The Issue Whether Petitioner, Wallace Moorehand, was an employee of Respondent, State Farm Mutual Automobile Insurance Company, as defined by the Florida Civil Rights of 1992, at the time alleged discriminatory employment practice(s) took place.
Findings Of Fact Petitioner, Wallace Bruce Moorehand, is an African- American male residing in Ft. Walton Beach, Florida. Petitioner holds Florida insurance agent license A183690, which was issued on February 27, 1991. Petitioner studied extensively and was subject to a formal examination in order to obtain his license. Respondent, State Farm Mutual Automobile Insurance Company (State Farm),1/ is a private entity headquartered in Bloomington, Illinois, engaged in the business of selling and servicing various types of insurance products including auto, health, and fire insurance for personal and business customers. Petitioner maintains that he is an employee of State Farm, rather than an independent contractor therefore, allowing him to bring a claim of unlawful employment discrimination under the Florida Civil Rights Act of 1992. Between March 1991 and February 1993, Petitioner worked as a Trainee Agent with State Farm. It is undisputed that Petitioner was a State Farm employee during his tenure as a Trainee Agent. On March 1, 1993, Petitioner executed a State Farm Agent’s Agreement. Among the relevant contractual provisions are the following: The purpose of this Agreement is to reduce to writing the objectives, obligations, and responsibilities essential to the relationship between the Agent, operating as an independent contractor, and State Farm. [State Farm] believe[s] that agents operating as independent contractors are best able to provide the creative selling, professional counseling, and prompt and skillful service essential to the creation and maintenance of successful multiple-line companies and agencies. We do not seek, and will not assert, control of your daily activities, but expect you to exercise your own judgment as to the time, place, and manner of soliciting insurance, servicing policyholders, and otherwise carrying out the provisions of this Agreement. You have chosen this independent contractor relationship, with its opportunities for financial reward and personal satisfaction, in preference to one which would place you in an employee status. * * * Section 1 – MUTUAL CONDITIONS AND DUTIES * * * You are an independent contractor for all purposes. As such you have full control of your daily activities, with the right to exercise independent judgment as to time, place, and manner of soliciting insurance, servicing policyholders, and otherwise carrying out the provisions of this Agreement. State Farm will furnish you, without charge, manuals, forms, records, and such other materials and supplies as we may deem advisable to provide. All such property furnished by us shall remain the property of [State Farm]. * * * Information regarding names, addresses, and age of policyholders of [State Farm]; the description and locations of insured property; and expiration or renewal dates of State Farm policies acquired or coming into your possession during the effective period of this Agreement, or any prior Agreement, except information and records of policyholders insured by [State Farm] pursuant to any governmental or insurance industry plan or facility, are trade secrets wholly owned by [State Farm]. All forms and other materials, whether furnished by State Farm or purchased by you, upon which this information is recorded, shall be the sole and exclusive property of [State Farm]. The expense of any office, including rental, furniture, and equipment; signs; supplies not furnished by us; the salaries of your employees; telegraph; telephone; postage; advertising; and all other charges or expense incurred by you in the performance of this Agreement shall be incurred at your discretion and paid by you. * * * L. We retain the right to prescribe all policy forms and provisions; premiums, fees, and charges for insurance; and rules governing the binding, acceptance, renewal, rejection, or cancellation of risks, and adjustment and payment of losses. Petitioner testified that it was his intent to enter into an independent contractor relationship with State Farm. On January 1, 1997, Petitioner entered into a second State Farm Agent’s Agreement, containing similar, if not identical, provisions. The record was not clear why Petitioner entered into a second Agent’s Agreement in 1997. Petitioner testified that State Farm eliminated some retirement benefits in 1997, requiring all agents to execute a new Agreement. However, on cross-examination, Petitioner testified, “I misspoke”2/ and admitted that the original Agent’s Agreement does not refer to a pension or other retirement benefit. Petitioner has conducted business as an agent of State Farm at the same location in Mary Esther, Florida, for 21 years. State Farm compensates Petitioner through commission on sales of insurance policies and other products. According to the Agent’s Agreement, State Farm also offers a sales incentive of five percent of production earnings in the prior year. State Farm has never paid Petitioner a salary. Pursuant to the Agent’s Agreement, State Farm also compensates Petitioner by providing a life insurance policy of $100,000 payable to his designated beneficiary upon his death, provided that Petitioner has not obtained age 70 or terminated the Agent’s Agreement. Petitioner has his own Federal employer tax ID number. Petitioner owns the building in which his State Farm office is located. Petitioner pays all the expenses of his office, including telephone, electricity, water, furniture, office supplies, and office equipment. Petitioner currently has two employees, but has previously employed up to nine people at his State Farm office. Petitioner pays his employees a salary, rather than on an hourly basis, at his choosing. Petitioner sets his employees’ work schedules. Petitioner pays his employees’ payroll taxes, decides whether they will receive commissions, and, if so, the amount of said commissions. Petitioner offers his employees paid holidays, vacation time, and sick leave. Petitioner does not receive either vacation time or sick leave from State Farm. Petitioner has elected to secure health insurance through State Farm for himself and his family. Petitioner offers his employees the opportunity to participate in the same health insurance plan he has elected to purchase. State Farm reports Petitioner’s earnings to the Federal Government on IRS Form 1099, not Form W-2. State Farm does not withhold social security, Medicare, or federal income taxes, from Petitioner’s commission checks. Despite overwhelming evidence of Petitioner’s independent contractor relationship with State Farm, Petitioner maintains that State Farm exercises a degree of control over Petitioner’s livelihood that renders the independent contractor status a sham. Petitioner testified that State Farm controlled Petitioner’s business, not only by contract, but also “by innuendo, by assertion, by intimidation.”3/ First, Petitioner testified that there was no difference between the way State Farm managed Petitioner’s business as a Trainee Agent and as an independent contractor. However, Petitioner admitted that only as a Trainee Agent was he required to submit daily time logs and weekly accountings of his activities. Petitioner offered into evidence a letter in which a State Farm Agency Manager criticized Petitioner’s priorities, time utilization, attitude, and required him to attend a series of training meetings. However, the letter was clearly written when Petitioner was a Trainee Agent. Next, Petitioner argues that State Farm controls whom he hires at his agency, as well as the hours his agency must be open to the public. Any employee of Petitioner who will be licensed to sell State Farm products on behalf of Petitioner is required to undergo background screening and enter into an Agent’s Licensed Staff Agreement. The Agreement defines the nature of the employment as with the Agent, rather than State Farm; defines the scope of the employee’s authority, i.e., the Agent may delegate to employees in-office binding authority on motor vehicle, residential risks, and personal property-casualty insurance coverage. Petitioner’s clerical staff, and any other non- licensed staff, is not required to undergo background screening or enter into an Agent’s Licensed Staff Agreement. Petitioner’s office is open 9:00 a.m. to 5:00 p.m. each weekday. Petitioner testified that he chose those hours because those are the ones “clients most wanted.” State Farm does not dictate the particular hours Petitioner works. State Farm provides an after-hours call center from 5:00 p.m. to 9:00 a.m. on weekdays to take calls from clients and potential clients when Petitioner’s office is closed. Petitioner maintains that because the call center is only available after 5:00 p.m., State Farm dictates that his office remains open until 5:00 p.m. daily. If Petitioner chose to close his office before 5:00 p.m. on weekdays, the only consequence would be missed business opportunities. Next, Petitioner argues that State Farm controls his business by requiring Petitioner to sell “multiple lines” of insurance, rather than selling only automobile or homeowners’ policies. Petitioner testified that State Farm pressures him to sell life and health insurance policies, as well as banking products more recently-available through State Farm. State Farm does not set quotas for any product line. Agents are free to choose which products they will sell as part of their overall business decisions. State Farm encourages its Agents to sell all products offered by the company in order to service the needs of clients. Some State Farm products require special licenses, such as a securities license to sell mutual funds offered by State Farm. State Farm does not require agents to obtain any specialty license. Petitioner voluntarily obtained a securities license to offer mutual funds to his clients. Next, Petitioner argues that State Farm does not allow him to operate his agency in a truly independent manner. Rather, Petitioner maintains that he is required to submit a business plan for approval by State Farm and attend extensive trainings which interfere with the independent nature of his relationship with State Farm. State Farm requires agents to attend one training session per year. The training is on compliance with State Farm customer service guidelines. Agents may access the training online and do not need to travel to take the training. State Farm provides a number of incentives to encourage agents to maximize their performance. For example, if an agent submits a business plan, laying out the goals and direction for his or her agency, the agent is eligible to receive leads on prospective clients that are received through the State Farm website. However, there are no negative consequences to those agents who choose not to submit a business plan. Finally, Petitioner argues that State Farm restricts Petitioner from writing policies for other insurer’s products. The parties offered a great deal of testimony regarding Petitioner’s authority to write policies for “take-out companies” assuming coverage previously provided by Citizens’ Insurance, and flood insurance policies through the Federal Emergency Management Agency. The undersigned finds this testimony irrelevant to the issue at hand. Petitioner is an agent of State Farm insurance company. He chose that relationship. He could have chosen to work with an independent insurance agency which writes policies for any number of companies. Petitioner did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Complaint of Discrimination No. 2014-00242 filed by Wallace B. Moorehand on August 14, 2014. DONE AND ENTERED this 6th day of January, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2015.
The Issue Whether the Petitioner proved the elements necessary to demonstrate that she was subject to an unlawful employment practice as a result of Respondent, Bradford County Farm Bureau, maintaining a sexually-hostile work environment.
Findings Of Fact At all times material to this proceeding, Petitioner was employed by Respondent, Bradford County Farm Bureau (BCFB or Respondent). She worked for the BCFB from December 15, 2006 until January 1, 2012. The BCFB is an organization created to work for and provide support to farmers in Bradford County. The BCFB has its office in Starke, Florida. At all times relevant to this proceeding, James Gaskins was the President of the BCFB Board of Directors. He served in that capacity as an unpaid volunteer. The alleged actions of Mr. Gaskins towards the Petitioner form the basis for her claim of employment discrimination. Section 760.10(1), provides that: It is an unlawful employment practice for an employer: To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual?s race, color, religion, sex, national origin, age, handicap, or marital status. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual?s status as an employee, because of such individual?s race, color, religion, sex, national origin, age, handicap, or marital status. Section 760.02(7) defines "employer" as follows: „Employer? means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person. The threshold issue in this proceeding is whether the BCFB had the requisite number of employees to bring it under the jurisdiction of the Florida Civil Rights Act of 1992 as Petitioner?s “employer.” If Petitioner fails in her proof of that issue, any discussion of acts that may have constituted sexual harassment or resulted in the creation of a sexually- hostile work environment become superfluous and unnecessary. Facts Regarding the BCFB as an “Employer” At all times relevant to this proceeding, the BCFB had two paid employees. Ms. Griffith was the office manager and bookkeeper. Ms. Linzy was a part-time secretary and receptionist, although she worked full-time when Ms. Griffith was out. Ms. Linzy retired in October, 2012. In addition to the foregoing employees, the BCFB has a five-member board of directors. Although Mr. Gaskins, who was a member of the Board, served as an unpaid volunteer, there was no evidence as to whether the remaining members were paid for their services. For purposes of this Recommended Order, it will be presumed that they were. Based solely on the number of its employees, BCFB is not an “employer” as defined by section 760.10. Therefore, in order to prove the threshold element of her claim for relief, Petitioner must establish that employees of other entities should be imputed to the BCFB due to integrated activities or common control of BCFB?s operations or employees. Petitioner presented evidence of the relationship between the BCFB, the Florida Farm Bureau, and the Florida Farm Bureau Insurance Company (FFBIC) to establish the requisite integration or common control necessary to impute their employees to the BCFB. Florida Farm Bureau The Florida Farm Bureau has more than 15 employees. The Florida Farm Bureau has a mission similar to that of the BCFB of providing goods, services, and other assistance to farmers, though on a state-wide basis. Each county in Florida has an independent county farm bureau. The Florida Farm Bureau has no common corporate identity with the BCFB. The BCFB is incorporated as a legal entity unto itself. The Florida Farm Bureau and the BCFB have no common officers, directors, or employees. The Florida Farm Bureau does not share or comingle bank accounts with the BCFB. The BCFB maintains its own finances, and has a bank account with the Capital City Bank Group. The Florida Farm Bureau has no operational control over the BCFB. The BCFB Board of Directors makes all employment decisions for the BCFB, has exclusive authority to hire and fire employees of the BCFB, and has exclusive control over the pay and the terms and conditions of BCFB employees. Employees of the BCFB are paid by the BCFB, and not by the Florida Farm Bureau. The Florida Farm Bureau has the telephone numbers of all of the county farm bureaus, and can transfer calls received by the Florida Farm Bureau to any of the county farm bureaus. Other than that, as stated by Ms. Linzy, the county farm bureaus “are all on their own.” Florida Farm Bureau Insurance Company The Florida Farm Bureau Insurance Company is affiliated with the Florida Farm Bureau. The nature and extent of the relationship between those entities was not established. The relationship between those two entities does not affect their relationship, or lack thereof, with the BCFB. Petitioner introduced no evidence as to the FFBIC?s total number of employees. The FFBIC has no common officers or directors with the BCFB, nor do they share or comingle bank accounts. Brent Huber and Travis McAllister are insurance agents authorized to transact business on behalf of the FFBIC. They are self-employed independent contractors. Mr. Huber does business as “Brent Huber, Inc.” Neither Mr. Huber nor Mr. McAllister is an employee of the FFBIC. Mr. Huber is not employed by the BCFB, and does not perform duties on behalf of the BCFB. The evidence suggests that Mr. McAllister?s status, vis-à-vis the BCFB, is the same as that of Mr. Huber. Local FFBIC agents are selected by the FFBIC. Given the close relationship with local farmers/customers, the FFBIC selection of a local agent must be ratified by the county farm bureau in the county in which the agent is to transact business. Once ratified, an FFBIC agent cannot be terminated by the county farm bureaus. Mr. Huber and Mr. McAllister, having been appointed to transact business in Bradford County as agents of the FFBIC, maintain an office at the BCFB office in Starke. There being only four persons in the office, the relationship among them was friendly and informal. Mr. Huber described the group as “tight-knit” and “like a family.” Mr. Huber had no supervisory control over Petitioner or her work schedule. Due to the small size of the BCFB office, and limited number of persons to staff the office, Ms. Griffith?s absences would cause problems for the office as a whole. However, Mr. Huber never evaluated Ms. Griffith?s performance and never disciplined Ms. Griffith. The FFBIC provided sexual harassment, employment discrimination, workers? compensation, and minimum wage informational signs that were placed in the BCFB office break room. Those signs were “shared” between the Florida Farm Bureau Insurance Company and the BCFB. Thus, the BCFB did not maintain a separate set of signs. The BCFB office has a single telephone number, and calls are routed internally. If Mr. Huber was out of the office, Petitioner or Ms. Linzy would take messages for him. If Mr. Huber was alone in the office, he would answer the telephone. Petitioner or Ms. Linzy would occasionally make appointments for Mr. Huber, and assist him when clients visited the office. Mr. Huber did not pay Petitioner or Ms. Linzy for those services. At some point, Mr. Huber and Ms. Griffith determined that it would be mutually advantageous if Ms. Griffith were allowed to speak with FFBIC customers about insurance when Mr. Huber was out of the office. To facilitate that arrangement, Ms. Griffith, at Mr. Huber?s suggestion, obtained a license as a customer service representative, which allowed her to sell policies under Mr. Huber?s insurance agent license. The customer service representative license was not a requirement of Ms. Griffith?s position with the BCFB. Ms. Griffith would sell insurance policies only when Mr. Huber was out of the office. Mr. Huber compensated Ms. Griffith for writing insurance policies through “Brent Huber, Inc.” Ms. Griffith continued to be paid as a full-time employee of the BCFB because she thought the BCFB “would be OK with it.”
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations that, based upon Petitioner's failure to meet her burden of proof to establish that Respondent, Bradford County Farm Bureau, is an “employer” as defined in section 760.02(7), the Employment Complaint of Discrimination be dismissed. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Robert E. Larkin, III, Esquire Allen, Norton and Blue, P.A. Suite 100 906 North Monroe Street Tallahassee, Florida 32303 Jamison Jessup 557 Noremac Avenue Deltona, Florida 32738 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent committed the offenses described in the Administrative Complaint issued against him by Petitioner? If so, what penalty should imposed?
Findings Of Fact At all times material hereto, Respondent has held a farm labor contractor certificate of registration issued by Petitioner. Prior to November 13, 1990, his certificate did not authorize him to arrange or provide transportation for farmworkers. On November 13, 1990, his certificate was amended to reflect that he was henceforth "transportation authorized." Carleen Willis has been a Crew Chief Compliance Officer with Petitioner for the past five years. In her capacity as a Crew Chief Compliance Officer, she monitors the activities and operations of farm labor contractors in the field to ascertain whether they are in compliance with the various statutory and rule provisions regulating their conduct. Events of October 25, 1989 On October 25, 1989, while making a routine visit to the field, Willis encountered Respondent supervising approximately 30 farmworkers who were planting cane for United States Sugar Corporation (USSC). Respondent had recruited these workers for USSC. He also had provided them with transportation in his 1979 International Bus, notwithstanding that he was not, at the time, "transportation authorized" inasmuch as he had submitted to Petitioner neither proof that this vehicle was properly insured, nor proof that it had been inspected and found in compliance with applicable safety standards. For his services, Respondent was paid $100.00 a day by USSC. The bus used to transport the farmworkers under Respondent's supervision was driven by Jean Baptiste Pierre. Pierre, who received compensation from Respondent for transporting the workers, did not then hold a current farm labor contractor certificate of registration issued by Petitioner. Respondent did not have with him his certificate of registration and therefore was unable to produce it when Willis asked him to show it to her during her field inspection. Following her inspection, Willis gave Respondent a citation charging him with violating Florida law by, among other things, "[f]ail[ing] to exhibit certificate," "[f]ail[ing] to assure safety of transportation vehicles," "[f]ail[ing] to obtain prescribed vehicle insurance," and "[u]tilization of unregistered crewleader." Events of January 30, 1990 On January 30, 1990, Willis again encountered Respondent in the field. Respondent was working as an independent contractor for USSC, as he had been at the time of their earlier meeting on October 25, 1989. On this occasion, he was en route to Clewiston with a group of farmworkers who had been recruited to plant cane. They were travelling in Respondent's 1979 International Bus. Respondent had yet to submit proof that the vehicle was properly insured or that it had passed the necessary safety inspection. Accordingly, on this date, he still was not "transportation authorized." Following her inspection, Willis gave Respondent a citation charging him with violating Florida law by "[f]ail[ing] to assure safety of transportation vehicles," and "[f]ail[ing] to obtain prescribed vehicle insurance." Events of March 15, 1990 On March 15, 1990, Respondent, for a fee, again used his 1979 International Bus to provide transportation to a group of farmworkers. As of March 15, 1990, Respondent still had not submitted adequate proof that his vehicle met the applicable safety requirements. He therefore remained "transportation unauthorized." Consequently, he was again cited by Willis, who on this date had paid him another visit in the field, for "[f]ail[ing] to assure safety of transportation vehicles." Record of Prior Violations In 1986, Respondent was cited by Petitioner for acting as a farm labor contractor without being registered to do so. He recived a letter of warning for this violation. On April 3, 1989, Respondent received a citation from Petitioner for failing to post and exhibit his certificate of registration, failing to assure the safety of the vehicle he was using to transport farmworkers, and failing to obtain the prescribed insurance for this vehicle. For these violations, he also received a letter of warning.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Petitioner enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint and imposing a civil penalty in the amount of $2,250.00 for these violations. RECOMMENDED in Tallahassee, Leon County, Florida, this 13th day of March, 1991. 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 13th day of March, 1991.
The Issue Whether Respondent committed the violations described in the Administrative Complaint, as amended? If so, what civil penalty or penalties should be assessed?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made to supplement the factual stipulations into which the parties have entered: Respondent was born in Mexico. She has lived in the United States since October of 1974. Respondent has a fourth grade education that she received in her native land. She is unable to read or write English and speaks and understands very little of the language. She communicates primarily in Spanish. Respondent lives with her husband and five of her six children, including her 21-year old daughter, Anna, who unlike her mother, is fluent in both English and Spanish. Recently, due at least in part to the inability of family members to find work and to the lengthy hospitalization of Raphael, Jr., one of Respondent's sons, the Rivera family has experienced serious financial problems and has been unable to pay all of its bills. As a result, the family home is in foreclosure and water service to the home has been terminated. The family's plight should improve to some extent, however, inasmuch as Respondent's husband started working again approximately a week before the final hearing in this case. Respondent, though, remains unemployed, as does her daughter Anna, although they are both actively seeking employment. At all times material to the instant case, Respondent has been a Florida-registered farm labor contractor. She received the first of her farm labor contractor certificates of registration in 1990. To date, she has an unblemished disciplinary record. Since becoming registered, the only statutory and rule violations with which she has been charged are those that are the subject of the instant case. To obtain her certificates, Respondent simply had to fill out application forms. The application forms were in English. She therefore went to the local Department Job Service office to obtain the assistance of a bilingual Department employee fluent in English and Spanish to help her complete these forms. In each instance, the Department employee assisting Respondent filled out the form after obtaining the necessary information from Respondent and, after doing so, presented the completed form to Respondent for her signature. Jesus Velasquez was the Department employee who helped Respondent complete the application form for her initial certificate of registration. Velasquez has been a Compliance Officer with the Department for the past nine years. During his meeting with Respondent, Velasquez briefly described to her some of the duties and obligations of registered farm labor contractors. Andre Jeudy, who was then an Agricultural Service Representative with the Department, but is now a Department Compliance Officer, helped Respondent complete the application form she submitted to obtain her second certificate of registration. The form was completed, signed and submitted on November 20, 1990. Item 7 of the form requested the applicant to "Check Each Activity to be performed Involving Migrant and/or Seasonal Agricultural Workers for Agricultural Employment." Two "activities" were listed. The first was "Recruit, solicit, hire, employ, furnish, pay." The second was "Transport." Based upon what he had been told by Respondent, Jeudy checked the first, but not the second, of these listed activities. Item 9 of the form asked, "Will Transportation be Provided the Workers?" If the response was in the affirmative, the applicant was further instructed to "Give number and type of vehicles used to transport migrant and seasonal agricultural workers." Based upon the information that he had been provided by Respondent, Jeudy marked the "Yes" box and wrote only the following to supplement this affirmative response: "TRANSP will be provide [sic] By company Bus (Okeelanta)." By her signature, Respondent certified on the form that "all representations made by me in this application are true to the best of my knowledge and belief" and that "I have read or had explained to me and fully understand the State of Florida Farm Labor Registration Law and its implementing regulations, and will fully comply with the requirements therein." By letter dated December 4, 1990, Respondent was advised by the Department that it had issued her the new certificate of registration (hereinafter referred to as the "1990-91 Certificate") for which she had applied. The certificate, which had an "expiration date" of "11/91," was enclosed with letter. Respondent's 1990-91 Certificate indicated that Respondent was "Transportation Unauthorized." The certificate provided the following explanation as to what it meant to be "Transportation Unauthorized:" Transportation Unauthorized- You are not permitted to arrange and/or provide transportation of migrant and seasonal agricultural workers. To obtain a certificate authorizing the transportation of workers within the meaning of the Act, you must file evidence of compliance with applicable safety and health requirements as stated in the Act and regulations and with the insurance of financial responsibility requirements provided therein. On September 18, 1991, Respondent went to the local Job Service office to apply for a successor certificate. The Department employee who assisted Respondent on this occasion was Mary Ann Ruiz. Ruiz accurately conveyed on the application form the information with which she had been provided by Respondent. The application form that Ruiz helped Respondent fill out was identical to the one Respondent had used to obtain her 1990-91 Certificate. With respect to Item 7, Ruiz checked the first ("Recruit, solicit, hire, employ, furnish, pay"), but not the second ("Transport"), of the farm labor contractor activities listed. As to Item 9, Ruiz marked the "Yes" box and gave the following written explanation: "trans provided by Okeelanta." No further information regarding such transportation was furnished on the form. As she had done the year before, Respondent certified the accuracy of the information contained in the application and her knowledge of, and her intention to fully comply with, the "Florida Farm Labor Registration Law and its implementing regulations." At the time of her application, she did not intend to transport any farm workers. By letter dated December 19, 1991, Respondent was advised by the Department that it had issued her the successor certificate of registration (hereinafter referred to as the "1991-92 Certificate") for which she had applied. The certificate, which had an "expiration date" of "11/92," was enclosed with letter. Respondent's 1991-92 Certificate indicated that Respondent was again "Transportation Unauthorized" and it repeated the explanation of the term that had been set forth in the 1990-91 Certificate. In 1990 and 1991, Respondent recruited farm workers to plant sugar cane seed and perform related tasks for the Okeelanta Sugar Corporation (hereinafter referred to as "Okeelanta"). Okeelanta has substantial land holdings in the Everglades Agricultural Area on which it grows and harvests sugar cane that it then processes and converts into refined sugar for sale. Okeelanta paid Respondent a total of $10,958.90 for her services ($4,550.40 for services rendered in 1990 and $6,408.50 for services rendered in 1991). Okeelanta treated Respondent as an independent contractor. The workers she recruited, on the other hand, were considered by Okeelanta to be employees of the corporation. They were paid directly by Okeelanta, which made appropriate deductions from their paychecks. The workers were organized into planting crews made up of eight or nine persons each. At any given time during the 1990-91 and 1991-92 planting seasons, there were several crews comprised of workers Respondent had recruited for Okeelanta (hereinafter referred to as "Respondent's crews"). Okeelanta employed timekeepers to maintain records of the work performed by each of the crews in its fields. Anna Rivera, Respondent's daughter, was the timekeeper responsible for maintaining the records of the work done by Respondent's crews. Respondent's crews were supervised and directed in the field by another Okeelanta employee, Zone Supervisor Raphael Colunga. As the Zone Supervisor, Colunga had the authority to discharge any crew member under his supervision. Respondent frequently went out in the field to monitor the activities of her crews. She did so because the amount of compensation she received from Okeelanta was dependent upon the work performed by her crews. Respondent used her own vehicle to make the trip to the field. There was an Okeelanta bus that drove crew members from the Okeelanta employee parking lot to the field in the morning and back to the parking lot in the afternoon. Respondent's crews did not always arrive early enough in the morning to catch these buses. On those occasions that they missed the bus, the transportation that they used to commute to work was the transportation that they used to get to the field. Every employee that Respondent recruited for Okeelanta for the 1991-92 planting season, before being hired, was screened by the Department at its Belle Glade Job Service office pursuant to a written agreement between Okeelanta and the Department, which provided as follows: RECRUITING ARRANGEMENT Okeelanta Corporation It is the intent of Belle Glade Job Service (hereafter the Job Service) and Okeelanta Corporation (hereafter the "Employer") to bring together individuals, who are seeking employment, and the Employer, who is seeking workers without charging a fee. Therefore, The Job Service and the Employer enter into this arrangement: Assist job seekers in obtaining employment from the employer; Allow the Job Service to facilitate the match between the job seekers and the employer. Both parties enter into this arrangement with the understanding that each will comply with all applicable federal and state laws, rules, and regulations (please see attached addendum of specific responsibilities) pursuant to Title 20 of the Code of Federal Regulations. Part 652, 655 and 658. BOTH PARTIES AGREE THAT THIS RECRUITING ARRANGEMENT WILL - Continue for no longer than one year from the date both parties have signed the document. Constitute the sole exclusive arrangement indicating how they will work together. Terminate upon either party's written notice for the other party that the arrangement will be cancelled in 30 days. Abide by the attached addendums of JS and Employer obligations. Addendum I to the agreement listed the Department's obligations. These obligations were as follows: Provide the Employer notice to renew this arrangement at least 60 days prior to ending date of this arrangement or prior to the expected beginning of the season, whichever is earlier. The notice will contain a request to the employer for written response as to their satisfaction with the arrangement, information on any problem that have [sic] developed and meeting date to renew the arrangement. Provide the employer daily a log summarizing job placement activities for each day in which one or more individuals were referred to the employer. Provide I-9 Certification on individuals hired no later than 48 hours from date JS is notified of hire. Designate one Employment representative to be stationed on daily basis or as needed, to serve as the liaison responsible for working with Okeelanta Corporation. Provide the Okeelanta Corporation with reverse referral recruitment cards to give the applicants. Maintain a pool of qualified applicants for the positions listed with Job Service, who have been screened against the selection criteria of the company. Provide Okeelanta with a list of qualified applicants on file whenever an opening arises. Refer applicants from the pool, with a completed I.D. card, a completed W-4 form, JS Referral Card, (a completed I-9 on recalls) upon receipt of a job order. Addendum II to the agreement listed Okeelanta's obligations. These obligations were as follows: List all job openings for which they wish Job Service to recruit. Provide the Belle Glade JS office a supply of W-4 forms applications for completion by qualified applicants desiring to work for the company. On a daily basis inform the Belle Glade JS office of the hiring decision made on each applicant referred by the JS. Designate one of its employees, within one week of the starting date of this arrangement, to serve as the liaison responsible for working with the JS. Provide a working space for the employee designated to be stationed at the employer premises. Acknowledge receipt of the above referenced regulations as a part of this arrangement, which it will furnish the above referenced employee. The job order Okeelanta placed with the Department's Belle Glade Job Service office in accordance with the foregoing agreement for sugar cane seed planters and other agricultural workers needed for the 1991-92 planting season specified that these employees would be expected to work six days a week, from 7:00 a.m. to 3:00 or 4:00 p.m., weather permitting. Okeelanta hired only those prospective employees who were deemed qualified and given a referral or "yellow" card by the Department. These prospective employees were required to present their card to the Zone Supervisor. After doing so and being accepted for employment, they received an Okeelanta employee identification number and their names appeared on the Okeelanta Day Haul Master List for each day they worked. Prospective employees unable to produce a "yellow" card for the Zone Supervisor were referred to the Department's Belle Glade Job Service office. In light of Okeelanta's policy of turning away prospective employees who did not have "yellow" cards, Respondent advised every employee that she recruited for Okeelanta during the 1991-92 planting season that they had to go to the Department's Belle Glade Job Service office and obtain such a card before they could begin working for Okeelanta. Respondent was never told that she had to verify the qualifications of members of her crews who had been screened and referred to Okeelanta by the Department. She therefore believed that there was no need for her to do so. Miguel Paiz was a member of one of Respondent's crews. He was interviewed at the Department's Belle Glade Job Service office prior to the commencement of the 1991-92 planting season and, although, as he made the interviewer aware, he was only 17 years of age at the time, he was given a "yellow" card. The W-4 form that was completed during his interview indicates that, at least at the time of the interview, Paiz was married. On the morning of Friday, October 18, 1991, three or four days after the start of the 1991-92 planting season, Cruz Hernandez Alvarez, lost control of the 1978 station wagon he was driving on a private road on Okeelanta property and the vehicle went into a canal on the side of the road. Seven of the eight occupants of the vehicle were killed. Alvarez did not have a valid driver's license at the time of the accident. The vehicle he was driving belonged to Juan Andres. Its V.I.N. was 1L35U8S167733. Alvarez and some, but not all, of the other occupants of the vehicle, including the lone survivor of the accident, were members of one of Respondent's crews. Julio Mendoza Corince, a 15-year old boy, was one of the occupants of the vehicle who perished in the accident. Earlier that month, Corince had gone to the Department's Belle Glade Job Service office to obtain a "yellow" card. The Department employee with whom he interviewed, however, refused to refer him because he was underage. Corince was not a member of any of Respondent's crews. Indeed, at no time before the accident had Respondent ever met or spoken with him. After the bodies were recovered from the canal, Respondent, and later her daughter Anna, were called to the scene and asked by the police if they were able to identify any of the victims. Viewing the dead bodies was a very emotionally upsetting experience for both of them. They spent the remainder of the day at home. No work was done by any of Respondent's crews that day. State and federal investigators began their investigation shortly after the accident was reported. Compliance Officer Velasquez was the Department's lead investigator. Rene Callobre, an Assistant District Administrator with the United States Department of Labor, Wage and Hour Division, who, like Velasquez, is fluent in both English and Spanish, conducted the federal investigation. A short time after beginning his investigation on the day of the accident, Velasquez went to the Okeelanta property and asked to speak with Respondent. After being told that Respondent had left for the day, Velasquez proceeded to Respondent's home, where he interviewed Respondent. Velasquez and Respondent conversed in Spanish during the interview. Respondent was still emotionally upset at the time of the interview, but not to the extent that she was irrational or unable to effectively communicate with Velasquez. At no time did she provide an inappropriate response to his inquiries. During the interview, Respondent freely and voluntarily gave a statement in Spanish to Velasquez. Velasquez had not warned Respondent before she gave the statement that what she said could be used against her in an administrative proceeding such as the instant one. 1/ Velasquez wrote down in English what Respondent had told him in Spanish. This written, English translation of the statement, which accurately reflected Respondent's discussion with Velasquez, was then read back to Respondent in Spanish. Respondent thereupon signed the written statement, which read as follows: I am a farm labor contractor with cert # 29482 & expiration date of Nov. 1992. At present I am employed by Okeelanta Sugar Corp. My duties are to recruit & supervise farm workers to plant sugar cane. My fee for this task is $1.10 per row of cane planted by the crew. I recruited my crews by word of mouth. They know I am a contractor, so they come to my house to ask for work. The first thing I tell any worker that comes here to my house is that they must go the Job Service Office in Belle Glade and register. When they are properly registered, they go to the Okeelanta parking lot and there they are transported by company bus to the work site. I tell all the workers they must provide their own transportation to the Okeelanta parking lot. I tell all my workers this because I do not own a vehicle big enough to transport them from their home and back. I tell them that if they want to work, they must come on their own. I recruited 4 crews consisting of 8 workers each crew. Three of the crews were coming from Indiantown (Guatemalans) and one crew from this area (Mexicans). These crews, the ones from Indiantown, worked with me last year. I usually give the driver or the owner of the vehicle $100 per week for gasoline. I did this last year and was intending to do this this year also. The three crews from Indiantown came by car (station wagon) and a van. The station wagon carried 1 crew (8 workers) and the van carried 2 crews (16 workers). On this date, only one crew leader showed up, the station wagon. The van with the 2 crews did not show up. These crews started to work on Tuesday October 15, 1991. I do not pay the workers, Okeelanta does. The statement was in all respects factually accurate. Respondent had not yet during the 1991-92 planting season paid or loaned or agreed to pay or loan anyone "$100 for gasoline" in connection with the transporting of her crews. At no time did Respondent tell any state or federal investigator, including Velasquez or Callobre, otherwise. 2/ On Monday, October 21, 1991, Velasquez went out in the field to visit with Respondent and the members of her crews. Velasquez was accompanied by Compliance Officer Jeudy. Jeudy was being trained by Velasquez. Velasquez and Jeudy observed a 1977 Chevrolet van in the field. The van's V.I.N was CGL257U218651. Neither on the van nor anywhere else in the field was there posted a copy Respondent's application for a certificate of registration or a statement, in English and Spanish, showing Respondent's and her crews' rates of compensation. Velasquez asked Respondent if any of the members of her crews had been transported in the van. Respondent responded in the affirmative and indicated that two of her crews from Indiantown had travelled in the van. Velasquez then asked to speak to the driver of the van. Respondent thereupon retrieved Miguel Paiz, who was working in the field. Although he was 17 years of age and it was during normal school hours, Paiz was at work and not in school. Velasquez asked to see Paiz's driver's license and his farm labor contractor's certificate of registration. Paiz showed Velasquez his driver's license and the "yellow" card he had received from the Department. Paiz advised Velasquez that he did not have, and therefore was unable to produce, a farm labor contractor's certificate of registration. Paiz told Velasquez that Juan Lopez was paying him $10.00 a day for driving the van. During his conversation with Velasquez, Paiz erroneously identified Lopez as the owner of the van. The actual owner of the van was Julio Puentes. After speaking with Paiz, Velasquez interviewed Lopez. Based upon what he understood Lopez to have said during the interview, Velasquez prepared a written statement for Lopez's signature which provided as follows: I borrowed the (vehicle) van that this date transported 16 workers to Okeelanta Sugar Corp. to work in the planting of sugar cane. I was recruited by Araceli Rivera. I am paid $100 per week for the gasoline I use in the vehicle. I am also paid $1.00 per row of sugar cane planted by Okeelanta. I am not registered as a F.L.C. Lopez refused to sign the statement. To the extent that the statement suggests that Lopez was then being paid by Respondent for "the gasoline [Lopez] use[d] in the ['transporting'] vehicle," it is inaccurate. No such payments were made by Respondent to Lopez during the 1991-92 planting season.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) imposing upon Respondent a civil penalty in the amount of $100.00 for having violated Section 450.33(4), Florida Statutes, and Rule 38H-11.008, Florida Administrative Code, as alleged in paragraph (4)(h) of the Administrative Complaint, as amended, by displaying in the area where her crews were working on October 21, 1991, neither a copy of her application for a farm labor contractor certificate of registration nor the requisite statement concerning the compensation that she was receiving from Okeelanta for her recruitment activities, and (2) dismissing the remaining allegations advanced in the Administrative Complaint, as amended. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of February, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1993.
Findings Of Fact Respondent is a registered farm labor contractor whose Social Security number is 419-50-8742 and who has been issued certificate number 02949. At all times material hereto, Respondent failed to possess, for a period of three years, proof of payment showing the nature and amount of each payment made on behalf of each farmworker for whom he acted as a farm labor contractor. The records which Respondent failed to maintain included payments for social security, income tax withholdings, and payments for transportation and food. When Respondent made payments of wages to farmworkers for whom he acted as a farm labor contractor in June, 1986, he failed to furnish the workers any itemized statement in writing showing in detail each and every deduction made from their wages.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing an administrative penalty of $500.00 against Respondent. DONE AND ENTERED this 8th day of June, 1987, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32399-2152 Joe Louis Rivers Route 3, Snell Street Wauchula, Florida 33873 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2151
The Issue Whether Respondent, Debruyn Produce Co. owes Petitioner, Florida Farm Management Inc. the sum of $4,846.00 for watermelons shipped by Petitioner and handled by Respondent as Petitioner's agent during the period from May 30, 1989 through July 5, 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant fact are found: At all times material to this proceeding, Petitioner, Florida Farm Management, Inc. was a "producer" of agricultural products in the state of Florida as that term is defined in Section 605.15(5), Florida Statutes. At all times material to this proceeding, Respondent, Debruyn Produce Co. was a licensed "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes. Respondent was issued license number 596 by the Department, and bonded by Peerless Insurance Company (Peerless) for the sum of $47,000.00, bond number R2-27-13, with an effective date of November 13, 1988 and a termination date of November 13, 1989. At all times material to this proceeding, Debruyn was authorized to do business in the state of Florida. Around the last week of April, 1989, Petitioner and Respondent orally agreed, among other things, for Petitioner to produce certain quantities of Mickey Lee Watermelons and for Respondent to market those watermelons. This oral agreement was reduced to writing, executed by the Respondent and sent to Petitioner to execute. Petitioner, after making certain changes in the agreement and initialing those changes, executed the agreement and returned it to the Respondent. It is not clear if Respondent agreed to the change since they were not initialed by Respondent. However, the parties appeared to operate under this agreement as modified by Petitioner. Under the agreement, Respondent was to advance monies for harvesting and packing, furnish containers and labels for packing and agreed to pay certain chemical bills. Petitioner was to reimburse any monies advanced by the Respondent for (a) harvesting or packing; (b) containers and labels and; (c) chemicals, from the proceeds of the sale of watermelons. Any balance owed Petitioner for watermelons was to be paid within 30 days. Additionally, Respondent was to receive a commission of 8% of net FOB, except 30 cent maximum on sales of less than $6.25 per carton and 40 cents per carton for melons delivered on contract to National Grocers Co. The relationship of the parties was to be that of producer and sales agent. Before entering into the agreement with Respondent, Petitioner had agreed to furnish National Grocers Co. four shipments of melons totalling 8,000 cartons. Respondent agreed to service that agreement. Although Petitioner's accounts receivable ledger shows a credit of $6,007.13 for chemicals paid for by Respondent, the parties agreed that only $3,684.68 was expended by Respondent for chemicals and that Respondent should receive credit for that amount. The parties agree that Respondent advanced a total of $18,960.00 for harvesting and packing and the Respondent should be given credit for this amount. The parties agree that Respondent paid to Petitioner the sum of $12,439.32 and the Respondent should be given credit for this amount. Cartons and pads for packing the melons were shipped on two occasions and the total sum paid by Respondent for those cartons and pads was $17,225.00. The cartons were printed with the logo of Respondent on one side and the logo of Petitioner on the other side. Petitioner agrees that the number of cartons and pads used by him came to $12,463.78 and the Respondent should be given credit for that amount. All cartons and pads in the sum of $17,255.00 were delivered to Petitioner's farm. The amount in dispute for the remainder of the carton is $4,762.22. The Respondent was responsible under the agreement to furnish cartons and pads (containers). Respondent ordered the cartons and pads after determining from Petitioner the number needed. There were two orders for cartons and pads placed and delivered. There was an over supply of cartons and pads delivered to Petitioner. This over supply was the result of a miscommunication between Petitioner and Respondent as to the amount of cartons and pads needed. Petitioner agrees that all of the cartons and pads were delivered to his farm but that he was unable to protect these cartons and pads from the weather. However, Petitioner advised Respondent that the remainder of the carton and pads could be picked up at his farm. Respondent contended that he was denied access to the farm and was unable to pick up the remainder of the cartons and pads and, therefore, they were ruined by exposure to the weather. While there may have been times when Respondent attempted to retrieve the carton and Petitioner was unavailable, there is insufficient evidence to show that Respondent was intentionally denied access to Petitioner's farm to retrieve the cartons. Clearly, the ordering, purchasing and storing of the cartons and pads was a joint effort and both Petitioner and Respondent bear that responsibility. Therefore, the Petitioner is responsible for one-half of the difference between the total cost of the cartons ($17,225.00) and the amount used by Petitioner ($12,462.78) which is $2,381.11 and Respondent should be given credit for this amount. Petitioner's accounts receivable ledger shows that Petitioner shipped melons to Respondent in the amount of $54,715.63, after adjustments for complaints and commission. Respondent's accounts payable ledger shows receiving melons from Petitioner in the amount of $51,483.00, after adjustments for complaints and commission. The difference in the two ledgers in the amount of is accounted for as follows: Invoice No. 210066 - Customer paid $2.00 per carton less on 93 cartons, Petitioner agreed to the reduction. However, Petitioner's account is in error by 9 cents which reduces total amount to $54,715.54. Invoice No. 210067 - Respondent paid for more melons than Petitioner shows were shipped - $39.60. Invoice No. 210068 - difference in calculation of commission $13.32 Invoice No. 2100105 - difference due to Petitioner not agreeing to adjustment in price taken by customer. $2,886.00 Invoice No. 2100239 - difference of $108.04 due to Respondent allowing customer adjustment which Petitioner did not agree to. Invoice No. 2100267 - difference of $210.00 for same reason stated in (e) above. Petitioner should be allowed the difference due to miscalculation of commission in invoice Nos. 210068, 2100134 and 2100160 in the sum of $68.10 since Petitioner's calculation was in accordance with the agreement. There was no dispute as to the condition of melons being as contracted for upon receipt. There was insufficient evidence to establish that the melons shipped under invoice Nos. 2100105, 2100239 and 2100267 by Petitioner were not of the size and number contracted for by the customer. As to invoice Nos. 2100239 and 2100267, the adjustments were made after the fact without contacting Petitioner. As to invoice No. 2100105, the Petitioner shipped the melons to Russo Farms, Inc., Vineland, N.J., as per Respondent's order who then unloaded the melons and reloaded on Russo's truck and shipped to another buyer. It was this buyer's complaint that resulted in Russo demanding an adjustment. Respondent granted such adjustment without approval of the Petitioner. Although Respondent did contact Petitioner in regard to this complaint, Petitioner would not authorize a federal inspection, which he could have, but instead, requested that Respondent obtain an independent verification of the basis of the complaint. Instead of an independent verification of the complaint, Respondent had Russo evaluate the load as to size of melons and number of boxes. No complaint was made as to condition of the melons. Petitioner would not accept Russo's evaluation because based on the total weight of the melons shipped, as indicated by the freight invoice, Russo's evaluation could not have been correct. The only evidence presented by Respondent as to size and number of melon in regard to invoice Nos. 2100105, 2100239 and 2100267 was hearsay unsupported by any substantial competent evidence. Petitioner should be allowed the difference in invoice Nos. 2100105, 2100239 and 2100267 for a sum total of $3,204.00. No adjustment should be made for the differences in invoice No. 210067 other than the 9 cent error made by Petitioner because this amount is not used in Petitioner's calculation of the gross amount due for melons shipped. Therefore, the sum total of all melons sold and shipped is $54,715.63 - 0.09 = $54,715.54. The amount due Petitioner is calculated as follows: Sum total of melons shipped with proper adjustments $54,715.54 Subtract from that the following: Chemicals 3,684.68 Advances 18,960.00 Cost of Cartons $12,462.78 + 2,381.11 14,773.89 Payment 12,439.32 Subtotal of Deductions 49,857.89 Difference and amount owed $4,857.65
Recommendation Upon consideration of 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 Respondent Debruyn Produce Company, Inc. be ordered to pay the Petitioner Florida Farm Management, Inc. the sum of $4,857.65. It is further RECOMMENDED that if Respondent Debruyn Produce Company, Inc. fails to timely pay Petitioner, Florida Farm Management, Inc. as ordered, the Respondent, Peerless Insurance Company be ordered to pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse the Petitioners in accordance with Section 604.21, Florida Statutes. DONE and ORDERED this 23rd day of October, 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 23rd day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner. 1. Not a finding of fact but the issue in this case. 2.-3. Adopted in findings of fact 2 and 4. Adopted in finding of fact 8. Adopted in finding of fact 4. First sentence adopted in finding of fact 7. The balance is not material but see findings of fact 16-23. Not material but see findings of fact 16-23. Rejected as not being supported by substantial competent evidence in the record but see findings of fact 9-14. Adopted but modified in findings of fact 21 and 22. 10(A), 10(C)(1), 10(E), and 10(F) adopted in finding of fact 24. 10(C)(2)(3), 10(d) rejected as not being supported by substantial competent evidence in the record. See findings of fact 5, ,7, 9 - 15. Rulings on Proposed Findings of Fact Submitted by Respondent. 1.-7. Adopted in findings of fact 2, 1, 4, 4, 4, 6, and 7 respectively as modified. Not material. This involved invoice Nos. 210066 and 210067 and adjustment were agreed to be Petitioner and is not part of this dispute. See Petitioner's accounts receivable ledger, Petitioner's Exhibit 1. Adopted in finding of fact 21 as modified. Rejected as not being supported by substantial competent evidence in the record. Not material. This involved invoice No. 2100160 and adjustments were granted by Petitioner and is not part of this dispute. See Petitioner's Exhibit 1. 12.-13.Adopted in finding of fact 21 as modified. Adopted in finding of fact 5, and 9-15 as clarified. Rejected as not supported by substantial competent evidence in the record but see findings of fact 9-15. Adopted in finding of fact 13 as clarified. Adopted in finding of fact 23 as clarified but see findings of fact 9-22.
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
Findings Of Fact On September 17, 1987, the Petitioner entered a nolo contendere plea to two felonies: possession of cocaine and possession of marijuana. The plea was entered in Case No. 86-342-CF, in the Circuit Court of DeSoto County, Florida, and the Petitioner was adjudged guilty of the offenses. In the Court's judgment of guilt, it was found to the Court's satisfaction that the Petitioner was not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that RICHARD EPPS should suffer the penalty authorized by law. As a result of the Court's findings, the Petitioner, RICHARD EPPS, was sentenced to three years probation. He was ordered to serve five months in the county jail as a condition of that probation. On January 25, 1988, the Petitioner completed an application for a Florida Farm Labor Contractor Certificate of Registration. The purpose of the application was to obtain a new certificate as he was no longer eligible for a renewal of his prior certificate. On March 16, 1988, the Respondent notified the Petitioner of its intent to refuse to issue the certificate of registration. The reasons given were: 1) The U.S. Department of Labor recommended against it due to the felony convictions. 2) By rule, the Respondent is required to cooperate with any federal agency. 3) Once a certificate is obtained, each contractor must comply with all applicable statutes, rules, and regulations for the protection or benefit of labor. The Petitioner has used marijuana in the past. He has never used it during working hours, and his work crew was unaware that he has ever used marijuana. He has never allowed drugs in the work place and he no longer uses marijuana. The Petitioner has never used cocaine or other illegal drugs, except for the marijuana. The Petitioner's arrest on November 6, 1986, for the possession of cocaine and marijuana was a result of his location in the wrong place at the wrong time. When he went to his marijuana supplier's home to purchase marijuana for his personal use, the house was raided by the Arcadia Police Department. Originally, all of the people within the house where individually charged with possession of all of the drugs stored there. The Petitioner's plea of nolo contendere was a result of a plea bargain agreement. The Petitioner is aware that his former drug activity was criminal in nature, and he has stopped his marijuana use with the help of voluntary counseling, his family, the fact that he is on probation, and the fact that his habit got him into serious trouble. The Petitioner will not endanger the safety of a work crew as a result of his past use of marijuana. There is no evidence that the safety of the work crew was ever endangered as a result of the Petitioner's past habit or that his presence in the fields will be harmful to farm workers. The Petitioner has never engaged in transporting farm workers beyond state lines. His crew leader activities are confined to less than twenty workers and he works for one farmer, Mr. Bobby Williams in Arcadia, Florida.
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 Whether petitioner should assess a civil money penalty against respondent for failing to provide wage statements to workers or to keep records of any type in violation of Section 450.38(2), Florida Statutes (1986 Supp.), and Rule 38B- 4.12(1), Florida Administrative Code?
Findings Of Fact When respondent Herbert A. Dockery originally applied for registration as a Florida Farm Labor Contractor, on March 19, 1986, he certified that he had read and understood "the Florida Farm Contractor Rules and Regulations. Petitioner's Exhibit No. 8. On June 25, 1986, Marshall Alexander Carroll and Henry Jefferson Parker, crew chief compliance officers in DLES' employ, discovered that Mr. Dockery was keeping no records of moneys he paid agricultural workers. They told him such recordkeeping was legally required and gave him blank forms, like those that came in as Petitioner's Exhibit No. 6, which he could use, by keeping the originals for himself and giving the workers duplicates. On November 3, 1986, in the course of a scheduled payroll audit, Mr. Parker again asked Mr. Dockery about his recordkeeping, and asked him to produce his social security records, receipts or "anything he had." But Mr. Dockery was unable to produce any records and admitted that he had kept none, saying he had only worked three days 35 as a farm labor contractor in 1986. Petitioner's Exhibit No. 1. Beginning June 1, 1986, Tommy Price worked with Mr. Dockery "a short while" picking and loading watermelons and driving a truck hauling watermelons. Mr. Price worked for the respondent about a month all told but some of that time was in Missouri. During all the time he worked for Mr. Dockery, Mr. Price, who was paid in cash, never received any statements. Mr. Dockery didn't keep track of people's hours and might not even have known, at any one point, who was in the field working for him. The only records he kept were notations of how much he promised to pay different people for truckloads of watermelons.
Recommendation It is, accordingly, RECOMMENDED: That petitioner fine respondent two hundred and fifty dollars ($250.00). DONE and ENTERED this 15th day of June, 19B7, at Tallahassee, Florida. ROBERT T. BENTON, II 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 15th day of June, 1987. COPIES FURNISHED: Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Moses E. Williams, Esquire Suite 117, Montgomery Building 2562 Executive Center Circle Tallahassee, Florida 32399-0658 Herbert A. Dockery Post Office Box 664 Chiefland, Florida 32626
