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 The issue in this case is whether Respondents owe Petitioner $13,512.09 for watermelons, as alleged in the Amended Complaint.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Cook Brown Farms is a melon farm in Punta Gorda, Florida. At all times pertinent to this proceeding, Cook Brown Farms was a "producer" as defined in Subsection 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Melons come within the definition of "agricultural products" as defined in Subsection 604.15(3), Florida Statutes. J.G.L. Produce is a Florida Corporation, owned by John W. Johnson, Jr., and located in Pompano Beach, Florida. At times pertinent to this proceeding, J.G.L. Produce was licensed as a "dealer in agricultural products" as defined in Subsection 604.15(1), Florida Statutes. Andrew J. Cook, a principal owner of Cook Brown Farms, and Mr. Johnson of J.G.L. Produce entered into an oral agreement regarding the sale of watermelons grown at Cook Brown Farms. The core of this case is a dispute concerning the nature of this agreement. Mr. Cook testified that, under the agreement, J.G.L. Produce would purchase the melons at the farm at their daily market price, plus 1/2 cent to cover Cook Brown Farms' cost of picking, sorting, and placing the melons in special bins and in special pallets required by the ultimate purchaser, Kroger Supermarkets. J.G.L. Produce would provide the bins and pallets and would provide the trucks to ship the melons. Mr. Johnson testified that the agreement was not for purchase but for brokerage of the melons. J.G.L. Produce would act as broker of Cook Brown Farms' watermelons, use its best efforts to sell the melons at the highest price available, and pay Cook Brown Farms the proceeds of the sale, minus expenses and a brokerage fee of one cent per pound. Mr. Johnson testified that J.G.L. Produce never took title to or purchased the melons, and that the risk of loss always remained on Cook Brown Farms. Mr. Johnson testified that he approached Mr. Cook about the melons because he had a ready buyer in another local dealer, Delk Produce, which had a longstanding arrangement to provide melons to Kroger. Mr. Johnson agreed with Mr. Cook that the arrangement included the provision of bins and pallets by J.G.L. Produce, though Mr. Johnson stated that the arrangement also called for J.G.L. Produce to retain $0.015 per pound from the amount paid to Cook Brown Farms to cover the cost of the bins and pallets. J.G.L. Produce took approximately 24 truck loads of watermelons from Cook Brown Farms. J.G.L. Produce deducted a one cent per pound brokerage fee from each load of melons it took, except for certain loads noted below, without contemporaneous objection from Cook Brown Farms. The Amended Complaint claims that J.G.L. Produce owes money to Cook Brown Farms for five of the loads taken by J.G.L. Produce. In sum, the Amended Complaint states that J.G.L. Produce owes Cook Brown Farms $19,991.74 for the five loads, less $6,479.65 already paid, for a total owing of $13,512.09. Item One of the Amended Complaint alleges that J.G.L. Produce owes $4,438.54 for a load of 38,596 pounds at a price of $0.115 per pound, sold on April 20, 2000. Item Two of the Amended Complaint alleges that J.G.L. Produce owes $4,625.30 for a load of 40,220 pounds at a price of $0.115 per pound, sold on April 21, 2000. The Amended Complaint alleges that the melons on these two loads were inspected and approved for shipment during loading by Delk Produce employee Freddie Ellis. The Amended Complaint states that Cook Brown Farms was paid in full for the loads on May 3, 2000, but that the contested amounts were deducted from subsequent settlements by J.G.L. Produce. The evidence established that the melons claimed under Item One were initially sold to Delk Produce for delivery to Kroger. On May 3, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $4,438.54, which constituted the price for 38,596 pounds of melons at $0.125 per pound, less $385.96 for the one cent per pound brokerage fee. Jay Delk, the principal of Delk Produce, testified that this load was rejected by Kroger's buyer in Virginia due to "freshness," meaning that the melons were unsuitably green. Mr. Delk stated that the melons were taken to North Carolina to ripen and eventually sold at $0.06 per pound. The final return on this load, less the brokerage fee, was $1,543.84. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $4,438.54 and the final payment of $1,543.84. The evidence established that the melons claimed under Item Two were initially sold to Delk Produce. On May 3, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $5,809.80, which constituted the price for 50,520 pounds of watermelons at $0.125 per pound, less $505.20 for the one cent per pound brokerage fee. Seminole Produce purchased 10,300 pounds of this load at $0.145 per pound, or $1,493.50. The remainder of the load was rejected by Kroger due to freshness and had to be resold at a lesser price of $0.0346 per pound, or $1,391.00. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $5,809.80 and the final payment (after deduction of the brokerage fee) of $2,576.11. The evidence established that the melons claimed under Item Three were sold to Delk Produce. On May 9, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $2,731.30, which constituted the price for 42,020 pounds of watermelons at $0.0675 per pound, less $105.05 for the brokerage fee, reduced to $0.0025 per pound. Mr. Johnson testified that he decided to forego the full brokerage fee to save money for Mr. Cook and his farm, because it was "hurting" due to the rapidly plummeting price for watermelons. Mr. Johnson discovered at this time that Delk Produce had not been retaining the agreed- upon $0.015 per pound to cover the cost of bins and pallets and decided not to lose any more money on that item. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $2,731.30 and $2,206.05, deducting $525.25 from the original payment to cover the cost of the bins and pallets. The evidence established that the melons claimed under Items Four and Five were originally shipped to Wal-Mart in Kentucky on April 29, 2000, and were rejected on the ground that the melons were not packed to specifications. The melons were trucked back to Florida at J.G.L. Produce's expense. The melons claimed under Item Four totaled 41,100 pounds. J.G.L. Produce divided the melons into four loads and sold them to four local dealers at an average price of $0.775 per pound, totaling $3,185.41. J.G.L. Produce deducted its $0.015 charge for bins and pallets, reducing the total to $2,671.51. J.G.L. Produce then deducted $1,750.00 from the total as reimbursement for the freight charge it paid to bring the melons back to Florida after their rejection by Wal-Mart. J.G.L. Produce did not include a brokerage fee. On May 26, 2000, J.G.L. Produce paid the remaining $921.51 to Cook Brown Farms as part of the final settlement. The melons claimed under Item Five totaled 45,600 pounds. J.G.L. Produce sold 2,426 pounds to Seminole Produce at $0.10 per pound, or $242.60. J.G.L. Produce sold the remaining 43,174 pounds to Belle Glade Produce at $0.065 per pound, or $2,800. From the total for Item Five, J.G.L. Produce deducted its $0.015 charge for bins and pallets and $1,950.00 for the freight charge it paid to bring the melons back to Florida after their rejection by Wal-Mart. J.G.L. Produce did not include a brokerage fee on this load of melons. On May 26, 2000, J.G.L. Produce paid the remaining $416.64 to Cook Brown Farms as part of the final settlement. The weight of the credible evidence, excluding the hearsay that was not supported by the direct testimony of Mr. Johnson, leads to the finding that there was a brokerage arrangement between the parties. J.G.L. Produce routinely deducted brokerage fees from its payments, without objection by Cook Brown Farms. This course of dealing strongly indicates a brokerage arrangement. Mr. Cook testified as to prior dealings with J.G.L. Produce, which also involved a brokerage arrangement. The evidence indicated that J.G.L. Produce fully accounted for the five loads of melons at issue, and paid Cook Brown Farms the full amounts due and owing for those loads.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order dismissing the Amended Complaint filed by Gin Brown Matthews, d/b/a Cook Brown Farms. DONE AND ENTERED this 21st day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2001. COPIES FURNISHED: Redland Insurance Company 222 South 15th Street, Suite 600, North Omaha, Nebraska 65102 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 John W. Johnson, President Post Office Box 1123 Pompano Beach, Florida 33061 Harold M. Stevens, Esquire Post Office Drawer 1440 Fort Myers, Florida 33902 Edward L. Myrick, Jr., Esquire Beighley & Myrick, P.A. 1255 West Atlantic Boulevard Suite F-2 Pompano Beach, Florida 33069 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
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.
Findings Of Fact The Petitioner, Gro Mor Co., Inc., has been engaged in the fertilizer, seed and pesticide business in Florida since approximately the year 1933. On January 2, 1958, the Department of State issued to the Petitioner Charter No. 208744 permitting the use of the corporate name Gro Mor Co., Inc. In 1968 the Petitioner registered "Gro Mor" as a trademark with the Florida Department of Agriculture, and it now has some 265 registered fertilizer mixes which are protected under the "Gro Mor" trademark, in addition to approximately 20 registrations of unmixed materials. Gro Mor Co., Inc. has annual gross revenue of approximately 1.1 million dollars. It is presently operating in 11 Florida counties, some of which overlap with counties where Gro-More Farm Service Center, Inc. does business. On November 7, 1980, the Department of State issued Charter No. F04615 to the Respondent, permitting the use of the corporate name Gro-More Farm Service Center, Inc. Although Gro Mor Co., Inc. and Gro-More Farm Service Center are both in the fertilizer business, they do not compete directly with each other because the product mix of the two companies is different. Gro-More Farm Service Center, Inc. is a custom-blend fertilizer plant, and in general each company has its own customers for its own products. On occasion, however, Gro-More Farm Service Center, Inc. has done business with some companies which also deal with Gro Mor Co., Inc. Sometime in 1980, the representative from Gro Mor Co., Inc. became aware that the Respondent was doing business as Gro-More Farm Service Center, Inc. Since 1980, the Petitioner has received four invoices which should have been directed to the Respondent, and one invoice which was received late because it was mailed to the Respondent instead of to the Petitioner. These invoices were introduced and received in evidence; other instances of customers misdirecting invoices have been disregarded as self-serving assertions not corroborated by evidence that is available to the Petitioner. Moreover, the Petitioner admitted that it has regularly received properly addressed invoices from the same firms which sent the misdirected invoices to Gro Mor Co., Inc. On one occasion when the Petitioner's representative requested information on the Petitioner company from the Department of Agriculture, he received information on both Gro Mor Co., Inc. and Gro-More Farm Serviced Center, Inc. No evidence was presented to indicate that this happened more than once. When Gro-More Farm Service Center, Inc. was in the incorporation process, the attorney for the company was directed to select a name and draw up the charter. The incorporators had no knowledge of the existence of Gro Mor Co., Inc. Since the corporate purpose was to engage in the fertilizer business, the name Gro-More Farm Service Center, Inc. was selected because fertilizer makes crops grow more. In the two or more years the Respondent has been operating as Gro-More Farm Service Center, Inc., its representatives cannot recall getting invoices which should have been directed to Gro Mor Co., Inc.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Gro Mor Co., Inc. be DENIED. THIS RECOMMENDED ORDER entered this 9 day of June, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1983. COPIES FURNISHED: David H. Galloway, Esquire Post Office Box 1119 Plant City, Florida 33566 George J. Ellis, Jr., Esquire 1721 Memorial Park Drive Jacksonville, Florida 32204 William S. Stevens, III, Esquire General Counsel Department of State The Capitol Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Respondent, William R. Daniels, has been a farm labor contractor since 1949. Respondent retained the services of Edward J. Smith to assist him in fruit harvesting activities during the 1987 season. On February 18, 1988, Tommy L. Sumpter, a Compliance Officer employed by Petitioner, performed a compliance check on fruit harvesting activities located off 66th Avenue in Vero Beach, Florida. The compliance check by Sumpter revealed, that Edward J. Smith was supervising citrus workers on behalf of Respondent. Smith transported workers to the citrus field in Vero Beach in van owned by Respondent. Smith displayed his Federal Certificate of Registration which was valid through December 1988. Smith displayed his State Certificate which expired in December 1987. A confirmation check of Smith's Florida Certificate of Registration reveals that his certificate, in fact, expired on December 31, 1987. Smith registered at the Petitioner's Fort Pierce Job Service Office on February 23, 1988. Mr. Smith was cited for failing to register as required by section 450.30, Florida Statutes. Respondent submitted a verification of employment form which indicates that Smith was employed by him on October 15, 1987, and was paid $75.00 minus social security contributions, per truck load of citrus harvested by Smith's workers. By letter dated May 3, 1988, Respondent was issued the subject Administrative Complaint and notified that a civil money penalty was being assessed against him in the amount of $500.00 on the basis that he contracted for the employment of farm workers with a farm labor contractor before that contractor displayed a current certificate of registration issued by Petitioner. When Respondent retained the services of Smith, as a farm labor contractor, Smith's Florida Certificate of Registration was expired and he therefore could not have displayed a current certificate of registration to Respondent before he was employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order imposing a $500.00 civil penalty against Respondent payable within thirty days of the issuance of its final order, for contracting for the employment of farmworkers with a farm labor contractor before the farm labor contractor displayed to him a current certificate of registration issued by Petitioner. DONE and ORDERED this 19th day of January, 1989, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1989. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Suite 117, Montgomery Building 590 Executive Center Circle East Tallahassee, Florida 32399-2152 William R. Daniel 227 Sterrett Circle Port St. Lucie, Florida 33395 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race in connection with the terms and conditions of employment of Petitioner.
Findings Of Fact Respondent is Cumbie Concrete Construction Company. B. T. Cumbie has been Respondent's president since the company's inception in 1978. Prior to economic difficulties which caused Respondent to cease most business activities in September of 1991, Respondent employed as many as 150 persons, had a fleet of approximately 129 vehicles and construction equipment valued in excess of two million dollars. Respondent was significantly affected by the economic recession in 1990 and 1991. In the latter part of 1990, Respondent was experiencing a major slowdown in work and began cutting back work crews and slowly going out of business. At the beginning of September, 1991, Respondent effectively ceased all operations, dismissed all employees and sold all equipment. The business was then started again, doing just basic concrete work as opposed to previous large-scale projects. This renewal of Respondent's business activities began approximately in May of 1992, although some small finishing up of prior jobs had been done prior to that time. Personal principles of Respondent's president led to this direction of the company, as opposed to the filing of bankruptcy by the company. Petitioner could have had no reasonable expectation of employment after September 6, 1991, when all other employees, inclusive of corporate officers, were dismissed. Respondent has employed hundreds of employees since its inception. At any given time, 50 percent of the employees have been black. Employees have routinely been assigned to multiracial crews based upon skills of employees and needs of the particular work crew. Respondent has never had a charge of discrimination levied against it. Petitioner, Henry L. Thomas is black. He was employed by Respondent as a concrete finisher at a rate of $7.00 per hour from May 4, 1989, until his discharge on January 9, 1991. Considered an apprentice finisher in terms of skill level, he never applied for the position of supervisor or foreman with Respondent. Petitioner has never felt any instance of discrimination during his 20 months of employment, other than the incident which forms the basis of this proceeding. No other concrete finishers were hired by Respondent from the time of Petitioner's dismissal and the September, 1991 cessation of business. On January 9, 1991, Alex Smith was the project manager for Respondent's project at a mushroom plant in Gadsden County, Florida. Smith learned from the representative for the overall project's general contractor, Johan Bult, that two of Respondent's employees were allegedly selling drugs at the job site and that the general contractor wanted those employees removed from the premises or the sheriff would be called. The two employees in question were Petitioner and a white individual known as Donald "Chip" Hines. Hines was employed by Respondent on June 8, 1990, as a laborer at the rate of $5.00 per hour. Prior to January 9, 1991, Hines' work record reflects no documented incidences of tardiness and only three absences, all of which were excused. He was not the subject of complaints by any past or present foreman employed by Respondent. By way of contrast with Hines' work record, Petitioner was absent 19 times in the space of 20 months employment with Respondent. Petitioner was on probation in the state of Georgia from his conviction as an habitual offender at the time he began his employment. Petitioner's assertion that all of his absences were related to his need to report to his probation officer in Georgia is not credited in view of the multiple absences reflected in work attendance records for some months and virtually no absences in other months. Petitioner also asserts that he never failed to come to work without first calling by telephone and checking in with Respondent's offices. However, the work records list two absences, October 21, 1989, and May 29, 1990, as having occurred without permission and without Petitioner having checked in with his employer. Two absentee reports note that Petitioner was also absent on two occasions due to car trouble, contrary to Petitioner's assertion that he was never absent for these reasons. Petitioner was frequently provided transportation to and from job sites in the course of his employment by foremen and others employed by Respondent. Only one absentee report reflects Petitioner's absence from work for matters connected with the judicial system. With regard to Petitioner's judicial probationary status, Respondent provided a letter to Petitioner's probationary officer on January 13, 1990, certifying Petitioner's employment. Smith checked with Respondent's office regarding Bult's complaint and was told to lay the two employees off. Smith spoke with Petitioner and told him about the complaint and the directive to lay the men off. Smith instructed the foreman at the site to call Hines, who had taken the day off, and inform him. Smith then provided Petitioner with a ride back to Respondent's office where Petitioner's car was located. Enroute, Petitioner denied that he had sold any drugs at the Quincy Farms site. While Petitioner now contends that Hines was selling drugs and that he personally observed him selling drugs, he did not provide that information to Respondent's supervisory personnel at the time of the two men's dismissal from employment. Respondent's president specifically made the decision to terminate the two men's employment since they could not be returned to that job site. In conjunction with that termination action, he also attempted placement of both men with other work crews. He did not force their employment on any foreman who was reticent to cooperate since to do so would, in his opinion, destroy the team function of a crew and create even bigger problems for Respondent. While in Respondent's employment, Petitioner worked for a foreman named Lloyd Cruce who, Petitioner maintained at final hearing, never made any comments about his absenteeism, tardiness or his "mouth". Petitioner's testimony on this point is not credited in view of the direct and candid testimony of Cruce, who no longer works for Cumbie Concrete, to the effect that he had repeated problems with Petitioner's absenteeism and attitude, noting that for the period March 6 to May 1, 1990, Petitioner was absent eight separate times. As a consequence, Cruce submitted papers to Respondent's president requesting the firing of Petitioner for his absenteeism and attitude. Respondent's president elected at that time to place Petitioner with another crew. After the employment termination of Hines and Petitioner, Smith assisted the efforts of Respondent's president to place the two men with Respondent work crews on other jobs by also checking with foremen regarding possible placement. Smith spoke with Tommy Simkins, Randy Langston and may have talked with Bill Chason. Randy Langston advised Smith that since he had a forming crew which involved skilled carpenters, he was not interested in taking Donald Hines because he was a laborer and lacked necessary skills for his crew. Langston did not want Petitioner on his crew because Petitioner's lack of necessary skills, his inability to get along with people and his use of inappropriate language would cause problems for his crew. As noted by Langston, Petitioner was quite vocal and it was a "hassle" to get Petitioner to do anything. Langston was familiar with both Donald Hines and Petitioner as his crew has previously supplemented their crew for a time at Quincy Farms. Tommy Simpkins accepted Donald Hines on his crew. Two other laborers, David Martinez, an Hispanic, was transferred to the Quincy Farms crew and Lonzo Murray, a black or African-American, was temporarily transferred to that crew. Simpkins had more workers on his crew than he needed and did not need a concrete finisher on his crew. He also noted past problems with Petitioner being late to work and having difficulty with obtaining transportation to the job site. Even though Simpkins had made him a lead worker on occasion in the past, Petitioner had a hard time getting along with other people. Following an argument between Petitioner and a Respondent project manager, Steve Griffin, a job site on May 31, 1990, Petitioner was sent home because of the noticeable smell of alcohol on his breath. Petitioner had been late reporting to work on that day, not showing up until approximately 10:00 a.m., and then was sent home at 12:30 p.m., following the argument with Griffin. Petitioner's assertion that he went home sick that day after working all morning is not credited in view of alcohol smell observed on his breath by Tommy Simpkins and the fact that he was paid for only two and one-half hours of work on May 31, 1990, contrary to his claim of being paid for one-half day. Petitioner's assertion that Simpkins, following Petitioner's dismissal from employment, denied writing Petitioner up for having alcohol on his breath is not credited in view Simpkins' testimony that he did, in fact, write Petitioner up for that incident and that he had smelled the alcohol on his breath. Simpkins, in a confrontation with Petitioner after the employment termination action, did tell Petitioner he couldn't recall the incident. Simpkins explained that he did this because Petitioner was in a highly agitated state at the time, hollering at him in the garage area of Respondent's facility about the incident and that he, Simpkins, did not understand what Petitioner was talking about. The record of the incident, the absentee report, unquestionably bears Simpkins' signature which he has never denied affixing to the report. In view of the demeanor and candor of the two men while testifying, Simpkins' version of the incident is clearly more creditable and consistent with the evidence. Respondent's president spoke with both Bill Chason and Steve Griffin, whose crews used finishers and laborers, relative to placing Donald Hines and Petitioner. He learned that both Chason and Griffin had had prior problems with Petitioner and did not want him on their crews. The testimony of Chason, a Respondent foreman, establishes that Petitioner created trouble and started arguments between crew members when those crews needed to operate as a team. Petitioner had a specific disagreement with Chason concerning Petitioner's refusal to run a vibrator machine at a McDonald's job site. Chason talked with Petitioner on several occasions about his attitude. When asked by both Alex Smith and Respondent's president about putting Petitioner on his crew, Chason stated he didn't want Petitioner because his attitude caused too much trouble. Chason's testimony was reiterated in similar form by others who had observed Petitioner at work. Smith observed Petitioner while working at Quincy Farms and questioned his demeanor, noting he would get angry and agitated quite easily. Langston similarly testified as did Simpkins who noted that Petitioner always had difficulty getting along with other crew members. Lloyd Cruce noted that Petitioner had an attitude problem at work. Past and present foremen employed by Respondent noted that they never observed any discrimination being practiced nor race entering into employment or employee decisions. As previously noted, even Petitioner acknowledged that with the exception of the specific incident which is the subject of these proceedings, he had never experienced any discrimination while working for Respondent nor felt he was treated badly. Petitioner presented the testimony of his friend and former roommate, John Randle, who worked as a laborer for Respondent from August of 1989 to November of 1990, for the proposition that Bill Chason had once stated that he wanted Petitioner to work for him on his crew. Randle asserted that he worked with Petitioner, by virtue of temporary assignment to the crew on which Petitioner worked, three or four times a month for approximately seven months. Chason, however, noted that Mr. Randle worked on his crew on a permanent basis the entire time he was employed by Respondent and was not temporarily assigned to a crew three or four times a month for seven months. Chason further denied Randle's averment that he, Chason, had stated at the Quincy Farms site that he wanted Petitioner on his crew. The testimony of Randle is not credited in view of his demeanor while testifying and the inconsistency of that testimony with testimony of Chason, Simpkins and other individuals. Respondent did not have a sophisticated personnel office with persons assigned the job of creating and keeping records. Further, the nature of the work performed by Respondent's crews is such that foremen are often at a specific location of activity at the job site, away from their company vehicles where their paperwork would be kept. As a consequence, they often do not write up infractions such as tardiness. In Petitioner's situation, for example, he was absent without permission on October 21, 1989, a fact noted on his time sheet, but the required absentee report was never filled out by the foreman. Petitioner conceded to being late to work on occasion. In the Tallahassee area there is a significant problem with obtaining workers. Replacing a worker is difficult, particularly in light of the delay occasioned by finding a qualified replacement worker. Construction projects all have built-in dollar penalties for failure to complete a job on time. A construction company is better served by keeping someone if there is any way of doing it, rather than simply dismissing an employee. As a result, the requirement of Respondent's employee manual specifying dismissal after three absences was not enforced during Petitioner's tenure. Respondent's dismissal of Petitioner has not evolved over time. As established by the proof presented at hearing, Petitioner and Donald Hines were let go on January 9, 1991, because the company which employed Respondent to do work at the Quincy Farms mushroom plant effectively barred Petitioner and Donald Hines from that job site with the allegation of illicit activity by the two men and the threat to call the sheriff if they reappeared there. Further, the complaint against the two men came at a time when Respondent, already experiencing a critical cessation of project activity, could not afford to jeopardize retention of a vitally important project. The level of concern evidenced by Johan Bult's company is amply demonstrated by the fact that after the alleged drug selling incident, all construction workers were barred from the Quincy Farms employee lunch counter area. Respondent, with no specific proof that any drug transactions actually occurred at Quincy Farms, sought to place both persons on other crews. Respondent, throughout the process that ultimately resulted in the instant hearing, set forth the basic work record of Petitioner, including his absences, the May 31, 1990 incident and, contrary to Petitioner's assertion, the problems with his attitude. In a May 10, 1991, letter to the Florida Commission on Human Relations, Respondent clearly noted that Quincy Farms stated that Petitioner and Hines had been observed selling drugs on the job site, would not be able to work on their project and that both men were told to leave the job site and go home. Subsequently, the employment of each individual was reviewed and Petitioner's file revealed he had missed work on numerous occasions and had been reprimanded for coming to work with alcohol on his breath, while Hines' file revealed he had missed only three days in seven months of employment. The letter further notes that it was determined that it would be best that Petitioner not be placed with another crew "due to prior problems." Petitioner was not similarly situated to Donald Hines relative to position and work history. Hines commenced work for Respondent on or about June 8, 1990, and, prior to January 9, 1991, he had no incidences of tardiness, of alcohol being noted on his breath at work, of failure to report without permission, and no evident adverse work habits or problems on the job. Petitioner seeks damages of $13,000.75, an amount equal to his wages for calendar year 1990. Petitioner's employment with Respondent ended on January 9, 1991, and he concedes that everyone in Respondent's employ was dismissed in the beginning of September 1991. He drew unemployment compensation charged to Respondent from January 1991, to August of 1991, in quarterly amounts of $1,016.00, $1,524.00, and $762.00. Thereafter, Petitioner worked throughout all of August, 1991, to February, 1992, at $7.50 an hour for another employer. Then, from February of 1992, until a month prior to the final hearing, he drew unemployment compensation charged to that employer. He also conceded that shortly after February of 1992, he worked full time for a construction business for approximately six months at the rate of $8.00 per hour which was paid to him in cash, while he was drawing unemployment compensation.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of March, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 23rd day of March, 1993. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-4. Accepted. 5. Rejected, not supported by weight of the evidence. 6.-8. Rejected, subordinate to HO findings. 9.-10. Adopted, though not verbatim. 11.-12. Rejected, not supported by weight of the evidence. 13.-18. Accepted. 19.-24. Rejected, subordinate to HO findings. 25.-37. Rejected, relevancy. 38.-39. Rejected, not supported weight of the evidence. 40. Accepted. 41.-47. Rejected, relevancy. 48.-59. Accepted. Rejected, argumentative. Accepted. 62.-66. Rejected, subordinate to HO findings. 67.-68. Rejected, not supported by weight of the evidence. 69.-72. Rejected, relevancy. 73. Accepted. 74.-78. Rejected, subordinate to HO findings. 79.-81. Accepted. 82.-88. Rejected, relevancy. 89.-91. Accepted. 92. Rejected, not supported by weight of the evidence. 93.-94. Accepted. Rejected, not supported by weight of the evidence. Accepted. Rejected, relevancy. 98.-102. Accepted, but not verbatim. Rejected, credibility. Rejected, subordinate to HO findings. 105.- 107. Rejected, credibility. 108.-109. Rejected, relevance. 110.-111. Rejected, credibility. 112.-113. Accepted. 114. Accepted. 115. Rejected, credibility. 116. Accepted. 117. Accepted. 118. Rejected, not supported by weight of the evidence. 119. Rejected, unnecessary. 120.-121. Accepted. 122.-125. Rejected, subordinate to HO findings. Respondent's Proposed Findings 1.-5. Accepted. 6. Rejected, relevancy. 7.-9. Accepted. 10.-11. Rejected, unnecessary. 12. Subordinate to Hearing Officer's findings on this point. 13.-35. Accepted, but not verbatim. COPIES FURNISHED: Mary C. O'Rourke, Esquire West College Avenue Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire Post Office Box 551 Tallahassee, Florida 32302-0551 Margaret Jones Clerk Florida Commission On Human Relations John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
Findings Of Fact During January and February, 1987, Respondent acted as a farm labor contractor without a certificate of registration having been issued to him by Petitioner. Specifically, he was hired by Goodson Farms as a farm labor contractor, after holding himself out as such, and did act as a farm labor contractor by supplying and transporting 55 to 75 farm workers for the harvesting of cauliflower at Goodson Farms. He received payment for his services and disbursed payments to these workers. Respondent has failed to possess, for a period of three years, proof of payments he has made to each farm worker for whom he has acted as a farm labor contractor. Records he did provide to Herb Mize, crew chief compliance officer, were incomplete and did not include a record of payments for social security, income taxes withheld, and deductions for food and transportation.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing an administrative penalty of $1400.00 against Respondent. DONE AND ENTERED this 23rd day of October, 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 23rd day of October, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle East Montgomery Building, Suite 117 Tallahassee, Florida 32399-2152 James Quillen, II, Esquire 509 North Morgan Street Tampa, Florida 33602 Hugo Menendez, Secretary Department of Labor and Employment Security 2590 Executive Center Circle East 206 Berkeley Building Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 2562 Executive Center Circle East 131 Montgomery Building Tallahassee, Florida 32399-2151
The Issue By amended petition for hearing, the Petitioner requested a hearing on the Department's determination that the Petitioner is obligated to refund to the Department the sum of $53,724.00, which the Department asserts is the amount by which the Petitioner was overpaid pursuant to Wagner-Peyser Contract No. SA016. For numerous reasons recited in its Petition and argued in its post-hearing brief, the Petitioner contends that it should not be required to refund the disputed sum. At the formal hearing, both parties presented the testimony of witnesses and both parties offered exhibits in support of their respective positions. Following the hearing, a transcript was prepared and the parties were allowed until November 19, 1988, within which to file their proposed recommended orders. Thereafter, upon joint motion of the parties, the period for filing post-hearing briefs and/or proposed recommended orders was extended until December 6, 1988. Both parties timely filed post-hearing briefs in a format more customary to appellate than to administrative hearing proceedings. The parties' briefs have been carefully considered during the formulation of this recommended order. Specific rulings on the factual assertions of the parties are contained in the appendix to this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. In November of 1984 the Petitioner and the Respondent entered into a contract which has the following title: GOVERNOR'S WAGNER-PEYSER 10% DISCRETIONARY FUNDS FIXED-UNIT PRICE CONTRACT CONTRACT NO. SA016 "STATEWIDE FARMWORKERS JOB PLACEMENT PROJECT" Paragraph 1.A. of the subject contract contains the following description of the project activities: The Florida AFL-CIO United Labor Agency will operate a statewide job placement program to meet the increased employment needs of migrants/farmworkers and related workers in- volved in the processing of agricultural pro- ducts. The Agency will coordinate and work with farmworker advocacy organizations in Apopka and Dade City, Florida, to recruit and identify participants. Unsubsidized employ- ment opportunities will be developed with unions, apprenticeship programs, and private sector employers. The employment resources of the Agency will be coordinated and inte- grated with those of the Job Service and local PICs. Paragraph 2.A. of the subject contract contains a "work activity plan" described as follows: To recruit and provide employability counseling to migrants/farmworkers; To place 230 migrants/farmworkers into unsubsidized, non-agricultural employment with a duration of 30 days or more; To integrate the employment resources of unions and the United Labor Agency with those of the Job Service. Prepare and submit a final narrative report to DLET documenting the success and failures of the project. Paragraph 2.B. of the subject contract contains the following description of the performance units applicable to the contract: The contractor will make up to 230 place- ments in unsubsidized employment over the course of the contract period at $726.00 each, for a total amount not to exceed $166,980.00. A placement will be defined as employment by a participant engaged in work for at least 35 hours per week, in a job paying at least the minimum wage, for a period of at least 30 calendar days. At Paragraph 2.D. of the subject contract, under the subcaption "ACTIVITY/PAYMENT SCHEDULE OF PERFORMANCE UNITS," the contract provides, in pertinent part: The contractor will be advanced $37,062.00. The advance will be repaid monthly by deducting $6,177.00 per month from the amount of deliverables produced over a six month period, beginning with the November 1984 invoice and being completed with the April 1985 invoice. There will be one performance unit for this contract, and it will be for placement at the rate of $726.00 each. Paragraph 14.e. of the subject contract reads as follows: The Contractor is responsible for fulfilling all terms and conditions of this Contract. While the DLET shall monitor the Contrac- tor's performance under the Contract, the Contractor remains solely responsible for its performance. The DLET monitoring of the Contract shall not constitute a waiver or modification of any term or condition. Terms and conditions may only be modified by written contract amendment as specified herein. One of the documents used in the administration of the subject contract was a Form BRI-100, which was designed so that three individuals had to sign the form to certify that a valid job placement had been accomplished. The required signatures were those of the employer, the farmworker/employee, and a representative of the Petitioner. Early in the administration of the contract the Petitioner began to have problems obtaining employer signatures on Form BRI- 100, especially where employment was obtained through union hiring halls. At the behest of the Petitioner, the Respondent deleted the requirement that the employer sign the form and permitted the form to be signed by a representative of the union hiring hall. During the course of the Petitioner's performance of the subject contract, one of the Petitioner's employees submitted fraudulent documentation on numerous occasions. The fraudulent documentation purported to be evidence of successful job placements under the contract. The fraudulent documentation was submitted to the Respondent and the Respondent paid money to the Petitioner on the basis of the fraudulent documentation. A post-performance audit revealed that 74 of the job placements for which the Petitioner was paid were in fact fictitious placements supported by fraudulent documentation. As a result of the fraudulent documentation, the Petitioner was paid $726.00 for each of 74 fictitious job placements, a total of $53,724.00. The $53,724.00 which was paid on the basis of fraudulent documentation was paid to the Petitioner solely because at the time of making the payment the Respondent believed that the Petitioner had made 74 placements which, in fact, were never made. The Respondent's belief that the 74 placements had been made was based on the fact that the Petitioner submitted fraudulent documentation claiming payment for 74 job placements that had not been made. In fairness to the Petitioner it should be noted that at the time the fraudulent documentation was submitted the officers and managing agents of the Petitioner did not know that one of their employees was preparing fraudulent documentation. Further, as soon as the officers and managing agents of the Petitioner discovered that one of their employees had been submitting fraudulent documentation, they candidly reported the problem to the Respondent. The employee who prepared the fraudulent documentation described above did not abscond with the proceeds derived from his fraudulent actions. The $53,724.00 that was paid on the basis of the 74 fictitious job placements was paid to and retained by the Petitioner. The Respondent did very little in the way of monitoring the subject contract. More extensive monitoring might well have resulted in earlier detection of the fraudulent documentation submitted by Petitioner's employee.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order finding that the Petitioner has received $53,724.00 to which it is not entitled under the subject contract and ordering the Petitioner to repay that amount to the Respondent. DONE AND ENTERED this 20th day of January, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2755 The following are my specific rulings on all proposed findings of fact submitted by all of the parties. Findings proposed by Petitioner: The Brief of Petitioner does not contain any section specifically identified as proposed findings of fact. It does contain a distinct section captioned "STATEMENT OF THE FACTS," which I have treated as the Petitioner's proposed findings. The page numbers below refer to pages of the Brief Of Petitioner. Page 2: All but last four lines are rejected as subordinate and unnecessary background details. The last four lines are accepted in substance. Page 3: All but last five lines are accepted in substance. The last full paragraph on the page is rejected as unnecessary commentary. Page 4: First fourteen lines (plus last line on page 3) accepted in substance, but with most details omitted as unnecessary. The remainder of page 4 and the top four lines of page 5 are rejected as subordinate and unnecessary details, as for the most part irrelevant, and as containing implications contrary to the greater weight of the evidence. Page 5: First full paragraph is rejected as constituting subordinate and unnecessary details; I have found that little was done to monitor the contract performance. The last four lines are rejected as argument or unnecessary commentary rather than findings of fact. Page 6: First twenty lines rejected as irrelevant and as unnecessary details. Paragraph beginning at sixth line from bottom is accepted in substance. Page 7: Top four lines (and last line of page 6) rejected as Irrelevant. Lines five through twenty-two are for the most part rejected as irrelevant or as not supported by persuasive competent substantial evidence, with exception of proposed finding that an employee committed fraud and that Petitioner promptly reported the fraud when it was discovered. Last four lines rejected as irrelevant. Page 8: First full paragraph is rejected as being for the most part irrelevant and as in part contrary to the greater weight of the evidence. Second full paragraph is rejected as argument or unnecessary commentary. Third full paragraph is rejected as Irrelevant. Last four lines accepted in substance with some unnecessary details omitted. Page 9: Top two lines rejected; the greater weight of the evidence is that all "disallowed costs" were caused by the fraud of one employee. First full paragraph rejected as irrelevant. Second full paragraph is rejected as for the most 12 part irrelevant, although some details have been included. Last three lines rejected as irrelevant. Page 10: Rejected as irrelevant. Findings proposed by Respondent: The Brief Of Respondent does not contain any section specifically identified as proposed findings of fact. It does contain a distinct section captioned "STATEMENT OF THE CASE AND FACTS," which I have treated as the Respondent's proposed findings of fact. The page numbers below refer to pages of the Brief Of Respondent. Page 2: Rejected as subordinate and unnecessary background details. Page 3: Rejected as subordinate and unnecessary background details. Page 4: First paragraph accepted in substance. The remainder of this page is accepted in substance with some details and some argumentative passages omitted. Page 5: Accepted as correct statement, but omitted as unnecessary details. Page 6: First paragraph rejected as constituting subordinate and unnecessary details. Second paragraph rejected as constituting subordinate and unnecessary details. Third paragraph rejected as constituting subordinate and unnecessary details. Last paragraph accepted in substance with unnecessary details omitted. Page 7: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Sidney L. Matthew, Esquire Gorman & Matthew, P.A. Post Office Box 1754 Tallahassee, Florida 32302 David J. Busch, Esquire Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, Esquire General Counsel Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 =================================================================
The Issue 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.
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
