STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEERFIELD GROVES COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0925RX

)

DEPARTMENT OF CITRUS and ) DEPARTMENT OF AGRICULTURE ) and CONSUMER SERVICES, )

)

Respondent. )

)

FINAL ORDER

For Petitioner: Kenneth G. Oertel, Esquire

Tallahassee, Florida and

Bruce Smathers, Esquire Jacksonville, Florida

For Respondent: Frank A. Graham, Jr., Esquire

Department of Agriculture and Consumer Services

Tallahassee, Florida

J. Hardin Peterson, Jr., Esquire Department of Citrus

Lakeland, Florida

A final hearing under Section 120.56, Florida Statutes (1983), was held in this case in Tallahassee, on May 24, 1985. After the final hearing, the parties entered into settlement negotiations but were unable to settle the case. The parties then asked for and received until October 2, 1985, in which to file proposed final orders.

The issues framed by the Petition For Determination Of The Invalidity Of An Existing Rule file by Petitioner, Deerfield Groves Company (Deerfield), are:

1. The validity of Rule 20-34.11, Florida Administrative Code, on the subject of the conduct of inspections by the Division Of Fruit And Vegetable Inspection of Respondent, Department of Agriculture and Consumer Services (DACS). Respondent, Department Of Citrus (DOC), promulgated the rule; DACS implements and enforces it. (Count I of the Petition For Determination Of The Invalidity Of An Existing Rule.)

   
   

2. Whether DACS has made a non-rule interpretation of the word "equipment" in Rule 20-34.11, Florida Administrative Code, which constitutes an unpromulgated rule. (Count II of the Petition for Determination Of The Invalidity Of An Existing Rule.)

   
   

3. Whether DACS has a non-rule policy of allowing only one other person in a testing room with the inspector during testing which constitutes an unpromulgated rule. (Count III of The Petition For Determination Of The Invalidity Of An Existing Rule.

FINDINGS OF FACT

1. Petitioner, Deerfield Groves Company (Deerfield), is a licensed citrus fruit dealer under Chapter 601, Florida Statutes, and Chapter 20-34, Florida Administrative Code.

   
   

2. As a licensee, Deerfield is subject to administrative and criminal prosecution for violation of the statutes and rules governing licensed citrus fruit dealers and was under administrative prosecution for alleged violations of Section 601.33, Florida Statutes, and Rule 20-34.11, Florida Administrative Code, at the time of the final hearing.

   
   

3. Deerfield has legal standing as a party petitioner in this case.

   
   

4. Respondent, Department Of Citrus (DOC), promulgated Rule 20-34.11, Florida Administrative Code, under the authority of Section 601.10, Florida Statutes. Rule 20-34.11 is designed to implement Section 601.33, Florida Statutes.

   
   

5. Respondent, Department Of Agriculture And Consumer Services, (DACS), is the agency charged with the duty to

   enforce Section 601.33, Florida Statutes, and Rule 20- 34.11, Florida Administrative Code. Personnel of DACS' Division Of Fruit And Vegetable Inspection also are responsible for testing fresh citrus for maturity under Chapter 20-34, Florida Administrative Code.

   
   

6. Licensees such as Deerfield furnish a testing room for DACS inspectors to perform maturity tests and certify fresh citrus, as required for marketing fresh fruit. DACS leases an extractor, used for squeezing juice from fruit samples, and subleases the extractor to the licensee.

   Under the sublease, the extractor is kept in the testing room for use by DACS inspectors and, when not being used by DACS inspectors, for use by the licensee in performing its own tests. Typically, the licensee furnishes the testing room with a table for two and a chair or two.

   
   

7. When DACS inspectors perform maturity tests at the beginning of the early harvest, they bring most of the things they need for testing. The licensee provides the bins in which the fruit samples are carried into the testing room. The inspectors bring either a DACS slicing knife or their own. The licensee provides buckets it owns for use by the inspector during the test to collect juice extracted from fruit samples. The DACS inspectors also bring: a sizer to measure the fruit samples; a 2000 c.c. graduated cylinder to measure juice quantities; a 500 c.c. graduated cylinder to hold juice being tested for solids content and for temperature; aluminum pans to hold the graduated cylinders; a combination hydrometer for measuring juice solids content and temperature; a 25 m.1. pipet for transferring a measured amount of juice into a flask; the flask; a bottle of phenothaline with eyedropper top used for adding measured amounts of phenothaline to the flask of measured juice; a bottle of alkaline solution; and a burette for adding a measured amount of the alkaline solution to the flask of measured juice.

   
   

8. During the harvest season, DACS leaves its equipment, instruments and solutions referred to in the preceding paragraph in the testing room. They are kept separate from the licensee's property and are not supposed to be used by the licensee. However, DACS allows the licensee to use its own bins and buckets and the extractor to conduct its own tests in the testing room when DACS inspectors are not using it. 1/

9. Some DACS inspectors request or allow licensees to assist during testing or to handle the fruit samples. 2/ Some allow licensees to attempt to influence the inspector's judgment by questioning the validity of the test or the accuracy of the inspector's observations or by comparing the inspector's results with the results of its own tests. Sometimes, this results in correction of an error the inspector otherwise would have made. It was not proved, however that there is an agency policy of requesting or allowing licensees to conduct themselves in those ways during testing.

   
   

10. DACS has a policy to allow only one licensee representative in the testing room with the DACS inspector during testing. Violation of this policy is viewed as a violation of Section 601.33, Florida Statutes (1983). However, not all DACS inspectors strictly enforce this policy. Some allow more than one licensee representative in the testing room.

    CONCLUSIONS OF LAW

    
    

    Count I

    
    

11. Rule 20-34.11, Florida Administrative Code, provides:

    
    

    Inspector's Tests to be Made Without Interference. --Only authorized personnel of the Division of Fruit and Vegetable Inspection shall at any time be permitted to handle the solutions or equipment used for officially determining the maturity of fruit. Efforts by other persons to assist the inspector, or to handle the fruit from which the test is to be made, or to interrupt or interfere with the inspector, or any attempt to influence his judgment, shall be deemed interference with the inspector in the performance of his official duty.

    
    

    The law Rule 20-34.11 purports to implement is Section 601.33, Florida Statutes.

    
    

12. Section 601.33, Florida Statutes (1983), provides:

    
    

    Interference with inspectors.--It is unlawful for any person to obstruct, hinder, resist, interfere with, or attempt to obstruct, hinder, resist, or interfere with any authorized inspector in the discharge of any duty imposed upon or required of him by the provisions of law or by any rule or

    regulation prescribed by; the Department

    of Citrus or the Department of Agriculture, or to change or attempt to change any instrument, substance, article, or fluid used by such inspector or emergency inspector in marking tests of citrus fruit or the canned or concentrated products thereof.

13. The statutory authority for Rule 20-34.11 stated in the Florida Administrative Code is Section 601.10, Florida Statutes (1983), which provides in pertinent part:

    
    

    Powers of the Department of Citrus:-- The Department of Citrus shall have and shall exercise such general and specific powers as are delegated to it by this chapter and other statutes of the state, which powers shall

    include, but shall not be confined to, the following:

    1. To adopt and, from time to time, alter, rescind, modify, or amend all proper and necessary rules regulations, and orders for the exercise of its powers and the performance of its duties under this chapter and other statutes

       of the state, which rules and regulations shall have the force and effect of law when not inconsistent therewith.

       
       

14. In addition, Section 601.24, Florida Statutes (1983), provides:

1. Department of Citrus to prescribe methods of testing and grading.--The Department of Citrus shall by rule or regulation provide the manner and method to be used in drawing samples and the quantity to be used in testing and grading of citrus fruit and the canned and concentrated products thereof and shall provide specifications and methods for use of

   juice extractors to be used in extracting juice for such tests and grading purposes.

   
   

   And Section 601.25, Florida Statutes (1983), provides:

   
   

2. Determination of soluble solids

and acid.--The Department of Citrus by rule or regulation shall determine the method

by which juice is tested for percentage of total soluble solids, the method by which juice is tested for acidity, and the method for testing fruit for juice content. Until such time as the

Department of Citrus may see fit to determine such method by rule or regulation the Brix hydrometer shall be used and the reading of the hydrometer corrected for temperature shall be considered as the percent of the total soluble solids; and anhydrous citric acid shall be determined by titration of the juice using standard alkali and phenolphthalein as indicator, the total acidity being calculated as anhydrous citric acid.

15. Sections 601.10(1), 601.24 and 601.25, Florida Statutes (1983), provide sufficient authority for the promulgation of the first sentence of Rule 20-34.11. In addition, to the extent this language is part of the rule interpretation of Section 601.33, interpretating handling the solutions or equipment as interference would be a permissible interpretation of Section 601.33, Florida Statutes (1983). See paragraph 7 below. Whether DACS' policy of allowing licensees to use their buckets and bins and the extractor when not in use by DACS inspectors waives DACS' right to enforce the rule to that extent would remain to be determined in proceedings under Section 120.57, Florida Statutes (Supp. 1984). 3/

1. The second sentence of Rule 20-34.11 clearly is a rule interpretation of Section 601.33, Florida Statutes (1983). Agency interpretations of statutes generally are entitled to deference. See Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984). Rules may not "extend, modify or conflict with any law of this state or reasonable implications thereof." Department of Transportation v. Insurance Services Office, 434 So.2d 908, 910 (Fla. 1st DCA 1983).

   
   

2. The second sentence of Rule 20-34.11 does not extend, modify or conflict with" Section 601.33. It interprets the word "interference" used in the statute and gives licensees notice of the interpretation. The interpretation is within the range of possible interpretations. See General Telephone Co. of Fla. v. Public Service Commission, 446 So.2d 1063 (Fla. 1984); Department of Professional Regulation, Bd. of Medical Examiners v. Durrani, supra. The rule is therefore valid.

   Again it will remain to be determined in Section 120.57 proceedings whether DACS waives its right to enforce its interpretation of "interference" in particular cases where a DACS inspector requests or permits a licensee to assist him, handle the fruit or attempt to influence his judgment. 4/

   
   

   Count II

   
   

3. DACS has promulgated Rule 20-34.11, Florida Administrative Code prohibiting licensees from handling "equipment used for officially determining the maturity of fruit." DACS has not, by nonrule policy, further interpreted the word "equipment" to include some and exclude other equipment. Rather, it has simply implemented the rule and interpreted it to prohibit licensees from handling any "equipment used for officially determining the maturity of fruit" including bins, buckets, extractors, aluminum pans, knives cylinders, flasks, burettes, et cetera. Having once promulgated a rule prohibiting the handling of all equipment, DACS is under no obligation to promulgate another rule listing all the equipment. Again whether DACS has waived its right to enforce the rule as to a licensee's bins and buckets and the extractor; to the extent of the sublease would remain to be determined in Section 120.57 proceedings. 5/

   
   

   Count III

   
   

4. DACS has a nonrule policy to allow only one licensee representative in the testing room with the DACS inspector during testing (although not all DACS inspectors strictly enforce this policy.) 6/ This policy meets the definition of a rule under Section 120.52(15), Florida Statutes (Supp. 1984). See also Balsam v. Dept. of Health and Rehabilitative Services, 452 So.2d 976 (Fla. 1st DCA 1984); Dept. of Administration v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1978). Since it has not been promulgated, it is invalid and cannot be enforced as a rule. This is not to say that it is impossible for certain violations of the policy to also constitute a violation of Section 601.33, Florida Statutes (1983). That question also would remain for determination in proceedings under Section 120.57, Florida Statutes (Supp. 1984).

5. Based upon the foregoing Findings Of Fact and Conclusions Of Law it is

ORDERED:

1. Rule 20-34.11, Florida Administrative Code, is valid, and Count I of the Petition For Determination Of The Invalidity Of An Existing Rule is dismissed;

   
   

2. Count II of the Petition For Determination Of The Invalidity Of An Existing Rule is dismissed because DACS' implementation of the first sentence of Rule 20-34.11 and interpretation of it to apply to all equipment does not constitute a rule which must be promulgated; and

   
   

3. Count III of the Petition For Determination Of The Invalidity Of An Existing Rule is granted, and DACS' policy of allowing only one licensee representative in the testing room with the inspector is declared to be an unpromulgated rule which is invalid and which cannot be enforced as a rule.

DONE and ORDERED this 10th day of December, 1985, in Tallahassee, Florida.

Hearings

Hearings 1985.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 10th day of December,

ENDNOTES

1/ This finding is based on the evidence introduced at final hearing. It should also be noted, however, that DACS took the following position in its Memorandum In Lieu Of Final Argument filed on October 3, 1985:

It is absurd to attempt to interpret the rule as prohibiting the handling of testing equipment by Petitioner at any time whatsoever. It is only during the testing process, within the testing room, in the presence of the inspector, during the performance of the inspector's testing duties, that unsolicited or unauthorized handling of the equipment is considered interference. (See Exhibit I, pages

35-36). Respondents submit the Agrico, supra, standard.

The same Department interpretation or policy applies to the handling of fruit. It is

only after the fruit has been selected for testing by the inspector that interference by unsolicited or unauthorized handling of

fruit of Petitioner can occur. Petitioner is certainly entitled to handle its fruit at

any other time. 2/ See Footnote 1 above.

3/ DACS has made it easy for licensees to prove at least one element of such a waiver defense. See paragraphs 8 and

9 of the Findings Of Fact above.

4/ Cf. paragraphs 8 and 9 of the Findings Of Fact above. 5/ Cf. paragraphs 8 and 9 of the Findings Of Fact above. 6/ See paragraph 10 of the Findings Of Fact above.

APPENDIX OF RECOMMENDED ORDER, CASE NO. 85-0925RX

1. Rulings On Petitioner's Proposed Findings Of Fact.

   
   

   Petitioner's Final Argument served on October 3, 1985, does not specify or number any proposed findings of fact.

   It is therefore questionable whether any rulings are necessary. But some of the first 25 paragraphs of Petitioner's Final Argument make assertions in the nature of proposed findings of fact. For purposes of ruling on those "proposed findings of fact," the first 25 paragraphs of Petitioner's Final Argument are treated as if they had been numbered sequentially.

   The Hearing Officer "accepts" the findings of fact proposed in paragraphs 1-14, 21, 23 and 24 as being generally accurate. Some are incorporated in the Final Order. Some - because they are either unnecessary; subordinate, or simply a recitation of testimony and evidence - are not.

   Paragraphs 15 and 22 are rejected as being conclusions of law.

   Paragraphs 16 and 17 are rejected in part as being conclusions of law and in part because they do not correspond closely enough to the Finding Of Fact 8 in the Final Order.

   Paragraphs 18-20 and 25 are rejected in part as being conclusions of law. To the extent they propose findings of fact, they too are "accepted."

   
   

2. Rulings on DACS' Proposed Findings Of Fact.

1. and 4. - 6. "Accepted."

2. "Accepted" to the extent it proposes a finding of fact; rejected in part as conclusion of law.

3. Rejected as conclusion of law.

(The Department of Citrus did not propose anything in the nature of findings of fact.)

COPIES FURNISHED:

Kenneth G. Oertel, Esquire 2700 Blair Stone Rd., Suite C Tallahassee, Florida 32301

Frank Graham Esquire Department of Agriculture &

Consumer Services

512 Mayo Building Tallahassee, Florida 32301

J. Hardin Peterson, Jr., Esquire Florida Department of Citrus

P. O. Box 148

Lakeland, Florida 33802

Bruce A. Smathers, Esquire 2606 Independent Square

Jacksonville, Florida 32202

Carroll Webb, Exec. Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Doyle Conner

Commissioner of Agriculture Department of Agriculture

& Consumer Services The Capitol

Tallahassee, Florida 32301

W. Bernard Lester Executive Director Department of Citrus

P. O. Box 148

Lakeland, Florida 33802

Docket for Case No: 85-000925RX

Orders for Case No: 85-000925RX