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HomeMy WebLinkAboutO-1988-1601 . . ORDINANCE NO. 1601 AN ORDINANCE REGULATING AND LICENSING LABOR AGENTS IN THE CITY OF LA PORTE, FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW, PROVIDING THAT ANY PERSON WHO VIOLATES THE TERMS OF THIS ORDINANCE SHALL, UPON CONVICTION, BE GUILTY OF A MISDEMEANOR, AND SHALL BE FINED NOT MORE THAN $200.00 EACH DAY THAT SUCH VIOLATION CONTINUES, PROVIDING A SAVINGS CLAUSE, AND PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: Section 1. Definitions. (a) The term "person" means an individual, partnership, association, corporation, legal representative, trustee, trustee in bankruptcy, or receiver. (b) "Fee" means anything of value including money or other valuable consideration or services or the promise of any of the foregoing received by a Labor Agent or Agency from or on behalf of any person seeking employment, or employers seeking employees, in payment for any service, either directly or indirectly. The term "fee" includes the difference between the amount received by a Labor Agent and the amount paid out by him to persons employed to render personal services, to, for, or under the direction of a third person. (c) "Employer" means any person employing or seeking to employ any employee. (d) "Employee" means any person performing or seeking to perform work or service of any kind for compensation. (e) "Labor Agent" means any person in this City who, for a fee, offers or attempts to procure, or procures employment for employees, or without a fee offers or attempts to procure, or procures employment for any worker, or any person who for a fee attempts to procure workers for employers, or any person, regardless of whether a fee is received or due, offers or attempts to supply or supplies the services of workers to any person, and includes any person who, for a fee, provides in connection therewith one or more of the following services: furnishes board, lodging, or transportation for such workers, supervises, times, checks, counts, weighs, or otherwise directs or measures the work, or disburses wage payments to the workers. . . Ordinance No. 1601 Page 2 (f) "City Manager" shall mean the City Manager of the City of La Porte. (g) "Deputy or Inspector" shall mean any person who is duly authorized by the City Manager to act in that capacity. Section 2. Exceptions. The provisions of this Ordinance shall not apply to any employment agency established and operated by this City, State, the United States Government, or any municipal government of this Statei the provisions of this Ordinance shall not apply to any person who may operate a labor bureau or employment office in conjunction with his own business for the sole and exclusive purpose of employing employees for his own business within this City, nor to any common carrier operating in this City who may operate an employment office in conjunction with his own business for the exclusive purpose of employing employees for his own business within or without this City, provided, that no fee or other charge or reduction is exacted from the salary or wages of the employee for employment given. If a fee or charge of any kind, either directly or indirectly is exacted of the employee, then said employer is deemed an employment or labor agent and is subject to the provisions of this Ordinance. The provisions of this Ordinance shall not apply to farmers or stock raisers acting jointly or severally in securing laborers for their own use in this City where no fee is charged or collected, either directly or indirectly for employment giveni the provisions of this Ordinance shall not apply to any farm labor contractor registered under the Farm Labor Contractor Registration Act of 1963, as amended (7 USC 2041 et seq.)i the provisions of this Ordinance shall not apply to any person, corporation, or charitable association chartered under the laws of Texas for the purpose of conducting a free employment bureau or agency, nor to any veterans'organization or labor unioni nor to any nurses' organizations operated not for profit, to be conducted by recognized professional registered nurses for the enrollment of its professional members only for the purpose of providing professional service to the publici nor shall the . . Ordinance No. 1601 Page 3 provisions of this Ordinance apply to employers, their representatives and/or crew leaders engaged in agricultural production and/or agricultural related services (packing, packaging, and processing), who recruit workers through the Texas Employment Commission. Section 3. Application and Bond (a) An application and Bond for a Labor Agency license shall be executed on blank forms prescribed and furnished by the City Manager. Such forms shall include waivers and consents to credit checks, character references, and pOlice investigations. An application for a license to act as a Labor Agent may be made in person or by mail to the City Manager upon a blank application form which shall be verified by the applicant. Such application shall also be accompanied by affidavits of at least five (5) creditable citizens who have resided in the county in which said applicant resides for at least three (3) years prior thereto, to the effect that applicant or applicants are persons of good moral character. The application must state the names and addresses of all partners, associates and profit sharers of the business and shall list the amount of their respective interest. (b) The City Manager shall investigate each applicant. The City of La Porte Police Department shall make available to the City Manager all arrest and conviction records, and their files, on any applicant for license under this Ordinance. (c) The application shall be examined by the City Manager. If the City Manager finds that the same complies with the law and the applicant is entitled to a license and pays the annual license fee of One Hundred Dollars ($100.00), a license shall be issued to the applicant. Each license issued by the City Manager shall be good for a period of one year from date of issuance. (d) Each application for a labor agency license must be accompanied by a surety or cash performance bond in the principal amount of Twenty-five Thousand Dollars ($25,000.00). The bond shall be payable to the City for the use and benefit of any damaged party and . . Ordinance No. 1601 Page 4 conditioned that the licensee will pay any judgment recovered by any consumer or the City, in any suit for damages, penalties or expenses, including reasonable attorney's fees resulting from a cause of action involving the licensee's labor agency activities. A. Fees. A schedule of all proposed fees to be charged by a licensee to its employees, shall first be filed with the City Manager for his approval. These fees shall include, but not be limited to, charges for obtaining employment~ housing~ transportation~ food and beverages~ uniforms~ tools; and the like. Such fees shall be reasonable. B. Persons Disqualified. No license to operate as a labor agent may be granted to: (1) a person who sells or proposes to sell alcoholic beverages in a building, or on premises where he operates or proposes to operate as a labor agent~ or (2) a person whose license has been revoked within three (3) years preceeding the date of application, or has not been granted a license upon application, depending on severity of cause for rejection~ or (3) a person who has been convicted of a felony. C. Notice of Cancellation of Bond. Where the surety intends to cancel a bond, thirty (30) days' notice of cancellation shall be furnished by the surety to the City Manager prior to the effective date of the cancellation. Section 4. Revocation or Suspension of License The City Manager shall have the authority, and it shall be his duty, to revoke the license of any labor agent when it shall appear to his satisfaction, upon notice and a hearing, which shall be held before a Hearing Officer appointed by the City Manager, that such agent has been convicted in a State or Federal Court of an offence which under the laws of this State is a felony, or for any offense . . Ordinance No. 160l Page 5 involving moral turpitude, or that the agent had obtained his license illegally or fraudulently or was guilty of fraud, false swearing, or deception in securing his license. The City Manager shall have the authority, and it shall be his duty, to revoke or suspend the license of any labor agent when it shall appear to his satisfaction, upon notice and a hearing, that the agent has violated any provision of this Ordinance. The City Manager shall not revoke or suspend the license of any agent until complaint in writing, made by a credible person, shall be filed with him, specifying in general terms the grounds of the proposed revocation or suspension, and a full and fair hearing given to him thereon. Upon the filing of such complaint, the City Manager shall fix a time and place, reasonably accessible to the agent complained against for the hearing of said complaint. The City Manager shall notify the agent so complained against of the time and place fixed for said hearing by a registered letter addressed to him at his post-office address as the same appears upon his application for license, accompanied by an exact copy of the complaint against him~ and mailing of such notice and copy shall be sufficient and conclusive evidence of proper service of the procedure upon the agent so complained against. The agent so complained against shall have at least ten (lO) days after the date said notice is mailed, exclusive of the day of mailing and the day of hearing, before hearing upon said complaint shall be had, and shall have the right to file answer, introduce evidence and to be heard both in person and by counsel. The City Manager shall have the power to summon and compel the attendance of witnesses before him to testify in relation to any such complaint, and may require the production of any book, paper or document deemed pertinent thereto. Said City Manager shall also have the power to provide for the taking of depositions of witnesses and evidence may be heard either from witnesses present testifying orally, or by deposition taken under such rules, and in such fair and impartial manner as the City Manager may prescribe. Said hearing shall be had before the City Manager and shall be . . Ordinance No. 1601 Page 6 conducted in a fair and orderly manner, and in accordance with rules of procedure to be adopted by the City Manager, which must be in accordance with the terms and provisions of the Administrative Procedure and Texas Register Act (Article 6252-l3a, Vernon's Texas Civil Statutes). Any appeal from the decisions of the City Manager shall be filed in the District Court of Harris County and said appeal shall not have the effect of automatically staying the decisions of the City Manager. A. Failure to File Bond, Suspension of License. If a licensee fails to file a bond with the City Manager within 30 days after notice of cancellation by the surety of the bond, the license issued to the principal under the bond is automatically suspended until such time as a bond is filed. A person whose license is suspended pursuant to this section shall not operate as a labor agent during the period of the suspension. Section 5. Duties of Licensee (a) In addition to the duties inherent in being a labor agent and the duties required by this Ordinance or any other provision of law, a licensee has the duties set forth in this section if he employs workers to render services for third persons. (b) A licensee shall promptly payor distribute to the proper individuals all money or other things of value entrusted to the licensee by a third person for such purpose. (c) A licensee shall comply with the terms and provisions of legal and valid agreements and contracts entered into between the licensee in his capacity as a labor agent and third persons. (d) A licensee shall have available for inspection by his employees and by the third persons with whom he has contracted, a written statement in English and Spanish showing the rate of compensation he receives from the third persons and the rate of compensation he is paying to his employees for services rendered to, for, or under the control of such third persons. (e) A licensee shall take out a policy of insurance with an insurance carrier authorized to do business in the State of Texas in . Ordinance No. 1601 . Page 7 the amount of $100,000/$300,000, which insures the licensee against liability for damage to persons or property arising out of the licensee's operation of, or ownership of, any motor vehicle for the transportation of individuals in connection with his business, activities, or operations as a labor agent. (f) All vehicles used by a licensee for the transportation of individuals in his operations as a labor agent shall have displayed prominently at the entrance of the vehicle the name of the labor agent and the number of his license issued by the City Manager. (g) Each licensee shall, semimonthly or at the time of each payment of wages, furnish each worker employed by him either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing in detail each and every deduction made from the wages. (h) Waiting rooms and sleeping quarters for employees shall be kept in a neat, clean, and sanitary condition. Such quarters shall be kept free of insects and pests. Mattresses and pillows shall be well covered, and freshly laundered bed linens and towels shall be furnished to each employee, at least weekly. Licensee may not furnish sleeping quarters to persons who are not employees. (i) A licensee shall furnish food and beverages to employees, for which a reasonable charge may be made, through an on-premise commissary or vending machines, or a combination of each. No alcoholic beverages shall be sold on the premises. (j) A licensee shall comply with all provisions of the Code of Ordinances of the City of La Porte, the laws of the United States, the State of Texas, and Harris County, as may be applicable. (k) A licensee shall not allow employees to loiter or trespass on private property not owned or controlled by the licensee. A licensee shall be responsible for the conduct of its employees, guests, and invitees, while on its premises, and the license of a licensee shall be subject to revocation in the event of repeated violations by its employees of the ordinances of the City of La Porte, or any State or Federal laws. Three or more violations within a thirty (30) day period, shall be deemed "repeated" violations as used herein. . . Ordinance No. 160l Page 8 Section 6. Certain Acts Prohibited No labor agent shall: (a) Knowingly admit, or allow to remain on the premises of such agent any prostitute, gambler, intoxicated person, drug dealer, drug user or any person of bad character. (b) Advertise his agency by means of cards, circulars, signs or in newspapers or other publications, unless all such advertisements shall set forth the name of the agent and the address of his labor office~ nor shall any such licensed person use any letterheads or blanks not containing the name of such labor agent and the address of his labor office. (c) Publish or cause to be published any false or misleading advertisement or notice relating to his labor agency. Cd) Give any false information or make any false representation concerning employment to any applicant for employment. (e) Send out an applicant for employment to any prospective employer without first having obtained a bona fide written order from such prospective employer. (f) Furnish any male or female for immoral purposes~ or send, or cause to be sent, any male or female to enter as servant, inmate, or for any purpose whatsoever, to any place of bad repute, house of ill fame, or assignation house, or any house or place of amusement kept for immoral purposes~ the character of which such labor agent could have ascertained by reasonable diligence. (g) Furnish employment to any child, as defined by Federal or State statute, in violation of the Statutes regulating the employment of children or the compulsory attendance at school. (h) Divide or offer to divide, directly or indirectly, any fee charged or received with any person who secures workers through such agent, or to whom workers are referred by such agent. (i) No labor agent shall send any person to a prospective employer who is conducting a "lockout" against all or part of his employees~ or whose employees, or a part of them are out on a strike, without first apprising said person of the existence of said "lockout" or strike. . . Ordinance No. 1601 Page 9 Section 7. License as Evidence Any application made by an employment or labor agent for a license, or a certified copy thereof under the hand and seal of the City Secretary, shall be received as evidence in any Court in this State without necessity of proving the execution thereof. Section 8. To Display License (a) A labor agent shall keep conspicuously posted in his office the license issued to him under this law. Cb) A labor agent shall display a duplicate of his license to each person with whom he deals in his capacity as a labor agent. Section 9. Prohibited Acts~ Penalty (a) Any person acting as a Labor Agent as defined by this Ordinance, without having first filed with the City Manager of the City of La Porte an application for license as Labor Agent, as provided by this Ordinance, and without having first secured a City license as provided, commits an offense. Each day of continuing violation is a separate offense. (b) A licensee who violates any provision of this Ordinance commits an offense. Cc) An offense under this section is a Class C misdemeanor. Section 10. Authority of the City Manager The City Manager and his deputies or inspectors are hereby empowered to enforce the provisions of this Ordinance, and shall have the authority of peace officers in making arrests of any person or persons who violate, in their presence, any of the provisions of this Ordinance~ and when such arrest has been made, the City Manager or his duly appointed deputies or inspectors may enter any employment office at any reasonable time when such employment office is open for business and inspect the registers and all other records of whatsoever kind and character of such employment or labor agent for the purpose of ascertaining whether the provisions of this Ordinance are being violated, and the refusal of any employment or labor agent to permit such inspection shall be a violation of the Ordinance, and be sufficient reason for the City Manager to suspend . . Ordinance No. 1601 Page 10 or revoke the license of such agent in accordance with the provisions of Section 4 of this Ordinance. A. Rules and Regulations. The City Manager may promulgate rules and regulations to carry out the provisions of the Ordinance. Section 11. Punishment Any employment or labor agent who violates any provisions of this Ordinance shall be deemed guilty of misdemeanor, and upon conviction shall be fined any sum not less than Fifty Dollars C$50.00), nor more than Two Hundred Dollars ($200.00). Each day of violation shall constitute a separate offense. Section 12. Conflict with Other Ordinances It is not the intent of this Ordinance to repeal, abrogate, annul or in any way impair or interfere with existing provisions or other laws or ordinances, except as the same may be specifically repealed by the terms of this Ordinance. Where the conditions imposed by any provisions of this Ordinance are either more or less restrictive than comparable conditions imposed by another ordinance, rule or regulation of the City of La Porte, the ordinance, rule or regulation which imposes the more restrictive condition, standard, or requirements shall prevail. Section 13. Providing a Savings Clause That in the event any section, or part of section or provision of this Ordinance be held invalid, unconstitutional, or inoperative, this shall not affect the validity of the remaining sections, or parts of sections of this Ordinance, but the remainder of the Ordinance shall be given effect as if said invalid, unconstitutional or inoperative section, or part of section or provision, hand not been included. In the event any penalty, right or remedy created or given in any section or part of this Ordinance is held invalid, unconstitutional or inoperative, this shall not affect the validity of any other penalty, right or remedy created or given either in the whole Ordinance or in the Section thereof containing such invalid, unconstitutional or inoperative part, and if any exception to or any limitation upon any general provision herein contained shall be held . e Ordinance No. 1601 Page 11 to be unconstitutional or invalid, the general provisions shall nevertheless stand effective and valid as if the same had been enacted without such limitation or exceptions. Section 14. The City Council officially finds, determines, recites and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Article 6252-17, Texas Revised Civil Statutes Annotated~ and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 15 0 This Ordinance shall have no application to personnel employment services, regulated by Article 5221a-7, Vernon's Annotated Texas Statutes, Revised, or medical or nursing service agencies. Section 16. This Ordinance shall be effective from and after its passage, approval, and publication of its caption, as required by law, and it is so ordered. Labor Agents in operation in the City of La Porte on the effective date hereof shall have forty-five (45) days to comply with the terms hereof. PASSED AND APPROVED, this 26th day of September, 1988. --- A~~ City Secretary AC;;~ ~ City Attorney . e SMITH, HITT " MAGEE ATTORNEYS AT LAW DON SMITH CAHILL HITT 11931-19131 STANLEY W. MAGEE 916 E. JAMES. P.O. BOX 1457. BAYTOWN. TEXAS 77520 (713) 427~ Of Counsel: RAYMOND T. DONNELLY September 13, 1988 CERTIFIED ~AIL . RETURN RECEIPT' REQUESTED Honorable Norman L. ~alone, ~ayor City of the LaPorte Post Office Box 1115 LaPorte, Texas 77572-1115 Re: Proposed Ordinance No. 1601 Dear Sir: I attended your city counsel meeting of September 12, 1988, at which time your agenda number 15, the above- referenced ordinance number, was tabled until the workshop meeting to be held on September 19, 1988. I have pleaded this hearing at the request of my client, Jordan Industries, Inc., and before the city considers the enactment of this ordinance, I would like to point out several relevant facts: 1. Jordan Industries, Inc. has discontinued all opera- tions at the Third Street location which has in the past created problems. 2. Jordan Industries, Inc. over the past eighteen (18) months has seen an increase in business in access of 1,000 per cent, with all the problems that growth of that magnitude entails. 3. Jordan Industries, Inc. has relocated its base of operation from Third Street to Sixteenth Street, a Commercial and Industrial District, in a good faith attempt to eliminate any problems they may have caused in the past. 4 . I n at t e m p tin g to. e 1 i m i n ate the pas t pro b 1 ems, J 0 r d a n Industries, Inc., has made a substantial investment in real property based on representations that this investment would eliminate, or at least alleviate, any future problems. . . September 13, 1988 Jordan Industries Proposed Ordinance No. 1601 Page 2 With respect to the above-referenced ordinance as proposed, it is our position that this ordinance is an i n ten t ion a 1 and del i be rat e v i 0 1 at ion 0 f my c 1 i en tis rig h t s under Title 42, Section 1983, commonly known as the Civil Rights Act, in so much as it proports to deprive my client of their liberty and property rights without due process. I want to assure you that Jordan Industries, Inc., wants nothing more than to be a good corporate citizen and to contri bute to the growth of thi s area. We hereby request that prior to the enactment of any legislation directly aimed at my client, that we be given an opportunity to sit down with the appropriate city officials, describe for them our proposed mode of operation and resolve any problems which either the city or my client may envision. If you feel such a discussion could be beneficial to both parties, please contact my office at (713) 422-3244. Thank you in advance for your kind consideration to this request. Sincerely yours, ~f~~~ cc: Robert Herrera, City ~anager City of LaPorte Post Office Box 1115 LaPorte, Texas 77572-1115 CERTIFIED ~AIL RETURN RECEIPT REQUESTED Knox Askins, City Attorney City of LaPorte Post Office Box 1115 LaPorte, Texas 77572-1115 CERTIFIED ~AIL RETURN RECEIPT REQUESTED Bob Jordan c/o Jordan Industries 225 South Sixteenth Street LaPorte, Texas 77571 u.S. REGULAR ~AIL