1 | Representative Hudson offered the following: |
2 |
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3 | Amendment (with title amendment) |
4 | Between lines 1111 and 1112, insert: |
5 | Section 19. Effective October 1, 2008, part IV of chapter |
6 | 450, Florida Statutes, consisting of sections 450.401, 450.402, |
7 | 450.4021, 450.4022, 450.403, 450.404, 450.405, 450.406, 450.407, |
8 | 450.409, 450.410, and 450.411, is created to read: |
9 | PART IV |
10 | FOREIGN LABOR CONTRACTOR REGISTRATION |
11 | 450.401 Short title.--This part shall be known as the |
12 | "Foreign Labor Contractor Registration Law." |
13 | 450.402 Applicability.--This part shall apply to all |
14 | natural persons, corporations, limited liability companies, |
15 | partnerships, or other such entities which engage in the |
16 | practices described in this part within this state, between this |
17 | state and another state, or between this state and a foreign |
18 | country. |
19 | 450.4021 Exemption.--This part does not apply to any |
20 | employee of a person described in s. 450.403(2) who performs |
21 | activities solely on the behalf of that employer and is not an |
22 | independent contractor. |
23 | 450.4022 Administration.--Existing funds provided under |
24 | part III of this chapter may be used by the department to |
25 | administer this part. |
26 | 450.403 Definitions.--As used in this part: |
27 | (1) "Department" means the Department of Business and |
28 | Professional Regulation. |
29 | (2) "Foreign labor contractor" means: |
30 | (a) Any person who, for a fee or other valuable |
31 | consideration, recruits, transports into, out of, or within the |
32 | state, supplies, or hires at any one time in any calendar year |
33 | one or more foreign workers to work for, or under the direction, |
34 | supervision, or control of, a third person; or |
35 | (b) Any person who recruits, transports into, out of, or |
36 | within the state, supplies, or hires at any one time in any |
37 | calendar year one or more foreign workers and who, for a fee or |
38 | other valuable consideration, directs, supervises, or controls |
39 | all or any part of the work of such workers. |
40 | (3) "Foreign worker" means an individual holding an H2B |
41 | temporary work visa issued by the United States Government. |
42 | (4) "Major violation" means a violation of a specific |
43 | state or federal law or rule that results in economic or |
44 | physical harm to any foreign worker recruited, transported, |
45 | supplied, or hired by a foreign labor contractor or creates a |
46 | significant threat of such harm. The term also includes failure |
47 | to register as a foreign labor contractor as provided in this |
48 | part. |
49 | (5) "Minor violation" means a violation of a specific |
50 | state or federal law or rule that does not result in economic or |
51 | physical harm to any foreign worker recruited, transported, |
52 | supplied, or hired by a foreign labor contractor or create a |
53 | significant threat of such harm. |
54 | (6) "Registrant" means a person who has obtained a |
55 | certificate of registration under this part. |
56 | 450.404 Requirement of certificate of registration.-- |
57 | (1) No person may act as a foreign labor contractor until |
58 | a certificate of registration has been issued to such person by |
59 | the department and unless such certificate is in full force and |
60 | effect and is in his or her possession. |
61 | (2) No certificate of registration may be transferred or |
62 | assigned. |
63 | (3) Unless sooner revoked, each certificate of |
64 | registration, regardless of the date of issuance, shall be |
65 | renewed on the last day of the birth month of the registrant |
66 | following the date of issuance and, thereafter, each year on the |
67 | last day of the birth month of the registrant. The date of |
68 | formation shall be used in lieu of birthdate for registrants |
69 | that are not natural persons. Applications for certificates of |
70 | registration and renewal thereof shall be on a form prescribed |
71 | by the department. |
72 | (4) The department may adopt rules pursuant to ss. |
73 | 120.536(1) and 120.54 prescribing the procedures to be followed |
74 | to register as a foreign labor contractor. |
75 | 450.405 Issuance, revocation, and suspension of, and |
76 | refusal to issue or renew certificate of, registration.-- |
77 | (1) The department shall not issue to any person a |
78 | certificate of registration as a foreign labor contractor, nor |
79 | shall it renew such certificate, until: |
80 | (a) Such person has executed a written application, signed |
81 | under oath, in a form and pursuant to rules adopted by the |
82 | department and has submitted such information as the department |
83 | may prescribe. |
84 | (b) Such person pays to the department, by cashier's |
85 | check, certified check, or money order, a nonrefundable |
86 | application fee of $125. Fees collected by the department under |
87 | this subsection shall be deposited in the State Treasury into |
88 | the Professional Regulation Trust Fund. |
89 | (c) Such person has designated an agent to receive service |
90 | of process and other official or legal documents. The agent must |
91 | be available during regular business hours, Monday through |
92 | Friday, to accept service on behalf of the foreign labor |
93 | contractor. |
94 | (d) Such person has provided proof of liability insurance |
95 | in an amount not less than $1,000,000. The foreign labor |
96 | contractor must maintain the liability insurance in effect as |
97 | long as the registration is in effect. |
98 | (2) The department may revoke, suspend, or refuse to issue |
99 | or renew any certificate of registration when it is shown that |
100 | the foreign labor contractor has: |
101 | (a) Violated or failed to comply with any provision of |
102 | this part or the rules adopted pursuant to this part; |
103 | (b) Made any misrepresentation or false statement in his |
104 | or her application for a certificate of registration; |
105 | (c) Given false or misleading information concerning |
106 | terms, conditions, or existence of employment to persons who are |
107 | recruited or hired to work; |
108 | (d) Been assessed a civil fine by the department for which |
109 | payment is overdue; |
110 | (e) Failed to pay unemployment compensation taxes as |
111 | determined by the Agency for Workforce Innovation; |
112 | (f) Been denied, or had suspended or revoked, a federal |
113 | certificate of registration as a foreign labor contractor; or |
114 | (g) Failed to pay federal employee taxes as determined by |
115 | the Internal Revenue Service. |
116 | (3) The revocation, suspension of, or refusal to renew any |
117 | permit pursuant to this section will not render any then-current |
118 | and valid contract invalid nor affect the terms of such contract |
119 | then in progress. |
120 | (4) The department may refuse to issue or renew, or may |
121 | suspend or revoke, a certificate of registration if the |
122 | applicant or holder is not the real party in interest in the |
123 | application or certificate of registration and the real party in |
124 | interest is a person who has been refused issuance or renewal of |
125 | a certificate, has had a certificate suspended or revoked, or |
126 | does not qualify under this section for a certificate. |
127 | (5) The department may permanently revoke or refuse to |
128 | issue or renew a certificate of registration if such applicant |
129 | or registrant has been convicted within the preceding 5 years |
130 | of: |
131 | (a) A crime under state or federal law: |
132 | 1. Relating to gambling, or to the sale, distribution, or |
133 | possession of alcoholic beverages; and |
134 | 2. Committed in connection with, or incident to, any |
135 | foreign labor contracting activities, including employment of |
136 | undocumented aliens and aiding or abetting such unlawful |
137 | employment; |
138 | (b) Any felony under state or federal law involving |
139 | robbery, bribery, extortion, embezzlement, fraud, grand larceny, |
140 | burglary, or arson; |
141 | (c) A violation of narcotics laws, murder, rape, assault |
142 | with intent to kill, assault that inflicts grievous bodily |
143 | injury, prostitution, peonage, smuggling, or harboring |
144 | individuals who have entered the country illegally; or |
145 | (d) A major violation under this part. |
146 | (6) A person may not act as a foreign labor contractor |
147 | after the expiration, cancellation, suspension, or revocation of |
148 | his or her registration. |
149 | 450.406 Duties of foreign labor contractor.--Every foreign |
150 | labor contractor must: |
151 | (1) Exhibit the certificate of registration to all persons |
152 | with whom the foreign labor contractor intends to deal in his or |
153 | her capacity as a foreign labor contractor before so dealing |
154 | and, upon request, to persons designated by the department. |
155 | (2) Pay or distribute promptly, when due, to the |
156 | individuals entitled thereto all moneys or other things of value |
157 | entrusted to the registrant by any third person for such |
158 | purpose. |
159 | (3) Comply with the terms and provisions of all legal and |
160 | valid agreements and contracts entered into between a foreign |
161 | labor contractor and a third person in connection with, or |
162 | incident to, any foreign labor contracting activities. |
163 | (4) Take out an insurance policy with any insurance |
164 | carrier which policy insures such registrant against liability |
165 | for damage to persons or property arising out of the operation |
166 | or ownership of any vehicle or vehicles for the transportation |
167 | of individuals in connection with his or her business, |
168 | activities, or operations as a foreign labor contractor. In no |
169 | event may the amount of such liability insurance be less than |
170 | that required by the provisions of the financial responsibility |
171 | law of this state. Any insurance carrier that is licensed to |
172 | operate in this state and that has issued a policy of liability |
173 | insurance to operate a vehicle used to transport foreign workers |
174 | shall notify the department when it intends to cancel such |
175 | policy. |
176 | (5) Maintain such records as may be designated by the |
177 | department. |
178 | (6) Comply with all applicable statutes, rules, and |
179 | regulations of the United States and of the state for the |
180 | protection or benefit of labor, including, but not limited to, |
181 | those providing for wages, hours, fair labor standards, social |
182 | security, workers' compensation, unemployment compensation, |
183 | child labor, and transportation. |
184 | 450.407 Prohibited acts of foreign labor contractor.--A |
185 | registrantlicensee may not: |
186 | (1) Make any misrepresentation or false statement in his |
187 | or her application for a certificate of registration. |
188 | (2) Make or cause to be made to any person any false, |
189 | fraudulent, or misleading representation or publish or circulate |
190 | or cause to be published or circulated any false, fraudulent, or |
191 | misleading information concerning the terms, conditions, or |
192 | existence of employment at any place or places, by any person or |
193 | persons, or of any individual or individuals. |
194 | (3) Retaliate against any person that has filed a |
195 | complaint or aided an investigation pursuant to this part. |
196 | (4) Contract with or employ any person acting in the |
197 | capacity of a foreign labor contractor, or performing activities |
198 | defined in s. 450.403, when that person does not have a current |
199 | certificate of registration issued by the department pursuant to |
200 | the requirements of this part. |
201 | 450.409 Rules.--The department may adopt rules pursuant to |
202 | ss. 120.536(1) and 120.54 to implement this part. |
203 | 450.410 Cooperation with state and federal agencies.--The |
204 | department shall, whenever appropriate, cooperate with any |
205 | federal agency. The department may cooperate with and enter into |
206 | agreements with any other state agency to administer this |
207 | chapter or secure uniform rules. |
208 | 450.411 Enforcement of foreign labor laws.-- |
209 | (1) In addition to any other remedies provided in this |
210 | part, the department may impose a civil penalty against any |
211 | person, firm, association, or corporation that commits a |
212 | violation of this part or of any rule adopted pursuant to this |
213 | part, and such person, firm, association, or corporation may be |
214 | assessed a civil penalty of not more than $2,500 for each such |
215 | violation. Such assessed penalties shall be paid by cashier's |
216 | check, certified check, or money order and shall be deposited |
217 | into the General Revenue Fund. The department shall not |
218 | institute or maintain any administrative proceeding to assess a |
219 | civil penalty under this subsection when the violation is the |
220 | subject of a criminal indictment or information under this |
221 | section which results in a criminal penalty being imposed or |
222 | when the violation is the subject of a criminal, civil, or |
223 | administrative proceeding by the United States Government or an |
224 | agency thereof which results in a criminal or civil penalty |
225 | being imposed. The department may adopt rules prescribing the |
226 | criteria to be used to determine the amount of the civil penalty |
227 | and to provide notification to persons assessed a civil penalty |
228 | under this subsection. |
229 | (2) Upon a complaint of the department being filed in the |
230 | circuit court of the county in which the foreign labor |
231 | contractor resides or may be doing business, any foreign labor |
232 | contractor who fails to obtain a certificate of registration as |
233 | required by this part may, in addition to such penalties, be |
234 | enjoined from engaging in any activity which requires the |
235 | foreign labor contractor to possess a certificate of |
236 | registration. |
237 | (3) For the purpose of any investigation or proceeding |
238 | conducted by the department, the secretary of the department or |
239 | the secretary's designee shall have the power to administer |
240 | oaths, take depositions, make inspections when authorized by |
241 | statute, issue subpoenas which shall be supported by affidavit, |
242 | serve subpoenas and other process, and compel the attendance of |
243 | witnesses and the production of books, papers, documents, and |
244 | other evidence. The secretary of the department or the |
245 | secretary's designee shall exercise this power on the |
246 | secretary's own initiative. |
247 | (4) A foreign labor contractor who commits a minor |
248 | violation of this part shall be issued a warning for the first |
249 | violation. A civil penalty in increments of $250 may be assessed |
250 | for each successive violation of a specific statute or rule of |
251 | this part up to a maximum of $2,500. |
252 | (5) A foreign labor contractor who commits a major |
253 | violation of a specific statute or rule of this part shall be |
254 | assessed a civil penalty of up to $2,500 in accordance with the |
255 | criteria established by the department pursuant to this section. |
256 |
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257 |
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258 | ----------------------------------------------------- |
259 | T I T L E A M E N D M E N T |
260 | Remove line 132 and insert: |
261 | department; creating part IV of ch. 450, F.S., relating to |
262 | foreign labor contractor registration; providing a short title; |
263 | providing applicability; providing an exemption; specifying |
264 | funds for administration of the part by the department; |
265 | providing definitions; requiring a certificate of registration; |
266 | prohibiting transferability or assignment of the certificate of |
267 | registration; providing for renewal date; providing for rules; |
268 | providing eligibility requirements for issuance of a certificate |
269 | of registration; providing grounds for revocation, suspension, |
270 | or refusal to issue or renew any certificate of registration; |
271 | providing duties of a foreign labor contractor; delineating |
272 | prohibited acts; authorizing the department to adopt rules to |
273 | implement the provisions of this part; providing for cooperation |
274 | with state and federal agencies; providing for enforcement and |
275 | penalties; providing for assessment of civil penalties; amending |
276 | s. 455.203, F.S.; authorizing the |
277 |
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