neither does the rule deem those needs irrelevant. Rule 10- 5.11(3) provides that the Department will evaluate "the need that the population served or to be served has for such pro posed health or hospice services." Rule 10-5.12(8) provides for hearing procedures to be conducted by the Division of Administrative Hearings under the provisions of Chapter 120, Florida Statutes. The rule provides at Paragraph (8): The only decisions of the Department which may be reversed or revised by the Hearing Officer are decisions as to the consistency or inconsistency of the application with standards, criteria, and plans described in Rule 10-5.11 herein. Rules that have been adopted by the United States Department of Health and Human Services under the provisions of 42 U.S.C. s3000M provide that state Certificate of Need review agencies consider the degree to which medically underserved persons have access to services under review. See: 42 C.F.R ss123.409(a), 123.412(a), and 123.413. States are required to administer their programs in harmony with the rules of the federal agency. Failure to do so can cause a state to lose federal funding assistance. The Department's rules do not have the effect of removing consideration of how a proposed medical facility or service would impact the needs of low income or minority persons. The Department has obtained input regarding such needs in Certificate of Need proceedings and has considered them. There have been proceedings in which the Department has not specifically addressed the needs of low income and minority persons. The Petitioners have had a special interest in a Certificate of Need application that was filed with the Department by Lehigh General Hospital. Lehigh General Hospital is seeking to build a new hospital facility which would completely replace a present facility. The Department determined in that matter that the application would not impact minority or low income persons because the same basic services would be provided at the new facility as had been provided at the old facility. The service area of Lehigh General Hospital includes the area around Immokalee, Florida. The Department has approved Lehigh General Hospital's Certificate of Need application. The Petitioner Farm Workers Rights Organization is now pursuing judicial action to set aside the approval of that application. It appears that the Department has failed to specifically address the needs of low income and minority persons in other Certificate of Need proceedings. It does not appear, however, that the Department has any policy of not addressing those needs.
The Issue Whether the Petitioner, Stephanie Walker, timely filed a Petition for Relief regarding her charge of discrimination against the Respondent, Bennett Auto Supply, Inc.
Findings Of Fact The Petitioner, Stephanie Walker, applied for and received employment with the Respondent, Bennett Auto Supply, Inc. The Petitioner's initial employment with the company ended on March 8, 2001, as she resigned her job on or about February 26, 2001. Thereafter, the Petitioner returned to employment with the Respondent. Again, the Petitioner resigned her job and left employment on April 27, 2002. The exact reasons the Petitioner began employment, left employment, returned to employment, and again left employment with the Respondent are immaterial to the findings dispositive of this case. Suffice it to say the Petitioner ultimately filed a claim of discrimination with the FCHR against the Respondent. The Petitioner's Charge of Discrimination naming the Respondent was dated March 21, 2003, and noted April 27, 2002, as the date the most recent discrimination had taken place. Based upon its investigation of the allegations, the FCHR issued a Determination: No Cause on September 23, 2003. The Determination: No Cause provided, in pertinent part, ". . . it is my determination that there is no reasonable cause to believe that an unlawful employment practice has occurred." The Notice of Determination: No Cause, provided: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial for Complainant to seek legal counsel prior to filing the petition. If the Complainant fails to request an administrative hearing with [sic] 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to section 760.11, Florida Statutes (1992). The Petition for Relief was filed approximately 159 days after the FCHR issued its determination in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's Petition for Relief as it was not timely filed and is, therefore, barred as a matter of law. DONE AND ENTERED this 29th day of April, 2004, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 29th day of April, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Aplachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard A. Giardino, Esquire Davis & Giardino, P.A. 201 Arkona Court West Palm Beach, Florida 33401 Stephanie Walker 1808 Northwest 52nd Avenue Lauderhill, Florida 33313
Findings Of Fact Respondent is a registered farm labor contractor whose Social Security number is 419-50-8742 and who has been issued certificate number 02949. At all times material hereto, Respondent failed to possess, for a period of three years, proof of payment showing the nature and amount of each payment made on behalf of each farmworker for whom he acted as a farm labor contractor. The records which Respondent failed to maintain included payments for social security, income tax withholdings, and payments for transportation and food. When Respondent made payments of wages to farmworkers for whom he acted as a farm labor contractor in June, 1986, he failed to furnish the workers any itemized statement in writing showing in detail each and every deduction made from their wages.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing an administrative penalty of $500.00 against Respondent. DONE AND ENTERED this 8th day of June, 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 8th day of June, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32399-2152 Joe Louis Rivers Route 3, Snell Street Wauchula, Florida 33873 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2151
The Issue The issue is whether respondent should have a $1,000 civil penalty imposed for allegedly violating Section 450.30, Florida Statutes (1989) and Rule 38H-11.003, Florida Administrative Code (1989) by acting as a farm labor contractor without a certificate of registration.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on May 1, 1989, when Don R. Symonette, who is a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made an inspection of a farm owned by Ovid Barnett some seven or eight miles east of Immokalee, Florida. The testimony as to what transpired during the course of the inspection is sharply in dispute. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and that testimony is embodied in the findings below. As Symonette drove by the farm that day, he observed a crew of approximately eighteen workers picking bell peppers in a field. Thereafter, Symonette drove his vehicle onto the premises for the purpose of determining if pertinent statutes and Division rules were being followed. He initially observed respondent, Abel Flores (Abel), standing by a pickup truck in the same field where the laborers were harvesting the peppers. The two were acquainted from several meetings over the prior years. Symonette asked respondent what he was doing, and respondent answered that he was helping his brother, Alfredo, who is a registered farm labor contractor. Respondent also volunteered that he was being paid by his brother and received approximately $40 per day in compensation. Abel further acknowledged, and the Division records show, that he is not certified as a farm labor contractor. At that point, Symonette decided to give Abel the benefit of the doubt and to interview respondent's brother, Alfredo, who was supervising a crew in an adjacent field. During the course of the interview, Alfredo advised Symonette that he (Alfredo) was the supervisor in charge of the crew and it was he who had contracted with the farm to supply the workers. Even so, Symonette concluded that because Abel was the only person standing in the other field, he was "supervising" the other crew and was doing so without a certificate of registration. Accordingly, Symonette filled out a summary of violations which cited Abel for failing to register as a contractor. After discussing the summary with Abel, Symonette had Abel sign the document. He also prepared a site review and inspection check list which Abel reviewed and signed. On April 27, 1990, or almost a year later, the Division issued an administrative complaint charging Abel with acting as a farm labor contractor without having a certificate of registration. On June 7, 1990, Symonette sent by mail a form to Ovid Barnett requesting information regarding Abel's employment. On an undisclosed date, the form was returned to Symonette and contains what purports to be Barnett's signature. However, the contents of the completed form are hearsay in nature and cannot serve as the basis for a finding of fact. Moreover, even if the response was not hearsay, it fails to disclose the nature of Abel's employment with the farm and whether the hourly compensation allegedly given Abel was being paid at the time the form was completed in June 1990 or when the inspection occurred thirteen months earlier. In this regard, it is noted that at hearing Abel produced pay stubs from April and May 1989 which indicate that his salary was either $4.325 per hour or $5.00 per hour, depending on whether he was driving a tractor in the fields or a truck from the fields to the packing house. The former amount is the same as was being paid a number of other farm workers whose job responsibilities were not disclosed. Abel's testimony on compensation is accepted as being credible and comports with the statement made by Abel to Symonette that he was being paid around $40 per day for a full day's work. All compensation received by Abel was from his employer, Ovid Barnett. In some cases, he was paid by check from the farm, and in other cases, he was paid by his brother who had in turn been paid by the farm. To the extent the allegation is relevant, there is insufficient evidence to establish that Abel received double compensation during May 1989 by being paid by both his brother and Barnett at the same time. To bolster Abel's contention that he was not acting as a farm labor contractor on May 1, 1989, a supervisor at Barnett's farm established that Abel was driving trucks between the field and the packing house when the inspection occurred, and as such, it was necessary for Abel to stand by his truck while the workers loaded the truck with produce. As a driver, Abel had the responsibility of overseeing the loading of produce on his truck and, when necessary, to direct the workers on how to properly do so. It is noted that at hearing, Symonette did not describe the activities being performed by Abel except that Abel was simply "standing" around his truck and "appeared" to be supervising the work crew. Accordingly, it is found that Abel was not performing the duties of a farm labor contractor on May 1, 1989.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint, with prejudice. DONE and ENTERED this 20th day of August, 1990, in Tallahassee, Florida. DONALD ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. APPENDIX Petitioner: 1-3 Partially adopted in finding of fact 2. 4. Partially adopted in finding of fact 4. Note - Where a finding has been partially used, the remainder has been rejected as being irrelevant, cumulative, a conclusion of law, unnecessary, subordinate, or not supported by the evidence. Copies Furnished: Hugo Menendez, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658 Moses E. Williams, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658 Abel Flores P. O. Box 1611 Immokalee, FL 33934 Steven D. Barron, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to this proceeding, Respondent was a registered farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes with Social Security number 426-98-6045 and certificate number 06506 with an expiration date of March 31, 1987. On November 20, 1986, at 8:30 a.m. at a road block north of Zolfo Springs, Florida at the intersection of State Highway number 64 and U.S. Highway number 17 in Hardee County, Florida a 1978 Ford pickup truck registered to Edgar T. Coleman, Post Office Box 5, Umatilla, Florida, license number 778 ETK, Vehicle Identification Number F15HKACA8834, driven by Joe Carl Stephens, was found to be transporting seven (7) farm workers. There was no application for certification for either Joe Carl Stephens or Edgar T. Coleman posted in the 1978 Ford pickup truck referred to in paragraph 2 and the truck at that time was not registered with Petitioner under Chapter 450, Florida Statutes. Although Joe Carl Stephens later obtained certification as a farm labor contractor, he was not a certified farm labor contract as that term is defined in Section 450.28(1), Florida Statutes at the time he was stopped in the road block. At the time Larry Coker, Compliance Officer, prepared the complaint against Joe Carl Stephens, approximately 8:30 a.m., November 20, 1986, there was no evidence filed with Petitioner showing the 1978 Ford pick-up being covered by the liability insurance policy of Respondent or Joe Carl Stephens. Additionally, the Petitioner had no evidence that the truck had been inspected for compliance with the requirements and specifications established in Section 316.620, Florida Statutes and there was no valid inspection sticker displayed on the truck. An inspection of the truck at the road block revealed that: (a) the seats for the passenger in the back of the truck were not secured; (b) the camper top covering the bed of the truck was less than 60 inches above the floor; (c) the tailgate (exit for workers in back) would not close properly and was held closed with a rope and; (d) there was no communication device between the back area of truck and front area of the truck where driver was located. At 1:00 p.m. on November 20, 1986, Edgar T. Coleman arrived at Petitioner's Wauchula, Florida office with an inspection certificate and, although undated, there was credible evidence that it was completed on November 20, 1986 after the complaint was filed, and an insurance binder completed at 11:00 a.m. on November 20, 1986 adding Respondent's 1978 Ford truck identified in paragraph 2 above to his existing vehicle liability insurance policy. At 1:00 p.m. on November 20, 1986, Larry Coker filed a Farm Labor Contractor Registration Complaint on Respondent listing violations under Sections 450.33(4)(a),(5) and (9) and 450.35, Florida Statutes. Although there was evidence that Joe Carl Stephens was employed by Respondent and that Respondent paid the fee of $35.00 to Petitioner for Stephens to obtain his farm labor contractor's certificate, there was credible testimony from Respondent that he was not contracting with Stephens as a farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes on November 20, 1986 but was dealing with Stephens as a farm worker and there was no extra compensation being paid to Stephens for driving the truck. There was insufficient evidence to show that Respondent was contracting with Stephens as a farm labor contractor. There was credible evidence that Respondent at all times material to this proceeding had hired, supervised and transported more than one (1) farm worker and had received compensation for such activities.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, enter a Final Order assessing an administrative fine of $750.00 against Respondent for violation of the requirements of Section 450.33(4)(a), (5) and (9), Florida Statutes and dismissing the charges of violating Section 450.35, Florida Statutes. Respectfully submitted and entered this 10th day of July, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 10th day of July, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Security Tallahassee, Florida 32301 Mr. Edgar Coleman Post Office Box 5 Umatilla, Florida Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
