The Issue Whether Respondent committed the alleged violations.
Findings Of Fact At the hearing of this case, the Petitioner's Motion that the request for admissions be deemed admitted was granted, resulting in the following facts being admitted: Waldron Produce of Citra, Florida, paid Respondent to supervise farmworkers harvesting peanuts on August 7, 1986. Respondent did not present to each farmworker he employed a notice of payment, showing the amount of compensation, number of hours worked, the rate of compensation, the name and federal identification number of legal employers of the farmworkers during the pay period, in detail, each and every deduction made from wages. Respondent did not retain for a period of three years an exact copy of each notice of payment form or a copy of the detachable part of the check, draft, or voucher that had been issued to each farmworker he employed. Respondent supervised a crew of farmworkers hand-harvesting peanuts approximately five miles east of Highway 301 on the north side of county road 319 in Marion County, Florida, on August 7, 1986. Respondent did not post his application for a certificate of registration at the work site of the farmworkers on August 7, 1986. Respondent did not post a working conditions statement at the work site of the farmworkers showing the rate of compensation the grower paid him and the rate of compensation he was paying the farmworkers on August 7, 1986. Respondent contracted with Waldron Produce for the employment and supervision of farmworkers without first displaying to Waldron Produce a current certificate of registration issued by the Bureau. In addition, the following facts are based upon evidence introduced at hearing: Respondent did not give wage statements to his workers. On August 20, 1986, Respondent met with CCCO Parker for a payroll audit. The audit revealed that Respondent was not giving wage statements to workers. Respondent did not make social security deductions and forward them to the social security administration. The audit revealed that Petitioner was not keeping the records by last name of each farmworker, or in a condition to facilitate inspection by the Bureau. (See testimony of Parker.) Respondent's records showed that he had paid Mr. Stanley Davy $77.00 for work during the week of August 4 through August 8, 1986. Mr. Davy received only half of the $77.00 and he worked approximately 11 to 12 hours per day. (See testimony of Davy.)
Recommendation Having found Respondent guilty of violating Sections 450.301, 450.33(7), 450.33(4)(a) and (b) , and 450.33(6), it is RECOMMENDED that Petitioner issue a Final Order imposing an administrative fine of $2,500 against Respondent. DONE and ORDERED this 5th day of March, 1987, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152 Nathaniel Manns, Jr. Route 4, Box 4852 Citra, Florida 32627 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152
The Issue The issue in this case is whether Respondent is guilty of violating provisions governing resident migrant farmworker housing and, if so, what penalty should be imposed.
Findings Of Fact At no material time has Respondent ever had a Residential Migrant Housing Permit for any residential rental property that he owns on Marion St. or Hand Ave. in LaBelle. At all material times, Respondent spoke and corresponded directly with Petitioner's representatives concerning their claims of violations. Based on a preliminary investigation, Petitioner's environmental health specialist, Saul Gonzalez, determined that more than five unrelated migrant farmworkers were living in property owned by Respondent on Marion St. in LaBelle. Mr. Gonzalez telephoned Respondent and offered him an opportunity to obtain the required permit to rent residential housing to migrant farmworkers. By letter dated October 22, 1993, Mr. Gonzalez confirmed that he would give Respondent until October 27 within which to file an application for a Residential Migrant Housing Permit. Following the receipt of an application for a Residential Migrant Housing Permit for a "rental unit" located at "521 Marion," Petitioner's representatives conducted prelicense inspections of the property. They inspected four separate inhabitable structures, which were all owned by Respondent. The structures were located at 495, 497, 519, and 521 Marion St. The only structure at which Petitioner's representatives ever found at least five unrelated migrant farmworkers residing was 497 Marion St. At no time did Petitioner's representatives determine that five or more unrelated migrant farmworkers were residing at the three other Marion St. addresses. The violations cited by Petitioner's representatives in Citation C-8 actually were intended for 497 Marion St., not 521 Marion St., as set forth in the citation. Additionally, one of Petitioner's representatives gave Respondent until January 1, 1994, within which to correct the deficiencies and obtain a permit, but Petitioner filed Citation C-8 on December 28, 1993. On December 28, 1993, Mr. Gonzalez and another employee of Petitioner visited three inhabitable structures located at 204, 212, and 234 Hand Ave. These structures are three separate mobile homes owned by Respondent. Petitioner's representatives found over five unrelated migrant farmworkers residing in the westernmost trailer. In defense of both citations, Respondent, based on advice of counsel, argued that state regulation of migrant farmworker housing is preempted by federal regulation. He reasoned that federal law meant that he was not required to obtain a Residential Migrant Housing Permit in order to rent to migrant farmworkers.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order finding Respondent guilty of operating residential migrant housing at one of his properties on Hand Ave. and imposing an administrative fine of $500. ENTERED on August 17, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on August 17, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1: adopted or adopted in substance. 2: rejected as irrelevant. 3: adopted or adopted in substance. 4: adopted as to the nine migrant farmworkers, whom Petitioner proved were unrelated. However, Petitioner failed to prove that the requisite number of unrelated migrant farmworkers resided in the other trailer. 5-8: adopted or adopted in substance. 9: rejected as irrelevant. Rulings on Respondent's Proposed Findings 1: rejected as irrelevant. 2: adopted or adopted in substance. 3-4: rejected as irrelevant. 5-9: rejected as irrelevant. 10: rejected as unsupported by the appropriate weight of the evidence, although, as to the easternmost trailer, Petitioner proved that the residents were migrant farmworkers, but not that at least five of the residents were unrelated. 11 and 13: rejected as irrelevant. 12: adopted or adopted in substance. COPIES FURNISHED: Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Eugenie G. Rehak District Legal Counsel Department of Health and Rehabilitative Services P.O. Box 60085 Ft. Myers, FL 33906 Wayne E. Rowlee 30 Hardee St. LaBelle, FL 33935
The Issue The issue is whether respondent should have a $1,000 civil penalty imposed for allegedly violating Section 450.30, Florida Statutes (1989) and Rule 38H-11.003, Florida Administrative Code (1989) by contracting for the employment of an unregistered farm labor contractor.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on May 1, 1989, when Don R. Symonette, who is a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made an inspection of a farm owned by Ovid Barnett on State Road 846 some seven or eight miles east of Immokalee, Florida. The testimony as to what transpired during the course of the inspection is sharply in dispute. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and that testimony is embodied in the findings below. As Symonette drove by the farm that day, he observed a crew of approximately eighteen workers picking bell peppers in a field. Thereafter, Symonette drove his vehicle onto the premises for the purpose of determining if pertinent statutes and Division rules were being followed. He initially observed one Abel Flores (Abel) standing by a pickup truck in the same field where the laborers were harvesting the peppers. Abel is the brother of respondent, Alfredo Flores (Alfredo). Symonette and Abel were acquainted from several meetings over the prior years. Symonette asked Abel what he was doing, and Abel answered that he was helping his brother, Alfredo, who is a registered farm labor contractor. Abel also volunteered that he was being paid by Alfredo and received approximately $40 per day in compensation. Abel further acknowledged, and the Division records show, that he is not certified as a farm labor contractor. At that point, Symonette decided to give Abel the benefit of the doubt and to interview respondent, who was supervising a crew in an adjacent field. During the course of the interview, Alfredo advised Symonette that he (Alfredo) was the supervisor in charge of the crew and it was he who had contracted with the farm to supply the workers. Even so, Symonette concluded that because Abel was the only person standing in the other field, he was "supervising" the other crew and was doing so without a certificate of registration. Accordingly, Symonette cited Alfredo for using an unregistered contractor. On April 27, 1990, or almost a year later, the Division issued an administrative complaint charging Alfredo with using an unregistered farm labor contractor. On June 7, 1990, Symonette performed a "payroll audit" by sending by mail a form to Ovid Barnett requesting information regarding Abel's employment. On an undisclosed date, the form was returned to Symonette and contains what purports to be Barnett's signature However, the contents of the completed form are hearsay in nature and cannot serve as the basis for a finding of fact. Moreover, even if the response was not hearsay, it fails to disclose the nature of Abel's employment with the farm and whether the hourly compensation allegedly given Abel was being paid at the time the form was completed in June 1990 or when the inspection occurred thirteen months earlier. All compensation received by Abel was from his employer, Ovid Barnett. In some cases, he was paid by check from the farm, and in other cases, he was paid by his brother who had in turn been paid by the farm. To bolster the contention that Abel was not acting as a farm labor contractor on May 1, 1989, a supervisor at Barnett's farm established that Abel's job was to drive trucks between the field and the packing house when the inspection occurred, and as such, it was necessary for Abel to stand by his truck while the workers loaded the truck with produce. As a driver, Abel had the responsibility of overseeing the loading of produce on his truck and, when necessary, to direct the workers on how to properly do so. It is noted that at hearing, Symonette did not describe the activities being performed by Abel except that Abel was simply "standing" around his truck and "appeared" to be supervising the work crew. Accordingly, it is found that Alfredo was not using an unregistered farm labor contractor on May 1, 1989.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint, with prejudice. DONE and ENTERED this 20th day of August, 1990, in Tallahassee, Florida. DONALD ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. Copies Furnished: Hugo Menendez, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658 Moses E. Williams, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658 Alfredo Flores P. O. Box 1611 Immokalee, FL 33934 Steven D. Barron, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658
The Issue Whether Respondent is indebted to Petitioners for agricultural products and, if so, in what amount?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties Petitioners are producers and sellers of tomatoes. They own and operate Sunfresh Farms in Florida City, Florida. Respondent is a dealer in agricultural products. The Controversy The instant case involves two separate transactions involving the sale of tomatoes pursuant to verbal agreements between Petitioners (as the sellers) and Respondent (as the buyer). Both transactions occurred in January of 1995. The First Transaction (Petitioners' Invoice Number 5270) Under the terms of the first of these two verbal agreements (First Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 96 boxes of cherry tomatoes for $12.65 a box (which was the market price at the time). In accordance with the terms of the First Agreement, Petitioners delivered 96 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 23, 1995. Respondent accepted the delivery. Respondent sold these 96 boxes of cherry tomatoes to a local produce house, which subsequently sold the tomatoes to another local produce house. The tomatoes were eventually sold to a company in Grand Rapids, Michigan. On January 28, 1995, five days after Petitioners had delivered the 96 boxes of cherry tomatoes to Respondent, the tomatoes were inspected in Grand Rapids, Michigan. According to the inspection certificate, the inspection revealed: "Decay (3 to 28 percent)(mostly early, some advanced stages);" "Checksum;" and "Average approximately 85 percent light red to red." Petitioners have yet to be paid any of $1,214.40 Respondent owes them (under the terms of the First Agreement) for the 96 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the agreement. The Second Transaction (Petitioners' Invoice Number 5299) Under the terms of the second verbal agreement at issue in the instant case (Second Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 132 boxes of ("no grade") cherry tomatoes for $12.65 a box. In accordance with the terms of the Second Agreement, Petitioners delivered 132 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 27, 1995. Respondent accepted the delivery. Respondent sold 84 of these 132 boxes of cherry tomatoes to a Florida produce house, which subsequently sold the tomatoes to a company in Houston, Texas. These 84 boxes of cherry tomatoes were inspected in Houston, Texas, on January 31, 1995, four days after Petitioners had delivered them to Respondent. The defects found during the inspection were noted on the inspection certificate. Petitioners have yet to be paid in full for the 132 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the Second Agreement. Respondent tendered payment (in the form of a check) in the amount of $811.20, but Petitioners refused to accept such payment because it did not represent the full amount ($1,669.80) Respondent owed them (under the terms of the Second Agreement) for these cherry tomatoes. (Although they have not endorsed or cashed the check, Petitioners are still holding it in their possession.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that Respondent is indebted to Petitioners in the amount of $2,884.20, (2) directing Respondent to make payment to Petitioners in the amount of $2,884.20 within 15 days following the issuance of the order, (3) indicating that the $811.20 check that was previously tendered to Petitioners by Respondent (and is still in Petitioners' possession) will be considered partial payment of this $2,884.20 indebtedness, if Respondent advises Petitioners, in writing, that it desires the check to be used for such purpose and if it provides Petitioners written assurance that the check is still a valid negotiable instrument; and (4) announcing that if payment in full of this $2,884.20 indebtedness is not timely made, the Department will seek recovery from the Farm Bureau, Respondent's surety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February, 1996. 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 2nd day of February, 1996.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a registered farm labor contractor whose Social Security number is 266-30-9569. Respondent worked as a farm labor contractor only during the potato season which usually begins in March or April. Therefore, Respondent did not apply for certification as a farm labor contractor until March 31, 1986 even though his previous certification as a farm labor contractor had expired on December 31, 1985. There was credible evidence that Respondent had been using a 1968 Chevrolet vehicle to transport farm workers which carried a valid inspection sticker and was covered by Respondent's liability insurance. The 1968 Chevrolet "broke down" and was replaced by a 1974 Dodge Van on May 6, 1986 which had passed inspection on May 6, 1986 and added to Respondent's liability insurance policy on the same date. There was credible evidence that a valid inspection certificate and insurance certificate for the 1974 Dodge Van had been furnished to Petitioner's local office in Palatka on May 1986 but was not received in Petitioner's Tallahassee Office where the official files are maintained until a later date. On May 6, 1986, Respondent was cited for failure to have the 1974 Dodge Van properly insured and inspected. There were other violations cited but the Petitioner resolved those in favor of Respondent. There was credible evidence that Respondent had operated as a farm labor contractor for a substantial number of years without being cited for any violations under the Farm Labor Registration Law, Chapter 450, Part III, Florida Statutes. Respondent is a farm labor contractor as that term is defined in Section 450.2(1), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, enter a Final Order dismissing all charges filed against the Respondent. Respectfully submitted and entered this 9th day of July, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of July, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Security Tallahassee, Florida 32301 Willis Glover 21 North Main Street Crescent City, Florida 32012 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
Findings Of Fact Respondent is a registered farm labor contractor with social security number 264-86-0916 and certificate number 4-3266-K 86 I. On or about February 11, 1986 and October 28, 1986, Respondent recruited, transported and hired farmworkers for a fee and directed, controlled and supervised their work. Specifically, he hired and supervised Stanley Hawthorne and Zephrin Augustine as crewleaders, neither of whom had valid and current certificates of registration at that time. Respondent contracted for the employment of farmworkers with farm labor contractors in February and October, 1986 before said contractors displayed to him a current certificate of registration issued by Petitioner.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order assessing an administrative penalty of $1000.00 against Respondent. DONE AND ENTERED this 8th day of June, 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1987. COPIES FURNISHED: Moses Williams, Esquire Department of Labor and Employment Security Montgomery Building, Suite 117 2562 Executive Center Circle, East Tallahassee, Florida 32399-0658 Isaac Hawthorne Highlands Harvest Corp. Post Office Box 2094 Lake Placid, Florida 33852 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building, Suite 206 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire Department of Labor and Employment Security General Counsel Montgomery Building, Suite 131 2562 Executive Center Circle, East Tallahassee, Florida 32399-0658
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the Statutes and Rules, cited in pertinent part below, designed to regulate the practice of farm labor contractors in the State of Florida, and with enforcing compliance with that authority and imposing sanctions for violation of it. There is no dispute that James Wilson is licensed as a farm labor contractor but, as will be seen below, he was not functioning as a farm labor contractor and thus is not chargeable for the violations alleged herein with regard to the activities observed by the Department's representatives on June 17, 1986, the date pertinent to this proceeding. On June 17, 1986, Mr. W. R. Brooks, an agent for the Department of Labor and Employment Security, had cause to make an inspection of an eggplant harvesting/grading operation near Summerfield, Florida. The farm is owned by Mr. Mark Arnold. Mr. Brooks, acting on his belief that the Respondent James Wilson was functioning as a farm labor contractor and recruiting and transporting workers to the eggplant field and supervising them, made an inspection of the farm and the grading shed where the eggplants harvested were graded by Wilson and other workers. Mr. Brooks was of the belief that Wilson was hired by Mr. Arnold to recruit and transport workers to the eggplant harvesting field and grading shed and to supervise them. He partially based this belief on the fact that Willie Davis, an employee of Mr. Arnold working at the site, informed him that Mr. Wilson was the "foreman." It was not shown, however, that Willie Davis informed Mr. Brooks of any details concerning any arrangement between Mr. Wilson and the farm owner, Mr. Arnold. Mr. Brooks' testimony, based in part upon discussions he had with Willie Davis and Mr. Wilson at the farm site, failed to establish that Mr. Wilson was paid any fee or consideration of any kind in return for transporting, recruiting or supervising workers. Ms. Rosie Jenkins was also called by the Department to testify. Mr. Brooks had interviewed Ms. Jenkins early one morning when she had been drinking most of the night, and by her own admission, was still drunk as she was talking to Mr. Brooks at the door of her residence. Ms. Jenkins testified that she was too intoxicated on the occasion of her interview with Mr. Brooks to understand clearly the nature of his questions or to understand or recall the precise nature of her answers. Her testimony at hearing establishes that Mark Arnold hired her for the job and was the only supervisor at the job site. Ms. Jenkins occasionally borrowed money from James Wilson and would repay him with interest and would also pay him a dollar per trip when he transported her to the field on some occasions. Ms. Jenkins' statement that the owner, Mr. Arnold, was the only supervisor at the job site is corroborated by Willie Davis, who was also employed at the harvesting and grading operation on the day in question. He established that there was no reason for any supervision because, as Ms. Jenkins put it, all the employees already knew their jobs and, according to Mr. Davis, they were working on "piece work" anyway, which means they were paid according to how many boxes of eggplants they prepared for transportation to the packing house. The more eggplant they graded correctly and packed for transportation, the more they were paid as wages, thus, inasmuch as the workers were already trained, there was no incentive for the owner to pay any person such as Wilson to supervise them. Ms. Dorothy Walker worked for Mark Arnold at the eggplant farm for approximately three years. She worked in the grading shed area grading eggplant and established that no supervision was needed for workers in that area since they were all trained in their jobs. She was hired by Mr. Mark Arnold and on some occasions "caught a ride" with James Wilson in order to get to work. This was not shown to be a regular practice, however. She also stated that Mr. Mark Arnold was her supervisor and that James Wilson was an employee just like any other employee without supervisory authority. Each of the workers would from time to time tell another worker, who was doing something improperly, the proper means of performing the job, including Wilson, but Mark Arnold was the only person with supervisory authority over the workers. Mr. Mark Arnold, the owner of the eggplant farm in question, established that there was no contract between him and James Wilson to recruit, transport or supervise employees. Mr. Wilson's employment was not conditioned upon his recruiting, transporting or hiring employees. Mr. Arnold stated that he did not pay Wilson a fee or other valuable consideration for transporting workers to his field and Wilson was not paid a fee or other consideration for supervising or controlling the workers at the job site. Wilson was paid on an hourly basis, the same as the other workers, and additionally was paid by the box for hauling eggplants to the packing house from the farm site. Mr. Wilson was expected to work the same hours as other employees. Mr. Arnold acknowledged that on some occasions, when he had to leave the field for any reason, he would sometimes tell Wilson to look after the operation while he was gone, but this was not a regular supervisory position and Mr. Wilson was not paid by Arnold for doing so. Mr. Arnold's testimony was not rebutted by the Department and it is noteworthy that at no time in the investigatory process was Mr. Arnold contacted personally by any Department personnel concerning the allegations at issue in this proceeding. Mr. Wilson's testimony corroborated that of Mr. Arnold in demonstrating that he was paid an hourly fee the same as other employees and did not direct, supervise or control the workers, whether or not he transported them to the eggplant farm. Wilson was compensated on a per box basis for transporting the eggplants to the packing house, but that was an arrangement solely between him and Arnold and involved no other employees in terms of transportation, supervision or hiring. In years past, Mr. Wilson has worked as a farm labor contractor in the citrus industry, at which time he did recruit his own crew and transport them to the job site. Although he maintains his farm labor contractor's license at the present time, he was not acting in that capacity at the job site in question. None of the employees he recruited in the citrus industry were the same employees at the eggplant farm. He renews his farm labor contractor's license annually and hopes eventually to return to employment in that capacity in the citrus industry, which he left as a result of the late, disastrous freeze which significantly curtailed citrus operations in the central Florida area involved. In summary, it has not been established that Mr. Wilson was paid by Mr. Arnold or any third party for transporting workers to the field. It was shown at most that occasionally Mr. Wilson was compensated by the employees themselves in return for him giving them rides to work, which is nothing more than a car pooling arrangement. Moreover, it was not demonstrated that Mr. Wilson exercised any supervisory authority over the workers at the eggplant harvesting and grading site. Because of his long history of successful employment with Mr. Arnold, Mr. Arnold did occasionally entrust him with oversight of the operation while he left the field to go on errands during a given work day. The point is, Mr. Wilson was not compensated any extra for such services and was paid the same hourly wage as other workers in the field and the grading shed. Although Mr. Wilson was paid on a per box basis for transporting the eggplant from the farm to the packing house, this was not a means of compensating him for transporting, recruiting or supervising employees because he performed an additional service with his own vehicle in return for that compensation, that is, he loaded the boxes on his vehicle, transported them to the packing house, and returned, paying his own expenses. It therefore cannot be found that the payment for transporting the boxes was merely a means of giving him additional compensation for the alleged supervision, transportation and recruitment of workers.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the charges against James Wilson be dismissed in their entirety. DONE and ENTERED this 11th day of 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3657 Department's Proposed Findings of Fact and Conclusions of Law Accepted, but not dispositive of the material issues presented. Rejected as to its second sentence, which is not in accordance with the preponderant testimony and evidence adduced. Accepted, but not dispositive of the material issues presented. Accepted, but not dispositive of the material issues presented. Respondent James Wilson's Proposed Findings of Fact Rejected as not constituting a Proposed Finding of Fact, but rather legal argument. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Room 117, Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399 Archie O. Lowry, Jr., Esquire PULLUM & JUDSON Post Office Drawer 2160 Leesburg, Florida 32748 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32301 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301
The Issue Whether Respondent contracted for the employment of farm workers with a farm labor contractor before the contractor displayed a current certificate of registration in violation of Section 450.35, Florida Statutes (1989).
Findings Of Fact Based upon all of the evidence received at the hearing, the following findings of relevant facts are determined: Respondent, David Torres, is a farm labor contractor licensed in Florida. On January 31, 1991 Larry Coker, during a routine grove inspection, observed a crew of farm workers picking fruit in the Happy Acres Grove, in Hardee County, under the supervision of Respondent. Respondent utilized Billy Handford and Antonio Torres to transport the farm workers to the grove. Mr. Handford was employed to recruit and transport farm workers for a fee to be paid by Respondent. Billy Handford did not have a Florida FLC license which authorized him to engage in this occupation. On January 31, 1991, Billy Handford recruited and transported six farm workers from the Bartow area to the Happy Acres grove in Hardee County. Respondent was cited for three violations of Chapter 450, on January 31, 1991.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent has violated Section 450.35, Florida Statutes (1989). It is further RECOMMENDED that Respondent be fined $500 (dollars) and such fine to paid within thirty days from date of the final order entered by the Division. DONE and ORDERED this 26th day of August, 1991, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 26th day of August, 1991. COPIES FURNISHED TO: FRANCISCO R. RIVERA, ESQUIRE DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 2012 CAPITAL CIRCLE, S.E. SUITE 307, HARTMAN BUILDING TALLAHASSEE, FL 32399-0658 DAVID TORRES, POST OFFICE BOX 842 HAINES CITY, FL 33844 FRANK SCRUGGS, SECRETARY DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 303 HARTMAN BUILDING 2012 CAPITAL CIRCLE, S.E. TALLAHASSEE, FL 32399-2152 STEPHEN BARRON, GENERAL COUNSEL DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 307 HARTMAN BUILDING 2012 CAPITAL CIRCLE S.E. TALLAHASSEE, FL 32399-2152
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.
