The Issue Is Pioneer Farms (E. T. Usher) entitled to the issuance of a permit from the State of Florida, Department of Environmental Protection which would allow the construction of a 0.033MGD dairy waste management system which includes rotational grazing of the dairy herd and the application of spray effluent derived from a solids separation chamber and an anaerobic lagoon?
Findings Of Fact Pioneer applied for necessary environmental permits to construct a 0.033 MGD dairy waste management system in Levy County, Florida. Pioneer sought permission for this construction from DEP. DEP has regulatory authority over the construction of Pioneer's proposed waste management system in accordance with Chapter 403, Florida Statutes and Chapter 62, Florida Administrative Code. Desmond owns property in Levy County, Florida. His property is adjacent to the Pioneer property where the dairy waste management system would be established. When Desmond received notice that DEP intended to grant a permit to Pioneer to construct the dairy waste management system, he petitioned in opposition to that grant. Desmond asserts that the proposed waste management system is experimental in nature and will adversely affect surface and subsurface water quality, that use of spray irrigation is not appropriate for the area, that the property upon which the project would be located is prone to flooding and has flooded in the past, that the applicant has failed to delineate the landward extent of wetlands and surface waters, that the supporting engineering studies do not contain historical data on flood duration periods, that there is no record of plant species surveyed, that the property in question ponds during the rainy seasons and that the ponding lasts longer than seven days, that the property is saturated during the rainy season and the saturation is of a duration greater than 20 days, that the subsurface water level during the rainy season is less than 18 inches from the surface, that the percolation rate of the properties soils are equal to or greater than 20 inches per hour or 40 feet per 24 hours, that the engineering report does not contain sufficient data for supporting adequate modeling of manure and nitrate transport, that the Floridan Aquifer is highly vulnerable to contaminants in the area of the project, and that pollution will certainly occur with the advent of the project, that facts indicate that ammonia and nitrate deposits will be washed through the soils before sufficient retardation and denitrification can occur, that the holding pond design fails to meet the 25-year, 24-hour storm event, that there are records of storms greater than the 25-year storm as frequent as 13 times in the last 94 years, that the piezometric head in the northwest portion of the property is unknown, and that as a consequence the subsurface directional water flow has not been determined. Desmond failed to prove these facts. By contrast, Pioneer and DEP have proven that the necessary reasonable assurances have been presented to allow the construction project to be permitted subject to general and specific conditions set forth in the notice of intent to issue the permit. The dairy waste management system is designed to accommodate a herd of 978 lactating cows on 374 acres of rotationally grazed pastures and 200 dry cows and 224 heifers pastured on a 124 acre effluent spray field and 112 acres of rotationally grazed pastures. The calves that are part of this herd will be grazed off-site. The waste management system consists of a concrete solids separation chamber; a 54,000 cubic foot anerrobic lagoon, and the 124-acre effluent spray field. Effluent, by way of solids in the barn area where the separation chamber is found, are transported by gravity to a pond referred to as the anerobic lagoon. That effluent is then sprayed on certain pasture land. While there are areas within the project site which are subject to ponding, the herd will not be allowed to access the ponded areas. The ponded areas are not sufficiently wide spread to compromise the project design. Waste solids associated with the herd's grazing activities will be applied to a pine forest adjacent to the site. The waste management system is designed to collect and treat wastewater that is generated at the milking barn and contaminated storm-water runoff that is processed through the solids separation chamber and that enter the lagoon. The lagoon/pond is designed to respond to a storm event that is greater than the 25 year/24 hour storm event. Well sites will be located on the property to monitor the effects of solid wastes from the herd grazing on pasture land and the effects of spray effluent on the pasture land as these sources influence groundwater quality, having in mind compliance with Chapter 62-522, Florida Administrative Code. The engineering design is set forth in Usher Exhibit No. 2, the report in support of the permit application. Usher Exhibits Nos. 3 and 5, are responses to the DEP requests for additional information about the permit application. Adequate information has been provided concerning the soils in the area, their structure and drainage potential. Emphasis has been placed on the excavation of the lagoon/pond and the existing soil structure in that area and any need to over-excavate and fill. Any necessary fill will be constituted of sand or limestone with sufficient compaction to meet design specifications for the lagoon/pond. Appropriate attention has been paid to grade elevations of the primary structures associated with the project, the side slopes of embankments against the barn floor, concrete cattle lanes, solids separator and entrance ramp to the storage pond and the storage pond itself, as these engineering features respond to drainage issues. Appropriate attention has been paid to hydro-geology of the region in which this project is located by specific information obtained through soil borings made at on-site monitoring wells as this information anticipates percolation rates. Studies at the project site reveal that the information from potentiometric maps of the Floridan Aquifer are incorrect concerning the direction of groundwater flow. The more specific studies done by the applicant show that the flow is in a northeastern direction. In determining the direction of flow of groundwater, 13 wells were drilled. While the concept in this project of using frequent and intensive grazing rotations in the pasture land, referred to as paddock areas, is a new concept in Florida, the expected performance by the herd, the pasture land and the overall waste management system in this project are based upon reasonable assumptions and do not lead to the results that violate the DEP statutes and rules for the protection of surface water and groundwater. This system is one in which the lactating cows within the herd would spend 85 percent of their time in the paddock areas/pasture land. There are four separate grazing areas with individual irrigation pivots. There is a fifth pivot not involved with the lactating herd. This pivot is associated with the spray effluent process from the lagoon. The lactating herd will spend 15 percent of their time in the barn area, known as the milk/feed barn. That barn will be flushed after each milking with the wastewater traveling into the storage lagoon and eventually applied to the pasture land associated with the fifth center pivot. The spray effluent will be applied to parts of that paddock area served by the fifth pivot only at times when the cows are not there. Dry cows and heifers will be located in the field area served by the fifth pivot, and an area just north of the fifth pivot area will also serve as pasture land for the non-lactating cows. In the fifth pivot area the non- lactating cows will rotate through paddock areas within that pasture. Likewise the lactating herds will rotate through the other four pivot areas. The rotation in these pastures is a fourteen day rotation. One day is spent in each paddock. Within each individual pivot of pivots 1 through 4, one herd of cows will be located under pivot 1, another herd under pivot 2 and a third under pivots 3 and 4. Each day the lactating herds will spend about 20 hours in the pasture land under the pivots and roughly 4 hours walking to and from the milk/feed barn and being milked. More specifically, the manure deposited in the milk barn will be flushed from floors to a gutter collector. From there the waste goes by a gravity flow from the gutter collector to a concrete lined ditch and into a solids separator trap. The solids separator is designed to remove all of the sand and the majority of the course solids associated with waste. This assists in the reduction of solids accumulation in the storage pond. The solids that are collected at the separator will undergo dewatering and then will be transported and spread on adjacent land owned by Pioneer. The amount of solids that enter the lagoon/pond are expected to be applied to the pasture land under pivot number 5. Nonetheless, on a quarterly basis, solids accumulations are noted when the lagoon/storage pond is pumped. If there is a significant accumulation, then solids will be removed from the pond. As well as accommodating the 25 year 24 hour design storm, the storage lagoon/pond is designed to hold 10 days of dairy operation wastewater and direct rain fall simultaneously. As extra capacity, the lagoon/pond has one foot of free board for safety in the operation. The effect of the one foot free board is to create a condition where it would require approximately a 1,000 year storm event to over-top the pond. Approximately two and a half hours of effluent irrigation per week is necessary to accommodate the wastewater from the milk barn. The irrigation system for effluent is sensitive to the level of water in the lagoon/pond. The pasture under the fifth pivot also uses fresh water irrigation separately. Attention will be paid to the maintenance of grass in the pasture areas available to the dairy herd. The health of the grass is supported by freshwater irrigation, effluent spray irrigation and direct waste deposits from the herd. The applicant has given the necessary assurances concerning nutrient management of nitrogen and phosphorus. As part of stormwater management system, the herd will not be allowed into areas of the property which are within the 100 year flood plain. There are five groundwater monitoring wells, the second, third and fifth of which are to determine compliance with DEP water quality standards. Under wet conditions where there is a high incidence of rainfall, pivot number 5 may be in operation; however, without intention to operate that pivot in a manner which will cause spray effluent to be applied to ponded areas, thereby producing runoff on the surface. The soils in the area have high permeability rates in the range of 6- 20 inches per hour. Thus, waste water easily infiltrates the soil at acceptable rates unless there is an extremely high water table, which is not anticipated. It is especially unlikely that a high water table of long duration will be experienced. Dr. Dale Bottcher is an expert in agricultural engineering and dairy design. He established that the project as proposed by Pioneer will provide the necessary reasonable assurances to the DEP that the activities associated with the dairy will not contaminate surface waters or exceed standards for the protection of groundwater. To arrive at those assurances, the applicant has assessed the location of the herd densities in the dairy operation, the soil uptakes related to nutrient balance, with specific emphasis on the assurance that there will not be excess nitrogen available that could migrate from the project site to adjacent property and contaminate that adjacent property by exceeding DEP standards. As established by Dr. Bottcher the animal waste produced that is immediately dropped on the pasture land and the spray effluent from the lagoon/pond is used up by the grass on the pasture land. In fact, there is not enough animal waste generated to produce the grasses. It is anticipated the animal waste will produce 50-70 percent of the necessary nutrients for the grasses. Therefore, a supplemental fertilization program is to be put in place for the grass production. To make certain that the grass is uptaking the nutrients adequately the monitoring wells will be installed. The monitoring wells are strategically located to insure groundwater protection. Under pivot 5, the spray effluent pasture, in combination between the spray effluent and direct deposits by the animals, 250 pounds of nitrogen will be produced a year of the needed 700 pounds. As Dr. Bottcher established there are areas on the property that are subject to periodic flooding for no more than a few weeks per year. During those times that land will not be available to the herd in its grazing activities. Again, those ponded areas will not receive spray effluent under pivot 5. Dr. Bottcher gave the opinion, within a reasonable degree of engineering certainty, that the dairy waste management system would abate and prevent water pollution to the extent required by applicable statutes and rules and that the activities in the project would not allow for discharge or cause water pollution in violation of those applicable DEP rules. His opinion is accepted. Dr. Bottcher established that the phosphorus produced on the site is bound up in the soils and the groundwater is further protected in some places by an underlying clay layer. Mark Bardolph, DEP Environmental Manager within the Industrial Wastewater Section is an expert in dairy design. His opinion that no problems will be experienced with ponding of water is accepted. The opinion by Mr. Bardolph that this design is a better alternative to traditional diary designs is accepted. John Davis is a Professional Geologist. He is employed by DEP. He is an expert in hydro-geology. His opinion as a hydro-geologist that reasonable assurances have been given that the proposed dairy waste management system will comply with applicable laws and rules is accepted. David Bolam is an expert in environmental engineering who works for DEP. He does not believe that there is a problem with ponding of water on the site that would interfere with the operation of the dairy waste management system. That opinion is accepted. His professional opinion that reasonable assurances have been given that the construction and operation of the waste management system would comply with the applicable DEP laws and rules is accepted.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered which grants Pioneer permission to construct the 0.033 MGD dairy waste management system as proposed by DEP in its draft permit with general and specipic conditions. DONE and ENTERED this 1st day of May, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1995. APPENDIX The following discussion is given concerning the proposed findings of fact by the parties: Petitioner's Facts: Desmond: Paragraph 1 is contrary to facts found. Paragraph 2 is rejected in its suggestion that Pioneer has not adequately met applicable DEP rules. Paragraph 3 is accepted in its suggestion that the Floridan Aquifer is vulnerable to contamination but is rejected in the suggestion that the activities by Pioneer will cause such contamination. Paragraph 4 is contrary to facts found. Pioneer and DEP: Paragraph 1 is not necessary to the resolution of dispute. Paragrap 2 through 4 are subordinate to facts found. Paragraphs 5 and 6 are accepted to the extent that they correspond to the findings in the recommended order related to testimony from witnesses for Pioneer and DEP and the suggestion that the allegations by Desmond have not been proven. COPIES FURNISHED: Noel K. Desmond Post Office Box 1771 Chiefland, FL 32626-1771 Marty Smith, Esquire Post Office Box 3310 Ocala, FL 34478-3310 Thomas I. Mayton, Esquire Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Willie J. Woods is a farmer. He entered into an agreement with W. R. Ward, Jr., President of Growers Marketing Service, Inc. (GMS) concerning the disposition of watermelons which he had grown. The testimony of Woods and Ward concerning the nature of the agreement is conflicting. In the absence of a written contract, the nature of the agreement must be determined from the other documents surrounding their transactions. From these documents, it is determined that the agreement between the parties was not for the purchase of Woods' watermelons by GMS. The documentation surrounding the transactions by GMS, show that GMS was acting as a broker or middle man in introducing Woods' watermelons into the stream of commerce. According to Mr. Ward's records, each shipment was assigned a transaction number, and each sale from a lot of watermelons was also assigned a transaction number. The record of each of these transactions was examined in detail. Below each of these transactions is discussed, and where portions of the record are particularly pertinent, they have been copied and attached to this order for ease of reference. In some instances, the settlement statement has been reproduced and corrected to reflect what the actual charges should have been based upon the underlying record. A handwritten explanation of the adjusting entries has been added to these statements. Transaction number 1439: On June 4, 1991, Woods delivered 43,750 pounds of watermelons to GMS The documentation surrounding this transaction shows that GMS, sold the load of watermelons FOB Brooksville, Florida for a price of 14 cents per pound.The purchaser's driver transported the load from Brooksville to Canada where the purchaser "rejected" the load because the melons were immature. By purchasing the watermelons FOB Brooksville, the purchaser waived any right to reject the melons upon their arrival at their destination. Further, the only evidence of immaturity is an inspection report which states that the inspection was limited and may not reflect the condition of the whole load. The inspection report itself is hearsay. The dollar value of this load as stated in the Bill of Lading/Customs Declaration was $6,125.00. The cost of freight was not shown in the file because it was delivered FOB Brooksville and the costs were borne by the purchaser. The GMS's handling fee was 1 cent per pound or $438.00. GMS owed Woods $5,687.00 on transaction number 1439. GMS paid Woods $2,879 on this transaction. GMS still owes Woods $2,808 on this transaction. Transaction number 1424: On June 4th, GMS sold in behalf of Woods $4,320 pounds of watermelons for 20.25 cents per pound. W. R. Ward stated that the price was reduced from 15 to 5 cents per pound, and was a bookkeeping error. The file reflects the sales price for the 46,320 pounds of watermelons was $9,380. The file reflects that transportation on this load of watermelons was $1,683.00, and GMS, was entitled to 2.5 cents per pound for packing and 1 cent handling for a total of $1,621. The total expenses were $3,304.00 for transaction number 1424. GMS owed Woods $6,077.00 for transaction 1424, but only paid him $1,844. GMS still owes Woods $4,233 on this transaction. Transaction number 3534: On June 4th, GMS, handled a load of yellow meat watermelons weighing 4,071 pounds for Willie J. Woods. Subsequently, GMS sold portions of this load of watermelons in transactions number 1565, 1507, 1461, 1403, and 1476. On June the 6th, GMS sold 13,337 pounds of watermelons at 17 cents a pound for a total sales price of $2,267.29 in transaction 1461. On June 6th, Growers Marketing Service sold 18,909 pounds at 14 cents a pound for a total of $2,647.26 in transaction number 403. On June 7th, Growers Marketing Service sold 1,945 pounds at 22 cents a pound for a total of $427.90 in transaction 1476. On June 14th, Growers Marketing Service sold 5,347 pounds on transaction 1565 which were subsequently rejected because of severe decay. See, Dump Report dated July 5 in Transaction 1565. Growers Marketing Service showed no income nor expense to the grower on transaction 1565. Because these melons were not sold until June 14, it is possible that they decayed. GMS's treatment of the transaction on the settlement statement is contrary to the notes on transaction 1565 which treat is as a wash with no income or expense to Woods. The assessment of freight and handling charges was not inappropriate under the circumstances, and are disallowed. See, Corrected Invoice 3534 attached to this Order. The total revenue from the remaining transactions was $6,142. The expenses on the various loads total $2,285. GMS owed Woods $3,857 on this load, but only paid him $1152. GMS still owes Woods $2705 on this transaction. Transaction number 3541: On June 7, 1991, Growers Marketing Service handled 9,997 pounds of watermelons for Willie J. Woods on transaction number 1565. This load was sold to Castellini Produce on transaction 1565, discussed above, where it was rejected for excessive decay. The assessment of the freight charges and handling charges on this load which was handled 10 days after it was picked was inappropriate, and is disallowed. It is treated also as a wash in this transaction just as it was in 3534, and just as GMS treated it in transaction 1565. Transaction number 3546: On June 11th, Growers Marketing Service received 4,949 pounds of yellow meat watermelons from Woods. It subsequently sold these watermelons for Woods in transactions 1589, 1607, and 1613. Regarding transaction 1589, the Growers Marketing Service's settlement statement to Woods reflects that this transaction is subject to PACA Audit; however, GMS included the 14,121 pounds of watermelons in its settlement at a expense to Woods of 5 cents per pound on a sales price of 1.67 cents per pound. Because this transaction is still subject to audit, it was inappropriate to settle with the farmer. For purposes of this accounting, 1589 is not considered. In transaction 1607, GMS sold 16,775 pounds of yellow meat watermelons received from Woods on transaction 3546. Transaction 1607 and the funds received from the transaction are discussed in full below with regard to transaction 3548; therefore, it is not discussed or accounted for as part of transaction 3546. In transaction 1613, Growers Marketing Service sold 10,053 pounds of watermelons at 11.6 cents per pound for a total of $1,069.00. Expenses attributable to transaction 1613 were $554.00. Woods was entitled to $614.00 on transaction 1613; however, he was paid nothing on this transaction; GMS owes Woods $614 on this transaction. Transaction 1475: On June 11th, Growers Marketing Service received 45,050 pounds of watermelons from Woods. Growers Marketing Service asserts that the original price of these watermelons was dropped from 15 cents to 12 cents; however, the checkstub attached to the invoice shows a total payment to GMS of $7,298.10 at the original purchase price of 17.2 cents per pound. Growers Marketing Service's costs in this transaction were $2,358. Because this transaction clearly shows the original price was paid, it reflects adversely on creditability of the witnesses for Growers Marketing Service with regard to their testimony in other transactions that the original price was reduced due to fall in the market. Growers Marketing Service owed Woods $4,940 on transaction 1475, and paid him $4,484. GMS still owes Woods $456 on this transaction. Transaction number 1508: On June 11, 1991, Growers Marketing Service received 46,000 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these melons at a price of 10.25 cents per pound. Growers Marketing Service received $4,715.00 on transaction 1508 and had expenses in the amount of $2,259.00. Growers Marketing Service owed Woods $2,456.00 on transaction 1508, and paid Woods $2,284. GMS still owes Woods $172 on this transaction. Transaction number 1497: On June 11, 1991, Growers Marketing Service received 45,340 pounds of watermelons in this transaction. Growers Marketing Service sold these watermelons at 16.35 cents per pound and deducted freight of 4.35 cents per pound, showing a net sales price of 12 cents per pound. This resulted in sales revenue of $5,441 from which GMS deducted its 1 cent handling charge and an additional $4,750 listed as a harvesting advance. GMS paid Woods $204. GMS introduced no proof of a harvesting loan; however, Woods' complaint admits this loan. Nothing is owed to Woods on this transaction. Transaction number 3548: On June 12, 1991, Growers Marketing Service received 41,132 pounds of watermelons from Willie J. Woods. Subsequently, Growers Marketing Service sold watermelons received from Woods on this transaction in its transaction numbered 1613, 1607 and 1627. Growers Marketing Service asserts that 24,457 pounds of watermelons were rejected and destroyed on transaction 1607. The records regarding transaction 1607 show handwritten notation on the invoice that Growers Marketing Service received a total after expenses of sale of $3,286.00 on transaction 1607. In transaction 1613, Growers Marketing Service sold 10,032 pounds of watermelons at 11 cents a pound and in transaction 1627 Growers Marketing Service sold 7,899 pounds of watermelons at 7 cents a pound. The original settlement statement reflected incorrectly that Woods owed GMS $810. A corrected settlement statement on transaction 3548 is attached to this Order and reflects that Willie J. Woods was owed the amount of $1,019.00 in transaction 1607, $624.00 in transaction 1613, and $1,019.00 in transaction 1627. GMS paid Woods no money on this transaction, and owes Woods a total of $1,873. Transaction number 1527: On June 12, 1991, Growers Marketing Service received 50,080 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these watermelons for 17.35 cents per pound receiving a total of $8,689.00 less expenses of $2,441.00. GMS owed Willie J. Woods $6,248.00 on transaction 1527, and paid Woods $247. GMS owes Woods $6,001. Transaction number 1536: On June 12, 1991, Growers Marketing Service received 41,320 pounds watermelons from Willie J. Woods. Growers Marketing Service consigned these watermelons and received $2,078.00 less expenses of $1,473.00. Woods owed $605.00 from Growers Marketing Service on transaction 1536, and paid Woods $307. GMS still owes Woods $298. Transaction number 1535: On June 12, 1991, Growers Marketing Service received 43,240 pounds of watermelons from Willie J. Woods in this transaction. Growers Marketing Service subsequently sold these watermelons at 16.45 cents per pound receiving a total of $7,113.00 less expenses of $2,357.00. Growers Marketing Service owed Willie J. Woods $4,856.00 on transaction 1535, and paid Woods $2,802. GMS still owes Woods $2,054. Transaction number 1505: On June 13, 1991, Growers Marketing Service received 44,950 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold these watermelons for a total of $6,967.00 to a dealer in Canada. The dealer in Canada rejected the watermelons upon their receipt serving that they were overripe on June 15, 1991, when they were received. A Canadian agricultural inspection was ordered and conducted on June 21, 1991, which revealed that 28% of the melons showed decay. However, the inspection was not timely and the report is hearsay. GMS failed to exercise due diligence in obtaining a prompt inspection and seeking recovery in behalf of Woods. Therefore, after absorbing expenses of $2,747.00, Growers Marketing Service owed Woods $4,220.00 for his loss in this transaction. GMS paid Woods $1,250 salvage on the load; however, it still owes him $2,970. Transaction number 1520: On June 13, 1991, Growers Marketing Service received 45,940 pounds of watermelons from Willie J. Woods in this transaction. The front of the folder shows that Growers Marketing Service sold this load of watermelons to Winn Dixie in South Carolina for 12 cents per pound, or $5,513. Upon receiving the watermelons on June 15 1991, Winn Dixie rejected the melons because they were "cutting white, green fresh." See copy of front of file. Growers Marketing Service asked another broker to move the load, and that broker and Growers Marketing Service arranged to have the load inspected at its next destination, Staunton, Virginia. The truck broke down in route to Staunton, Virginia and did not arrive until June 18, 1991. The other broker described the melons as looking "cooked" on arrival. Growers Marketing Service charged Woods with freight on this load. Because Growers Marketing Service had a legitimate freight claim against the trucking company, yet charged the loss and freight charges to the grower, GMS owes Woods $5,940 less the salvage, freight and expenses totaling $2,125. GMS owes Woods $3,816. Transaction number 3553: On June 13, 1991, Growers Marketing Service received 29,478 pounds of watermelons from Willie J. Woods on transaction 3553. Subsequently, Growers Marketing Service sold these melons to various concerns realizing $3,450.76 on these sales. GMS's settlement statement with Woods on this transaction reflects a deficit on transaction 1505 of $822.50. According to the records reviewed by the Hearing Officer there was no deficit in transaction 1505; therefore, the deduction of $822.50 was inappropriate. Adding this money back into the amount due Woods, Woods should have received $1,615.74 on transaction number 3553. GMS paid Woods $675, and still owes Woods $941. Transaction number 3552: On June 13, 1991, Growers Marketing Service received 32,769 pounds of watermelons from Willie J. Woods on this transaction. A review of the records reflects that Growers Marketing Service subsequently sold 10,403 pounds of these melons at three cents a pound, realizing $312.09. Growers Marketing Service also sold 19 bins of these melons weighing 22,366 pounds for nine cents a pound for a total of $2,012.94. Growers Marketing Service's settlement statement reflects a packing charge of two and a half cents per pound for 22,366 pounds of melons that were in bins. This is excluded as an expense because the adjustment for packing charges was included in the Hearing Officer's recomputation of the price of nine cents per pound. Similarly, the price adjustment of one and a half cents per pound was included in the recomputation of the price and is therefore excluded. The settlement statement which is attached to this Order reflects total receipts of $2,325 and total expenses of $750. Growers Marketing Services owed Willie J. Woods $1,575 on transaction number 3552, and paid Woods $1,551. GMS owes Woods $24 on this transaction. Transaction number 3549: On June 13, 1991, Growers Marketing Service received 32,564 pounds of watermelon from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold 4,008 pounds of watermelons at three cents a pound on transaction 1669, realizing $120.24 on the sale. Growers Marketing Service sold seven bins of watermelons weighing 8,400 pounds at $217.66 for each bin, realizing a total of $1,523.66 on transaction 1532. Growers Marketing Service sold 1,346 pounds of watermelon at eight cents a pound, realizing $107.68 on transaction 1678. Growers Marketing Services sold 18,810 pounds of watermelons at sixteen and a half cents a pound, realizing $3,104 on transaction 1530. The Growers Marketing Services' settlement statement on transaction 3549, corrected as indicated above, shows that Growers Marketing Services received a total of $4,855 on this transaction. Growers Marketing Services' statement reflects packing charges of four cents per pound for 24,164 pounds. This packing charge was not applicable because the melons are indicated to have been in bins, not in cartons. Further, the price adjustment of one and a half cents per pound on 18,810 pounds was included in the Hearing Officer recomputation of the price per pound. Taking into account these corrections, total revenue was $4,855, and the total expenses of Growers Marketing Services were $1,613. Growers Marketing Services owed Woods $3,242 on transaction 3549, and paid him $1,690. GMS still owes Woods $1,552. Transaction 3556: On June 13, 1991, Growers Marketing Services received 32,898 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Services sold 2,086 pounds of these watermelons for 12 cents a pound on transaction 1622. Growers Marketing Services sold 2,096 pounds of these watermelons at 10 cents a pound realizing $210 on transaction 1575. Growers Marketing Services sold 1,983 pounds of these watermelons at 10 cents a pound realizing $198 in transaction 1647. Growers Marketing Services' settlement for transaction 3556 is attached to this Order and reflects an original price for these melons of 4 cents per pound; however, Growers Marketing Services sold 1,029 of these watermelons at 11.6 cents a pound in transaction 1613. The settlement statement, a copy of which is attached, is corrected to reflect the sales price of 11.6 cents a pound, and the resulting change in the monies received from $41.16 to $119. GMS sold 2086 pounds of melon for 12 cents per pound realizing $250 on transaction 1622. GMS sold 3,841 pounds of watermelons for 10 cents per pound realizing $384 on transaction 1707. Growers Marketing Services sold 21,862 of these watermelons at 7 cents a pound realizing $1,530 on transaction 1627. The total received by Growers Marketing Services was $2,691 less expenses of $1,952. Growers Marketing Services owed Willie J. Woods $739, and paid him $662 on transaction 3556. GMS still owes Woods $77. Transaction number 3557: On June 14, 1991, Growers Marketing Services received 20,013 pounds of watermelons from Willie J. Woods on this transactions. Subsequently, Growers Marketing Services sold 9,214 watermelons at 12 cents a pound on transaction 1616. Growers Marketing Services 3,418 pounds of watermelons at 3 cents a pound in transaction 1669. Growers Marketing Services sold three bins of watermelons weighing 3,525 pounds at 16.5 cents a pound and an additional 3,852 pounds of watermelons at 16.5 cents a pound in transaction 1530. This is a total of 16,162 pounds of watermelons. The Growers Marketing Service's settlement statement, which is attached, is corrected to show the correct number of pounds sold and the correct amounts of money received by Growers Marketing Service. Growers Marketing Service received a total of $3,301.50 for the sell of these watermelons. Concerning the expenses shown by Growers Marketing Service, the number of pounds handled is adjusted to show that 16,162 pounds was handled. In addition, the 4 cent packing charge for 16,484 pounds of watermelons is deleted since these melons were not packed in cartons but in bins. In addition, the 1.5 cent price adjustment for 3,525 pounds of watermelons handled in transaction 1530 is in the recomputation of the price. The corrected expense total is $254. Growers Marketing Service owes Willie J. Woods $3,048 on transaction 3557. GMS paid Woods $643; however, it still owes Woods $2,405. The total of the sums still owed Mr. Woods by GMS is $32,999.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the parties be notified of these findings, and GMS permitted the opportunity to pay to Willie J. Woods $32,999 within 30 days, and if GMS fails to settle with Mr. Woods, Mr. Woods should be permitted to obtain settlement from the Respondent's bond in the amount of $32,999, or to the limits of the bond. DONE and ENTERED this 29th day of July, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1992. COPIES FURNISHED: Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-1550 Willie J. Woods 1022 Piercewood Point Brooksville, Florida 34602 W. R. Ward, Jr., President Growers Marketing Srevice, Inc. Post Office Box 2595 Lakeland, Florida 33806 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether or not the Petitioner should be entitled to an extension of the shelf life on its milk and milk products from a ten day period to a twelve day period.
Findings Of Fact Testimony offered by Jay Boosinger, Director of Dairy Industry, for the Department of Agriculture and Gene Smith, Supervisor of Dairy Products Inspection Enforcement, indicated that the Respondent had investigated the request for extension of shelf life from ten days to twelve days on the milk and milk products of the Petitioner. Based on the laboratory analysis of the test sample, they felt that the request should be accepted. Jay Boosinger has as his duty the direction of the program which is designed to regulate the quality of dairy products within the State of Florida. Gene Smith is, as his title indicates, charged with the function of inspection and enforcement of the laws and regulations associated with the dairy industry in the State of Florida. Testimony was offered in this hearing which indicated that certain samples of the Petitioner's milk and milk products had been collected at the Petitioner's Deland, Florida plant, the Petitioner's trucks and selected stores which were serviced by the Petitioner. These samples were collected by a dairy plant specialist of the Respondent, and in turn were taken to a laboratory of the Respondent for analysis. The laboratory analysis was designed to ultimately determine the number of days that the samples would be acceptable beyond the code expiration date found on the container, which expiration date would have been at the ten day point. There is an exhibit, which is Respondent's Exhibit #1 that identifies the product, collection point, the established expiration date, the laboratory evaluation date and the days that the product was found to be acceptable beyond the ten day, established expiration date. In addition this exhibit contains the laboratory analysis of the products together with attendant correspondence on the issue of the extension of the shelf life. The test samples in Respondent's Exhibit #1 show in the date acceptable pass column, how many days past the ten days the product would have held up without losing flavor and becoming unacceptable in terms of shelf life. Professor Ronald Richter Ph.D., Extension Dairy Technologist for the University of Florida testified about a test conducted on the shelf life of low fat milk. At 40 degrees the shelf life was 41 days and at 45 degrees the shelf life was 25 days. The type tests employed included the Mosely Count and a flavor test. The flavor test, according to witnesses is the ultimate test of the shelf life of the milk or milk product. The purpose of the tests which the witness was making was in connection with a research project on the techniques to be utilized by a laboratory in evaluating the shelf life of milk and milk products. The laboratory analyses and summary of those analyses showed available shelf life above the ten day life expressed in the regulation found in Chapter 5D-104(7)(d), Florida Administrative Code.
Recommendation It is recommended that the Respondent grant a shelf live of twelve days on the milk and milk products identified in the course of the hearing held on the question of the petition. DONE and ENTERED this 14th day of June, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ted H. McCarty, Esquire Assistant General Counsel Beatrice Foods Company 120 South Lasalle Street Chicago, Illinois 60603 Jack Shoemaker, Esquire Resident Counsel 515 Mayo Building Tallahassee, Florida 32304
