Findings Of Fact During January and February, 1987, Respondent acted as a farm labor contractor without a certificate of registration having been issued to him by Petitioner. Specifically, he was hired by Goodson Farms as a farm labor contractor, after holding himself out as such, and did act as a farm labor contractor by supplying and transporting 55 to 75 farm workers for the harvesting of cauliflower at Goodson Farms. He received payment for his services and disbursed payments to these workers. Respondent has failed to possess, for a period of three years, proof of payments he has made to each farm worker for whom he has acted as a farm labor contractor. Records he did provide to Herb Mize, crew chief compliance officer, were incomplete and did not include a record of payments for social security, income taxes withheld, and deductions for food and transportation.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing an administrative penalty of $1400.00 against Respondent. DONE AND ENTERED this 23rd day of October, 1987, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle East Montgomery Building, Suite 117 Tallahassee, Florida 32399-2152 James Quillen, II, Esquire 509 North Morgan Street Tampa, Florida 33602 Hugo Menendez, Secretary Department of Labor and Employment Security 2590 Executive Center Circle East 206 Berkeley Building Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 2562 Executive Center Circle East 131 Montgomery Building Tallahassee, Florida 32399-2151
The Issue The issue in this case is whether Respondent violated Sections 450.33(5), (6), (9), and (10) and 450.35, Florida Statutes (1997), by failing to make, keep, or preserve payroll records; failing to maintain the required inspection of a vehicle used to transport workers; failing to maintain insurance on such a vehicle; utilizing an unregistered crew leader; allowing an unlicensed driver to transport workers; driving without authorization; transporting workers without authorization; and, if so, what penalty, if any, should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating farm labor in the state. Respondent is a registered farm labor contractor and crew leader pursuant to certificate of registration CO4-957228I98R. Respondent’s certificate of registration was effective through September 30, 1999. On December 10 and 11, 1998, Respondent and his crew were harvesting fruit in Polk County, Florida. Compliance Officer Teresa McCutchen approached the crew and asked for the crew leader. Respondent identified himself as the crew leader and produced his certificate of registration. The registration did not authorize Respondent to drive or transport farm workers. Respondent transported his crew to the field on December 10, 1998, through Respondent’s employee, Mr. Roberto Gomez-Gonzalez. Mr. Gomez-Gonzalez is an unlicensed driver and acted as a farm labor contractor, within the meaning of Section 450.28(1)(a), without being registered as a farm labor contractor. At Respondent’s direction, Mr. Gomez-Gonzalez drove Respondent’s crew to the field on December 10, 1998, in a blue 1984 Chevrolet van. The license plate on the van was issued to Respondent for a 1994 Pontiac two-door sedan. The 1984 Chevrolet lacked insurance coverage for the transportation of farm workers and had not received the required safety inspections. Respondent did not maintain required payroll records for his crew. On December 11, 1998, Officer McCutchen returned to the field with Compliance Officer Joe Machado to interview the Spanish-speaking crewmembers. That morning, Respondent had driven the crewmembers to the field in the 1984 blue Chevrolet van. Respondent has a prior history of similar violations. On January 7, 1997, Respondent entered into a settlement agreement with Petitioner. Petitioner had assessed a civil penalty of $1,250 against Respondent for failure to maintain insurance on a vehicle used to transport workers, failure to maintain safety inspections, and the unauthorized transportation of workers. Pursuant to the settlement agreement, Respondent paid a civil penalty of $1,000. Section 450.35 authorizes Petitioner to impose a civil penalty up to $7,000 for the seven violations in the Administrative Complaint. The $5,750 civil penalty is reasonable based on the facts in this case and Respondent’s prior disciplinary history involving similar violations. Failure to impose a civil penalty would result in an economic inducement for Respondent to violate state requirements to maintain vehicle insurance, safety inspections, and payroll records. Respondent could reduce the cost of goods sold by evading the cost of insurance premiums, vehicle maintenance required to comply with safety inspections, and accounting fees for record keeping. A civil penalty operates to negate the economic benefit to Respondent from violating applicable law and also tends to reduce the competitive advantage Respondent’s violations give him over other businesses which comply with state law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the allegations in the Administrative Complaint and imposing a civil penalty of $5,750. DONE AND ENTERED this 7th day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1999. COPIES FURNISHED: Mary Hooks, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Francisco R. Rivera, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Porfirio Loredo Post Office Box 5503 Eloise, Florida 33880
The Issue Whether Respondent should be assessed a civil penalty for acting as a farm labor contractor without a certificate of registration?
Findings Of Fact Upon consideration of the oral and documentary evidence addressed at the hearing, the following relevant facts are found: On or about February 26, 1987 the Respondent was charged with failure to register as a farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes. As a result of this charge, Respondent registered as a farm labor contractor on March 2, 1987 and was issued a certificate of registration on March 6, 1987 which expired on October 3, 1987, the day after Respondent's birthdate, for failure to make application for renewal in accordance with Section 450.31, Florida Statutes. On November 30, 1989, during a routine check of farm labor contractors in DeSoto County, Florida, the Respondent was found to be transporting ten farm laborers who he had hired to pick at 18 per box. Respondent was being paid a fee of 75 per box to have the fruit picked. Respondent was responsible for, and supervised, the ten farm laborers referred to in paragraph 2. In addition to being paid for harvesting the fruit, Respondent received $75.00 per trailer to drive the van and load fruit on the trailer and other duties. Another farm labor contractor, Chris Marroquin, owns the van in which Respondent was transporting the farm laborers and was the individual who paid Respondent for picking the fruit, driving the van and loading the trailer. Although Respondent was acting as a farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes, on November 30, 1989, he did possess a certificate of registration as required under Section 450.30, Florida Statutes. The Respondent was charged with: (a) failure to register in violation of Section 450.30, Florida Statutes; (2) failure to put registration in violation of Section 450.33(4), Florida Statutes and; (3) transporting farm laborers without authorization in violation of Rule 38H-11.006(5), Florida Administrative Code. Respondent applied for a certificate of registration on December 1, 1989 and was issued same on December 5, 1989.
Recommendation Having considered the foregoing Findings of Fact and Conclusion of Law, the evidence of record, the candor and demeanor of the witness and the factors set forth in Rule 38H-11.012(2)(a-q), Florida Administrative Code, it is, therefore, RECOMMENDED: That the Petitioner enter a Final Order assessing civil penalty against the Respondent, Leopoldo Cantu, Jr. in the account of $500.00. DONE and ENTERED this 20th day of September, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1990. COPIES FURNISHED: Hugo Menendez, Secretary Department of Labor and Employment Security 2590 Executive Center Circle, East Berkeley Building, Suite 200 Tallahassee, FL 32399-2152 Stephen Barron, General Counsel 2012 Capitol Circle, S.E. Suite 307, Hartman Building Tallahassee, FL 32399-0658 Leopoldo Cantu, Jr. Route 6, Box 495L Edinburg, TX 78539 Moses Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle Suite 117 Tallahassee, FL 32399-0658 Ruth Ann Weaver Bureau of Agricultural Progrms Post Office Box 1698 Tallahassee, FL 32302-1698
The Issue An administrative complaint dated January 24, 1991, alleges that Respondent violated Chapter 450, F.S., Part III, by acting as a farm labor contractor without an active certificate of registration and by contracting with an unregistered individual. The issue for disposition is whether those violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Gabriel Bain, the Respondent, has worked in citrus fields for 37 years. At various times he has been registered as a farm labor contractor. He had his own company, Mid-Florida Harvesting, but became bankrupt in 1990 after the citrus freeze disaster. Bain's business address is 30 South Ivey Lane, Orlando, Florida. On or about December 14, 1990, Compliance Officers, Henry Parker and Marshall Carroll were at Nevins Fruit Company in Mims, Brevard County, checking leads on unregistered farm labor contractors. In the course of an interview with Steve Schaffer, Harvest Manager for Nevins, Gabriel Bain was called in as the man who was in charge of the harvesting job. Bain identified himself to the officers with a driver's license and did not have his certificate of registration with him. Schaffer produced the certificate that Bain had submitted when he was hired by Nevins. The certificate was in the name of General Traders, Inc., and had an expiration date of February 28, 1991. "G. Bain" was handwritten on the signature line. During the meeting with Carroll and Parker, on December 14, 1990, Bain freely admitted hiring Jerome Pender as a sub-contractor. Pender was not registered as a farm labor contractor, but had shown Bain papers that he had applied for his certificate. Bain signed a notarized statement attesting to this fact and gave it to the compliance officers. The compliance officers issued a summary of violations to Bain for utilization of an unregistered crewleader. At the time, they were unaware that Bain was, himself, unregistered. Gabriel Bain's registration in the name of Mid-Florida Harvesting expired on June 30, 1990. His application, in the name of General Traders, Inc., was approved on March 1, 1991. In December 1990, he was working for General Traders but was not included in that company's registration. He was not registered in any other name in December 1990, and a subsequent summary of violations was issued, citing "fail to register." In December 1990, at the time of the compliance officers' investigation, Gabriel Bain was working for Nevins Fruit Company as a farm labor contractor and was paid for his work in that capacity. In this work he subcontracted with other labor contractors who provided crews. At the hearing Bain claimed that he lied to the compliance officers about hiring Jerome Pender. He claimed he lied because he had actually hired Willie Simmons, someone whom the Nevins people had told him they did not want "within 100 miles" of their groves. This self-impeachment in no way advances Respondent's averment of innocence.
Recommendation Based upon the foregoing, it is hereby recommended that a final order be entered, finding Gabriel Bain guilty of violating Sections 450.30(1), F.S. and 450.35, F.S., and assessing a civil fine of $1250.00 to be paid within thirty (30) days. RECOMMENDED this 22nd day of July, 1992, at Tallahassee, Florida. MARY W. CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1991. COPIES FURNISHED: Francisco Rivera, Sr. Atty. Department of Labor and Employment Security 2012 Capital Circle, S.E. 307 Hartman Building Tallahassee, Florida 32399-0658 Gabriel Bain 30 S. Ivey Lane Orlando, Florida 32811 Frank Scruggs, Secretary 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Cecilia Renn Chief Legal Counsel 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152
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
The Issue Whether the Department may revoke and/or refuse to renew Mr. Moore's Certificate?
Findings Of Fact During 1982, 1983, 1984, part of 1985 and 1986, Mr. Moore acted as a farm labor contractor as those terms are defined in Section 450.28(1), Florida Statutes, and Rule 38B-4.02, Florida Administrative Code. Mr. Moore also acted as a crew leader as defined in Section 443.036(12), Florida Statutes, with a crew of approximately 16 to 20 farm workers. During 1982 through 1986 Mr. Moore failed to file quarterly unemployment compensation tax reports with the Department. When questioned by the Department about why he was not filing quarterly reports Mr. Moore would begin filing them. He would not continue filing them, however, and he paid no taxes due with the reports he filed. During 1982 through 1986 Mr. Moore failed to pay unemployment compensation taxes which totalled $6,831.27, including penalties, interest and filing fees, as of February 1, 1988. This amount will increase every month after January, 1988, that the debt is not paid because of the accrual of interest. By letter dated August 18, 1987, the Department gave Mr. Moore notice that it intended to revoke his Certificate. By letter dated December 16, 1987, the Department gave Mr. Moore notice that it intended to refuse to renew the Certificate. The Department gave Mr. Moore an opportunity to explain why he should be allowed to retain his Certificate. The Department also attempted to work with Mr. Moore to give him an opportunity to pay the delinquent taxes. At least two representatives of the Department have discussed the payment of delinquent taxes with Mr. Moore in the past. Mr. Moore would agree to make payments to the Department as a result of these discussions. For a while Mr. Moore would make payments. Within a short period of time after beginning payments, Mr. Moore would stop.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order revoking and refusing to renew Mr. Moore's Certificate. DONE and ENTERED this 22nd day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 22nd day of March, 1988. COPIES FURNISHED: MOSES E. WILLIAMS, ESQUIRE STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY MONTGOMERY BUILDING, ROOM 117 2562 EXECUTIVE CENTER CIRCLE TALLAHASSEE, FLORIDA 32399-0658 ROBERT L. MOORE P. O. BOX 61 HASTINGS, FLORIDA 32045 ROD WILLIS, BUREAU CHIEF BUREAU OF AGRICULTURAL PROGRAMS P. O. BOX 1698 TALLAHASSEE, FLORIDA 32302-1698 HUGO MENENDEZ, SECRETARY 206 BERKELEY BUILDING 2590 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152 KENNETH HART GENERAL COUNSEL 131 MONTGOMERY BUILDING 2562 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152
Findings Of Fact Respondent is currently a registered farm labor contractor with Social Security Number 248-92-9496 and certificate number 4-92-9496-G87R. On or about February 11, 1986, Respondent acted as a farm labor contractor without a certificate of registration which was in full force and effect, and in her possession. While acting as a farm labor contractor in February, 1986, she failed to display prominently at the site where work was to be performed, and also failed to display on all vehicles she used to transport employees, a written statement in the workers' language showing the rate of compensation she received from the grower, and the rate of compensation she was paying her employees. In connection therewith, Respondent also failed to submit evidence to Petitioner that each vehicle she used to transport employees complied with the requirements of Chapters 316 or 320, Florida Statutes, prior to transporting farmworkers, or in lieu thereof, bore a valid inspection sticker showing the vehicle had passed the inspection in the state in which it was registered. She also failed to submit proof that she had taken out a policy of insurance to insure against liability for damage to persons or property arising out of the operation or ownership of a vehicle she used in February, 1986, to transport workers in connection with her acting as a farm labor contractor. Respondent failed to prominently display a copy of her application for a certificate of registration at the site where work was being performed in February, 1986 and also on all vehicles she used to transport employees. Prior to contracting for the employment of farmworkers, Respondent did not insure that the farm labor contractor displayed to her a current certificate of registration issued by Petitioner.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing an administrative penalty of $2600.00 against Respondent. DONE AND ENTERED this 8th day of June, 1987, in Tallahassee, Leon County, Florida. DONALD CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32399-2152 Mary L. White 13 Garvey Lane Frostproof, Florida 33843 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2151
The Issue Whether 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.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: On January 9, 1986, Ron Brooks, Crew Chief Compliance Officer for the Bureau of Agricultural Programs performed a compliance check in a citrus grove on Lindsey Road, Indian River County, owned by Hamilton Groves of Vero Beach, Florida. Brooks observed Hector Florez and Juan Florez apparently supervising two crews harvesting crops across the road from one another. When Brooks confronted the two men, neither Hector nor Juan Florez could produce a certificate of registration and there were no "Work Conditions Statement" postings at either worksite. Both Hector and Juan Florez stated that the Respondent, Noe Florez, was the contractor and that they worked for him. They stated that Respondent was running another crew at a different location. Later that day, Brooks' investigation revealed that Richard Kirkland was the primary contractor. When Brooks spoke with Kirkland, Kirkland stated that the workers were split up into three crews and that Respondent worked for him and was in charge of all three crews. On January 9, 1986, the Respondent was not registered as a farm labor contractor with the Department of Labor and Employment Security. Brooks subsequently issued violation citations to Richard Kirkland for working an unregistered crewleader and to Respondent, for failure to register as a farm labor contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a civil penalty of $1,000 be assessed against Respondent. DONE and ORDERED this 17th day of April, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4344M The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Rejected as unnecessary and/or subordinate. Addressed in Procedural Backgrounds Section. COPIES FURNISHED: Moses E. Williams, Esquire. Department of Labor and Employment Security The Montgomery Bldg., Suite 117 2562 Executive Center, East Tallahassee, Florida 32399-0658 Noe B. Florez 6990 45th Street Vero Beach, Florida 32960 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0658 Hugo Menendez Secretary Department of Labor and Employment Security 206 Berkeley Bldg. 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue The issues presented in this action concern the Petitioner's failure to renew the Respondent's Florida Farm Labor Contractor Certificate of Registration for the year 1981. The refusal to renew the certificate is premised upon the alleged failure on the part of the Respondent to furnish Felix Munoz and others with an itemized statement of deductions made from their payments for rent, and loans owed to the Petitioner, and by doing so purportedly acting contrary to Subsection 450.33(7), Florida Statutes. In addition, it is alleged, as a ground for refusal to renew the certificate, that Raul Saldivar, Jr., failed to distribute when due all monies or other items of value entrusted him by third persons for such purpose in violation of Subsection 450.33(2), Florida Statutes, and Rule 385-4.08(8)(a), Florida Administrative Code, by receiving payroll checks payable to Arnulfo Ramirez, Esteban Guerraro, Carmen Cruz, Juan Cruz, Santos Martinez, and Leonel Flores; further, that Respondent took the payroll checks in the absence of the farm workers, endorsed and deposited the checks to his bank account. FINDINGS OF FACT 1/ In the years 1979 and 1980, the Respondent had been granted a Florida Farm Labor Contractor Certificate of Registration from the State Department of Labor and Employment Security in keeping with the terms and conditions of Chapter 450, Florida Statutes. When Saldivar applied for the renewal of his Florida Farm Labor Contractor Certificate of Registration for 1981, he was refused renewal for the reasons set forth in the issues statement of this Recommended Order. The Respondent has, in all other respects, complied with the necessary conditions for his relicensure. Beginning in August, 1979, and continuing into 1980, the Respondent was a member of a partnership known as R & S Sons. Particularly in the year 1980, Saldivar, as a member of the partnership, was involved in providing farm labor employees to various tomato growers (Corkscrew Growers, Greener's Farm, C & G Farms, Johnson's Farm, Harvey Brothers, and R & S Sons, which was the partnership farm.) There was no written contract between the growers and Saldivar. Each grower would pay Saldivar for transporting the farm laborers to the growers' farms, and in addition, pay Saldivar for running a labor camp, that is, the place at which the farm laborers resided when they were not employed picking tomatoes. This latter item was the payment for rent for the laborers. The Respondent was also paid by the growers for the units of tomatoes picked by the laborers on an increment payment basis known as a "bin." The Respondent maintained a list of farm laborers through the device of a time card for each employee that worked for a week or mere for one of the growers. Those farm employees had Social Security cards and the growers furnished Workers' Compensation Insurance coverage for the benefit of the farm laborers. There were approximately 200 farm laborers in the category being provided by the Respondent's organization. The drivers of the tomato hauling trucks worked for the growers but the trucks belonged to the Saldivar organization and the picking buckets were also provided by this latter group. The farm laborers were paid by checks issued by the various growers. They were made up from time records maintained by the Respondent's organization. The check had attached to it a stub indicating the amount of pay, and the amount of Social Security deductions and the stub was available to be maintained by the employee. The information placed on the time records was gained from field supervisors who were employees of the growers. (Although the growers had field supervisors immediately in charge of the farm laborers, Saldivar was the overall coordinator for the activities of these laborers.) No withholding amount was taken out of the checks of the laborers other than Social Security. The payroll records of the Respondent would indicate the net earnings and gross amount paid to each farm laborer. Payment to the farm laborers was made at the farm labor camp managed by the Respondent. The process for disbursing the checks was to call the laborer by name and Saldivar would hand the check to the laborer. One of the farm laborers who lived at the Saldivar camp and picked tomatoes for a grower in the area was Felix Munoz. Munoz arrived at the Saldivar camp in August, 1979. Saldivar, at that point, loaned Munoz money to pay for Munoz's transportation to Florida. There was no repayment of the travel loan for a period of time for reason of unavailability of work for Munoz. In late September, Munoz began to repay the loan, and the method of repayment was at the time wherein the Respondent disbursed the payroll check from the grower to Munoz. Munoz would in turn endorse the check over to the Respondent and receive cash in the face amount of the check, and then give the Respondent some of that cash as repayment for the loan. Munoz was not provided a statement of the amount repaid on the loan. Respondent did have the amount written on a piece of paper over which he had control. The same loan arrangements for transportation that were involved with the laborer Munoz occurred with other farm laborers living in the Saldivar camp, and the same method was utilized for handling the manner of repayment of the indebtedness, and for recording the matters of the indebtedness. Munoz and other farm laborers also paid the Respondent rent for living at the Respondent's farm labor camp and the rent was paid from the proceeds of the checks for their efforts as tomato pickers. Munoz and others were not given statements of the amount they had paid to Saldivar for rent. Arnulfo Ramirez, Esteban Guerrero, Carnen Cruz, Juan Cruz, Santos Martinez and Leonel Flores were farm laborers who arrived at the Saldivar camp in December, 1979. These individuals, as with others spoken to above, were loaned money to pay for their transportation costs to Florida. The Respondent loaned them the money, and they in turn, agreed to repay the transportation loan from salaries earned and by the method identified before. These individuals had left the area of the State when the growers issued their last paycheck. Therefore, Respondent picked up the paychecks from the growers, and acting on the advice of counsel, endorsed the farm laborers' names to the checks and deposited them in the Respondent's account and the proceeds were used as credit against the transportation loans owed by these individuals.
