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
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 The Petitioner Farm Workers Rights Organization is an educational and charitable nonprofit corporation which has been organized under the provisions of Chapter 617, Florida Statutes. The purposes of the organization as provided in its Articles of Incorporation are as follows: To raise the economic, educational, and social levels of migrant and seasonal farm workers . . . who are seasonally unemployed, underemployed, or whose income is below federal poverty guidelines and to foster and promote community wide interest and concern for the problems of said farm workers to the end that (a) educational and economic opportunities may be expanded; (b) sickness, poverty, crime, and environmental degradation may be lessened; and (c) racial tensions, prejudice, and discrimination, economic and otherwise, may be eliminated. The organization is authorized under its Articles of Incorporation to do all lawful activities for the furtherance of its purposes. The Farm Workers Rights Organization is an active organization which has more than one thousand members. About three thousand persons are loosely associated with the organization. Many members of the organization reside in or around Immokalee, Florida, but members come from all over the state. Approximately ninety percent of the members are nonwhite, and most earn low or irregular incomes. Health problems are both a symptom and a cause of many of the problems that migrant farm workers face. The Farm Workers Rights Organization is active in promoting improved health care services for its members. The organization has actively opposed the issuance of Certificates of Need by the Department of Health and Rehabilitative Services to health care providers which the organization contends do not adequately address the health care needs of poor and minority persons. A substantial number of the organization's members have experienced difficulty in obtaining access to needed health care services. The Petitioner Carmen Torres is a member of the Farm Workers Rights Organization. She is a low income person of Hispanic background who resides near Immokalee, Florida. She participates in the Medicaid Program. She has experienced some difficulty in obtaining adequate medical assistance for illnesses that she has suffered because many physicians and health care facilities do not accept Medicaid patients. Petitioner would like to have better access to hospital facilities such as those at Lehigh General Hospital. She has never applied for services at Lehigh General Hospital. Friends have advised her that Lehigh General Hospital would not accept her as a patient. No competent evidence was offered as to the identity or status of the other persons who are named as Petitioners in this proceeding. The Department of Health and Rehabilitative Services is responsible for administering Florida's Certificate of Need program under the provisions of Section 381.494, Florida Statutes. The Department is Florida's state health planning and development agency designated pursuant to the provisions of federal law. 42 U.S.C. s3000M. The Department has adopted rules setting criteria to apply to applications for Certificates of Need. These criteria are set out in Rule 10- 5.11, Florida Administrative Code. The rule does not specifically require that the Department consider the extent to which an applicant's proposed service would meet the needs of low income or minority persons, neither does the rule deem those needs irrelevant. Rule 10- 5.11(3) provides that the Department will evaluate "the need that the population served or to be served has for such pro posed health or hospice services." Rule 10-5.12(8) provides for hearing procedures to be conducted by the Division of Administrative Hearings under the provisions of Chapter 120, Florida Statutes. The rule provides at Paragraph (8): The only decisions of the Department which may be reversed or revised by the Hearing Officer are decisions as to the consistency or inconsistency of the application with standards, criteria, and plans described in Rule 10-5.11 herein. Rules that have been adopted by the United States Department of Health and Human Services under the provisions of 42 U.S.C. s3000M provide that state Certificate of Need review agencies consider the degree to which medically underserved persons have access to services under review. See: 42 C.F.R ss123.409(a), 123.412(a), and 123.413. States are required to administer their programs in harmony with the rules of the federal agency. Failure to do so can cause a state to lose federal funding assistance. The Department's rules do not have the effect of removing consideration of how a proposed medical facility or service would impact the needs of low income or minority persons. The Department has obtained input regarding such needs in Certificate of Need proceedings and has considered them. There have been proceedings in which the Department has not specifically addressed the needs of low income and minority persons. The Petitioners have had a special interest in a Certificate of Need application that was filed with the Department by Lehigh General Hospital. Lehigh General Hospital is seeking to build a new hospital facility which would completely replace a present facility. The Department determined in that matter that the application would not impact minority or low income persons because the same basic services would be provided at the new facility as had been provided at the old facility. The service area of Lehigh General Hospital includes the area around Immokalee, Florida. The Department has approved Lehigh General Hospital's Certificate of Need application. The Petitioner Farm Workers Rights Organization is now pursuing judicial action to set aside the approval of that application. It appears that the Department has failed to specifically address the needs of low income and minority persons in other Certificate of Need proceedings. It does not appear, however, that the Department has any policy of not addressing those needs.
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 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.
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. He is part owner of Highlands Harvest Corporation and is registered with Petitioner as the Corporation's representative. Respondent signs payroll checks for Highlands Harvest, hires and fires its workers, and was referred to as the "bossman" by his brothers, Stanley and Nathaniel Hawthorne, and Zephrin Augustine. On or about February 18, 1987, and March 2, 1987, Respondent recruited and hired farm workers for a fee, and directed, controlled and supervised their work as well as that of farm labor contractors who were not registered with Petitioner. Specifically, he hired and supervised Ortland Williams and Stanley Hawthorne as farm labor contractors, neither of whom had current and valid certificates of registration at the time. Respondent contracted with Ortland Williams and Stanley Hawthorne, who were acting as farm labor contractors, for the employment of farmworkers in February and March, 1987 before said contractors displayed to him a current certificate of registration issued by Petitioner. Respondent's actions were taken on behalf of Highlands Harvest Corporation for growers in Highlands County, Florida. However, as registered agent of the Corporation and based upon his role as the principal managing partner of the Corporation, Respondent is responsible for these actions. Therefore, his argument that the Corporation, not he, should be held responsible is rejected. Ortland Williams and Stanley Hawthorne functioned as "goat drivers," as the term is used in the industry, at all times material hereto. Specifically, they gave directions to, and controlled the daily work of up to 15 farm workers under their direct supervision. They received a fee based upon the number of boxes picked each day by their crew. Williams transported such workers to the groves in February, 1987, and Stanley Hawthorne was responsible for recruiting and hiring the workers, according to a statement, he gave to Larry Coker, compliance officer, on March 2, 1987. As such, Williams and Stanley Hawthorne were acting as farm labor contractors. An administrative penalty of $1000 has previously been assessed against Respondent for violating Section 450.35, Florida Statutes, following an administrative hearing in DOAH Case Number 87-1644.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order assessing an administrative penalty of $2000.00 against Respondent. DONE AND ENTERED this 3rd day of November, 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 3rd day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3636 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Findings of Fact 1 and 6, but otherwise rejected as irrelevant to this case. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 2 and 5. Adopted in Finding of Fact 3. Ruling on Respondent's Proposed Findings of Fact: 1. Rejected in Finding of Fact 4. 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 Andrew B. Jackson, Esquire 150 North Commerce Avenue Sebring, Florida 33870 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 Whether Respondent should be assessed a civil money penalty of $1,000.00 for alleged violations of Sections 450.33(10), and 316.620(3) and (4)(d) and (k), Florida Statutes (1993).
Findings Of Fact Respondent, Michelle A. Blount, is a farm labor contractor licensed in Florida. On January 14, 1994, a vehicle transporting members of Respondent's farm labor crew was involved in an accident in St. Lucie County, Florida which resulted in the death of one passenger and serious injury to eight others. Respondent was hired by Willie J. Lampkin to transport, supervise, recruit and provide a crew for harvesting and loading fruit. Elva Ochoa was employed by Respondent to recruit, transport, supervise and provide a crew, in connection with Respondent's contract with Willie J. Lampkin. On January 14, 1994, ten farm workers were being transported to the groves of Lampkin at the direction of Ochoa. The vehicle used to transport the workers was a pickup truck with a cab covering the bed. It did not have secured seating, the tires were worn out and unsafe, and it did not have any means of communication between the passengers and the driver. The vehicle was not approved or insured to transport workers, nor did it have an inspection certificate on record with the Petitioner.
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 Sections 450.33 and 316.620, Florida Statutes. It is further RECOMMENDED that Respondent be fined $1,000.00 and such fine to paid within thirty days from date of the final order entered by the Division. Should Respondent fail to pay fine, Respondent's license as a farm labor contractor should be suspended until the fine is paid in full. DONE and ENTERED this 19th day of August, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 19th day of August, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Accepted in substance: paragraphs 1-7. Respondent did not submit proposed findings. COPIES FURNISHED: Shirley Gooding, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Edward A. Dion, Esquire Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Francisco R. Rivera, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307 Hartman Building Tallahassee, Florida 32399-2189 Michelle A. Blount 531 North Dollings Avenue Orlando, Florida 32805
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
