| 1 | Representative Hudson offered the following: |
| 2 |
|
| 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 |
|
| 257 |
|
| 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 |
|