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
Findings Of Fact Respondent is a registered farm labor contractor with social security number 264-86-0916 and certificate number 4-3266-K 86 I. On or about February 11, 1986 and October 28, 1986, Respondent recruited, transported and hired farmworkers for a fee and directed, controlled and supervised their work. Specifically, he hired and supervised Stanley Hawthorne and Zephrin Augustine as crewleaders, neither of whom had valid and current certificates of registration at that time. Respondent contracted for the employment of farmworkers with farm labor contractors in February and October, 1986 before said contractors displayed to him a current certificate of registration issued by Petitioner.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order assessing an administrative penalty of $1000.00 against Respondent. DONE AND ENTERED this 8th day of June, 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1987. COPIES FURNISHED: Moses Williams, Esquire Department of Labor and Employment Security Montgomery Building, Suite 117 2562 Executive Center Circle, East Tallahassee, Florida 32399-0658 Isaac Hawthorne Highlands Harvest Corp. Post Office Box 2094 Lake Placid, Florida 33852 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building, Suite 206 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire Department of Labor and Employment Security General Counsel Montgomery Building, Suite 131 2562 Executive Center Circle, East Tallahassee, Florida 32399-0658
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Respondent, William R. Daniels, has been a farm labor contractor since 1949. Respondent retained the services of Edward J. Smith to assist him in fruit harvesting activities during the 1987 season. On February 18, 1988, Tommy L. Sumpter, a Compliance Officer employed by Petitioner, performed a compliance check on fruit harvesting activities located off 66th Avenue in Vero Beach, Florida. The compliance check by Sumpter revealed, that Edward J. Smith was supervising citrus workers on behalf of Respondent. Smith transported workers to the citrus field in Vero Beach in van owned by Respondent. Smith displayed his Federal Certificate of Registration which was valid through December 1988. Smith displayed his State Certificate which expired in December 1987. A confirmation check of Smith's Florida Certificate of Registration reveals that his certificate, in fact, expired on December 31, 1987. Smith registered at the Petitioner's Fort Pierce Job Service Office on February 23, 1988. Mr. Smith was cited for failing to register as required by section 450.30, Florida Statutes. Respondent submitted a verification of employment form which indicates that Smith was employed by him on October 15, 1987, and was paid $75.00 minus social security contributions, per truck load of citrus harvested by Smith's workers. By letter dated May 3, 1988, Respondent was issued the subject Administrative Complaint and notified that a civil money penalty was being assessed against him in the amount of $500.00 on the basis that he contracted for the employment of farm workers with a farm labor contractor before that contractor displayed a current certificate of registration issued by Petitioner. When Respondent retained the services of Smith, as a farm labor contractor, Smith's Florida Certificate of Registration was expired and he therefore could not have displayed a current certificate of registration to Respondent before he was employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order imposing a $500.00 civil penalty against Respondent payable within thirty days of the issuance of its final order, for contracting for the employment of farmworkers with a farm labor contractor before the farm labor contractor displayed to him a current certificate of registration issued by Petitioner. DONE and ORDERED this 19th day of January, 1989, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1989. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Suite 117, Montgomery Building 590 Executive Center Circle East Tallahassee, Florida 32399-2152 William R. Daniel 227 Sterrett Circle Port St. Lucie, Florida 33395 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 The issue is whether respondent should have a $1,000 civil penalty imposed for allegedly violating Section 450.30, Florida Statutes (1989) and Rule 38H-11.003, Florida Administrative Code (1989) by contracting for the employment of an unregistered farm labor contractor.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on May 1, 1989, when Don R. Symonette, who is a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made an inspection of a farm owned by Ovid Barnett on State Road 846 some seven or eight miles east of Immokalee, Florida. The testimony as to what transpired during the course of the inspection is sharply in dispute. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and that testimony is embodied in the findings below. As Symonette drove by the farm that day, he observed a crew of approximately eighteen workers picking bell peppers in a field. Thereafter, Symonette drove his vehicle onto the premises for the purpose of determining if pertinent statutes and Division rules were being followed. He initially observed one Abel Flores (Abel) standing by a pickup truck in the same field where the laborers were harvesting the peppers. Abel is the brother of respondent, Alfredo Flores (Alfredo). Symonette and Abel were acquainted from several meetings over the prior years. Symonette asked Abel what he was doing, and Abel answered that he was helping his brother, Alfredo, who is a registered farm labor contractor. Abel also volunteered that he was being paid by Alfredo and received approximately $40 per day in compensation. Abel further acknowledged, and the Division records show, that he is not certified as a farm labor contractor. At that point, Symonette decided to give Abel the benefit of the doubt and to interview respondent, who was supervising a crew in an adjacent field. During the course of the interview, Alfredo advised Symonette that he (Alfredo) was the supervisor in charge of the crew and it was he who had contracted with the farm to supply the workers. Even so, Symonette concluded that because Abel was the only person standing in the other field, he was "supervising" the other crew and was doing so without a certificate of registration. Accordingly, Symonette cited Alfredo for using an unregistered contractor. On April 27, 1990, or almost a year later, the Division issued an administrative complaint charging Alfredo with using an unregistered farm labor contractor. On June 7, 1990, Symonette performed a "payroll audit" by sending by mail a form to Ovid Barnett requesting information regarding Abel's employment. On an undisclosed date, the form was returned to Symonette and contains what purports to be Barnett's signature However, the contents of the completed form are hearsay in nature and cannot serve as the basis for a finding of fact. Moreover, even if the response was not hearsay, it fails to disclose the nature of Abel's employment with the farm and whether the hourly compensation allegedly given Abel was being paid at the time the form was completed in June 1990 or when the inspection occurred thirteen months earlier. All compensation received by Abel was from his employer, Ovid Barnett. In some cases, he was paid by check from the farm, and in other cases, he was paid by his brother who had in turn been paid by the farm. To bolster the contention that Abel was not acting as a farm labor contractor on May 1, 1989, a supervisor at Barnett's farm established that Abel's job was to drive trucks between the field and the packing house when the inspection occurred, and as such, it was necessary for Abel to stand by his truck while the workers loaded the truck with produce. As a driver, Abel had the responsibility of overseeing the loading of produce on his truck and, when necessary, to direct the workers on how to properly do so. It is noted that at hearing, Symonette did not describe the activities being performed by Abel except that Abel was simply "standing" around his truck and "appeared" to be supervising the work crew. Accordingly, it is found that Alfredo was not using an unregistered farm labor contractor on May 1, 1989.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint, with prejudice. DONE and ENTERED this 20th day of August, 1990, in Tallahassee, Florida. DONALD ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. Copies Furnished: Hugo Menendez, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658 Moses E. Williams, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658 Alfredo Flores P. O. Box 1611 Immokalee, FL 33934 Steven D. Barron, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658
The Issue Whether Respondent committed the offenses described in the Administrative Complaint issued against him by Petitioner? If so, what penalty should imposed?
Findings Of Fact At all times material hereto, Respondent has held a farm labor contractor certificate of registration issued by Petitioner. Prior to November 13, 1990, his certificate did not authorize him to arrange or provide transportation for farmworkers. On November 13, 1990, his certificate was amended to reflect that he was henceforth "transportation authorized." Carleen Willis has been a Crew Chief Compliance Officer with Petitioner for the past five years. In her capacity as a Crew Chief Compliance Officer, she monitors the activities and operations of farm labor contractors in the field to ascertain whether they are in compliance with the various statutory and rule provisions regulating their conduct. Events of October 25, 1989 On October 25, 1989, while making a routine visit to the field, Willis encountered Respondent supervising approximately 30 farmworkers who were planting cane for United States Sugar Corporation (USSC). Respondent had recruited these workers for USSC. He also had provided them with transportation in his 1979 International Bus, notwithstanding that he was not, at the time, "transportation authorized" inasmuch as he had submitted to Petitioner neither proof that this vehicle was properly insured, nor proof that it had been inspected and found in compliance with applicable safety standards. For his services, Respondent was paid $100.00 a day by USSC. The bus used to transport the farmworkers under Respondent's supervision was driven by Jean Baptiste Pierre. Pierre, who received compensation from Respondent for transporting the workers, did not then hold a current farm labor contractor certificate of registration issued by Petitioner. Respondent did not have with him his certificate of registration and therefore was unable to produce it when Willis asked him to show it to her during her field inspection. Following her inspection, Willis gave Respondent a citation charging him with violating Florida law by, among other things, "[f]ail[ing] to exhibit certificate," "[f]ail[ing] to assure safety of transportation vehicles," "[f]ail[ing] to obtain prescribed vehicle insurance," and "[u]tilization of unregistered crewleader." Events of January 30, 1990 On January 30, 1990, Willis again encountered Respondent in the field. Respondent was working as an independent contractor for USSC, as he had been at the time of their earlier meeting on October 25, 1989. On this occasion, he was en route to Clewiston with a group of farmworkers who had been recruited to plant cane. They were travelling in Respondent's 1979 International Bus. Respondent had yet to submit proof that the vehicle was properly insured or that it had passed the necessary safety inspection. Accordingly, on this date, he still was not "transportation authorized." Following her inspection, Willis gave Respondent a citation charging him with violating Florida law by "[f]ail[ing] to assure safety of transportation vehicles," and "[f]ail[ing] to obtain prescribed vehicle insurance." Events of March 15, 1990 On March 15, 1990, Respondent, for a fee, again used his 1979 International Bus to provide transportation to a group of farmworkers. As of March 15, 1990, Respondent still had not submitted adequate proof that his vehicle met the applicable safety requirements. He therefore remained "transportation unauthorized." Consequently, he was again cited by Willis, who on this date had paid him another visit in the field, for "[f]ail[ing] to assure safety of transportation vehicles." Record of Prior Violations In 1986, Respondent was cited by Petitioner for acting as a farm labor contractor without being registered to do so. He recived a letter of warning for this violation. On April 3, 1989, Respondent received a citation from Petitioner for failing to post and exhibit his certificate of registration, failing to assure the safety of the vehicle he was using to transport farmworkers, and failing to obtain the prescribed insurance for this vehicle. For these violations, he also received a letter of warning.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Petitioner enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint and imposing a civil penalty in the amount of $2,250.00 for these violations. RECOMMENDED in Tallahassee, Leon County, Florida, this 13th day of March, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1991.
The Issue Whether Respondent committed the alleged violations.
Findings Of Fact At the hearing of this case, the Petitioner's Motion that the request for admissions be deemed admitted was granted, resulting in the following facts being admitted: Waldron Produce of Citra, Florida, paid Respondent to supervise farmworkers harvesting peanuts on August 7, 1986. Respondent did not present to each farmworker he employed a notice of payment, showing the amount of compensation, number of hours worked, the rate of compensation, the name and federal identification number of legal employers of the farmworkers during the pay period, in detail, each and every deduction made from wages. Respondent did not retain for a period of three years an exact copy of each notice of payment form or a copy of the detachable part of the check, draft, or voucher that had been issued to each farmworker he employed. Respondent supervised a crew of farmworkers hand-harvesting peanuts approximately five miles east of Highway 301 on the north side of county road 319 in Marion County, Florida, on August 7, 1986. Respondent did not post his application for a certificate of registration at the work site of the farmworkers on August 7, 1986. Respondent did not post a working conditions statement at the work site of the farmworkers showing the rate of compensation the grower paid him and the rate of compensation he was paying the farmworkers on August 7, 1986. Respondent contracted with Waldron Produce for the employment and supervision of farmworkers without first displaying to Waldron Produce a current certificate of registration issued by the Bureau. In addition, the following facts are based upon evidence introduced at hearing: Respondent did not give wage statements to his workers. On August 20, 1986, Respondent met with CCCO Parker for a payroll audit. The audit revealed that Respondent was not giving wage statements to workers. Respondent did not make social security deductions and forward them to the social security administration. The audit revealed that Petitioner was not keeping the records by last name of each farmworker, or in a condition to facilitate inspection by the Bureau. (See testimony of Parker.) Respondent's records showed that he had paid Mr. Stanley Davy $77.00 for work during the week of August 4 through August 8, 1986. Mr. Davy received only half of the $77.00 and he worked approximately 11 to 12 hours per day. (See testimony of Davy.)
Recommendation Having found Respondent guilty of violating Sections 450.301, 450.33(7), 450.33(4)(a) and (b) , and 450.33(6), it is RECOMMENDED that Petitioner issue a Final Order imposing an administrative fine of $2,500 against Respondent. DONE and ORDERED this 5th day of March, 1987, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152 Nathaniel Manns, Jr. Route 4, Box 4852 Citra, Florida 32627 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152
The Issue The issue 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
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed by the Construction Industry Licensing Board (CILB) as a certified contractor and has held license CGC 13316. At all times relevant to this proceeding, Coastal Structures, LCC (Coastal Structures) has possessed a certificate of authority as a contractor qualified to do business in the State of Florida and has held license QB39088. At all times relevant to this proceeding, Respondent has been the primary qualifying agent for Coastal Structures. At times relevant to this proceeding, Ruth Schumacher was the owner of a residence located in Martin County at 2880 Southwest Brighton Way, Palm City, Florida (the subject property). Ms. Schumacher passed away on June 17, 2008. Prior to her mother’s death, Ms. Macey assisted Ms. Schumacher with her affairs. After her death, all of Ms. Schumacher’s estate, including the subject property, was placed in a trust with Ms. Macey as the trustee. In late October 2005, a screened porch on the subject property was damaged by Hurricane Wilma. In November 2005, Ms. Macey, on behalf of her mother, contacted Coastal Structures about making repairs to the damaged porch. In November 2005, David and Donna Williams, on behalf of Coastal Structures, visited the subject property, made temporary repairs to the damaged porch, and discussed with Ms. Macey and Ms. Schumacher the replacement of the porch. On November 28, 2005, Coastal Structures entered into a written contract with Ms. Schumacher to remove the damaged porch and to replace it with a new screened porch over the existing concrete slab. The written contract failed to contain a written statement explaining to Ms. Schumacher her rights under the Florida Homeowners’ Construction Recovery Fund as required by Section 489.1425(1), Florida Statutes. When Ms. Schumacher contracted with Coastal Structures on November 25, 2005, her insurance company had accepted her claim, but had not completed the damage assessment. The scope of the work was to be based on the allowances provided in the insurance adjuster’s statement of loss once the damage assessment was completed. The insurance company’s damage assessment for the damaged porch was completed December 3, 2005. The total replacement cost was valued at $21,190.10, with a deductible of $2,960.00, for a net claim value of $18,230.10. On March 8, 2006, Respondent submitted to the Martin County Building Department an application for a permit for a screen enclosure over an existing slab. The Martin County Building Department approved the permit application and issued permit number BSCE-2006030334 (the subject permit) to Respondent on March 8, 2006. The subject permit required one inspection, which was to be a final inspection after the completion of the work. Respondent failed to request the required inspection and the subject permit expired. After the execution of the contract with Coastal Structures and the completion of the damage assessment by the insurance company, Ms. Schumacher and Coastal Structures agreed to change the scope of the work from a screened enclosure to a glass enclosure with windows. Ms. Schumacher and Coastal Structures did not execute a written change order or any other written amendment to the written contract. Coastal Structures completed its work on the porch in May 2006. Pursuant to its verbal agreement with Ms. Schumacher, Coastal Structures replaced the damaged screen porch with a glass enclosure with windows. On May 17, 2006, Ms. Schumacher paid Coastal Structures the sum of $25,363.00 in full payment for the work it had done. After payment had been made, Ms. Macey observed several problems with the project including leaks from the ceiling panels and tile work that was not flush with the bottom of the exterior doorway, which allowed water to seep into the structure. In response to complaints from Ms. Macey, Mr. Williams returned to the subject property in May 2006 and applied caulking to the ceiling and along the floor of the structure. That work did not resolve the problems with the project. Ms. Macey made further complaints to Mr. Williams, but he did not respond to those complaints. Ms. Macey and Ms. Schumacher asked Palm City Screening, LLC (Palm City Screening) to determine the problems with the project and to provide an estimate to repair those problems. On February 13, 2007, Palm City Screening provided Ms. Schumacher with an estimate of $19,785.00 to replace the existing porch. In May 2007, Respondent visited the subject property in response to complaints from Ms. Macey. Ms. Macey pointed out to Respondent problems with the porch and Respondent inspected the structure. Respondent told Ms. Macey that he would send someone named George to the subject property to make repairs. Respondent left the subject property and Ms. Macey heard nothing further from him. No one returned to the property on behalf of Respondent. At no time did Ms. Schumacher or Ms. Macey terminate the contract with Coastal Structures or prevent Coastal Structures from correcting the problems with the porch. On July 2, 2008, Palm City Screening provided a second estimate to Ms. Macey in the amount of $23,230.00 to replace the structure. Palm City Screening’s representative told Ms. Macey that the structure could not be repaired as built, but would have to be replaced. The scope of work and estimated costs excluded electrical work for the structure. On July 11, 2008, Jimmy Rowell Electric Service provided Ms. Macey with a written estimate in the amount of $1,520.00 for the electrical work that would be required if the structure were to be replaced. No one on behalf of Palm City Screening or Jimmy Rowell Electric Service testified at the formal hearing. The total investigative costs of this case to Petitioner, excluding costs associated with attorney’s time, was $176.39. On October 8, 1995, Petitioner filed an Amended Administrative Complaint against Respondent in DBPR Case 91- 00022. The Amended Administrative set forth certain factual allegations pertaining to Respondent’s dealings with a person named Donald H. Shaffer. Based on those allegations, Petitioner charged Respondent with abandonment of a project (Count I); committing mismanagement or misconduct in the practice of contracting that caused financial harm to a customer by allowing liens to be placed against the project (Count II); failure to supervise (Count III); mismanagement or misconduct in the practice of contracting that caused financial harm to a customer by abandoning the project (Count IV); and by having committed fraud, deceit, gross negligence, incompetence, or misconduct in the practice of contracting (Count V). DBPR Case 91-00022 was resolved by stipulation. As part of the stipulation, Respondent agreed to pay a fine and make restitution to the customer. The stipulation contained the following provision: Respondent neither admits nor denies the allegations of fact contained in the Amended Administrative Complaint attached hereto as Exhibit “A”. The CILB entered a Final Order Approving Settlement Stipulation on August 2, 1966, which “. . . approved and adopted in toto . . .” the settlement stipulation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint. It is further RECOMMENDED that the final order impose against Respondent administrative fines as follows: $500.00 for Count I; $5,000.00 for Count II; $5,000.00 for Count III; and $5,000.00 for Count IV, for the aggregate amount of $15,500.00. It is further RECOMMENDED that Respondent’s licensure be revoked. DONE AND ENTERED this 20th day of August, 2008, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 20th day of August, 2008.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent possessed a Certificate of Registration as a Farm Labor Contractor, issued under the provisions of Chapter 450, Part III, Florida Statutes. The Certificate number is C-04-387166-D-88-R. It was issued on June 15, 1987, and expired on April 30, 1988. The Department of Labor and Employment Security is the state agency charged with regulating farm labor contractors. At the time Respondent applied for his certificate, on June 4, 1987, he gave as the address for sending documents, P.O. Box 2186, Lake Placid, Florida, 33852. At approximately 9:00 am on June 4, 1987, Larry Coker, a DLES Compliance Officer, observed the Respondent drive his 1980 Ford van up to a convenience store in the town of Ona, on State Road 64, in Hardy County, Florida. At the time, Respondent had thirteen migrant workers in the van with him. Mr. Coker's examination of the van at the time revealed that the seats in the van were not secured to the floor or the frame of the vehicle, and the vehicle was not insured. Mr. Coker attempted to discuss the matter with the Respondent, who had stopped at the store to purchase gas and ice, and to give the workers an opportunity to purchase food for lunch. However, Respondent indicated that he had to get to work, and Mr. Coker followed Respondent to a watermelon field where he and the other workers were to cut watermelons. Though at the hearing, Respondent denied that he was the contractor for the workers in question, at the field, on June 4, 1987, he had indicated that he paid his workers in cash on a daily basis, did not deduct for social security, did not keep names, addresses, or other records, nor did he give a wage statement to the workers. At the hearing, Mr. Crowl admitted making the statement, but contended that he was referring to his routine practice on those occasions when he served as a labor contractor. He unequivocally denies, however, that the workers in his van on June 4, 1987, were his employees. He insists they were the employees of another contractor whose van had broken down beside the road and to whom he was giving a ride, merely to assist them in getting to work. When Mr. Coker discussed the matter with the grower, Randall Roberts, and the crew leader in the field, Mr. McGahey, Roberts indicated that he had just hired Respondent, and that he paid Respondent, who was responsible for paying the workers. Under the circumstances, and considering the relative probabilities of the testimony, it is found that the workers in question were Respondent's employees, and that he did improperly manage them under the terms of Chapter 450, Florida Statutes. It is also found that Mr. Crowl's prior Farm Labor Contractor Certificate of Registration expired in February, 1987. Even though expired, it should have been posted either at the work site or in the van, but was not. Respondent, also, was not authorized to transport workers in his van. As a result, Mr. Coker cited Respondent for failing to register as a contractor, (based on the expired certificate); failing to make, keep or preserve records; failing to provide wage statements to workers; failing to assure the safety of transportation vehicles; failing to obtain prescribed vehicle insurance; and failing to post his certificate of registration as required. The complaint was forwarded to DLES headquarters in Tallahassee. On June 29, 1987, Rod Willis, Chief of the Bureau of Agricultural Programs for the DLES, by letter, notified Respondent that the Department was assessing a civil money penalty against him for the above cited six violations in the total amount of $2,450.00. Under the terms of the letter, Mr. Crowl was given twenty-one days to remit the amount of penalty due, or to request a hearing under Section 120.57, Florida Statutes. The letter was sent by certified mail to the address listed by Mr. Crowl in his application for registration, but was subsequently returned undelivered. Mr. Crowl contends that he never received the letter because shortly after the date of the incident here, he left for New York and did not return until November, 1987. Because requirements outlined in the certified letter referenced above were not complied with, on January 25, 1988, the acting director of the DLES entered a Final Order imposing the $2,450.00 fine, and advising Respondent of his right to appeal. No appeal was taken. On January 28, 1988, Mr. Willis, again by letter, notified Respondent of the Division's intention to revoke his Florida Farm Labor Contractor's Certificate of Registration, citing his failure to pay the previously assessed civil money penalty or to request a hearing. Mr. Crowl was again advised of his right to request a hearing on the revocation, and this hearing was the result. At the hearing, counsel for Petitioner indicated that if Respondent was willing to make arrangements for the payment of the $2,450.00 civil money penalty assessed, he would consider recommending to the Division Director a settlement that might result in allowing Respondent to retain his Contractor's Certificate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED, that Respondent, Erastious Crowl, be ordered to pay the previously assessed civil money penalty in the amount of $2,450.00, with the condition that if the payment of the penalty is not paid within a time period satisfactory to the Department, his Certificate be revoked. Recommended in Tallahassee, Florida, this 9th day of May, 1988. ARNOLD H. POLLOCK 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 9th day of May, 1988. COPIES FURNISHED: MOSES E. WILLIAMS, ESQUIRE DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY MONTGOMERY BUILDING, SUITE 117 2562 EXECUTIVE CENTER CIRCLE TALLAHASSEE, FLORIDA 32399 ERASTIOUS CROWL POST OFFICE BOX 2186 LAKE PLACID, FLORIDA 33852 HUGO MENENDEZ, SECRETARY DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 206 BERKELEY BUILDING 2590 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, as well as the stipulations of facts as to the accounting figures received into evidence as respondents' Exhibit D, the following relevant facts are found: Petitioner supplied cucumbers and cubanelle peppers to the respondents for the purpose of selling such produce for petitioner. Petitioner received a check in the amount of $1200.00 from the respondents. Frank Hause, who was involved in a joint venture with the petitioner, received another check from the respondents in the amount of $1500.00. Petitioner was not made aware of the Hause payment until a later date. With the exception of one shipment which does not appear on the accounting records involved in this proceeding, respondents received all their cucumbers from petitioner or Frank Hause. Due to the fact that the market for cucumbers was so depressed at the time, respondents neither needed nor received cucumbers from any other source. The accounting figures stipulated as being correct by both petitioner and respondents illustrate that respondents owed petitioner $905.39 for the sale of cucumbers and a figure of minus (-) $681.45 for the sale of peppers. The net amount due petitioner from the respondents for the sale of cucumbers and peppers was $223.94.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition and/or complaint filed by the petitioner against the respondents be DISMISSED. Respectfully submitted and entered this 29th day of July, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 29th day of July, 1982. COPIES FURNISHED: Jerry Wilkinson Post Office Box 86 Webster, Florida 33597 Eric Ruff, Esquire Post Office Drawer TT Plant City, Florida 33566 Charles B. Lawton, Jerry Lawton and J. P. Sizemore d/b/a Dixie Growers Post Office Box 1686 Plant City, Florida 33566 Robert A. Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Florida Farm Bureau Mutual Ins. Co. Post Office Box 730 Gainesville, Florida 32602 Mr. Earl Peterson, Chief Bureau of Licensing & Bond Department of Agriculture Room 416 Mayo Building Tallahassee, Florida 32301
