Findings Of Fact Respondent is currently a registered farm labor contractor with Social Security Number 248-92-9496 and certificate number 4-92-9496-G87R. On or about February 11, 1986, Respondent acted as a farm labor contractor without a certificate of registration which was in full force and effect, and in her possession. While acting as a farm labor contractor in February, 1986, she failed to display prominently at the site where work was to be performed, and also failed to display on all vehicles she used to transport employees, a written statement in the workers' language showing the rate of compensation she received from the grower, and the rate of compensation she was paying her employees. In connection therewith, Respondent also failed to submit evidence to Petitioner that each vehicle she used to transport employees complied with the requirements of Chapters 316 or 320, Florida Statutes, prior to transporting farmworkers, or in lieu thereof, bore a valid inspection sticker showing the vehicle had passed the inspection in the state in which it was registered. She also failed to submit proof that she had taken out a policy of insurance to insure against liability for damage to persons or property arising out of the operation or ownership of a vehicle she used in February, 1986, to transport workers in connection with her acting as a farm labor contractor. Respondent failed to prominently display a copy of her application for a certificate of registration at the site where work was being performed in February, 1986 and also on all vehicles she used to transport employees. Prior to contracting for the employment of farmworkers, Respondent did not insure that the farm labor contractor displayed to her a current certificate of registration issued by Petitioner.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing an administrative penalty of $2600.00 against Respondent. DONE AND ENTERED this 8th day of June, 1987, in Tallahassee, Leon County, Florida. DONALD 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 Mary L. White 13 Garvey Lane Frostproof, Florida 33843 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 Whether Respondent violated the provisions of chapter 440, Florida Statutes (2012),1/ by failing to obtain workers’ compensation insurance coverage for farm workers, as alleged in the Stop-Work Order and Second Amended Order of Penalty Assessment; and, if so, the appropriate penalty.
Findings Of Fact The Department is the state agency responsible for enforcing the requirement that employers secure workers’ compensation insurance coverage for their employees. C & C Farms is a Florida-limited liability company engaged in farming during the relevant time period of April 2010 through April 2013. C & C Farms is located in Clewiston, Florida, and is co-owned and managed by Carlos Rodriguez (Rodriguez) and Ernesto Cordero (Cordero). According to the State of Florida, Division of Corporations, C & C Farms was formed as a Florida entity in December 2008. C & C Farms operates nearly year-round growing zucchini, yellow squash, eggplants, green bell peppers and cucumbers. The year-long work requires the laying of plastic as a weed barrier, planting the crops, tending the crops by watering, applying herbicides and pesticides, and finally harvesting. The planting and harvesting of the vegetables follows a planting schedule provided to Respondent from its buyer, C.H. Robinson Company. C.H. Robinson Company required Respondent to plant yellow squash on or near February 6 and February 20, 2013, with a 50-day growing period before harvesting. Similarly, green bell peppers were to be planted by February 11, 2013, with a 75-day growing period and harvested between April 27 and May 4, 2013. Of course, weather may change some of the dates, but C & C Farms tried to adhere to the schedule of its buyer. The number of workers at C & C Farms fluctuated based on the needs of the farm, with more workers being needed to harvest the crops than during the growing period. On November 27, 2012, Estefina Medina (Medina) began working for C & C Farms as a vegetable packer. Unfortunately, on December 1, 2012, Medina was injured at work when Cordero accidentally hit her foot while driving a fork lift. Cordero administered Medina rudimentary first-aid, and wrote her a check for $285.93 to cover her losses. Two days later on December 3, 2012, Medina was at home and her foot became swollen and painful. Consequently, she sought medical attention at the local hospital where Medina was diagnosed with a severe foot sprain. The hospital referred Medina to its corporate health department for billing, and provided her with a form in order to obtain workers’ compensation insurance information from her employer. The next day, Medina returned to C & C Farms to obtain the coverage information from Cordero. When Medina presented herself to Cordero, he became angry with her, and disputed the injury and responsibility. Cordero and Medina exchanged words, each threatening legal action. Medina subsequently sought legal advice and learned that C & C Farms did not have workers’ compensation insurance that covered her injury. On January 22, 2013, Medina filed a complaint with the One-Stop Career Center of the U.S. Department of Labor Employment and Training Administration alleging that she was injured on the job and that her employer, C & C Farms, did not have workers’ compensation insurance. The federal agency referred Medina’s complaint to Florida Department of Economic Opportunity, which in turn referred the allegations to the Department. On February 8, 2013, Robert Aponte (Aponte), an investigator with the Department conducted a site visit at C & C Farms. He arrived at the farm’s office and spoke with Jeanette Lesca (Lesca), an office employee. During the interview, Lesca provided Aponte with a list of nine employees. Further, she contacted Cordero who spoke with Aponte.2/ Cordero informed Aponte that C & C Farms’ employees had workers’ compensation coverage through Direct HR Service Services, a professional employer organization. While on the site, Aponte reviewed the Department’s data base, the Coverage and Compliance Automated System, and contacted Direct HR Service Leasing Company. Aponte confirmed that the employees listed by Lesca had workers’ compensation insurance coverage. Although Aponte confirmed that the listed employees had coverage, he did not see Estefina Medina listed as an employee. Consequently, he asked Cordero about Medina. Cordero stated that she had worked only a couple of days, got injured, and had not returned to work. Based on this answer, Aponte decided to issue a Request for Production of Business Records. Specifically, Aponte requested C & C Farms produce documents concerning its payroll, workers’ compensation coverage, professional employer organization record, and any documentation of any exemptions for the time period covering November 9, 2012, through February 8, 2013. Within a week, Cordero provided Aponte with the business records. However, Aponte found these records unresponsive because the records did not correlate with C & C Farms. Aponte contacted Cordero, and requested the business records again. Before any other steps were taken, Aponte left the Department for another job on March 15, 2013. In April 2013, Tiffany Greene (Greene), an investigator with the Department, was assigned the C & C Farms case. She reviewed the Department’s data base and learned that C & C Farms’ workers’ compensation insurance coverage had lapsed. Direct HR Services had terminated its agreement with C & C Farms to provide payroll and workers’ compensation coverage services on February 25, 2013, based on non-payment. Direct HR Services had provided coverage from February 8 through February 24, 2013. On April 16, 2013, Greene made a site visit to C & C Farms and spoke with Lesca in the farm office. Lesca provided Greene with a list of 26 persons who were working at C & C Farms on that date. Greene then examined the farm’s packing house and went into the fields where she observed workers harvesting yellow or summer squash. Although she observed the workers, Greene did not interview any of the workers to determine who they worked for or how they were being paid. Greene returned to the farm office where she talked with Cordero. Cordero stated that the leasing company had cancelled C & C Farms’ workers’ compensation coverage, and that he was in the process of trying to obtain coverage. Based on her observations, Greene determined that C & C Farms had more than five regular employees working and more than 12 seasonal employees working without proper coverage. Therefore, she issued a Stop-Work Order and hand-delivered it to Cordero. Greene also served C & C Farms with a Request for Business Records for Penalty Assessment Calculation. The records requested the covered time period of April 17, 2010, through April 16, 2013. The Department sought records concerning payroll documents, account documentation, proof of workers’ compensation coverage, information provided to or used by the professional employer organization, and proof of any independent contractor services. The Department’s request required C & C Farms to produce the records within five days. On April 22, 2013, C & C Farms filed for an administrative hearing challenging the Stop-Work Order. Again, C & C Farms failed to timely provide the requested business records. On May 6, 2013, Greene, in follow-up to the Department’s business records request, returned to C & C Farms. At the work site, Greene observed workers in the packing area as well as in the fields. Further, she photographed time cards for four workers which showed that the workers had worked the time period from April 15 through April 22, 2013. On May 6, 2013, C & C Farms was harvesting its yellow squash crop in violation of the Stop-Work Order issued on April 16, 2013. Cordero and Carina Bezzolasco, a worker in the office, informed Greene that C & C Farms had applied for workers’ compensation insurance. C & C Farms had completed a leasing contract with South East Personnel Leasing, Inc., on April 29, 2013, seeking coverage for eight listed employees. However, C & C Farms’ workers’ compensation insurance coverage did not begin until May 7, 2013, one day after Greene’s visit. Greene contacted the Department’s Division of Fraud, and Cordero was arrested and charged with insurance fraud for violating the Stop-Work Order. Concerning the calculation of the penalty assessment, Greene supplied information to Victoria Burkley (Burkley), a penalty assessment auditor. Greene supplied Burkley with the names of the workers that had signed in to work at C & C Farms on April 16, 2013, the type of produce she observed being harvested, and the list of employees confirmed by C & C Farms in its contract with Direct HR Service Services from February 2013. Based on C & C Farms’ failure to provide the required business records, the Department imputed the payroll for 26 workers, and used the statutory penalty, which contained a penalty for violating the Stop-Work Order. The initial assessed penalty was for $404,409.54, which was provided to C & C Farms on May 7, 2013. On May 10, 2013, C & C Farms entered into an Order of Conditional Release from the Stop-Work Order with the Department. C & C Farms paid a down-payment equal to 10 percent of the contested assessed penalty. Upon entry of the conditional release, C & C Farms was able to finish its harvest. C & C Farms eventually provided the Department with bank records that included check images for the time period of April 2010 through April 2013. In addition to the check images, C & C Farms supplied a document entitled Income Tax Detail, which appears to be a compilation of check dates, check numbers, names of check recipients, the check amounts and a categorization of the type of account or designation. C & C Farms, however, did not provide any other payroll documents, proof of workers’ compensation insurance, or proof of independent contractor services. Based on C & C Farms’ failure to provide the required business records, the Department properly determined to impute Respondent’s payroll for the time period of April 17, 2010, through April 16, 2013. On April 16, 2013, C & C Farms was an “employer” and engaged in “employment,” as defined by chapter 440, Florida Statutes. The undersigned finds Rodriguez’s testimony believable that on April 16, 2013, C & C Farms had the following employees: 1) Roberto Salas Analise; 2) Leesday San Martin; 3) Antonio Perez; 4) Jaime Perez; 5) Baltazar Padilla; and 6) Jeanette Lesca. Further, the undersigned finds that Cordero, who is a co-owner or member of the limited liability company, is also an employee under the facts. He worked a variety of jobs on the farm, such as operating the tractor, spraying herbicide and pesticides, and received payments from C & C Farms for the past three years. These payments are for services, as opposed to repayments of loans or a return on his investment, which according to Rodriguez and Cordero has been operating at a loss. On April 16, 2013, C & C Farms failed to provide its seven employees with workers’ compensation insurance coverage. The undersigned credits Rodriguez’s testimony that the remaining 21 individuals listed in the Department’s Second Amended Penalty Assessment were working for independent farm labor contractors, Star Agricultural and Sigma Harvesting to harvest and pack vegetables.3/ The factual finding that individuals, who worked the harvesting and packing, are independent farm laborers is supported by three facts: first, the crew leaders from the farm labor contractors supervise, determine the number of workers to be used in each task, and how each task was performed; second, Star Agricultural and Sigma Harvesting were paid by the bin for the squash harvested by these workers, and any losses caused by packing squash that fell below “grade” or defective quality were taken from payments made to Star Agricultural and Sigma Harvesting, as farm labor contractors; and third, the bank records show payments to farm labor contractors rather than individual workers. The bank records show check images supporting Rodriguez’s testimony that on April 16, 2013, the farm hired Star Agricultural Contractor and Sigma Harvesting to provide workers. The check images show checks written to Star Agricultural on April 19, 2013, for $4,367.00 and April 27, 2013, for the amount of $7,832.00. Similarly, C & C Farms wrote a check on April 17, 2013, to Sigma Harvesting for the amount of $2,980.00 and a debit on the account on April 17, 2013, in the amount of $10,132.00 payable to Sigma Harvesting, replacing two checks. Notably, absent from the review are any checks made payable to the 21 individuals listed in the Department’s Second Amended Penalty Assessment.4/ The undersigned does not credit or find believable the deposition testimony of Roberto Renderos Mendoza that fees paid by C & C Farms to Star Agricultural did not include any workers’ compensation coverage, and that Star Agricultural only acted as a pass through for paying the workers as designated by Cordero. Mendoza’s testimony is not believable because it is unsupported by any documentary evidence. After receiving the additional records and deposition testimony during the pendency of this case, the Department entered a Second Amended Order of Penalty Assessment correcting the number of employees to 28. The second amended penalty assessment totaled $416,862.30. The Class Code found in the penalty worksheet attached to the Department’s Second Amended Penalty Assessment for harvest crops, 0037, is the correct occupational classification for the raising of crops in the National Council on Compensation Insurance Scopes® Manual.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that: Respondent violated section 440.10 by failing to provide workers’ compensation coverage for seven employees; Department properly entered the Stop-Work Order on April 16, 2013, and that Respondent violated the Stop-Work Order by continuing to work on May 6, 2013; and Department should re-calculate the Order of Penalty Assessment for seven regular employees for the three-year period of April 17, 2010, through April 16, 2013, and include the $1,000.00 penalty for violating the Stop-Work Order. DONE AND ENTERED this 28th day of October, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2013.
Findings Of Fact In years past, the Petitioner, William G. King, was registered by the Respondent, the Department of Labor and Employment Security, Bureau of Agricultural Programs (DLES), as a farm labor contractor. As a farm labor contractor, King can average earning about $8000 a year more than he could earn in an hourly wage job (at legal minimum wage or close to it.) In good years, he can make substantially more; in bad years, he can incur substantial losses. King's crew size averages 40 laborers but can vary from 3 to 200, depending on circumstances. The season for harvesting Florida citrus runs from about November to June. From June to August, King tries to follow the melon harvest from Florida into North Carolina. If conditions are bad for harvesting melons during parts of the summer, he tries to secure contracts to have his crews pick moths out of trees during these months. In August, he drives a crew in his bus to New York to pick apples. All of these activities, until King is outside Florida, require DLES registration as a farm labor contractor. In the early 1980's, King's farm labor contracting business experienced difficulties. While paying his crew per actual box of citrus picked, King was paid per estimated box based on the weight of the citrus he delivered. During lengthier than normal periods of hard freeze, King paid his crew more than he was paid and suffered substantial losses. In this financial condition, King did not pay unemployment compensation tax. By March 1982, King owed about $14,300, with interest and penalties. During the preceding year, King was able to save $10,000, which he applied to the tax bill in March, 1982. He also signed an agreement to pay $4,310.48 in monthly installments of $540. King paid $745 in March and $540 in either April or May, 1982 (or perhaps both). But, as a result of more financial setbacks in 1984 and 1985, the tax indebtedness increased to approximately $20,000 to $24,000, with interest and penalties. When the DLES refused to renew King's registration in 1985, King approached the DLES local office to attempt to make arrangements for payment of the debt. King offered to have the grower with whom he intended to contract pay the DLES $100 a month on the debt. The DLES agent questioned the viability of the arrangement because the DLES usually requires a 20% down payment, but he did not outright decline King's offer. He said the offer had to be in writing. When King went to the party with whom he intended to contract, the party refused to send $100 per month to the DLES but agreed to send the DLES $1200 once a year and reduce King's compensation by $100 per month. Ultimately, in spring, 1986, the DLES refused the repayment arrangement because the DLES insisted on a down payment of approximately $5000, which King did not have. Since 1986, King has not been able to make a 20% down payment on his tax bill and has not made any payments on the debt. His financial ability to make payments is handicapped by his inability to work as a farm labor contractor in Florida. For a full season or two, King was driving a crew in his bus to New York to pick apples. But in 1987, King was advised that it was illegal even to do this without a Florida registration and that the activity exposed him to a $10,000 fine. Instead, he would have to meet his crew in New York. In response, King applied to renew his Florida registration. Not having made any recent payments on his tax bill, King owes the DLES $32,949.02 in unemployment compensation taxes, interest, penalties and filing fees.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the DLES enter a final order: granting the Petitioner's application to renew his farm labor contractor registration, with reservations. issue to the Petitioner a farm labor contractor registration certificate, with the restrictions: that the Petitioner not be permitted to pay, handle or be responsible for payroll; that the Petitioner be required to notity those with whom he contracts--both laborers and growers--of the terms of the restriction on his registration certificate; and that the Petitioner be required to file a quarterly report to the DLES giving the name, address and telephone number of the person responsible for payroll(s), especially unemployment compensation tax, for each laborer in his crew(s) during the preceding quarter. that the Petitioner initially be permitted to make annual $1200 payments on his outstanding unemployment compensation tax bill, with no penalty for making larger payments in accordance with his financial ability. RECOMMENDED this 21st day of March, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1988. COPIES FURNISHED: William G. King 785 Phillips Way (L.H.) Haines City, Florida 33844 Moses E. Williams, Esquire Office of General Counsel Suite 117 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0658 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0658
The Issue Should the Department of Insurance (now known as the Department of Financial Services, Office of Insurance Regulation) (Department) approve three insurance endorsement forms that State Farm Florida Insurance Company (State Farm) filed on November 15, 2001?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: State Farm is a domestic insurance company that the Department has licensed to transact property and casualty insurance in the State of Florida. The Department is the state agency charged with the duty to regulate insurers doing business in the State of Florida. State Farm offers five types of homeowners' policies that have been approved for use in Florida, an FP-7921 (HO1), FP-7923 (HO3), FP-7924 (HO4), FP-7925 ( HO5-Extra), and FP-2926 (HO6). The HO1 is a "named perils" policy and provides coverage only for those perils specifically named in the policy. This policy is not offered in other states, and in Florida accounts for less than one percent of all of all policies in force. The HO3, HO5, and HO6 policies are known as "open perils" policies providing coverage for all risks unless specifically excluded by the policy. Although similar to HO3, the HO5 policy provides somewhat broader coverage with respect to settlement provisions. The HO6 policy is specifically geared toward condominium owners and the HO4 policy is the policy form that applies to renters. Of all the policies offered in Florida, the HO3 is the most widely used policy form and will be quoted from and used as the exemplar in this Recommended Order. The HO3 policy contains introductory provisions entitled "Declarations" and "Definitions," and is then divided into two coverage sections, Sections I and II. Section I refers to property coverage and with Section II referring to liability coverage. Section I is divided into a number of subcategories including the following: Coverage A (Dwelling), Coverage B (Personal Property), Section C (Loss of Use), Additional Coverage, Losses Insured, Losses Not Insured, and Conditions. Following the Section II provisions there are additional sections entitled "Section I and II-Conditions" and a section entitled "Optional Provisions." The HO3 policy provides coverage under Coverage A (Dwelling) for all risks of loss unless it is a "loss not insured." As stated in the policy: "We insure for accidental direct physical loss to the property described in Coverage A, except as provided in SECTION I - LOSSES NOT INSURED." (Emphasis in the original.) However, coverage for personal property (Coverage B) does not provide such "open perils" coverage. Rather, it provides coverage only for 16 named perils, contains a number of limitations on personal property that it does cover, and reflects a number of personal property items that it does not cover. All of State Farm's homeowners' policies currently provide some limited coverage relating to mold. Although the policies exclude mold as a covered peril, they provide some limited coverage for mold-related losses resulting from covered perils, such as a covered water loss that causes mold-related damage. Historically, there have been exclusions in property insurance for ordinance of law, earth movement, flood, war, the neglect of the insured, and nuclear hazard. Mold that resulted from a covered peril has historically not been excluded. On November 15, 2001, State Farm filed three proposed endorsement forms (Fungus (Including Mold) Exclusion Endorsement): (1) FE-5397 for use with HO1 policies; (2) FE- 5398, for use with HO3, HO5, and HO6 policies; and (3) FE-5399 for use with HO4 policies. The homeowners' policies, which the endorsements were to apply, had been previously approved by, and were on file with the Department, in accordance with Section 627.410, Florida Statutes. The goal of the endorsements was to eliminate mold coverage from State Farm's existing homeowners policies in Florida. State Farm's current rates do not include the cost of providing the mold coverage that the endorsements seek to exclude. However, there is insufficient evidence to establish facts to show that State Farm would need to substantially raise its rates to include those costs. Before filing the mold-exclusion endorsements, State Farm entered into discussions with the Department about giving policyholders the choice of buying back some of the to-be- excluded mold coverage through buy-back endorsements (buy- backs). State Farm filed its buy-backs in June 2002, after failing to work out a solution with the Department that would have allowed for their approval. Although the Department disapproved the buy-backs in December 2002, State Farm has committed itself to provide policyholders with the optional buy-backs, if the exclusions are approved. If the exclusion endorsements are approved along with the buy-back provisions, any cost increase would be restricted to those policyholders who choose to purchase mold coverage through a buy-back. State Farm's filings of mold-exclusion endorsements are consistent with a nationwide effort by State Farm Fire & Casualty Insurance Company, an affiliate of State Farm to eliminate mold coverage in homeowners policies. In Florida, State Farm's endorsements accomplish the complete elimination of mold coverage chiefly through the addition of a new exclusion for fungus, including mold, within "SECTION I - LOSSES NOT INSURED." (Emphasis in the original.) The endorsements, when coupled with the underlying policy, state in relevant part as follows: 2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as result of any combination of these: * * * g. Fungus. (Emphasis in the original.) (The text of the endorsement is underlined.) The endorsements delete all references to the term mold found in SECTION 1 - LOSSES INSURED. (Emphasis in the original.) The endorsements define fungus as follows: "fungus" means any type or form of fungus, including mold, mildew, mycotoxins, spores, scents or byproducts produced or released by fungi. (Emphasis furnished.) This total exclusion of mold coverage, using language clearly encompassing all manner of causation and occurrence, replaces the mold exclusions in the existing policies that do not use such broad language. The difference between the post- and pre-endorsement policies can be seen from comparing the above-quoted endorsement as incorporated into HO3 policy on the one hand, with the mold exclusions as they currently exist in the HO3 policy on the other hand. While the endorsements totally exclude coverage for fungus (mold), and deny payment for mold damage historically provided to insureds, the endorsements are not ambiguous, notwithstanding the testimony offered by the Department to the contrary, which lacks credibility. The endorsements do not add coverage. Instead, the endorsements eliminate coverage for mold that currently exists. However, this fact alone does not render the endorsements inconsistent, misleading, or deceptive when the endorsements are read in their entirety along with the remaining provisions of the policies. State Farm's endorsements were initially deemed approved pursuant to Section 627.410, Florida Statutes, which provides that an endorsement filed with the Department is deemed approved if it is not approved or disapproved within 30 days, or 45 days if there has been an extension, of its filing.. By letter dated June 28, 2002, the Department withdrew its deemed approval of the three endorsements and notified State Farm of its basis for disapproval. The Department's original disapproval letter cites three bases for disapproval. The Department asserts that State Farm's endorsements: (1) contain ambiguities in violation of Section 627.411(1)(b), Florida Statutes; (2) deceptively affect the risk purported to be assumed in the general coverage of the contract, also in violation of Section 627.411(1)(b), Florida Statutes; and (3) deny policyholders the right to obtain "comprehensive coverage" as that term is used in Section 626.9641(1)(b), Florida Statutes, which is part of the policyholders' bill of rights. On December 4, 2002, the Department moved for leave to amend its original disapproval letter. The motion was granted. The Department's amended disapproval letter, which the Department back-dated to June 28, 2002, reiterates the previously alleged bases for disapproval and cites two additional bases for disapproval: (1) the alleged violation of Section 626.9641(1)(b), Florida Statutes, itself constitutes a violation of Section 627.411(1)(a), Florida Statutes; and (2) the endorsements, because they exclude coverage that "through custom and usage has become a standard or uniform provision" in Florida, violate Section 627.412(2), Florida Statutes. There is insufficient evidence to establish facts to show that the provision for mold coverage has, through custom and usage, become a standard or uniform provision. Likewise, there is insufficient evidence to establish facts to show that there is a "natural association between mold and water." In the fall of 2001, the Department began receiving a large influx of filings seeking to exclude or severely limit coverage for mold. Including State Farm's filing, the Department received between 400 and 450 filings representing between 200 and 250 insurers primarily between October 1, 2001, through the end of 2002. In the face of the inordinate number of filings, the Department sought input from all sectors of the public. The Department met with insurers and other interested persons and held four public forums around the state to determine the impact the filings would have on insurance contracts, the industry, and the market place. In the mean time, the Department routinely sought waivers from the insurers of the statutory review period set forth in Section 627.410(2), Florida Statutes, and additionally requested that insurers withdraw their filings. Insurers were advised by the Department that failure to waive the statutory review period or to withdraw their filings would result in the filing being disapproved. The Department initially approved the endorsements to limit or exclude mold coverage of three insurers: USAA, Maryland Casualty, and American Strategic. However, the Department withdrew its approval for each of these companies in letters dated September 18, 2002. The Department asserts that it does not have a policy to disapprove filings simply because they discuss mold or seek to limit or exclude coverage for claims involving mold damage. The Department admits that it is required to examine all filings based upon the statutory scheme. However, the Department has not approved a single one of the over 450 filings, regardless of the language or structure of the endorsements. The simple fact is that the Department had a policy from the fall of 2001 through December 16, 2002, imposing a moratorium on the exclusion or limitation of mold coverage. The Department altered that policy on December 17, 2002, when it entered into a settlement with Florida Farm Bureau General Insurance Company (Farm Bureau), wherein Farm Bureau's endorsement was approved allowing a reduction in mold coverage from policy limits to a sub-limit of $10,000.00 per occurrence, $20,000.00 annual aggregate. The Department's previous position that policies offered to Florida's consumers should not be significantly reduced was abandoned at that time. There was insufficient evidence to establish facts to show that the $10,000.00 coverage was a reasonable amount of coverage for the vast majority of claims for mold damage. The endorsements seek to limit or exclude coverage for mold that has existed for decades. There is scant Florida experience to support the need for limitations or exclusions on mold coverage. Even so, the Department cannot disapprove endorsement forms without authority to do so. There is no statutory authority mandating mold coverage to the extent of policy limits or otherwise in order for policyholders to have comprehensive coverage. Beginning September 15, 2001, the Department did not approve a single mold endorsement seeking to exclude or limit coverage for mold as a resulting loss from a covered peril until December 17, 2002, when it approved a filing by Farm Bureau as a part of a settlement of an administrative proceeding in which the parties were awaiting ruling after a final hearing.
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is RECOMMENDED that the Department enter a final order approving the endorsements filed with the Department by State Farm on November 15, 2001. DONE AND ENTERED this 5th day of June, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2003. COPIES FURNISHED: S. Marc Herskovitz, Esquire Division of Legal Services Department of Financial Services Office of Insurance Regulation 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Anthony B. Miller, Esquire Division of Legal Services Department of Financial Services Office of Insurance Regulation 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 C. Ryan Reetz, Esquire Jim Toplin, Esquire Amie Riggle, Esquire Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 Vincent J. Rio, III, Esquire State Farm Florida Insurance Company 315 South Calhoun Street, Suite 344 Tallahassee, Florida 32301 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent should be assessed a civil penalty for acting as a farm labor contractor without a certificate of registration?
Findings Of Fact Upon consideration of the oral and documentary evidence addressed at the hearing, the following relevant facts are found: On or about February 26, 1987 the Respondent was charged with failure to register as a farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes. As a result of this charge, Respondent registered as a farm labor contractor on March 2, 1987 and was issued a certificate of registration on March 6, 1987 which expired on October 3, 1987, the day after Respondent's birthdate, for failure to make application for renewal in accordance with Section 450.31, Florida Statutes. On November 30, 1989, during a routine check of farm labor contractors in DeSoto County, Florida, the Respondent was found to be transporting ten farm laborers who he had hired to pick at 18 per box. Respondent was being paid a fee of 75 per box to have the fruit picked. Respondent was responsible for, and supervised, the ten farm laborers referred to in paragraph 2. In addition to being paid for harvesting the fruit, Respondent received $75.00 per trailer to drive the van and load fruit on the trailer and other duties. Another farm labor contractor, Chris Marroquin, owns the van in which Respondent was transporting the farm laborers and was the individual who paid Respondent for picking the fruit, driving the van and loading the trailer. Although Respondent was acting as a farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes, on November 30, 1989, he did possess a certificate of registration as required under Section 450.30, Florida Statutes. The Respondent was charged with: (a) failure to register in violation of Section 450.30, Florida Statutes; (2) failure to put registration in violation of Section 450.33(4), Florida Statutes and; (3) transporting farm laborers without authorization in violation of Rule 38H-11.006(5), Florida Administrative Code. Respondent applied for a certificate of registration on December 1, 1989 and was issued same on December 5, 1989.
Recommendation Having considered the foregoing Findings of Fact and Conclusion of Law, the evidence of record, the candor and demeanor of the witness and the factors set forth in Rule 38H-11.012(2)(a-q), Florida Administrative Code, it is, therefore, RECOMMENDED: That the Petitioner enter a Final Order assessing civil penalty against the Respondent, Leopoldo Cantu, Jr. in the account of $500.00. DONE and ENTERED this 20th day of September, 1990, in Tallahassee, Florida. WILLIAM R. CAVE 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 September, 1990. COPIES FURNISHED: Hugo Menendez, Secretary Department of Labor and Employment Security 2590 Executive Center Circle, East Berkeley Building, Suite 200 Tallahassee, FL 32399-2152 Stephen Barron, General Counsel 2012 Capitol Circle, S.E. Suite 307, Hartman Building Tallahassee, FL 32399-0658 Leopoldo Cantu, Jr. Route 6, Box 495L Edinburg, TX 78539 Moses Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle Suite 117 Tallahassee, FL 32399-0658 Ruth Ann Weaver Bureau of Agricultural Progrms Post Office Box 1698 Tallahassee, FL 32302-1698
The Issue An administrative complaint dated January 24, 1991, alleges that Respondent violated Chapter 450, F.S., Part III, by acting as a farm labor contractor without an active certificate of registration and by contracting with an unregistered individual. The issue for disposition is whether those violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Gabriel Bain, the Respondent, has worked in citrus fields for 37 years. At various times he has been registered as a farm labor contractor. He had his own company, Mid-Florida Harvesting, but became bankrupt in 1990 after the citrus freeze disaster. Bain's business address is 30 South Ivey Lane, Orlando, Florida. On or about December 14, 1990, Compliance Officers, Henry Parker and Marshall Carroll were at Nevins Fruit Company in Mims, Brevard County, checking leads on unregistered farm labor contractors. In the course of an interview with Steve Schaffer, Harvest Manager for Nevins, Gabriel Bain was called in as the man who was in charge of the harvesting job. Bain identified himself to the officers with a driver's license and did not have his certificate of registration with him. Schaffer produced the certificate that Bain had submitted when he was hired by Nevins. The certificate was in the name of General Traders, Inc., and had an expiration date of February 28, 1991. "G. Bain" was handwritten on the signature line. During the meeting with Carroll and Parker, on December 14, 1990, Bain freely admitted hiring Jerome Pender as a sub-contractor. Pender was not registered as a farm labor contractor, but had shown Bain papers that he had applied for his certificate. Bain signed a notarized statement attesting to this fact and gave it to the compliance officers. The compliance officers issued a summary of violations to Bain for utilization of an unregistered crewleader. At the time, they were unaware that Bain was, himself, unregistered. Gabriel Bain's registration in the name of Mid-Florida Harvesting expired on June 30, 1990. His application, in the name of General Traders, Inc., was approved on March 1, 1991. In December 1990, he was working for General Traders but was not included in that company's registration. He was not registered in any other name in December 1990, and a subsequent summary of violations was issued, citing "fail to register." In December 1990, at the time of the compliance officers' investigation, Gabriel Bain was working for Nevins Fruit Company as a farm labor contractor and was paid for his work in that capacity. In this work he subcontracted with other labor contractors who provided crews. At the hearing Bain claimed that he lied to the compliance officers about hiring Jerome Pender. He claimed he lied because he had actually hired Willie Simmons, someone whom the Nevins people had told him they did not want "within 100 miles" of their groves. This self-impeachment in no way advances Respondent's averment of innocence.
Recommendation Based upon the foregoing, it is hereby recommended that a final order be entered, finding Gabriel Bain guilty of violating Sections 450.30(1), F.S. and 450.35, F.S., and assessing a civil fine of $1250.00 to be paid within thirty (30) days. RECOMMENDED this 22nd day of July, 1992, at Tallahassee, Florida. MARY W. CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1991. COPIES FURNISHED: Francisco Rivera, Sr. Atty. Department of Labor and Employment Security 2012 Capital Circle, S.E. 307 Hartman Building Tallahassee, Florida 32399-0658 Gabriel Bain 30 S. Ivey Lane Orlando, Florida 32811 Frank Scruggs, Secretary 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Cecilia Renn Chief Legal Counsel 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152
The Issue 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 committed the violations described in the Administrative Complaint, as amended? If so, what civil penalty or penalties should be assessed?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made to supplement the factual stipulations into which the parties have entered: Respondent was born in Mexico. She has lived in the United States since October of 1974. Respondent has a fourth grade education that she received in her native land. She is unable to read or write English and speaks and understands very little of the language. She communicates primarily in Spanish. Respondent lives with her husband and five of her six children, including her 21-year old daughter, Anna, who unlike her mother, is fluent in both English and Spanish. Recently, due at least in part to the inability of family members to find work and to the lengthy hospitalization of Raphael, Jr., one of Respondent's sons, the Rivera family has experienced serious financial problems and has been unable to pay all of its bills. As a result, the family home is in foreclosure and water service to the home has been terminated. The family's plight should improve to some extent, however, inasmuch as Respondent's husband started working again approximately a week before the final hearing in this case. Respondent, though, remains unemployed, as does her daughter Anna, although they are both actively seeking employment. At all times material to the instant case, Respondent has been a Florida-registered farm labor contractor. She received the first of her farm labor contractor certificates of registration in 1990. To date, she has an unblemished disciplinary record. Since becoming registered, the only statutory and rule violations with which she has been charged are those that are the subject of the instant case. To obtain her certificates, Respondent simply had to fill out application forms. The application forms were in English. She therefore went to the local Department Job Service office to obtain the assistance of a bilingual Department employee fluent in English and Spanish to help her complete these forms. In each instance, the Department employee assisting Respondent filled out the form after obtaining the necessary information from Respondent and, after doing so, presented the completed form to Respondent for her signature. Jesus Velasquez was the Department employee who helped Respondent complete the application form for her initial certificate of registration. Velasquez has been a Compliance Officer with the Department for the past nine years. During his meeting with Respondent, Velasquez briefly described to her some of the duties and obligations of registered farm labor contractors. Andre Jeudy, who was then an Agricultural Service Representative with the Department, but is now a Department Compliance Officer, helped Respondent complete the application form she submitted to obtain her second certificate of registration. The form was completed, signed and submitted on November 20, 1990. Item 7 of the form requested the applicant to "Check Each Activity to be performed Involving Migrant and/or Seasonal Agricultural Workers for Agricultural Employment." Two "activities" were listed. The first was "Recruit, solicit, hire, employ, furnish, pay." The second was "Transport." Based upon what he had been told by Respondent, Jeudy checked the first, but not the second, of these listed activities. Item 9 of the form asked, "Will Transportation be Provided the Workers?" If the response was in the affirmative, the applicant was further instructed to "Give number and type of vehicles used to transport migrant and seasonal agricultural workers." Based upon the information that he had been provided by Respondent, Jeudy marked the "Yes" box and wrote only the following to supplement this affirmative response: "TRANSP will be provide [sic] By company Bus (Okeelanta)." By her signature, Respondent certified on the form that "all representations made by me in this application are true to the best of my knowledge and belief" and that "I have read or had explained to me and fully understand the State of Florida Farm Labor Registration Law and its implementing regulations, and will fully comply with the requirements therein." By letter dated December 4, 1990, Respondent was advised by the Department that it had issued her the new certificate of registration (hereinafter referred to as the "1990-91 Certificate") for which she had applied. The certificate, which had an "expiration date" of "11/91," was enclosed with letter. Respondent's 1990-91 Certificate indicated that Respondent was "Transportation Unauthorized." The certificate provided the following explanation as to what it meant to be "Transportation Unauthorized:" Transportation Unauthorized- You are not permitted to arrange and/or provide transportation of migrant and seasonal agricultural workers. To obtain a certificate authorizing the transportation of workers within the meaning of the Act, you must file evidence of compliance with applicable safety and health requirements as stated in the Act and regulations and with the insurance of financial responsibility requirements provided therein. On September 18, 1991, Respondent went to the local Job Service office to apply for a successor certificate. The Department employee who assisted Respondent on this occasion was Mary Ann Ruiz. Ruiz accurately conveyed on the application form the information with which she had been provided by Respondent. The application form that Ruiz helped Respondent fill out was identical to the one Respondent had used to obtain her 1990-91 Certificate. With respect to Item 7, Ruiz checked the first ("Recruit, solicit, hire, employ, furnish, pay"), but not the second ("Transport"), of the farm labor contractor activities listed. As to Item 9, Ruiz marked the "Yes" box and gave the following written explanation: "trans provided by Okeelanta." No further information regarding such transportation was furnished on the form. As she had done the year before, Respondent certified the accuracy of the information contained in the application and her knowledge of, and her intention to fully comply with, the "Florida Farm Labor Registration Law and its implementing regulations." At the time of her application, she did not intend to transport any farm workers. By letter dated December 19, 1991, Respondent was advised by the Department that it had issued her the successor certificate of registration (hereinafter referred to as the "1991-92 Certificate") for which she had applied. The certificate, which had an "expiration date" of "11/92," was enclosed with letter. Respondent's 1991-92 Certificate indicated that Respondent was again "Transportation Unauthorized" and it repeated the explanation of the term that had been set forth in the 1990-91 Certificate. In 1990 and 1991, Respondent recruited farm workers to plant sugar cane seed and perform related tasks for the Okeelanta Sugar Corporation (hereinafter referred to as "Okeelanta"). Okeelanta has substantial land holdings in the Everglades Agricultural Area on which it grows and harvests sugar cane that it then processes and converts into refined sugar for sale. Okeelanta paid Respondent a total of $10,958.90 for her services ($4,550.40 for services rendered in 1990 and $6,408.50 for services rendered in 1991). Okeelanta treated Respondent as an independent contractor. The workers she recruited, on the other hand, were considered by Okeelanta to be employees of the corporation. They were paid directly by Okeelanta, which made appropriate deductions from their paychecks. The workers were organized into planting crews made up of eight or nine persons each. At any given time during the 1990-91 and 1991-92 planting seasons, there were several crews comprised of workers Respondent had recruited for Okeelanta (hereinafter referred to as "Respondent's crews"). Okeelanta employed timekeepers to maintain records of the work performed by each of the crews in its fields. Anna Rivera, Respondent's daughter, was the timekeeper responsible for maintaining the records of the work done by Respondent's crews. Respondent's crews were supervised and directed in the field by another Okeelanta employee, Zone Supervisor Raphael Colunga. As the Zone Supervisor, Colunga had the authority to discharge any crew member under his supervision. Respondent frequently went out in the field to monitor the activities of her crews. She did so because the amount of compensation she received from Okeelanta was dependent upon the work performed by her crews. Respondent used her own vehicle to make the trip to the field. There was an Okeelanta bus that drove crew members from the Okeelanta employee parking lot to the field in the morning and back to the parking lot in the afternoon. Respondent's crews did not always arrive early enough in the morning to catch these buses. On those occasions that they missed the bus, the transportation that they used to commute to work was the transportation that they used to get to the field. Every employee that Respondent recruited for Okeelanta for the 1991-92 planting season, before being hired, was screened by the Department at its Belle Glade Job Service office pursuant to a written agreement between Okeelanta and the Department, which provided as follows: RECRUITING ARRANGEMENT Okeelanta Corporation It is the intent of Belle Glade Job Service (hereafter the Job Service) and Okeelanta Corporation (hereafter the "Employer") to bring together individuals, who are seeking employment, and the Employer, who is seeking workers without charging a fee. Therefore, The Job Service and the Employer enter into this arrangement: Assist job seekers in obtaining employment from the employer; Allow the Job Service to facilitate the match between the job seekers and the employer. Both parties enter into this arrangement with the understanding that each will comply with all applicable federal and state laws, rules, and regulations (please see attached addendum of specific responsibilities) pursuant to Title 20 of the Code of Federal Regulations. Part 652, 655 and 658. BOTH PARTIES AGREE THAT THIS RECRUITING ARRANGEMENT WILL - Continue for no longer than one year from the date both parties have signed the document. Constitute the sole exclusive arrangement indicating how they will work together. Terminate upon either party's written notice for the other party that the arrangement will be cancelled in 30 days. Abide by the attached addendums of JS and Employer obligations. Addendum I to the agreement listed the Department's obligations. These obligations were as follows: Provide the Employer notice to renew this arrangement at least 60 days prior to ending date of this arrangement or prior to the expected beginning of the season, whichever is earlier. The notice will contain a request to the employer for written response as to their satisfaction with the arrangement, information on any problem that have [sic] developed and meeting date to renew the arrangement. Provide the employer daily a log summarizing job placement activities for each day in which one or more individuals were referred to the employer. Provide I-9 Certification on individuals hired no later than 48 hours from date JS is notified of hire. Designate one Employment representative to be stationed on daily basis or as needed, to serve as the liaison responsible for working with Okeelanta Corporation. Provide the Okeelanta Corporation with reverse referral recruitment cards to give the applicants. Maintain a pool of qualified applicants for the positions listed with Job Service, who have been screened against the selection criteria of the company. Provide Okeelanta with a list of qualified applicants on file whenever an opening arises. Refer applicants from the pool, with a completed I.D. card, a completed W-4 form, JS Referral Card, (a completed I-9 on recalls) upon receipt of a job order. Addendum II to the agreement listed Okeelanta's obligations. These obligations were as follows: List all job openings for which they wish Job Service to recruit. Provide the Belle Glade JS office a supply of W-4 forms applications for completion by qualified applicants desiring to work for the company. On a daily basis inform the Belle Glade JS office of the hiring decision made on each applicant referred by the JS. Designate one of its employees, within one week of the starting date of this arrangement, to serve as the liaison responsible for working with the JS. Provide a working space for the employee designated to be stationed at the employer premises. Acknowledge receipt of the above referenced regulations as a part of this arrangement, which it will furnish the above referenced employee. The job order Okeelanta placed with the Department's Belle Glade Job Service office in accordance with the foregoing agreement for sugar cane seed planters and other agricultural workers needed for the 1991-92 planting season specified that these employees would be expected to work six days a week, from 7:00 a.m. to 3:00 or 4:00 p.m., weather permitting. Okeelanta hired only those prospective employees who were deemed qualified and given a referral or "yellow" card by the Department. These prospective employees were required to present their card to the Zone Supervisor. After doing so and being accepted for employment, they received an Okeelanta employee identification number and their names appeared on the Okeelanta Day Haul Master List for each day they worked. Prospective employees unable to produce a "yellow" card for the Zone Supervisor were referred to the Department's Belle Glade Job Service office. In light of Okeelanta's policy of turning away prospective employees who did not have "yellow" cards, Respondent advised every employee that she recruited for Okeelanta during the 1991-92 planting season that they had to go to the Department's Belle Glade Job Service office and obtain such a card before they could begin working for Okeelanta. Respondent was never told that she had to verify the qualifications of members of her crews who had been screened and referred to Okeelanta by the Department. She therefore believed that there was no need for her to do so. Miguel Paiz was a member of one of Respondent's crews. He was interviewed at the Department's Belle Glade Job Service office prior to the commencement of the 1991-92 planting season and, although, as he made the interviewer aware, he was only 17 years of age at the time, he was given a "yellow" card. The W-4 form that was completed during his interview indicates that, at least at the time of the interview, Paiz was married. On the morning of Friday, October 18, 1991, three or four days after the start of the 1991-92 planting season, Cruz Hernandez Alvarez, lost control of the 1978 station wagon he was driving on a private road on Okeelanta property and the vehicle went into a canal on the side of the road. Seven of the eight occupants of the vehicle were killed. Alvarez did not have a valid driver's license at the time of the accident. The vehicle he was driving belonged to Juan Andres. Its V.I.N. was 1L35U8S167733. Alvarez and some, but not all, of the other occupants of the vehicle, including the lone survivor of the accident, were members of one of Respondent's crews. Julio Mendoza Corince, a 15-year old boy, was one of the occupants of the vehicle who perished in the accident. Earlier that month, Corince had gone to the Department's Belle Glade Job Service office to obtain a "yellow" card. The Department employee with whom he interviewed, however, refused to refer him because he was underage. Corince was not a member of any of Respondent's crews. Indeed, at no time before the accident had Respondent ever met or spoken with him. After the bodies were recovered from the canal, Respondent, and later her daughter Anna, were called to the scene and asked by the police if they were able to identify any of the victims. Viewing the dead bodies was a very emotionally upsetting experience for both of them. They spent the remainder of the day at home. No work was done by any of Respondent's crews that day. State and federal investigators began their investigation shortly after the accident was reported. Compliance Officer Velasquez was the Department's lead investigator. Rene Callobre, an Assistant District Administrator with the United States Department of Labor, Wage and Hour Division, who, like Velasquez, is fluent in both English and Spanish, conducted the federal investigation. A short time after beginning his investigation on the day of the accident, Velasquez went to the Okeelanta property and asked to speak with Respondent. After being told that Respondent had left for the day, Velasquez proceeded to Respondent's home, where he interviewed Respondent. Velasquez and Respondent conversed in Spanish during the interview. Respondent was still emotionally upset at the time of the interview, but not to the extent that she was irrational or unable to effectively communicate with Velasquez. At no time did she provide an inappropriate response to his inquiries. During the interview, Respondent freely and voluntarily gave a statement in Spanish to Velasquez. Velasquez had not warned Respondent before she gave the statement that what she said could be used against her in an administrative proceeding such as the instant one. 1/ Velasquez wrote down in English what Respondent had told him in Spanish. This written, English translation of the statement, which accurately reflected Respondent's discussion with Velasquez, was then read back to Respondent in Spanish. Respondent thereupon signed the written statement, which read as follows: I am a farm labor contractor with cert # 29482 & expiration date of Nov. 1992. At present I am employed by Okeelanta Sugar Corp. My duties are to recruit & supervise farm workers to plant sugar cane. My fee for this task is $1.10 per row of cane planted by the crew. I recruited my crews by word of mouth. They know I am a contractor, so they come to my house to ask for work. The first thing I tell any worker that comes here to my house is that they must go the Job Service Office in Belle Glade and register. When they are properly registered, they go to the Okeelanta parking lot and there they are transported by company bus to the work site. I tell all the workers they must provide their own transportation to the Okeelanta parking lot. I tell all my workers this because I do not own a vehicle big enough to transport them from their home and back. I tell them that if they want to work, they must come on their own. I recruited 4 crews consisting of 8 workers each crew. Three of the crews were coming from Indiantown (Guatemalans) and one crew from this area (Mexicans). These crews, the ones from Indiantown, worked with me last year. I usually give the driver or the owner of the vehicle $100 per week for gasoline. I did this last year and was intending to do this this year also. The three crews from Indiantown came by car (station wagon) and a van. The station wagon carried 1 crew (8 workers) and the van carried 2 crews (16 workers). On this date, only one crew leader showed up, the station wagon. The van with the 2 crews did not show up. These crews started to work on Tuesday October 15, 1991. I do not pay the workers, Okeelanta does. The statement was in all respects factually accurate. Respondent had not yet during the 1991-92 planting season paid or loaned or agreed to pay or loan anyone "$100 for gasoline" in connection with the transporting of her crews. At no time did Respondent tell any state or federal investigator, including Velasquez or Callobre, otherwise. 2/ On Monday, October 21, 1991, Velasquez went out in the field to visit with Respondent and the members of her crews. Velasquez was accompanied by Compliance Officer Jeudy. Jeudy was being trained by Velasquez. Velasquez and Jeudy observed a 1977 Chevrolet van in the field. The van's V.I.N was CGL257U218651. Neither on the van nor anywhere else in the field was there posted a copy Respondent's application for a certificate of registration or a statement, in English and Spanish, showing Respondent's and her crews' rates of compensation. Velasquez asked Respondent if any of the members of her crews had been transported in the van. Respondent responded in the affirmative and indicated that two of her crews from Indiantown had travelled in the van. Velasquez then asked to speak to the driver of the van. Respondent thereupon retrieved Miguel Paiz, who was working in the field. Although he was 17 years of age and it was during normal school hours, Paiz was at work and not in school. Velasquez asked to see Paiz's driver's license and his farm labor contractor's certificate of registration. Paiz showed Velasquez his driver's license and the "yellow" card he had received from the Department. Paiz advised Velasquez that he did not have, and therefore was unable to produce, a farm labor contractor's certificate of registration. Paiz told Velasquez that Juan Lopez was paying him $10.00 a day for driving the van. During his conversation with Velasquez, Paiz erroneously identified Lopez as the owner of the van. The actual owner of the van was Julio Puentes. After speaking with Paiz, Velasquez interviewed Lopez. Based upon what he understood Lopez to have said during the interview, Velasquez prepared a written statement for Lopez's signature which provided as follows: I borrowed the (vehicle) van that this date transported 16 workers to Okeelanta Sugar Corp. to work in the planting of sugar cane. I was recruited by Araceli Rivera. I am paid $100 per week for the gasoline I use in the vehicle. I am also paid $1.00 per row of sugar cane planted by Okeelanta. I am not registered as a F.L.C. Lopez refused to sign the statement. To the extent that the statement suggests that Lopez was then being paid by Respondent for "the gasoline [Lopez] use[d] in the ['transporting'] vehicle," it is inaccurate. No such payments were made by Respondent to Lopez during the 1991-92 planting season.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) imposing upon Respondent a civil penalty in the amount of $100.00 for having violated Section 450.33(4), Florida Statutes, and Rule 38H-11.008, Florida Administrative Code, as alleged in paragraph (4)(h) of the Administrative Complaint, as amended, by displaying in the area where her crews were working on October 21, 1991, neither a copy of her application for a farm labor contractor certificate of registration nor the requisite statement concerning the compensation that she was receiving from Okeelanta for her recruitment activities, and (2) dismissing the remaining allegations advanced in the Administrative Complaint, as amended. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of February, 1993. STUART M. LERNER 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 10th day of February, 1993.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent possessed a Certificate of Registration as a Farm Labor Contractor, issued under the provisions of Chapter 450, Part III, Florida Statutes. The Certificate number is C-04-387166-D-88-R. It was issued on June 15, 1987, and expired on April 30, 1988. The Department of Labor and Employment Security is the state agency charged with regulating farm labor contractors. At the time Respondent applied for his certificate, on June 4, 1987, he gave as the address for sending documents, P.O. Box 2186, Lake Placid, Florida, 33852. At approximately 9:00 am on June 4, 1987, Larry Coker, a DLES Compliance Officer, observed the Respondent drive his 1980 Ford van up to a convenience store in the town of Ona, on State Road 64, in Hardy County, Florida. At the time, Respondent had thirteen migrant workers in the van with him. Mr. Coker's examination of the van at the time revealed that the seats in the van were not secured to the floor or the frame of the vehicle, and the vehicle was not insured. Mr. Coker attempted to discuss the matter with the Respondent, who had stopped at the store to purchase gas and ice, and to give the workers an opportunity to purchase food for lunch. However, Respondent indicated that he had to get to work, and Mr. Coker followed Respondent to a watermelon field where he and the other workers were to cut watermelons. Though at the hearing, Respondent denied that he was the contractor for the workers in question, at the field, on June 4, 1987, he had indicated that he paid his workers in cash on a daily basis, did not deduct for social security, did not keep names, addresses, or other records, nor did he give a wage statement to the workers. At the hearing, Mr. Crowl admitted making the statement, but contended that he was referring to his routine practice on those occasions when he served as a labor contractor. He unequivocally denies, however, that the workers in his van on June 4, 1987, were his employees. He insists they were the employees of another contractor whose van had broken down beside the road and to whom he was giving a ride, merely to assist them in getting to work. When Mr. Coker discussed the matter with the grower, Randall Roberts, and the crew leader in the field, Mr. McGahey, Roberts indicated that he had just hired Respondent, and that he paid Respondent, who was responsible for paying the workers. Under the circumstances, and considering the relative probabilities of the testimony, it is found that the workers in question were Respondent's employees, and that he did improperly manage them under the terms of Chapter 450, Florida Statutes. It is also found that Mr. Crowl's prior Farm Labor Contractor Certificate of Registration expired in February, 1987. Even though expired, it should have been posted either at the work site or in the van, but was not. Respondent, also, was not authorized to transport workers in his van. As a result, Mr. Coker cited Respondent for failing to register as a contractor, (based on the expired certificate); failing to make, keep or preserve records; failing to provide wage statements to workers; failing to assure the safety of transportation vehicles; failing to obtain prescribed vehicle insurance; and failing to post his certificate of registration as required. The complaint was forwarded to DLES headquarters in Tallahassee. On June 29, 1987, Rod Willis, Chief of the Bureau of Agricultural Programs for the DLES, by letter, notified Respondent that the Department was assessing a civil money penalty against him for the above cited six violations in the total amount of $2,450.00. Under the terms of the letter, Mr. Crowl was given twenty-one days to remit the amount of penalty due, or to request a hearing under Section 120.57, Florida Statutes. The letter was sent by certified mail to the address listed by Mr. Crowl in his application for registration, but was subsequently returned undelivered. Mr. Crowl contends that he never received the letter because shortly after the date of the incident here, he left for New York and did not return until November, 1987. Because requirements outlined in the certified letter referenced above were not complied with, on January 25, 1988, the acting director of the DLES entered a Final Order imposing the $2,450.00 fine, and advising Respondent of his right to appeal. No appeal was taken. On January 28, 1988, Mr. Willis, again by letter, notified Respondent of the Division's intention to revoke his Florida Farm Labor Contractor's Certificate of Registration, citing his failure to pay the previously assessed civil money penalty or to request a hearing. Mr. Crowl was again advised of his right to request a hearing on the revocation, and this hearing was the result. At the hearing, counsel for Petitioner indicated that if Respondent was willing to make arrangements for the payment of the $2,450.00 civil money penalty assessed, he would consider recommending to the Division Director a settlement that might result in allowing Respondent to retain his Contractor's Certificate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED, that Respondent, Erastious Crowl, be ordered to pay the previously assessed civil money penalty in the amount of $2,450.00, with the condition that if the payment of the penalty is not paid within a time period satisfactory to the Department, his Certificate be revoked. Recommended in Tallahassee, Florida, this 9th day of May, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1988. COPIES FURNISHED: MOSES E. WILLIAMS, ESQUIRE DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY MONTGOMERY BUILDING, SUITE 117 2562 EXECUTIVE CENTER CIRCLE TALLAHASSEE, FLORIDA 32399 ERASTIOUS CROWL POST OFFICE BOX 2186 LAKE PLACID, FLORIDA 33852 HUGO MENENDEZ, SECRETARY DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 206 BERKELEY BUILDING 2590 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152
The Issue The issue in this case is whether Petitioner, H.P. Sod, Inc., is entitled to payment from an Agricultural Bond issued to Respondent, PLS Landscape Services, Inc., and, if so, the amount owed to Petitioner.
Findings Of Fact Petitioner is a licensed producer of an agricultural product, i.e., sod. Petitioner is a duly incorporated for-profit corporation in the State of Florida and is in good standing. Horacio Pereira is the putative owner of the company, referring to himself at final hearing as “the boss, the guy who tells people what to do.” Respondent is a duly incorporated Florida corporation. Its business address is 6132 Snook Court, Port St. Lucie, Florida. The only officer or director of the corporation is George J. Kijewski. Respondent is a landscaping business. From the period July 23, 2012, through October 16, 2012, Respondent purchased quantities of Bahia sod from Petitioner on numerous occasions. The dates of purchase, quantity of sod purchased, and ticket numbers for each purchase are as follows: 23 – Ticket 36930 – 10 pallets 23 - Ticket 36983 – 16 pallets 30 – Ticket 37185 – 10 pallets 1 – Ticket 36818 – 16 pallets 1 – Ticket 37276 – 16 pallets 1 – Ticket 37283 – 16 pallets 6 – Ticket 36872 – 16 pallets 8 – Ticket 37319 – 16 pallets July July July August August August August August August 10 – Ticket 37339 – 16 pallets September 4 – Ticket 37727 – 16 pallets October 15 – Ticket 38712 – 16 pallets October 16 – Ticket 38720 – 16 pallets Petitioner issued the following invoices to Respondent concerning the aforementioned purchases of Bahia sod: Invoice 6615 – July 26 – Tickets 36930, 36983 $620.20 Invoice 6640 – August 2 – Tickets 36818, 37185, 37276, 37283 - $1,420.96 Invoice 6671 – August 16 – Tickets 36872, 37319, 37339 - $1,104.24 Invoice 6735 – September 6 – Ticket 37727 - $445.12 Invoice 6875 – October 18 – Tickets 38712, 38720 - $890.24 TOTAL - $4,481.11 Respondent did not remit payments on any of the aforementioned invoices. Respondent contends that some of the sod which it purchased from Petitioner was of inferior quality or was in less quantity than ordered. Specifically, Respondent said some of the sod was wet and fell apart when being installed. He also said the wet sod resulted in some pallets containing 370 to 390 square feet of sod rather than the 400 feet that is standard on a pallet. Respondent’s testimony was general in nature, not specific to any particular shipment, and flies in the face of his on-going purchases of sod from Petitioner. Further, there was no credible evidence presented at final hearing that Respondent ever complained to Petitioner about the quality or quantity of the sod. Had he done so, Petitioner said it would have corrected the problem. Respondent did reportedly tell one of his drivers, Mr. Calloway, on occasion that the sod was wet or otherwise not up to par. However, that complaint was never provided to Petitioner so that action could be taken. Respondent acquired a bond in the sum of $5,000.00 through TD Bank, N.A. (also referred to in this matter as United States Corporation Company, as Surety). The bank was not represented at the final hearing held in this matter. No defense was raised by the bank concerning Petitioner’s attempt to attach the bond. Petitioner paid a fee of $50.00 to the Department of Agriculture to bring this action. Petitioner hired an attorney to represent its interest in this matter. The attorney charged $175.00 per hour and, as of the date of the final hearing, had billed approximately five hours of time or $875.00 in fees. Subsequent to the final hearing, the attorney submitted a post-hearing proposed order on behalf of Petitioner. The attorney expended $180.00 in costs for service of a subpoena and witness fees. The total sum demanded by Petitioner in its action against Respondent is $5,586.11. Respondent’s PRO filed in this matter asserts a number of “facts” which were not established by competent testimony at the final hearing. Those facts were not considered in the preparation of this Recommended Order.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is hereby RECOMMENDED that a Final Order be entered by the Department of Agriculture and Consumer Services as follows: Respondent shall pay to Petitioner, within 15 days of the entry of the Final Order, the sum of $5,586.11; or If Respondent fails to timely make the aforementioned payment, the Department shall call upon TD Bank, N.A., to pay over to the Department the full amount of Respondent’s bond; and The Department shall then turn the entire proceeds of the bond over to Petitioner. DONE AND ENTERED this 8th day of March, 2013, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2013.
