STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )
)
Petitioner, )
)
vs. )
) JOHN L. MAHON AND SHELBY MAHON, ) d/b/a JOHN'S CITRUS TREES, )
)
Respondents. )
Case No. 10-1888
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing in this case was held in Leesburg, Florida, before Lawrence P. Stevenson, Administrative Law Judge, Division of Administrative Hearings,
on June 29 and 30, 2010.
APPEARANCES
For Petitioner: Carol A. Forthman, Esquire
Steven Hall, Esquire Department of Agriculture and
Consumer Services
407 South Calhoun Street Tallahassee, Florida 32399
For Respondent: John L. Mahon, pro se
Shelby A. Mahon, pro se John's Citrus Trees Post Office Box 120399
Clermont, Florida 34712
STATEMENT OF THE ISSUE
The issue in this case is whether Respondents John and Shelby Mahon (the "Mahons"), d/b/a John's Citrus Trees, committed any or all of the violations alleged in the Administrative Complaint dated March 12, 2010, and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
John's Citrus Trees is a registered nursery in the state of Florida, registration no. 47218720, owned by the Mahons. John's Citrus Trees has two registered locations: a propagation nursery at 7401 Laws Road in Clermont, and a retail location at 2557
441 in Fruitland Park.
In an Administrative Complaint dated March 12, 2010, the Department of Agriculture and Consumer Services ("Department") stated the following, in relevant part:
On June 3, 2009, the Department placed the Laws Road location under temporary quarantine, pursuant to section 581.031(7), Florida Statutes, due to the presence of trees with symptoms of citrus canker. The presence of citrus canker was confirmed by the Department's plant pathology laboratory. The Laws Road location was inspected approximately every thirty days thereafter and the quarantine was continued due to the continued presence of citrus canker. On October 5, 2009, the Department issued a Stop Sale Order due to the refusal of the owners to permit access. As of January 15, 2010, samples with symptoms of citrus canker
were collected in every section of the nursery and the quarantine is continuing in effect to date.
On July 1, 2009, the Fruitland Park location was inspected and samples collected. The presence of citrus canker was confirmed by the Department's plant pathology laboratory. A temporary quarantine pursuant to section 581.031(7), Florida Statutes, was imposed until the symptoms of citrus canker were no longer found. The site has been repeatedly inspected on an approximately thirty-day schedule since that time and the quarantine has been continued due to the continued presence of citrus canker. On December 22, 2009, the Department issued a Stop Sale Order due to the presence of over 500 trees outside of any enclosure, in violation of Rule 5B-62.020(2), Florida Administrative Code. Samples indicating the presence of citrus canker were collected on January 20, 2010, and the site remains under quarantine to date....
Specifically, the Department has identified the following violations:
* SECTION 581.101(3), FLORIDA STATUTES: IT IS UNLAWFUL FOR ANY PERSON TO REMOVE FROM ANY PLANT OR PLANT PRODUCT ANY OFFICIAL QUARANTINE TAG OR CERTIFICATE OF THE DEPARTMENT, OR TO DESTROY OR DISGUISE ANY SUCH TAG OR CERTIFICATE, WITHOUT PRIOR AUTHORIZATION FROM AN AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT.
On December 18, 2009, yellow agriculture hold tape with the statement "Do Not Move" was wrapped around 528 citrus trees at your quarantined nursery located at the North Lake Flea Market, 2557 US 441, Fruitland Park. On January 20, 2010 during your routine inspection, it was observed that all tape was missing from the quarantined citrus trees.
* SECTIONS 581.101(1), 581.121, AND 581.181: MOVEMENT OF QUARANTINED NURSERY STOCK QUARANTINED; UNLAWFULLY MOVED PLANTS WITHIN THE STATE FROM A QUARANTINE LOCATION. TWELVE SEPARATE INCIDENTS LISTED BELOW.
On October 8, 2009, Office of Agriculture Law Enforcement intercepted a Budget rental truck at Station 7, US 90 Live Oak with 517 citrus trees destined to various nurseries in Madison, Perry, Tallahassee and Marianna Florida. The citrus trees were determined to have originated from your quarantined nursery located at 7401 Laws Road, Clermont.
On October 20, 2009, an inspector visually witnessed the movement of a citrus tree from your quarantined nursery located at North Lake Flea Market, 2557 US 441, Fruitland Park. Further investigation by the Office of Agriculture Law Enforcement and our local inspectors revealed the tree was planted in a homeowner's yard. Registration number on the tree was confirmed to be from John's Citrus Nursery. Owner volunteered to have the tree removed and destroyed by the Department.
On November 24, 2009, an inspector with the Citrus Health Response Program found a newly planted grove in Groveland totaling 724 honeybell citrus trees that had visual canker symptoms on 25 percent of the grove. Upon questioning the Grove Owner, Office of Agriculture Law Enforcement was able to obtain receipts that showed that the trees were purchased from your quarantined nursery located at 7401 Laws Road, Clermont in July 2009.
On July 7, 2009, during a routine inspection of your quarantined nursery located at the North Lake Flea Market, 2557 US 441, Fruitland Park, it was discovered that your citrus inventory had decreased from 470 to
449 citrus trees.
On December 18, 2009, at your quarantined nursery located at the North Lake Flea Market, 2557 US 441, Fruitland Park, four citrus trees were purchased. This location has been under quarantine due to Citrus Cankers since July 1, 2009.
On October 12, 2009, during a routine inspection of your quarantined nursery located at 7401 Laws Road, Clermont, it was discovered that your citrus inventory held outside had increased from 402 to 439 citrus trees.
On October 19, 2009, during a routine inspection of your quarantined nursery located at the North Lake Flea Market, 2557 US 441, Fruitland Park, it was discovered that your citrus inventory had decreased from 444 to 437 citrus trees.
On November 12, 2009, during a routine inspection of your quarantined nursery located at 7401 Laws Road, Clermont, it was discovered that your citrus inventory held outside had decreased from 439 to 391 citrus trees.
On December 14, 2009, during a routine inspection of your quarantined nursery located at 7401 Laws Road, Clermont, it was discovered that your citrus inventory held outside had increased from 391 to 400 citrus trees.
On December 15, 2009, during a routine inspection of your quarantined nursery located at the North Lake Flea Market, 2557 US 441, Fruitland Park, it was discovered that your citrus inventory had increased from 437 to 528 citrus trees.
On January 20, 2010, during a routine inspection of your quarantined nursery located at the North Lake Flea Market, 2557 US 441, Fruitland Park, it was discovered
that your citrus inventory had increased from 528 to 529 citrus trees.
On January 15, 2010, during a routine inspection of your quarantined nursery located at 7401 Laws Road, Clermont, it was discovered that your citrus inventory held outside had increased from 400 to 524 citrus trees.
SECTION 581.091(1): KNOWINGLY DISTRIBUTE AND OFFER FOR SALE A PLANT DECLARED INFESTED OR INFECTED.
On October 8, 2009, Office of Agriculture Law Enforcement intercepted a Budget rental truck at Station 7, US 90 Live Oak with 517 citrus trees destined to various nurseries in Madison, Perry, Tallahassee and Marianna Florida. Based on registered nursery tags, the citrus trees were determined to have originated from your quarantined nursery located at 7401 Laws Road, Clermont.
Several citrus trees were sampled and found positive for Asiatic citrus canker, Xanthomonas axonopodi.
SECTION 581.211(1)(b): WRONGFULLY OR IMPROPERLY USE ANY TAG, CERTIFICATE OR PERMIT.
On October 8, 2009, Office of Agriculture Law Enforcement intercepted a Budget rental truck at Station 7, US 90 Live Oak with 517 citrus trees destined to various nurseries in Madison, Perry, Tallahassee and Marianna Florida. The citrus trees were determined to have originated from your quarantined nursery located at 7401 Laws Road, Clermont. Several trees on the truck had two different nursery registration numbers attached to the same tree with one of those tags from Paul Mahon Nursery that was placed under quarantine on July 23, 2009 for citrus greening, huanglongbing (caused by the bacterium Candidatus Liberibacter
asiaticus), and tropical spiderwort and the other from Pokey's Lake Gem Citrus Nursery.
RULE 5B-62.020, F.A.C.: RETAIL CITRUS TREES-- MORE THAN 500 TREES OUTSIDE AN APPROVED STRUCTURE. TWO SEPARATE INCIDENTS LISTED BELOW.
On December 15, 2009, during a routine inspection of your quarantined nursery located at the North Lake Flea Market, 2557 US 441, Fruitland Park, it was discovered that your citrus inventory had increased to
528 trees. A Stop Sale and Hold Order was also issued on December 22, 2009, for this infraction of the law.
On January 15, 2010, during a routine inspection of your quarantined nursery located at 7401 Laws Road, Clermont, it was discovered that your citrus inventory held outside had increased to 524 trees.
RULE 5B-62.008, F.A.C.: RECORD OF MOVEMENT OF NURSERY STOCK OR PLANT MATERIAL UNDER INSPECTION.
On June 3, 2009, a letter was written to you requesting copies of all shipping records and sales invoices for citrus plants moved from your quarantined nursery located at 7401 Laws Road, Clermont since January 1, 2009. No records were ever received from you.
The Mahons received service of the Administrative Complaint on March 17, 2010. On April 7, 2010, the Mahons filed their answer and request for a formal administrative hearing. The Department forwarded the matter to the Division of Administrative Hearings on April 12, 2010. On April 29, 2010, a
Notice of Hearing was issued setting this matter for hearing on June 29 and 30, 2010, on which dates the case was convened and completed.
At the hearing, the Department presented the testimony of Bryan Benson, assistant chief of plant inspection in the Department's Bureau of Plant Inspection; Dr. Xiaoan Sun, a plant pathologist for the Department and an expert in plant disease identification and biology, with specific emphasis in citrus canker; Fred Thomas, a contract citrus farmer; Ralph R. Bowman, Jr., a contractor for Sumter Electric Cooperative and Nelson Tree Service; James R. Holm, a supervisory inspector in the Department's Tavares office; Justin Ezell, supervisor of the Department's citrus nursery inspection program; Wayne Nichols, a fruit fly detection trapper with the Department; Detective Joshua Little, a state lands officer for the Department's Division of Forestry; Justin Nipaver, survey supervisor for the Department's Citrus Health Response Program office in Tavares; Christina Zamora, regional administrator for the Department's Division of Plant Industry; Daniel Shaw, an investigator in the Department's Office of Agriculture law Enforcement ("OALE"); and Shelby Mahon. The Department also called Mr. Holm and
Mr. Benson to provide rebuttal testimony. The Department's Exhibits 1 through 22 were admitted into evidence.
Respondents presented the testimony of John L. Mahon, and of Mr. Benson, Mr. Ezell, and Mr. Holm. Respondents' Exhibits 1 through 9 were admitted into evidence.
The three-volume transcript of the hearing was filed on July 15, 2010. The Department timely submitted a Proposed Recommended Order on July 26, 2010. On July 29, 2010, Respondents filed a request for an extension of the time in which to file a proposed recommended order, explaining that they had believed the ten-day post-transcript filing period only included business days. The undersigned granted the request, in light of Respondents' pro se status and their good faith misunderstanding of the filing requirements. In an order dated July 30, 2010, the undersigned granted the Respondents until August 12, 2010, to file their proposed recommended order.
Cognizant of the fact that Respondents would have the benefit of having read the Department's Proposed Recommended Order before drafting their own, the undersigned also provided in the order that the Department would be permitted to file a supplement to its proposed recommended order no later than August 23, 2010.
Respondents filed their Proposed Recommended Order on August 12, 2010. The Department filed a Supplemental Proposed Recommended Order on August 19, 2010.
FINDINGS OF FACT
The Department is the state agency statutorily charged
with protecting the State of Florida from invasive and destructive plant pests and diseases. See § 581.031, Florida Statutes (2010).1/
John's Citrus Trees is a wholly owned business of the Mahons, and holds nursery registration number 47218720.
Citrus canker
Citrus canker (Xanthomonas axonopodis pv. citri) is a bacterial disease of citrus. It affects all types of citrus. The bacteria requires water to enter the plant tissue and is easily spread by wind driven rain, by movement of infected trees, and by contact with contaminated tools or people.
Citrus canker in plants cannot be cured. The only treatment is the destruction of infected and exposed plants. If the infected plants were in the ground, then the ground must be dried out and treated with chemicals, because the bacteria can remain in the ground water after the plant has been removed.
The scientific consensus is that 95 percent of new infections occur within 1900 feet of infected trees, when the trees are outdoors. Thus, trees within 1900 feet of an infected tree are considered to have been "exposed" to citrus canker.
Within an enclosed structure, citrus canker infection can be spread by worker contact or by overhead irrigation systems.
For many years, Florida has followed a program aimed at citrus canker eradication. Several hurricanes swept through the state in 2004 and 2005, resulting in widespread citrus canker. Since the most recent outbreak, the Department has tracked and sought to eradicate citrus canker through the Citrus Health Response Program ("CHRP") developed by the Department in coordination with the United States Department of Agriculture's Animal and Plant Health Inspection Service ("USDA/APHIS"). See Fla. Admin. Code R. 5B-63.001.
In the two years preceding the hearing in this matter, the Department found citrus canker in three commercial nurseries, out of 56 commercial nurseries that grow citrus in Florida.
One of the three nurseries, in Polk County, has been released from quarantine and is now free of citrus canker. In that case, the owners destroyed the entire bench on which the infected plants were found. Depending on the size of the propagation house, one bench may contain from 10,000 to 40,000 plants. When a follow-up inspection found canker, the nursery destroyed all infected and exposed plants. Subsequent inspections found no further infection.
The second location, in Desoto County, was still under quarantine at the time of the hearing. Citrus canker remained in one of the three growing structures at the nursery even after
the destruction of 1,200 trees. The Department intended to release the nursery from quarantine if the follow-up destruction entirely eliminated the infection.
The process of inspection, quarantine, destruction and, if necessary, repeat, as followed in the cases of the Polk and Desoto County nurseries, is the standard industry practice for the control of citrus canker in nurseries.
The third commercial nursery with a citrus canker infestation was John's Citrus Trees in Clermont. As of the date of the hearing, there was still a citrus canker infection in all parts of the nursery, and the quarantine remained in effect at both the Clermont and Fruitland Park locations of John's Citrus Trees.
Movement of citrus trees from quarantined locations
The Mahons operate a citrus nursery at 7401 Laws Road in Clermont and a retail operation in Fruitland Park at the front of the North Lake Flea Market on U.S. 441. At the Clermont location, the Mahons have a propagation house, a screened enclosure and an outdoor retail area. The nursery is classified as a propagation nursery because the operators grow citrus from budwood that is grafted onto rootstock and then matured for sale.
A propagation house is an enclosed structure that is entered through a decontamination station to prevent the
introduction of pests and diseases into the propagation area. Commercial citrus propagation houses are also required to have a double entryway with positive airflow, so that when inspectors or workers enter, air is pushing out against them, to blow away any pests.
A screen house is an additional structure in which plants are stored prior to sale. The screening prevents insects from infecting the plants and provides some protection from windblown infection by bacterial diseases such as citrus canker.
On June 1, 2009, inspectors from the Department's Division of Plant Industry ("DPI") conducted a routine inspection of the Clermont nursery. The inspectors found structural deficiencies in the propagation house itself, as well as plants outside the screen house that they suspected of having citrus canker.
The inspectors collected samples and sent them to the DPI pathology laboratory in Gainesville. The pathology report confirmed citrus canker on the leaves of the plant samples taken from outside the Clermont nursery's screen house.
On June 3, 2009, a total of 1281 screen house and outside plants at the Clermont nursery were quarantined until follow-up sampling showed no signs of citrus canker. The inspection report notes that 36 plants at the nursery showed positive signs of citrus canker.
The Clermont nursery was re-inspected on June 29, 2009. Following the re-inspection, the quarantine was extended to the 27,400 plants in the propagation house due to the presence of citrus canker there.
Re-inspections were conducted on July 31, September 3, October 12, November 12, and December 14, 2009, and on
January 15, 2010. Samples were taken at each re-inspection, and pathology testing revealed a continuing infection of plants with citrus canker at the Clermont nursery.
During each inspection, the inspectors made a count of the plants in each area of the nursery. On two of the dates, June 29, 2009 and July 31, 2009, the inspection report shows only a total for the outside and screen house areas combined. The other reports give a separate number for the outside and screen houseplants. The counts for the outside location were as follows:
2009
June 3 471 plants
September 3 402 plants
October 12 439 plants
November 12 391 plants
December 14 400 plants
2010
January 15 524 plants
On July 1, 2009, DPI inspectors conducted an inspection at the Fruitland Park retail location of John's Citrus Trees.
The inspectors took samples from plants that displayed the visual symptoms of citrus canker. The samples were sent to the DPI laboratory in Gainesville for analysis. The Fruitland Park location was placed under temporary quarantine pending the results of the laboratory analysis.
A DPI pathology report dated July 2, 2009, confirmed that the plants were infected with citrus canker. On July 7, 2009, the quarantine was extended for an additional 30 days to allow time to confirm that the Fruitland Park location was free of citrus canker.
On July 6, 2009, the Department's inspectors witnessed the destruction of 21 citrus trees at the Fruitland Park location. Four of these trees had been confirmed with citrus canker, and the other 17 were suspected of having citrus canker.
On July 10, 2009, a Department representative witnessed the destruction of another nine trees at the Fruitland Park location.
On August 26, 2009, DPI inspectors conducted a re- inspection at the Fruitland Park location, taking additional samples from plants showing signs of citrus canker. In a pathology report completed on the same date, the samples were confirmed to be infected with citrus canker.
Subsequent inspections on October 19 and December 15, 2009, and on January 20, February 23, March 29, April 19, and
May 24, 2010, each resulted in additional samples of suspected citrus canker being taken for analysis.
Pathology reports dated October 21 and December 15, 2009, and January 27, February 25, April 1, April 23, and May 26, 2010, confirmed the continuing infection of the Fruitland Park location with citrus canker.
At each of the inspections at the Fruitland Park location, the inspectors made a count of the plants at the nursery.
On December 15, 2009, a DPI inspector discovered that the Mahons had between 50 and 100 citrus trees (later determined to be 76 plants) in a spot at the North Lake Flea Market, near a recreational vehicle approximately 200 feet behind the retail location at the front of the flea market. The inspector, James Holm, a supervisor in DPI's Tavares office, gave the Mahons notice that that these plants were under quarantine because of their proximity to the infected plants already under quarantine. The Mahons received written notice of the quarantine on
December 18, 2009.
The Department considered the additional plants to be at John's Citrus Trees' registered location at Fruitland Park. The alternative would have been to consider the additional trees to be placed at an unregistered location, which would have
constituted a different violation than that alleged in the Administrative Complaint.
The plant counts, based on the inspection reports and taking into account the plant destruction witnessed by Department inspectors, were as follows:
2009
July 1 470 plants
July 6 449 plants, accounting for 21 destroyed
July 10 440 plants, accounting for 9
destroyed
August 26 449 plants
September 10 444 plants, accounting for 5
destroyed
October 19 437 plants
December 15 452 plants in front area and
50-100 new plants in rear December 18 528 total plants (76 plants
counted in rear plus 452 plants in front)
2010
January 20 529 total plants
and 22 (424 plants in front area,
76 in rear and 29 plants farther to the rear)
Even when the destroyed plants are accounted for, the plant counts appear to show movement of trees exposed to or infected with citrus canker into and out of the Fruitland Park location while it was under quarantine for citrus canker and the owners had knowledge of the continuing infection.
The tree count rose from 440 plants on July 10, 2009 to 449 plants on August 26, 2009. The Mahons had no explanation
for this change, which they attributed to counting error by the Department.
The tree count dropped from 444 plants on September 10, 2009 to 437 plants on October 19, 2009. The Mahons had no evidentiary explanation for this change. They
speculated that the seven trees in question were stolen, noting that they were kept in an unlocked, unprotected area of the flea market directly off U.S. 441.
As to the additional trees discovered by the Department in the rear area of the flea market on December 15, 2009, the Mahons testified that their conversations with
Mr. Holm led them to believe that the Department would approve of their bringing in plants from other locations and selling them in the rear area.
The Mahons testified that the plants in the rear area actually belonged to their son, Danny Mahon. The Mahons produced invoices for trees purchased by Danny Mahon from Pokey's Lake Gem Citrus Nursery. (Gary "Pokey" Mahon is the brother of Respondent John Mahon.) The plants named on the invoices could not be definitely matched with the 76 trees in the rear area of the flea market, though the dates on the receipts leave open the possibility that the 76 trees were the property of Danny Mahon. See Findings of Fact 80 and 81, infra, for detailed findings as to the invoices.
Even if the Mahons testimony as to the provenance and ownership of the trees is credited, Mr. Holm denied giving the Mahons permission to sell trees from the rear area of the flea market while maintaining a quarantine on the location at the front of the flea market. Mr. Holm acknowledged having a discussion with Mr. Mahon along those lines, but also stated that he told Mr. Mahon that DPI headquarters in Gainesville would have to approve such a plan. The Mahons would have had to register the rear area as a separate retail location.
As noted above, on December 15, 2009, Mr. Holm gave the Mahons telephonic notice that the both the front and rear sites at the flea market were under quarantine. The new plants in the rear area were quarantined due to their proximity to the known infected plants in the front of the flea market. Mr. Holm provided the Mahons with written notice of the quarantine on December 18, 2009.
Danny Mahon did not have a registered nursery at the Fruitland Park location. The Department therefore attributed ownership of all of the trees, in the front and the back areas of the flea market location, to the only registered location at the North Lake Flea Market on U.S. 441 in Fruitland Park: John's Citrus Trees.
On January 22, 2010, inspectors found another 29 plants at a third site, behind the recreational vehicle near
which the 76 plants were found on December 15, 2009. The Mahons did not clarify whether these were new plants or plants that had been moved from one of the other two flea market locations. It is noted that the number of plants in the front area was 452 on December 15, 2009, and 424 on January 20, 2010, a difference of
28 plants, very nearly the number of plants found at the third site. The total count of trees at the Fruitland Park location changed from 528 on December 18, 2009, to 529 on January 20, 2010. The Mahons plausibly attributed these small discrepancies to a counting error.
The sale of trees to Fred Thomas
In 2009, Fred Thomas contacted John's Citrus Trees regarding the availability of 720 Minneola tangelo, or "honeybell," citrus trees. Mr. Thomas, an experienced grove caretaker, had been hired by Victor Roye, the owner of an abandoned grove, to remove the existing trees and replant the grove with honeybell citrus.
Mr. Thomas testified that honeybells are "packing house fruit," and that Mr. Roye's intention was to sell the honeybells as edible fruit. The value of such market fruit is much greater than the value of fruit sold for juice. Citrus infected with citrus canker can be sold for juice, but is not salable as market fruit.
On the telephone, Mr. Mahon assured Mr. Thomas that he could supply the requested trees. On March 3, 2009, Mr. Mahon and Mr. Thomas met in a McDonald's parking lot and signed a contract for the purchase of 720 honeybell citrus trees.
Mr. Thomas gave Mr. Mahon a 25 percent deposit of $1620.00 towards the purchase price of $6,480.00 (720 trees x $9.00 per tree).
At the time the contract was entered, the Mahons' propagation location in Clermont was not under quarantine.
Under the terms of the contract, the trees were to be delivered by June 10, 2009. When the appointed date passed and he had not received the trees, Mr. Thomas contacted Mr. Mahon, who stated that the trees hadn't grown as they should.
Mr. Mahon asked for an additional 30 days to deliver the trees. Mr. Thomas agreed to the extension only because he already had a contract with Mr. Mahon. Mr. Thomas thought it would likely take longer to find a new seller and negotiate a contract than the 30 days requested by Mr. Mahon. Mr. Mahon knew that
Mr. Thomas was upset, and asked him to come to the Clermont nursery and see what he had.
Mr. Thomas and his wife subsequently met with
Mr. Mahon at the Clermont location. Mr. Mahon took the Thomases into the propagation house and showed them some trees in the ground that he identified as their honeybells. Mr. Thomas
agreed that the trees were too small and reiterated his agreement to the 30-day extension. Mr. Mahon stated that he might obtain half of the 720 trees from his brother Pokey, and promised full delivery in July.
Mr. Thomas testified that when he visited another nursery's propagation house, there was a pan of disinfectant outside the first door, and he was required to step into the disinfectant before proceeding. When the first door was opened, he was hit with a gust of air from a fan. As Mr. Thomas stated, "You walk into the second door, you're clean."
Mr. Thomas noted that the Mahons' propagation house had none of those protections from infection. Mr. Thomas further noted that the propagation house itself was in poor condition, with gaps and openings in the enclosure.
On about July 10, 2009, Ms. Mahon and one of her sons delivered about half of the promised 720 trees, then delivered the remaining trees two or three days later. Mr. Thomas testified that the trees were delivered "bare root," not in pots. Mr. Thomas paid the remainder of the purchase price to Ms. Mahon as the trees were delivered.
Mr. Thomas testified that the trees did not look good when he planted them. "I didn't like the looks of them from the word 'go,' 'cause they were so small, and I seen stuff on them." In August, Mr. Thomas went to Triangle Chemical Company in
Mascotte to seek the advice of Richard Hoffman, a salesman who was familiar with citrus pests.
Mr. Hoffman was not available, but another Triangle Chemical employee accompanied Mr. Thomas to the grove. This man told Mr. Thomas, "Your trees are eat up with citrus canker." Mr. Thomas was incredulous and chose not to believe the man, though Mr. Thomas acknowledged his expertise. Mr. Thomas simply could not believe that the trees he had just planted were infested with canker, and decided to "try to take care of them."
Later, Mr. Hoffman came out to the grove, because it still did not look right. Mr. Hoffman agreed with the earlier Triangle Chemical employee's assessment that the trees were "eat up with canker," in Mr. Thomas' words.
Justin Nipaver, a CHRP inspector, is charged with ensuring that all citrus groves can be tracked in the Department's database. During the summer, Mr. Nipaver had noted that an old grove on the Roye property had been pulled out and destroyed. On November 22, 2009, Mr. Nipaver stopped in to inspect the newly planted grove, in order to obtain the information necessary to add the grove to the Department's database.
During this inspection, Mr. Nipaver noted visible symptoms of citrus canker on the plants. He collected samples for laboratory analysis. He spoke with Mrs. Thomas, who told
him that she and her husband had planted the grove for Mr. Roye and were acting as caretakers. Mrs. Thomas told Mr. Nipaver that the plants had been purchased from John's Citrus Trees.
Mr. Nipaver did not tell Mrs. Thomas that he suspected a citrus canker infestation, preferring to wait for laboratory confirmation.
Mr. Nipaver returned to the grove on November 30, 2009, accompanied by Mr. Holm, Detective Daniel Shaw of OALE, and two other Department employees. The team surveyed part of the grove and determined that 65 to 70 percent of the trees were suspected of having citrus canker. Mr. Nipaver testified that there was no need to survey the entire grove because of the severity of the infestation in the sample portion. Detective Shaw attempted to contact the Thomases but was unable to reach them.
In a report dated December 2, 2009, the DPI pathology laboratory confirmed that the samples taken from the grove on November 30 were infected with citrus canker.
The grove was placed under quarantine. Mr. Thomas testified that he told Mr. Mahon about the situation and that Mr. Mahon assured him that he could sell the fruit for juice. Mr. Thomas found this an inadequate response because his entire purpose in planting honeybells was to produce packing house fruit. He asked Mr. Mahon for a refund, but Mr. Mahon claimed
that the Department had him "broke and tied up."
Mr. Thomas subsequently pulled all of the trees and burned them under the supervision of Department employees.
Mr. Nipaver testified that there were no groves with citrus canker near the Roye grove.
The Mahons Clermont nursery was released from quarantine on April 1, 2009. Mr. Mahon testified that he feared that the Department would impose another quarantine on his nursery, not necessarily for good reason but just because "they were gunning for me." He therefore potted the 720 honeybell trees promised to Mr. Thomas and moved them, along with many other trees, to his son Paul Mahon's nursery in Groveland.
Mr. Mahon testified that the plants were kept in a screen house at Paul's nursery until they were delivered to Mr. Thomas in July.
Mr. Mahon's testimony conflicts with Mr. Thomas' testimony regarding his visit to the Mahon's nursery in June. Mr. Mahon had shown him plants in the propagation house that Mr. Mahon stated were the plants to be delivered to Mr. Thomas. Mr. Mahon had also stated that, in the alternative, he might obtain half of the plants from his brother Pokey. This June meeting was well after the April time period during which
Mr. Mahon claimed to have moved the plants to Paul's nursery.
Mr. Mahon's testimony that the plants being held for Mr. Thomas at Paul's nursery were potted is contradicted by Mr. Thomas' testimony that the plants were delivered bare root.
Mr. Holm testified that Paul Mahon's nursery in Groveland was a propagation nursery and as such was inspected every thirty days. Mr. Holm testified that between April 2009 and early July 2009, the period during which Mr. Mahon claimed to be holding Mr. Thomas' plants in pots at Paul Mahon's nursery, there were no such potted plants on the nursery grounds.
Mr. Holm testified that in April 2009, Paul Mahon's screen house was overgrown with grass and had "an issue" with tropical spiderwort, an aggressive, difficult to control weed. Part of the screen house structure was collapsed and the entryways were open. Mr. Holm described it as in a "deteriorating condition," and testified that this condition remained unchanged through October 2009.
Mr. Mahon testified that Paul Mahon was very ill and awaiting a liver transplant during the period in question. Paul Mahon's illness accounts for the abandoned appearance of his nursery but not for the absence of the 720 plants that Mr. Mahon testified were stored there.
Mr. Thomas' testimony was consistent and credible, and was supported by the testimony of Mr. Holm as regards the
provenance of the 720 honeybell plants. Based on all the evidence, it is found that the plants delivered to Mr. Thomas in July 2009 came directly from the Mahons' propagation house at the Clermont nursery, and that they had not been stored at Paul Mahon's nursery between April and July 2009. Mr. Mahon knew that these plants were under quarantine and had a substantial probability of being infected with citrus canker.
Sale of infected plants to a homeowner
On October 20, 2009, DPI fruitfly inspection trapper Wayne Nichols drove past the John's Citrus Trees location at Fruitland Park and noticed plants being unloaded from a Budget rental truck. Mr. Nichols, who had prior experience as a citrus canker inspector with the Department, knew that the Fruitland Park Flea Market location was under quarantine for citrus canker. He therefore phoned his supervisor, Mr. Holm, to inform him of the activity.
Mr. Nichols parked his car at the north entrance of the flea market and watched the activity while waiting for instructions from Mr. Holm. He saw a hatchback car leaving the flea market with two citrus trees hanging out of the back window. Mr. Nichols recognized driver of the car as a man he had just seen in the canopy tent from which John's Citrus Trees conducted business at the flea market. Mr. Nichols followed the
car until it reached a gated portion of The Villages community. He could not follow further.
The next day, Mr. Nichols and Mr. Holm returned to the gated neighborhood in The Villages. They located recently planted citrus trees in a homeowner's yard. Further inspection revealed that at least one of the trees had a citrus nursery identification tag with the registration number of John's Citrus Trees. Trees are tagged in this fashion by the original producer to allow the regulatory authorities to trace the origin of diseased plants.
Mr. Nichols and Mr. Holm called the OALE and were met at The Villages location by Detective Shaw, who took over the investigation and photographed the trees and their location. The photographs were entered into evidence at the hearing.
Mr. Mahon testified that during the periods when the Fruitland Park location was under quarantine, he would nonetheless take "special orders." He would purchase trees from other certified nurseries to satisfy the customers making these special orders. Mr. Mahon testified that this particular sale was to have been performed "truck to truck," with the plants never touching the ground at the flea market before being loaded into the customer's car. Mr. Mahon stated that if one of the trees had a tag indicating that its place of origin was John's
Citrus Trees, then one of his employees must have mistakenly tagged the tree.
Mr. Mahon testified that these special order plants were purchased from Pokey's, and were brought to the flea market via pickup truck. The plants in the pickup were covered and kept away from the other plants at the flea market, and they never touched the ground. This testimony is inconsistent with Mr. Nichols' credible testimony that he saw plants being unloaded from a Budget rental truck at the flea market.
Mr. Mahon's testimony as to the origin and handling of "special order" trees is not credible. If the plants were kept covered in the back of a pickup truck until the customer took them away, and they never touched the ground at the flea market, it is difficult to see when an employee would have had the opportunity to "mistakenly" affix a John's Citrus Trees identification tag to one of the plants.
Even if Mr. Mahon's testimony were credited, the act of bringing the "special order" trees into a quarantined nursery and selling them from that location would itself violate the quarantine.
Purchase by undercover officers
On December 18, 2009, officers from OALE went to the Fruitland Park location of John's Citrus Trees to purchase citrus trees as part of an undercover investigation. The
attendant, Charles Harris, identified himself as an employee of John's Citrus Trees. He told the officers that he could not sell trees from the front portion of the flea market, but that there were trees further back near a recreational vehicle that he could sell. Mr. Harris told the officers that the trees in the back belonged to John's Citrus Trees. The officers purchased four citrus trees from Mr. Harris at the location near the recreational vehicle.
As described at Finding of Fact 31, supra, the rear location near the recreational vehicle was within 200 feet of the quarantined location that held trees known to have citrus canker. Trees within this range are considered to have been exposed to citrus canker. See Finding of Fact 5, supra. As set forth at Findings of Fact 37 through 41, the rear location was not separately registered either to the Mahons or to their son Danny. Therefore, the rear location was either a part of the quarantined John's Citrus Trees facility at Fruitland Park, or it was an unregistered location. In either event, sale of trees from that location was unlawful.
As noted at Finding of Fact 40, supra, Mr. Holm had given the Mahons telephonic notice that the both the front and rear sites at the flea market were under quarantine, and then provided the Mahons with written notice of the quarantine on December 18, 2009.
The Mahons claimed that the trees had been purchased from Pokey's nursery by their son Danny Mahon. They submitted into evidence several invoices ranging in date from April 27, 2009, to November 27, 2009. The Mahons contended that the invoices proved that the trees in the rear location on
December 18, 2009, belonged to Danny Mahon, not to John's Citrus Trees. However, the six invoices merely show that on four occasions Danny Mahon purchased citrus trees from Pokey's Lake Gem Citrus Nursery, and on two occasions John's Citrus Trees purchased citrus trees from Pokey's.
In total, the invoices show that 254 plants were purchased from Pokey's. John's Citrus Trees is listed as the customer for 110 of the plants, and Danny Mahon is listed as the customer for 114 of the plants. The Mahons offered no details as to the numbers in the invoices, the timing of the deliveries, or how or where the deliveries were made. The invoices establish no necessary connection between the trees purchased by Danny Mahon and the trees found in the rear location of the flea market in December 2009.
As stated in Finding of Fact 41, supra, the Department reasonably attributed ownership of all of the trees at the flea market location to the only registered location at the North Lake Flea Market on U.S. 441 in Fruitland Park: John's Citrus Trees.
The Budget rental truck
On October 8, 2009, a Budget rental truck containing a large number of potted citrus trees was intercepted at the Department's interdiction station on U.S. 90 in White Springs.
The driver and passenger of the truck were asked for the bills of lading. The driver of the truck was Bruce Turner, who told Detective Shaw that he was an employee of Danny Mahon. The passenger was Gary Mahon, the youngest son of John and Shelby Mahon. They produced invoices indicating that the trees were to be delivered to eight different nurseries in Madison, Perry, Tallahassee, Marianna, and Kinard. The inspectors found that the invoices lacked the nursery certification that is required to accompany citrus plants transported in the state for commercial purposes.
The invoices purported to come from "Danny Mahon Citrus." The invoices carried no street address. They listed an address of P.O. Box 120399, Clermont, which is the mailing address of John's Citrus Trees.
Gary Mahon told the interdiction officers that the Danny Mahon nursery was located at 12603 Phillips Road in Groveland. The officers checked the Department's database and found no registered nursery at that address. They also failed to find any registration under the name "Danny Mahon Citrus." They did find a registration for "Danny's Citrus Trees" at the
same address as the Mahons' registered location at Laws Road in Clermont.
Additional DPI personnel were summoned to the interdiction station. Upon inspection, some of the citrus plants in the truck showed visible symptoms of citrus canker infection. Samples of the plants were sent to the DPI pathology laboratory in Gainesville. Subsequent test results confirmed the presence of citrus canker.
Because he suspected citrus canker, the interdiction officer issued a "refusal of transport" form, sealed the lock on the truck with a metal Department seal, and ordered the truck to return to its initial location. Gary Mahon indicated that the initial location was 12603 Phillips Road in Groveland.
Mr. Holm and Detective Shaw arranged to meet the truck when it returned that day. Detective Shaw drove to the Phillips Road address and found an empty field and no Budget truck.
Mr. Holm arrived a short time later with Mr. Nichols.
Mr. Holm made a phone call to Shelby Mahon, who directed him to drive to the Mahons' registered location at 7401 Laws Road in Clermont. Mr. Holm, Mr. Nichols, and Detective Shaw drove to the Clermont location, where they found a Budget rental truck carrying the Department's metal seal on its lock, inside the gates of John's Citrus Trees.
Shelby Mahon insisted that the truck be taken to the Phillips Road location, which she stated was the origination point of the plants. On the morning of October 9, 2009, the truck was driven to the Phillips Road location. Detective Shaw followed the truck from Clermont to Phillips Road. Also present at Phillips Road were Mr. Holm, DPI regional administrator Christine Zamora, and DPI canker inspector Mike Hatcher.
The Phillips Road property gave the appearance of a derelict orange grove. There was no disturbance on the ground to indicate that the plants had been stored at that location prior to being loaded onto the truck, either in individual pots or on pallets. There was no nursery infrastructure such as sheds or equipment. There was no irrigation system, though Shelby Mahon told Ms. Zamora that there was a well and pump on the property.
OALE officers broke the seal on the truck. Shelby Mahon supervised the unloading, which was done by Mr. Turner and other employees of the Mahons. The plants were set out in blocks of 50 to make it easier for the Department's personnel to count them. There were 517 potted citrus plants on the truck, ranging in size from three gallon to 30-gallon pots. The plants in the three and five-gallon pots looked very young.
Ms. Zamora noted that the trees fell out of the pots easily. The plants' root systems were very undeveloped and did
not conform to the circular shape of the pots, indicating that they had only recently been placed in the pots. The DPI personnel agreed it was unlikely that the plants had been in the pots for more than a week.
Many of the trees bore handwritten tags with the registration number of Paul Mahon's nursery. Many of the plants were double-tagged, bearing tags from Pokey's nursery as well as those from Paul Mahon's. None of the plants bore tags from John's Citrus Trees.
Many of the plants had visible symptoms of citrus canker. Samples were taken and sent to the DPI pathology laboratory, and subsequent results confirmed that the plants were infected with citrus canker.
Shelby Mahon told the Department's inspectors and investigators that the smaller plants had been stored at the Phillips Road location since February 2009. She stated that the smaller plants belonged to Danny Mahon, who had purchased them from his brother Paul Mahon. At the hearing, Ms. Mahon testified that her son Danny was the source of her knowledge as to where the plants had been since February 2009.
Ms. Mahon stated that the larger plants in the 15 and 30-gallon pots were from Pokey's nursery, and that her son Gary had brokered the sales to the nurseries named on the invoices on behalf of Pokey and Danny Mahon.
At the hearing, Ms. Mahon admitted that she prepared the invoices. Detective Shaw testified that Ms. Mahon told him that she drew up the invoices because Danny Mahon had never sold citrus before. Ms. Mahon recalled at least one customer calling her after obtaining the number of John's Citrus Trees on the internet. Ms. Mahon testified that she took the order on behalf of her son Danny because her own nursery was still under quarantine. She stated that orders were taken for the exact number and type of plants that had been stored at Danny Mahon's nursery since February 2009.
The invoices indicated that the trees in the shipment consisted of 449 three-gallon, 15 five-gallon, and 33 ten-gallon plants, for a total of 497 plants.
On October 5, 2009, three days before the Budget truck was interdicted at the White Springs station, the Mahons refused access to DPI inspectors at their Clermont nursery. John Mahon claimed that this denial was based on the agreement of DPI's bureau chief, Tyson Emery, to give the Mahons a little more time to clean up the nursery after cutting down and trimming seedling trees. According to Mr. Mahon, the inspector who turned up at the nursery was unaware of Mr. Emery's agreement and demanded access to the nursery. An argument ensued and the Mahons refused to allow the inspector on their property.
Mr. Emery was not called as a witness in this proceeding. The inspector named by Mr. Mahon, Bryan Benson, was called as a witness by both sides, and testified a third time in rebuttal. However, the Mahons failed to question him regarding the events of October 5, 2009.
The Mahons had previously refused to allow DPI inspectors to conduct an inspection on September 28, 2009.2/ At the hearing, John Mahon stated that access was refused on this date because he had a previous commitment and because he believed that DPI was attempting to schedule the inspection too soon after the previous one.
Evidence at the hearing established that the Budget rental truck had been parked at the Laws Road location in Clermont overnight on October 7, 2009, prior to embarking on its intended deliveries to the nurseries listed on the invoices early on the morning of October 8. The Budget rental truck agreement indicated that the truck was rented on October 7 by Rebecca Mahon, the wife of Danny Mahon.
At the hearing, John Mahon stated that the truck was parked overnight at the Laws Road location because Danny Mahon feared leaving it unprotected at the Phillips Road location. The Laws Road property is fenced, whereas the Phillips Road property is unfenced.
The Mahons steadfastly denied that the trees on the Budget truck came from their Clermont nursery. There was no evidence presented that directly tied the trees to the Mahons' nursery, though the circumstances clearly indicate that Shelby Mahon was involved in arranging the sale of the trees, that there was no indication the plants had been kept at Danny Mahon's Phillips Road property, and that the Budget truck was parked at the Mahons' nursery the night before it set out to deliver the plants. The nearly contemporaneous refusal to allow the Department to inspect their nursery also directs some suspicion at the Mahons.
The Department contends that one further piece of circumstantial evidence makes its case convincing: the presence of citrus canker in the plants on the Budget truck. As noted at Findings of Fact 8 through 12, supra, John's Citrus Trees was the only nursery in the state under quarantine for citrus canker at the time of the hearing, with the exception of one in DeSoto County that had destroyed all infected and exposed plants.
Because the Mahons asserted that the trees on the Budget truck came from either Pokey's nursery or Paul Mahon's nursery, DPI inspectors sampled citrus trees at both nurseries after the truck was unloaded. Neither nursery showed any sign of citrus canker.
The location where Danny Mahon was said to have stored approximately 500 citrus trees between February and October 2009 showed no signs of potted plants having been stored at that location. Nowhere did the ground show matting from having been under pots or pallets.
On October 9, 2009, Shelby Mahon pointed the inspectors to a large oak tree, freshly trimmed, on the Phillips Road property. She stated that all of the plants had been stored under that tree, and that she could prove it because Sumter Electric and its tree service had forced her to move the potted plants in order to trim the tree.
Detective Shaw contacted Sumter Electric and its contractor, Nelson's Tree Service. Their employees recalled trimming the tree on the Phillips Road property, but had no recollection of potted plants under the tree or anywhere in the vicinity of the tree.
Ralph Bowman, the Nelson's Tree Service employee who oversaw the Sumter Electric contract trimming work at Phillips Road, testified at the hearing. He stated that when his team worked on the property during the first two weeks of September 2009, there were no potted plants on the property. An equipment problem forced Mr. Bowman to stop work in September. When he returned during the second week of October, there were potted
plants on the property. Mr. Bowman described them as dry, with spots on the leaves.
Failure to produce records
On June 3, 2009, Tyson Emery, chief of the Bureau of Plant Inspection, sent a letter to the Mahons requesting records of their inventory since January 1, 2009. As of the date of the hearing, the Mahons had not responded to this request. The Mahons contended that the Department already had all of their records. However, the records referenced by the Mahons in their response pertained to transactions that occurred in 2008, not 2009. Further, even if the Mahons contention were correct, such would not justify their complete failure to respond to
Mr. Emery's letter.
Failure to maintain quarantine tape
During a routine inspection of the Fruitland Park location on January 20, 2010, the Department discovered that yellow agriculture hold tape with the statement "Do Not Move" that had been wrapped around citrus trees at the quarantined location at the Fruitland Park flea market location was missing. The Mahons testified that they did not know how the tape went missing. They noted that the flea market is on a highway, that the trees were not secured, and that the presence of quarantine tape was not popular with their fellow vendors at the flea market.
I. Ultimate findings
As to the allegations that the Mahons moved citrus trees infected with citrus canker from quarantined locations, the evidence was clear and convincing that they moved plants into and out of the quarantined nursery in Clermont. The wide variations in the plant count between June 2009 and January 2010 is otherwise inexplicable.
With one exception, the evidence was clear and convincing that the Mahons moved citrus trees into and out of their Fruitland Park location on numerous occasions while it was under quarantine. Regardless of their source, trees offered for sale at that location were under quarantine and could not lawfully be sold. The exception was the change in the count from 528 plants on December 18, 2009, to 529 plants on
January 20, 2010, which could reasonably be attributed to a counting error.
As to the allegations regarding the sale of trees to Fred Thomas, the evidence was clear and convincing that the Mahons sold and delivered citrus trees to Mr. Thomas directly from the propagation house of their Clermont nursery, and that Mr. Mahon knew that the plants were under quarantine and had a substantial probability of being infected with citrus canker.
As to the allegations regarding the sale of two citrus trees from the Fruitland Park location to a purchaser who
subsequently planted the trees at his home in The Villages, the evidence was clear and convincing that the Mahons knowingly sold citrus plants to the homeowner while their location was under quarantine for citrus canker. Mr. Mahon's explanation regarding the treatment of "special orders" was not credible.
As to the allegations regarding the undercover purchase of citrus trees from the Mahon's quarantined location at Fruitland Park, the evidence was clear and convincing that the Mahons sold trees from a quarantined location to OALE officers on December 18, 2009.
As to the allegations regarding the interdiction of the Budget rental truck, the evidence was not clear and convincing that the trees on the truck were taken from the Mahons' registered location in Clermont. While the presence of citrus canker in the interdicted fruit strongly suggested that the plants came from the Mahons' nursery, and other circumstantial evidence pointed toward the Clermont nursery as the origination point of the plants, nothing directly tied the plants to John and Shelby Mahon. All of the tags on the plants were from either Paul or Pokey Mahon's nursery. Mr. Turner identified himself as an employee of Danny Mahon. Shelby Mahon's testimony that her son Gary was brokering the plants for Danny and Pokey Mahon was not implausible in light of all the evidence. Though a preponderance of the evidence indicates that
the Mahons' Clermont nursery was the most likely origination point of the trees on the Budget rental truck, the undersigned cannot find that the Department's proof on this point met the standard of clear and convincing evidence.
As to the allegation regarding the failure to produce records, the evidence was clear and convincing that the Mahons failed to comply with the Department's letter of June 3, 2009, requesting the production of their inventory records since January 1, 2009.
As to the allegation regarding the removal of the quarantine tape, the evidence was not clear and convincing that the Mahons were responsible for the missing quarantine tape at the Fruitland Park location.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
In the Administrative Complaint, the Department seeks to impose penalties against the Mahons, including revocation of their nursery registration and/or the imposition of administrative fines. The Department, therefore, has the burden of proving the allegations of the Administrative Complaint by clear and convincing evidence. Dep’t of Banking and Fin., Div. of Securities & Investor Prot. v. Osborne Stern and Co., 670
So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Nair v. Dep’t of Bus. & Prof’l Reg., 654 So. 2d 205, 207 (Fla. 1st DCA 1995).
In Evans Packing Co. v. Dep’t of Agric. & Consumer Servs., 550 So. 2d 112, 116, n.5 (Fla. 1st DCA 1989), the Court defined clear and convincing evidence as follows:
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.
2d 797, 800 (Fla. 4th DCA 1983).
Judge Sharp, in her dissenting opinion in Walker v.
Florida Dep’t of Bus. & Prof’l Reg., 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting), reviewed recent pronouncements on clear and convincing evidence:
Clear and convincing evidence requires more proof than preponderance of evidence, but less than beyond a reasonable doubt. In re Inquiry Concerning a Judge re Graziano, 696 So. 2d 744 (Fla. 1997). It is an intermediate level of proof that entails both qualitative and quantative [sic] elements. In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert.
denied, 516 U.S. 1051, 116 S. Ct. 719, 133
L.Ed.2d 672 (1996). The sum total of evidence must be sufficient to convince the trier of fact without any hesitancy. Id.
It must produce in the mind of the fact finder a firm belief or conviction as to the truth of the allegations sought to be established. Inquiry Concerning Davey, 645 So. 2d 398, 404 (Fla. 1994).
The Department is the state agency charged with the authority, pursuant to chapters 570 and 581, Florida Statutes, to regulate plants and pests in the state. These provisions grant the Department broad authority over nurseries and over the growth and movement of citrus. Section 581.031 provides as follows, in relevant part:
The department has the following powers and duties:
To make all rules governing nurseries and the movement of nursery stock as may be necessary for the eradication, control, or prevention of the dissemination of plant pests or noxious weeds.
* * *
To declare a plant pest, noxious weed, or arthropod a nuisance as well as any plant or other thing infested or infected therewith or that has been exposed to infestation or infection and is therefore likely to contaminate other plants or things.
To declare a quarantine against all or part of any area, place, nursery, grove, orchard, county, or counties within this state, or against all or part of other states, territories, or foreign countries, because of plant pests or noxious weeds or genetically engineered plant or plant pests, or arthropods, which are determined after due investigation to pose a potential threat to the agricultural, horticultural, or
public interest of this state, and to prohibit their movement into or within this state. The quarantine may be made absolute or rules may be adopted prescribing the method and manner under which the prohibited articles may be moved into or within, sold, or otherwise disposed of in this state.
* * *
(11) To suspend or revoke certificates of inspection and of registration of nurserymen, stock dealers, agents, and plant brokers in the state.
* * *
(14)(a) To test nursery stock or any other articles to determine freedom from specific plant pests and to certify or register the stock or such articles.
* * *
(15)(a) To inspect plants, plant products, or other things and substances that may be capable of disseminating or carrying plant pests, noxious weeds, or arthropods, and for this purpose shall have power to enter into or upon any place and to open any bundle, package, or other container containing, or thought to contain, such material, and to take possession of such material if determined by the department to pose a threat to the agricultural or public interests of this state.
(b) To obtain, through a subpoena duces tecum, if necessary, and examine any records pertaining to these or other plant materials to facilitate determination of the origin of plant pests, noxious weeds, or arthropods.
* * *
To supervise, or cause to be supervised, the treatment, cutting, and
destruction of plants, plant parts, fruit, soil, containers, equipment, and other articles capable of harboring plant pests, noxious weeds, or arthropods, if they are infested or located in an area which may be suspected of being infested or infected due to its proximity to a known infestation, or if they were reasonably exposed to infestation, to prevent or control the dissemination of or to eradicate plant pests, noxious weeds, or arthropods, and to make rules governing these procedures.
To inspect, or cause to be inspected, all nurseries and nursery stock in the state as necessary and to keep a complete, accurate, and current list of all certified nurseries, which includes:
The name of the nursery and its owner.
The mailing address of the nursery.
(c) | The | location of the nursery. |
(d) | The | type of crop grown. |
(e) | The | acreage of the nursery. |
(f) | The | type of stock dealer or plant |
broker.
To demand of any person full information as to the origin and source of plants or plant products or other things likely to carry plant pests, noxious weeds, or arthropods, which the person has in her or his possession or under her or his control.
To intercept and hold for inspection, or cause to be inspected while in transit or after arrival at their destination, all plants, plant products, or other things likely to carry plant pests, noxious weeds, or arthropods being moved into this state from another state, a territory, or a
foreign country; and, if, upon inspection, such material is found to be infested or infected with a plant pest, noxious weed, or arthropod or if the material is believed to be likely to transmit the pest, weed, or arthropod or is being or has been transported in violation of any of the rules of the department, the plants, plant products, or other things may be treated when necessary and released, returned to the sender, or destroyed.
To make and issue certificates of registration and of inspection to nurserymen, stock dealers, agents, and plant brokers, after proper certification of their nursery stock, authorizing them to do business as nurserymen, stock dealers, agents, or plant brokers within the state.
* * *
(30) To issue and enforce a stop-sale notice or hold order to the owner or custodian of any plants, plant products, arthropods, or other regulated articles that the department finds or has good reason to believe are in violation of any provision of this chapter or any rule promulgated under this chapter, which notice or order shall prohibit further sale, barter, exchange, or distribution of such plants, plant products, arthropods, or other regulated articles until the department is satisfied that the law has been complied with and has issued a written release or notice to the owner or custodian of the plants or plant products....
Within the Department, the Division of Plant Industry is given the specific responsibility to administer the statutes and rules relating to plants. Section 570.32, Florida Statutes, provides as follows, in relevant part:
The duties of the Division of Plant Industry include, but are not limited to:
* * *
(2) Identifying plant diseases from samples submitted; surveying agricultural and horticultural crops to determine the presence of plant diseases; and investigating methods of control, eradication, and prevention of dissemination of plant diseases.
* * *
Surveying for all plant pests, inspecting all plants or plant products grown or held in any area of the state, and enforcing the laws of the state and the rules of the department pertaining to plants and plant products.
Conducting plant pest and noxious weed eradication and control programs and all plant pest surveys associated with eradication and control....
Section 581.121 generally provides that a nurseryman, stock dealer, agent or plant broker may not move nursery stock in any fashion except in compliance with the provisions of chapter 581 and the rules adopted pursuant thereto. As regards quarantines in particular, section 581.101 provides as follows:
When the department under the provisions of this chapter declares a quarantine against any place, nursery, grove, orchard, or county of this state, another state, a territory, or a foreign country as to a plant pest or noxious weed or genetically engineered plant or plant pest organism, or an arthropod, it is unlawful, until the quarantine is removed, for any person to introduce into this state,
or to move or dispose of within this state, any plant, plant product, or other thing included in the quarantine, except as allowed by rules of the department.
Any plant, plant product, or other thing included under a quarantine which is moved or disposed of within the state in violation of this section, and any plant propagated from such plant, plant product, or other thing, is contraband and shall be confiscated and destroyed by the department without compensation.
It is unlawful for any person to remove from any plant or plant product any official quarantine tag or certificate of the department, or to destroy or disguise any such tag or certificate, without prior authorization from an authorized representative of the department.
Section 581.131 provides that anyone who sells nursery plants in the state must register with DPI and comply with all rules adopted to control the distribution of plants and plant pests.
Section 581.181 provides as follows regarding the destruction of diseased plants:
If the director or her or his authorized representative finds, on examination, any plant or plant product infested or infected with plant pests or noxious weeds, she or he shall notify in writing the owner or person having charge of the premises, and the owner or person in charge shall, within 10 days after the notice, cause the removal and destruction of the infested and infected plant or plant product if it cannot be successfully treated; otherwise, the owner or person in charge shall cause it to be treated as
directed in the notice by the director or an authorized representative of the division.
No damage shall be awarded to the owner for the destruction of the infested or infected plant or plant product under the provisions of this chapter.
If the owner or person in charge refuses or neglects to comply with the terms of the notice within 10 days after receiving it, the director or her or his authorized representative may, under authority of the department, proceed to treat or destroy the infested or infected plant or plant product. The expense of the treatment or destruction shall be assessed, collected, and enforced against the owner by the department.
The Department has adopted Florida Administrative Code chapters 5B-2, regulating the operation of nurseries, and 5B-3, regulating the importation and movement of plants, including the quarantining of plants infected or infested with plant pests. Florida Administrative Code Rule 5B- 3.0038(1)(b)28. specifically lists Xanthomonas axonopodi, pv. citri (citrus canker) as a regulated pest, the presence of which requires immediate quarantine action.
The purpose of Florida Administrative Code Chapter 5B-62 is:
. . . to minimize the spread of serious graft-transmissible diseases and certain other pathogens as well as nematodes of citrus by requiring all nurserymen propagating citrus to participate in a mandatory citrus nursery stock certification program. The requirements for program participation are established in this chapter. It is intended that there shall be
no propagation of citrus nursery stock except as provided in this chapter, and it shall be unlawful to plant citrus nursery stock in Florida unless that citrus nursery stock has been propagated pursuant to this chapter.
Florida Administrative Code Rule 5B-62.001(14) defines citrus canker as "[a] bacterial disease of citrus incited by the organism Xanthomonas axonopodis pv. Citri." Florida Administrative Code Rule 5B-62.003(2) declares citrus canker to be a plant pest and nuisance.
Florida Administrative Code Rule 5B-62.009 sets forth extensive requirements for citrus nursery sanitation, including the following:
(3)(a) Prior to entering the nursery everyone must decontaminate with an approved personal decontamination product and wear a clean garment that should be provided by the nursery. If gloves are worn, they must be disposable gloves or decontaminated each day and kept on site.
(b) All persons entering an approved structure or soil storage area shall walk through a sanitizing foot bath containing a decontaminant that is approved by the Department such as copper sulfate.
* * *
(12) Nursery areas and perimeter shall remain weed free.
* * *
(14) Any citrus nursery stock or budwood source tree found infected or exposed to plant pest infestation shall be subject to
immediate quarantine action and will not be eligible for certification until treated as prescribed by the Department and released from quarantine.
Florida Administrative Code Rule 5B-62.010(2)(c) provides that if the integrity of a citrus stock enclosure is compromised or breached, "the citrus nursery stock shall be subject to immediate quarantine action and will not be eligible for certification until treated as prescribed by the Department and released from quarantine."
Florida Administrative Code Rule 5B-2.002 provides in relevant part: "Every nurseryman, stock dealer, plant broker, and agent shall register with the division before moving, distributing or offering nursery stock for sale."
Florida Administrative Code Rule 5B-2.002(1)(d) provides: "The nursery must be in such condition, in regard to spacing, growth, and weed control, as to permit an efficient inspection for plant pests."
Florida Administrative Code Rule 5B-2.004(1)(a) requires a general nursery stock inspection tag "[o]n each movement or shipment of nursery stock intended for resale within the state."
Florida Administrative Code Rule 5B-2.008 provides:
The owners, officers, and employees of any nursery, stock dealer, plant broker, or agent establishment, or any person who has in his possession plants or plant products,
infested or infected, or exposed to infestation or infection, with any plant pest deemed to be of quarantine significance by the department or which has heretofore been so infested or infected, shall, on demand of the Division of Plant Industry, furnish a list of all movements of plants or plant products from said nursery, stock dealer, plant broker, agent or establishment from any date set by the division up to and including the date of such demand. Said list shall show the names and addresses of all purchasers, the names and addresses of all consignees, and a complete description of the stock included in each and every shipment.
Florida Administrative Code Rule 5B-62.020 governs retail sales of dooryard citrus nursery stock.3/ Subsection (2) of the rule provides that all such nursery stock maintained for retail sale "must be segregated from other nursery stock and maintained in a secure screen enclosure." Florida Administrative Code Rule 5B-62.027(1) provides an exemption from Rule 5B-62.020(2) for retail outlets or retail sales areas having fewer than 500 trees in stock at any given time.
Florida Administrative Code Rule 5B-62.020(3) provides as follows:
All retail citrus trees must be tagged with information to identify the variety of the root stock and scion stock and producing nursery. Each individual tree shall be identified with a slip-on label displaying the following information:
The producing nursery’s certificate of nursery registration number that was issued by the Department. It is not necessary to
include the name of the producing nursery on the label.
The variety name, rootstock and month and year acquired.
Florida Administrative Code Rule 5B-62.020(4) provides as follows:
Unsold citrus trees at a retail outlet may not be returned to the producing nursery or placed back within the approved structure but must be destroyed by double bagging and burial in an approved landfill. Citrus trees may be returned to the nursery in cases where delivery to the retail outlet was not possible provided they are segregated from other citrus nursery stock.
As to their Clermont location, the Mahons on six occasions moved quarantined plants that they knew were infected or exposed to citrus canker at their propagation nursery. These six acts each constituted a violation of sections 581.101(1), 581.121, and 581.181.
As to the Mahons' Fruitland Park location, the evidence proved that the numbers of plants changed three times during the quarantine, based on inspections conducted on August 26, October 19, and December 15, 2009. The allegation
that the number of plants changed between the December 15, 2009, and the January 20, 2010, inspections was not proven. These three changes in numbers each constituted a violation of sections 581.101(1), 581.121, and 581.181.
The sale of 720 trees to Fred Thomas constituted another violation of quarantine, but a more serious one. Respondents deliberately went forward with the sale of the plants despite the quarantine, and spread citrus canker to a new area. This act constituted a violation of sections 581.101(1), 581.121, and 581.181.
The Department correctly states that this act also constituted a violation of section 581.091(1). However, the Administrative Complaint did not allege that the sale to
Mr. Thomas constituted a violation of section 581.091(1). Marcelin v. Dep’t of Business & Professional Regulation, 753 So. 2d 745 (Fla. 3d DCA 2000) (finding of violations not alleged in the administrative complaint stricken by the Appellate Court).
The sale of citrus trees to the homeowner in The Villages constituted another major violation of the quarantine, resulting in the introduction of infected or exposed trees into a new area. This act constituted a violation of sections 581.101(1), 581.121, and 581.181. Again, the Department states that this act also constituted a violation of section 581.091(1), but the Administrative Complaint did not allege that the sale to the homeowner violated this provision.
The sale of citrus trees to undercover OALE officers constituted a violation of the quarantine at the Fruitland Park
location. This act constituted a violation of sections 581.101(1), 581.121, and 581.181. The Department correctly states that this act also constitutes a violation of sections 581.091(1) and 581.211(1)(b). However, violations of these provisions were not alleged in the Administrative Complaint as regards the undercover purchase.
The Mahons failed to provide the Department with information on request, following a finding of an infection. This failure constituted a violation of Florida Administrative Code Rule 5B-2.008.4/
During the January 15, 2010, inspection of the Clermont location, the outside inventory was found to hold 524 trees. Consistently after December 15, 2009, the Fruitland Park location had 500 or more trees. Each of these acts constituted a violation of Florida Administrative Code Rule 5B-62.020(2).
As found above, the allegations regarding the Budget rental truck and the missing quarantine tape were not proven by clear and convincing evidence.
Section 581.141, provides for penalties as follows:
REVOCATION AND SUSPENSION.— If it is determined by the department that any nurseryman, stock dealer, agent, or plant broker is selling or offering for sale, or is distributing or offering to distribute, nursery stock in violation of the provisions of this chapter and the rules adopted under this chapter, or has aided or abetted in such violation, the department may revoke or
suspend her or his certificate of registration or the use of any certificates, permits, or agreements issued by the division. Further, the department may refuse or suspend the certification of any nursery stock or plant product when it is determined that plant pests exist on the stock or product or that the nursery or site is in such condition with regard to growth and cultivation that an efficient inspection for plant pests cannot be made.
FINES; PROBATION.—
1. The department may, after notice and hearing, impose a fine not exceeding $5,000 or probation not exceeding 12 months, or both, for the violation of any of the provisions of this chapter or the rules adopted under this chapter upon any person, nurseryman, stock dealer, agent, or plant broker. The fine, when paid, shall be deposited in the Plant Industry Trust Fund.
2. The imposition of a fine or probation pursuant to this subsection may be in addition to or in lieu of the suspension or revocation of a certificate of registration or certificate of inspection.
Whenever any administrative order has been made and entered by the department imposing a fine upon any person pursuant to this subsection, the order shall specify the amount of the fine and the time limit for payment, which shall not exceed 15 days. Upon failure to pay the fine within such time, the certificate of registration or certificate of inspection of the person may be suspended or revoked without further hearing; and a fine of $100 per day may be imposed for each day the violation continues.
The Mahons' knowing and willing repeat violations of the provisions of chapter 581 and the rules adopted pursuant
thereto, as set forth above, make the revocation of their registration an appropriate penalty in this case.
The Mahons have been proven by clear and convincing evidence to have committed the violations set forth above and are therefore liable for fines of up to $5,000 for each violation.
As to the Clermont location, six separate violations of sections 581.101(1), 581.121, and 581.181 were committed regarding the movement of quarantined plants. However, in light of all the evidence and considerations of the Mahons' age and financial circumstances, it is concluded that it would be more appropriate to subject the Mahons to a single $5,000 fine for these six violations.
As to the Fruitland Park location, three separate violations of sections 581.101(1), 581.121, and 581.181 were committed regarding the changing numbers of plants at a location under quarantine. However, in light of all the evidence and considerations of the Mahons' age and financial circumstances, it is concluded that it would be more appropriate to subject the Mahons to a single $2,500 fine for these three violations.
As to the sale of trees to Fred Thomas, a single major violation of sections 581.101(1), 581.121, and 581.181 was committed and a $5,000 fine is appropriate.
As to the sale of trees to the homeowner in The Villages, a single violation of sections 581.101(1), 581.121, and 581.181 was committed and a fine of $2,500 is appropriate.
As to the sale of citrus trees to undercover OALE officers, a single violation of sections 581.101(1), 581.121, and 581.181 was committed and a fine of $2,500 is appropriate.
The Mahons’ failure to provide the Department with information on request, following a finding of an infection, in violation of Florida Administrative Code Rule 5B-2.008. This is not a violation that placed the public in any danger, and a fine of $500 is appropriate.
At both the Clermont and the Fruitland Park locations, the Mahons were found to have outside inventory of
500 trees or more, in violation of Florida Administrative Code Rule 5B-62.020(2). A fine of $500 is appropriate for this violation.
In total, the Mahons should be subjected to fines of
$18,500.
Section 581.181 provides:
If the director or her or his authorized representative finds, on examination, any plant or plant product infested or infected with plant pests or noxious weeds, she or he shall notify in writing the owner or person having charge of the premises, and the owner or person in charge shall, within 10 days after the notice, cause the removal and destruction of
the infested and infected plant or plant product if it cannot be successfully treated; otherwise, the owner or person in charge shall cause it to be treated as directed in the notice by the director or an authorized representative of the division.
No damage shall be awarded to the owner for the destruction of the infested or infected plant or plant product under the provisions of this chapter.
If the owner or person in charge refuses or neglects to comply with the terms of the notice within 10 days after receiving it, the director or her or his authorized representative may, under authority of the department, proceed to treat or destroy the infested or infected plant or plant product. The expense of the treatment or destruction shall be assessed, collected, and enforced against the owner by the department.
As of the date of the hearing, the Mahons had known of a severe citrus canker infection in both of their registered locations for over a year. They took only minimal actions to rid their locations of the infection, and only grudgingly cooperated with the Department's inspectors. They allowed infected trees to be moved to new locations while their locations were under quarantine. The Department should order the destruction of the citrus trees at both of the Mahons' locations, unless the facts on the ground have changed significantly since the date of the hearing.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order revoking the nursery registration of John L. and Shelby Mahon, d/b/a John's Citrus Trees, imposing an administrative fine of $18,500 on John L. and Shelby Mahon, and ordering the destruction of the citrus trees at both of the registered locations of John's Citrus Trees.
DONE AND ENTERED this 15th day of February, 2011, in Tallahassee, Leon County, Florida.
S
LAWRENCE P. STEVENSON
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 15th day of February, 2011.
ENDNOTES
1/ Unless otherwise noted, all references to the Florida Statutes will be to the 2010 edition. Of the statutes pertinent to this case, only one, section 581.091, Florida Statutes, has been amended as recently as 2008.
2/ The refusal was made by telephone on September 25, 2009.
3/ "Dooryard citrus nursery stock" is defined as, "Citrus plants to be used only in a residential setting or for establishing a planting of less than 40 citrus trees." Fla. Admin. Code R. 5B- 62.001(37).
4/ In an apparent typographical error, the Administrative Complaint miscited this provision as "Rule 5B-62.008." It was clear that the Department intended to allege a violation of rule 5B-2.008 because the Administrative Complaint recited the title of that rule: "Record of Movement of Nursery Stock or Plant Material Under Inspection."
COPIES FURNISHED:
Carol Ann Forthman, Esquire Department of Agriculture and
Consumer Services
407 South Calhoun Street Tallahassee, Florida 32399
John L. Mahon John’s Citrus Trees
Post Office Box 120399 Clermont, Florida 34712
Lorena Holley, General Counsel Department of Agriculture and
Consumer Services
407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and
Consumer Services
The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| May 16, 2011 | Agency Final Order | |
| Feb. 15, 2011 | Recommended Order | The Department proved by clear and convincing evidence that the Respondents committed several violations of the prohibitions regarding movement of citrus that is under quarentine for citrus canker. |
