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 Respondent is Santos Samarrippas, Sr., a farm labor contractor and holder of a certificate of registration issued by Petitioner at all times pertinent to these proceedings. Respondent's current certificate of registration was issued April 26, 1988. Respondent has renewed his certificate of registration on an annual basis since 1984. As of January 9, 1989, Respondent was indebted to Petitioner in the amount of $5,195.27. This sum represents unpaid unemployment compensation taxes, along with interest and penalties for nonpayment from 1984 to through 1988. In April of 1985, Respondent was informed of his liability for unpaid unemployment compensation taxes in 1984. He completed, after consultation with Petitioner's representative, requisite forms for tax reporting purposes, but neglected to pay the delinquent taxes. Respondent continued his failure to completely pay the required taxes in 1986 and 1987. He made only "pittance" payments. In 1988, Respondent and Petitioner's representative agreed upon a payment plan whereby Respondent agreed to pay the delinquent taxes, penalties and interest at a rate of $100 per week until the total amount owed by him was paid. Respondent made those payments from February 21, 1988 until April 5, 1988. He then ceased to make further payments. The proof establishes that Respondent, after subtraction of the minor payments he made, owed Petitioner a total sum for delinquent taxes, interest, and filing fees for each of the following years in the amounts shown: AMOUNT YEAR $2039 1984 $ 504 1985 $1468.09 1986 $1183.56 1988 Respondent made two timely quarterly tax reports to Petitioner out of a total of 14 required in the period 1984-88, but never made timely payments of the amounts of unemployment compensation taxes owed to Petitioner Also, Respondent never made full payments of the amount of taxes owed. As a result of Respondent's nonpayment of unemployment compensation taxes, Petitioner notified Respondent by letter dated November 17, 1988, of intent to revoke Respondent's Florida Farm Labor Contractor Certificate of Registration for his failure to comply with applicable rules of the United States or the State of Florida relating to unemployment compensation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's certificate of registration as a farm labor contractor. DONE AND ENTERED this 8th day of March, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1989. COPIES FURNISHED: Thomas Joel Chawk, Esquire Post Office Drawer 8209 Lakeland, Florida 33802-8209 Santos Samarrippas, Sr. 3501 Avenue K Northwest Winter Haven, Florida 33881 Moses E. Williams, Esquire Suite 117 Montgomery Building 2562 Executive Center Circle Tallahassee, Florida 32399-0658 Hugo Menendez, Secretary 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, Esquire 131 Montgomery Building 2563 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue The issue is whether the application filed by Mr. Johnson for a certificate of registration as a Florida Farm Labor Contractor should be issued by the Department.
Findings Of Fact Mr. Johnson had been the subject of a prior administrative complaint by the Department of Labor and Employment Security Case No. 88-3795. In that proceeding he was represented by Mr. Thomas Montgomery, Esquire, of Belle Glade, Florida. That proceeding involved an earlier application by Mr. Johnson for a certificate of registration as a Florida Farm Labor Contractor, which the Department denied because Mr. Johnson was liable for unpaid unemployment compensation taxes in the amount of $1,400, and under Rule 38B-4.06(5), Florida Administrative Code, he was ineligible for registration until those unemployment compensation taxes had been paid. The parties had reached a stipulated settlement in that action, under which Mr. Johnson agreed to pay $100.00 per month until the balance due had been paid in full. That stipulation had been signed by Mr. Montgomery, the lawyer for Mr. Johnson. The stipulation was filed on November 18, 1988, with the Division of Administrative Hearings, and consequently an Order Closing File was entered in Case No. 88-3795. Mr. Johnson failed to make payments in accordance with the stipulation agreement. Given the accrued interest and penalties, Mr. Johnson is currently indebted to the State of Florida for unpaid employment compensation taxes, interest, penalties and filing fees in the amount of $2,213.94. Mr. Johnson's failure to make payment as required under the stipulation which he entered into in settlement of Case No. 88-3795, his prior application for a certificate of registration as a Farm Labor Contractor, causes the Hearing Officer to disbelieve that Mr. Johnson was mistaken as to the location of the hearing. The Notice of Hearing was clear. Mr. Johnson has also failed to answer requests for admissions and interrogatories served upon him in this proceeding. Mr. Johnson is continuing to engage in a pattern of conduct designed to evade his responsibility to pay unemployment compensation taxes which he owes. His application for a certificate of registration filed June 4, 1990, should be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of James Johnson for a certificate of registration as a Florida Farm Labor Contractor. DONE and ENTERED this 30th day of November, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 30th day of November, 1990. Copies furnished: Francisco Rivera, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-0658 James Johnson 391 Shirley Drive Pahokee, Florida 33034 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-0658
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
Findings Of Fact Respondent Charles W. Crowell, a State Farm agent under the terms of an agency agreement declaring him an independent contractor, has never employed 15 or more employees at any one time. During the 20 weeks next before petitioner Donna Clark left his employ, he had no more than three full-time and two part- time employees. As a State Farm agent, Mr. Crowell is contractually bound not to represent other insurance companies. State Farm, which has employed more than 15 persons at all pertinent times, prescribes policy forms, premiums, fees and charges for insurance, and prescribes underwriting rules its agents (and so their employees) must follow. Most premiums reach State Farm in the form of checks drawn by insured persons. But, as required by state law and his agreement with State Farm alike, Mr. Crowell maintains a separate premium fund account, into which customers' cash premium payments are deposited. Moneys are disbursed directly from this account to State Farm, which has the right to audit the account. State Farm determines Crowell's compensation based on the amount of premiums it receives on policies he has written, and writes him checks accordingly. At year's end, State Farm reports these payments to the IRS on a form 1099, not on a W-2 form. Mr. Crowell receives no compensation directly from the premium fund account. When an agent retires and in certain other instances, State Farm allocates policies among remaining agents, while honoring preferences policyholders express for particular agents. But it does not restrict agents to a particular territory or otherwise dictate where its agents conduct business. State Farm reserves the right to approve any advertising by an agency using State Farm's name or logo. But certain business cards bearing the logo are "pre-approved," except for the name of the agent or other employee in the agent's office which is to appear on the card. Mr. Crowell sets his own hours and it was he who decided the office would open at nine and close at five. Some days he does not open his office for business, even though State Farm offices are open. If he closes his office on days State Farm is closed, it may well be because he cannot do business with State Farm. But he is free to keep office hours on such days if he chooses. His compensation does not depend directly on the amount of time his office is open, or on the amount of time he spends at work. Mr. Crowell, not State Farm, decides whom to employ in his office, and sets hours, salaries and benefits for these employees. He, not State Farm, personally pays wages and benefits (if any), along with employment taxes for which employers are liable on account of their employees. But, on unemployment compensation tax forms, gives as the employer's name "CHARLES W. CROWELL STATE FARM INSURANCE COS" and signs as Charles W. Crowell Agent." Respondent's Exhibit No. 2. Mr. Crowell drew salary checks in favor of Ms. Clark and other employees in his office on his own business checking account, which is not subject to audit by State Farm. These salary checks did not bear State Farm's name or logo. The parties have stipulated, as follows: "5. Crowell's office is located at 908 Michigan Avenue in Pensacola, Florida, and he personally owns the property and building where his office is located. State Farm has no interest or property rights in this facility. The only forms, manuals, and other documents located in Crowell's office which are the property of State Farm are insurance product information, including names of policyholders. The equipment, furniture and other supplies located at or used in Crowell's office are owned or leased by Crowell, and not State Farm. Crowell personally hired Donna M. Clark, and State Farm took no part in, exercised no control over, and had no input regarding Crowell's decision to hire Ms. Clark. Crowell sets the work hours, wages and benefits of his employees, including the number of employees employed by his business, without consultation with or the approval of State Farm. Crowell personally pays the salaries or wages and employment taxes, including Florida Workers' Compensation, Unemployment Compensation, Social Security (FICA) and federal tax withholding, on all of his employees, including Ms. Clark, and State Farm pays no salaries to or taxes on behalf of any of Crowell's employees. State Farm provides no benefits to the employees of its State Farm agents, and Crowell decides whether employment benefits such as health or life insurance are provided to Crowell's employees, including whether there is any cost to the employee. Such policies can be purchased by the State Farm Agent from State Farm, if he chooses to do so. Crowell, not State Farm, maintains all personnel records on his employees, including Ms. Clark. State Farm does not have any personnel records as to petitioner Donna Clark. Crowell's business is to sell State Farm policies and service State Farm policyholders. State Farm prescribes policy forms, premiums, fees and charges for insurance, and prescribes underwriting rules pertaining to writing State Farm insurance. Employees of State Farm Agents such as Mr. Crowell are not required to attend State Farm meetings or training sessions. State Farm offers training on topics selected by State Farm Agents, to which the State Farm Agents, such as Mr. Crowell, may choose to send their employees, for a fee payable to State Farm. State Farm requires Crowell to maintain a premium fund account, which is a trust account for the deposit of insurance premiums which are the property of State Farm. All cash premiums from policyholders are deposited to the premium fund account, and premium funds are promptly forwarded to State Farm. Premiums paid by check are sent directly to State Farm, and the large majority of premiums received by Crowell are by check. The premium fund account is subject to auditing by State Farm. As part of the audit of the premium fund account, State Farm develops a profit and loss statement which compares the claims experience of policies serviced by the Agent to the premiums generated by those policies and thus reflects the profit or loss to State Farm. Such profit and loss statement is for State Farm's own use in determining its own profitability and does not show or indicate the success of Mr. Crowell in his personal business as an insurance agent. Crowell maintains separate accounts for his personal and business funds which are not subject to any auditing by State Farm. Crowell is not paid for his sales activities out of the premium fund account, but is paid on a commission basis after all premium funds have been deposited with State Farm. Crowell personally directed Clark to attend certain training courses conducted by the local district manager of State Farm on underwriting insurance and product knowledge only. State farm does not require State Farm Agents to send their employees to training courses conducted by State Farm. State Farm does not allow employees of State Farm Agents to attend training courses concerning financial management or conduct of the agency, and Clark did not attend any such courses." Although not stipulated by the parties, evidence showed that, at one of the training courses Ms. Clark attended, a speaker told employees in attendance that they comprised State Farm's "front line." State Farm decides, with input from its agents, which courses and seminars to offer, but it is up to individual agents to decide who, if anybody, attends from their offices. State Farm employees known as agency managers coordinate operations of agents in their assigned area. When the agency manager decides another agent is needed, he recruits a trainee, who works for State Farm for two years or so (unless discharged earlier.) After this period of training, State Farm offers most trainees the opportunity to terminate employment and become agents. With State Farm's permission, an agent may incorporate. Even as independent contractors, agents receive contributions from State Farm toward personal insurance premiums, which are treated as part of the agents' income. The State Farm manager for the Pensacola area while Ms. Clark worked in Mr. Crowell's office offered bonuses to agents' employees who won contests, although this violated company policy. Ms. Clark did not, however, participate in any contest or receive a bonus. A number of unlicensed people in Mr. Crowell's office sign policies when he is unavailable. Because this practice is widespread, Insurance Commissioner Gallagher has insisted that insurance agents see that more office staff are licensed. Accordingly, State Farm's agency manager has asked State Farm agents to identify office personnel for licensure. Employees of a State Farm agency must be approved by State Farm, in order to obtain licenses. After an agent identifies an employee and the employee sits for an examination, State Farm does a background check and makes its decision about sponsorship. Ms. Clark did not seek licensure as an insurance agent, although she was among those who signed policies. In the course or her work, she spoke directly with underwriting personnel in Jacksonville, on Mr. Crowell's behalf or with his acquiescance.
Recommendation It is, accordingly, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the petition. DONE and ENTERED this 3rd day of August, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of August, 1990. COPIES FURNISHED: Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, General Counsel Florida Commission on Human Realtions 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Karen Lessard, Esquire 15 West LaRua Street Pensacola, FL 32501 Kathryn Errington, Esquire HARRELL, WILTSHIRE, SWEARINGEN, WILSON & HARRELL, P.A. 201 East Government Street P.O. Drawer 1832 Pensacola, FL 32501 Mary Jarrett, Esquire 2065 Herschel Street P.O. Box 40089 Jacksonville, FL 32203
The Issue The issue is whether respondent, Eugene Martinez, should have a $1,500 civil penalty imposed for allegedly violating Sections 450.33(5) and and 450.35, Florida Statutes (1989)
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on the morning of January 29, 1990, when Larry Coker, a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made a routine inspection of a citrus harvesting crew working in an orange grove owned by Adrian Chapman and located one-half mile east of State Road 39 in DeSoto County, Florida. The purpose of the inspection was to determine whether the crew and its supervising contractor were in compliance with state regulations. Upon entering the premises, Coker observed a crew of approximately seventeen workers harvesting fruit in the citrus grove. An individual by the name of Martin R. Olvera was operating a high lift at the work site. Coker approached Olvera and asked him who was the farm labor contractor for the crew. Olvera responded that the licensed farm contractor was respondent, Eugene Martinez, but that Martinez had authorized him (Olvera) to supervise the crew that day in Martinez's absence. Olvera acknowledged that he was being paid $40 per day by respondent to supervise the loading of fruit and transport the workers from LaBelle to the grove. Division records reflect that Olvera is not licensed by the Division to perform those activities. A few minutes after Coker completed his inspection, respondent arrived at the work site. He readily acknowledged that Olvera was acting as a farm labor contractor without a license. By allowing Olvera to supervise a crew without a proper license, respondent used an unregistered farm labor contractor in contravention of the law. Olvera had transported the workers to the field that day in respondent's 1973 Ford bus. Respondent acknowledged that he did not have the proper liability insurance on the vehicle or the required inspection sticker. Both are required by law and agency rules. After being issued a citation that morning, respondent obtained the necessary insurance on his vehicle that afternoon. A vehicle inspection was obtained two days later. In addition, respondent initiated the necessary paperwork for Olvera to become a registered farm labor contractor. Because of those prompt efforts to satisfy Division requirements, respondent asked that he be given leniency on any civil fine. He has been unable to work since losing his right leg in an accident in May 1990 and is presently experiencing financial problems. There is no evidence that respondent has ever been disciplined by the Division for a violation of the law or agency rules.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent Eugene Martinez has violated Sections 450.33(5) and (9) and 450.35, Florida Statutes (1989). It is further recommended that respondent be fined $600, such fine to be paid within thirty days from date of the final order entered by the Division. DONE and ENTERED this 9 day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9 day of November, 1990. APPENDIX Petitioner: Partially adopted in findings of fact 1 and 2. Partially adopted in finding of fact 3. Partially adopted in finding of fact 4. Note - Where a finding of fact has been partially used, the remainder has been rejected as being unnecessary, cumulative, subordinate, irrelevant or not supported by the evidence. COPIES FURNISHED: Frances R. Rivera, Esquire The Hartman Building, Suite 307 2012 Capital Circle, S.E. Tallahassee, FL 32399-0657 Mr. Eugene Martinez P. O. Box 2194 LaBelle, FL 33935 Hugo Menendez, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658 Steven D. Barron, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658
Findings Of Fact At all times material hereto Respondent, Randolph Roundtree (Roundtree), held a Florida farm labor contractor certificate of registration. By complaint filed on behalf of thirteen seasonal agricultural workers in the United States District Court for the Southern District of Florida (District Court), hearing Case No. 84-8235-CIV-JAG, damages were sought against Roundtree for violation of the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) under the provisions of 28 USC Sections 1331 and 1337. On November 20, 1985, an order by default was entered against Roundtree which found that he had intentionally violated the MSAWPA in that he had: Failed to post in a conspicuous place at the work site a notice setting forth the rights and protections afforded the workers ... Failed to keep payroll records for each weekly pay period showing as to each Plaintiff his total earnings, all withholding from earnings, net earnings, hours worked, wages per hour, the number of units of work performed and the rate per unit ... Failed to provide each Plaintiff at the end of each weekly pay period with a statement of all sums paid to them on account of the labor of each Plaintiff, an itemized statement of the amount withheld from such payments and the purpose for each withholding * * * Failed to pay the Plaintiffs their wages when due Violated, without justification, the terms of the working agreement made with the Plaintiffs... On November 20, 1985, a final judgment in the sum of 3,000 per plaintiff was entered against Roundtree, and that judgment remains unsatisfied. By certified letter dated April 21, 1987, Petitioner, Department of Labor and Employment Security (Department), advised Roundtree that his failure to comply with the MSAWPA, as demonstrated by the District Court action, likewise constituted a violation of the provisions of Chapter 450, Part III, Florida Statutes, and that the Department intended to revoke his certificate of registration. Roundtree filed a timely request for formal hearing. At hearing, the proof established that, as to the plaintiffs in the District Court action, Roundtree violated the provisions of Chapter 450, Part III, Florida Statutes, by: Failing to display prominently at the site where the work was performed by the farmworkers, and in all vehicles used by him for the transportation of farmworkers, a copy of his application for a certificate of registration, and a written statement showing the rate of compensation he received from the grower and the rate of compensation he was paying the farmworkers. Failing to keep a payroll slip for each weekly pay period showing as to each farmworker his total earnings, all withholdings from earnings, net earnings, hours worked, wages per hour, number of units of work performed, and the rate per unit. Failing to provide each farmworker at the end of each weekly pay period with a statement of all sums paid to them on account of labor of each worker, and an itemized statement of the amount withheld from such payments and the proofs for each withholding. Failing to pay the farmworkers their wages when due. Violating, without justification, the terms of the working agreement he made with the farmworkers.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Roundtree's Florida farm labor contractor certificate of registration be REVOKED. DONE and ENTERED this 26th day of August, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 26th day of August, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Montgomery Building, Suite 117 2562 Executive Center Circle Tallahassee, Florida 32399-0658 Randolph Roundtree Post Office Box 118 South Bay, Florida 33493 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart, General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue Whether Respondent contracted for the employment of farm workers with a farm labor contractor before the contractor displayed a current certificate of registration in violation of Section 450.35, Florida Statutes (1989).
Findings Of Fact Based upon all of the evidence received at the hearing, the following findings of relevant facts are determined: Respondent, David Torres, is a farm labor contractor licensed in Florida. On January 31, 1991 Larry Coker, during a routine grove inspection, observed a crew of farm workers picking fruit in the Happy Acres Grove, in Hardee County, under the supervision of Respondent. Respondent utilized Billy Handford and Antonio Torres to transport the farm workers to the grove. Mr. Handford was employed to recruit and transport farm workers for a fee to be paid by Respondent. Billy Handford did not have a Florida FLC license which authorized him to engage in this occupation. On January 31, 1991, Billy Handford recruited and transported six farm workers from the Bartow area to the Happy Acres grove in Hardee County. Respondent was cited for three violations of Chapter 450, on January 31, 1991.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent has violated Section 450.35, Florida Statutes (1989). It is further RECOMMENDED that Respondent be fined $500 (dollars) and such fine to paid within thirty days from date of the final order entered by the Division. DONE and ORDERED this 26th day of August, 1991, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1991. COPIES FURNISHED TO: FRANCISCO R. RIVERA, ESQUIRE DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 2012 CAPITAL CIRCLE, S.E. SUITE 307, HARTMAN BUILDING TALLAHASSEE, FL 32399-0658 DAVID TORRES, POST OFFICE BOX 842 HAINES CITY, FL 33844 FRANK SCRUGGS, SECRETARY DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 303 HARTMAN BUILDING 2012 CAPITAL CIRCLE, S.E. TALLAHASSEE, FL 32399-2152 STEPHEN BARRON, GENERAL COUNSEL DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 307 HARTMAN BUILDING 2012 CAPITAL CIRCLE S.E. TALLAHASSEE, FL 32399-2152
Findings Of Fact Herbert W. Mize is a compliance officer for the Petitioner, the Department of Labor and Employment Security. On January 14, 1986, Mr. Mize was performing field checks in Hillsborough County. He arrived at a citrus grove, staying on the outside due to the canker problem. Ten to fifteen workers were up on ladders among the citrus trees. The Petitioner, Marvin James, was driving a vehicle loading up citrus. Mr. Mize asked Mr. James who was crew leader on the job at that time. Mr. James stated that he was the crew leader. A 1977 Dodge van was parked nearby. Mr. James told Mr. Mize that it was his van and that he drove workers to work that day in his van. The same 1977 Dodge van had previously been insured by Mr. James by the U.S. Fire Insurance Company, but Mr. James did not have insurance on the 1977 Dodge van on January 14, 1986. P. Ex. 4, 5, and 6. Mr. Mize gave a notice of noncompliance to Mr. James, and Mr. James acknowledged that he had seen it by signing it at the bottom. P. Ex. 3. Relevant to this case, Mr. James was informed by Mr. Mize that he was in noncompliance with state law by failure to carry and exhibit proper certificate of registration as a farm labor contractor and by failure to obtain adequate vehicle insurance. Id. Mr. James testified that he was very familiar with the law requiring farm labor contractor registration and vehicle insurance to transport workers since he had been a crew leader since 1978. Mr. James testified that on January 14, 1987, he was working for Carl Junior Mears, but only to load citrus, and that he did not transport workers in his van and did not supervise workers in the grove. His testimony is rejected as not credible for the following reasons: Mr. James testified that he was "under his van working" when Mr. Mize came up. He gave no explanation why he was working on his van instead of loading citrus as he testified at another point. Mr. Mears admitted that Mr. James did direct and supervise workers in the grove from time to time, and also admitted that Mr. James "sent" workers to him. Both of the worker witnesses presented by Mr. James testified that they had known James for a number of years, which indicates that they have had some sort of formal working relationship with him. If Mr. James in fact had told Mr. Mize that he was not the crew leader, it would have been logical for Mr. Mize to have then asked "well, who is the crew leader?" But Mr. James insisted that he did not tell Mr. Mize where the crew leader was because Mr. James said Mr. Mize did not ask. This is not believable. Mr. James testified that Mr. Mears was the crew leader, and that he was available in the grove on January 14, 1986. Considering the fact that Mr. James was familiar with the requirements of the law, if it were true that Mr. Mears was present in the grove, it would logically be expected that Mr. James would have tried to be helpful and would have voluntarily told Mr. Mize who Mr. Mears was and where he was even if Mr. Mize had somehow failed to ask. It is particularly unbelievable that Mr. James would not have, on his own, told Mr. Mize where Mr. Mears was located since Mr. James admitted that Mr. Mize that day cited him for crew leader violations, and Mr. James signed the citation. P. Ex. 3. The demeanor of Mr. Mize indicated credibility, while the demeanor of Mr. James indicated a lack of credibility. Mr. Mears paid Mr. James for his services as a crew leader. On January 14, 1986, Mr. James drove workers to the citrus groves in his 1977 Dodge van and he was supervising them as a crew leader, both for pay from Mr. Mears. Mr. James was not registered on January 14, 1986 as a crew leader, and did not have insurance on the 1977 Dodge van he used to transport workers.
Recommendation For these reasons it is recommended that the Department of Labor and Employment Security enter its final order finding that the Respondent, Marvin James, on January 14, 1986, violated section 450.30(1), Fla. Stat., by failing to have a certificate of registration in full force and effect and in his possession and violated section 450.33(5), Fla. Stat., by failing to have a policy of insurance on his 1977 Dodge van used to transport farmworkers, and assessing a civil penalty of two thousand dollars ($2,000). DONE and ENTERED this 13th day of July, 1987. WILLIAM C. SHERRILL, JR. 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 13th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1704 The following are rulings upon findings of fact by number or paragraph number as proposed by the parties which have been rejected. Findings of fact proposed by the Petitioner: None. Findings of fact proposed by the Respondent: Paragraph 2: Rejected for the reasons stated in finding of fact 7. Paragraph 3: Rejected for the reasons stated in fending of fact 7. Paragraph 4: Mr. Mize had no need to talk to workers in the grove since Mr. James admitted he was the crew leader, and did not tell Mr. Mize then that Mr. Mears was the crew leader. Paragraph 5: Mr. Mize testified that he saw workers on ladders, and made it clear that his number was only an estimate. Paragraph 6: Rejected for the reasons stated in finding of fact 7. Paragraph 7: Rejected for lack of testimony in the record as to these facts. Paragraph 8: Rejected in the conclusions of law. COPIES FURNISHED: 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 Marvin James 1501 Island Avenue Dade City, Florida 33525 Moses E. Williams, Esquire Department of Labor and Employment Security Montgomery Building, Room 117 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
