The Issue Whether Sunny Fresh Citrus Export and Sales, Co., LLC, is liable to Petitioner in the amount of $44,032.00 for delivery of fruit which remains unpaid.
Findings Of Fact Petitioner, DP Partners, Ltd. (Partners), is a Florida Limited Partnership located in Lake Placid, Florida, engaged in the business of citrus production. Daniel H. Phypers and Danielle Phypers Daum, brother and sister, and their father Drew Phypers, are limited partners in the business. Respondent, Sunny Fresh Citrus Export and Sales Co., LLC, (the LLC) is a Florida Limited Liability Company headquartered in Vero Beach, Florida, engaged in the business of exporting citrus for retail sale. The LLC was organized and registered with the State of Florida Division of Corporations on November 3, 2011. The members of the LLC are Kelly Marinaro and Jean Marinaro, husband and wife. Kelly Marinaro (Marinaro) formerly conducted business in the name of Sunny Fresh Citrus Export and Sales Co. (the DBA), a fictitious-name entity registered with the Florida Department of State, Division of Corporations, on October 23, 2007. The fictitious-name entity registration expired on December 31, 2012. Marinaro suffered a massive heart attack in November 2011 and was incapacitated. He did not return to work until the Spring of 2013. On November 4, 2011, after suffering the heart attack, and one day after organizing and registering the LLC, Marinaro conveyed durable power of attorney to Joseph Paladin (Paladin) as his Agent. Among the authority granted to Paladin, was the following: 2. To enter into binding contracts on my behalf and to sign, endorse and execute any written agreement and document necessary to enter into such contract and/or agreement, including but not limited to . . . contracts, covenants . . . and other debts and obligations and such other instruments in writing of whatever kind and nature as may be. * * * 9. To open, maintain and/or close bank accounts, including, but not limited to, checking accounts . . . to conduct business with any banking or financial institution with respect to any of my accounts, including, but not limited to, making deposits and withdrawals, negotiating or endorsing any checks . . . payable to me by any person, firm, corporation or political entity[.] * * * 12. To maintain and operate any business that I currently own or have an interest in or may own or have an interest in, in the future. In Marinaro’s absence, Paladin conducted the usual affairs of the business, including entering into contracts to purchase citrus from several growers. On October 19, 2012, Paladin entered into contract number 2033 with Partners to purchase approximately 6000 boxes of Murcots (a tangerine variety) at $12.00 per box.2/ The contract is signed by Paladin as the Agent of “Sunny Fresh Citrus Export & Sales Company, Licensed Citrus Fruit Dealer (Buyer).” On December 13, 2012, Sunny Fresh entered into contract number 2051 with Partners to purchase Hamlins (a different fruit variety) at $6.50 per box.3/ The contract price was for citrus “on the tree,” meaning it was the buyer’s responsibility to harvest the citrus. The contract is signed by Paladin as the Agent of “Sunny Fresh Citrus Export & Sales Company, Licensed Citrus Fruit Dealer (Buyer).” (Contract 2033 and 2051 are hereinafter referred to collectively as “the contracts”.) The contracts were prepared on pre-printed forms used by Marinaro’s businesses pre-dating Paladin’s involvement. The contract form is titled as follows: Citrus Purchase Contract & Agreement Sunny Fresh Citrus Export & Sales Company Cash Fruit Crop Buyer 2101 15th Avenue Vero Beach, Florida 32960 Paladin testified that he was not aware of more than one company for Marinaro’s fruit-dealing business. He testified that he was not aware of any difference between Sunny Fresh Citrus Export and Sales Company and Sunny Fresh Citrus Export and Sales Co., LLC. Paladin was not aware of when the LLC was created. Paladin’s testimony is accepted as credible and reliable. Paladin testified that his intent was to enter into the contracts for the benefit of “Sunny Fresh.” “Sunny Fresh,” written in twelve-point bold red letters over an image of the sun in yellow outlined in red, is a trademark registered with the Florida Division of Corporations. Marinaro first registered the trademark in February 1998. In his trademark application, Marinaro entered the applicant’s name as “Kelly Marinaro D/B/A Sunny Fresh Citrus.” Marinaro renewed the trademark registration in 2007. Marinaro testified that the “Sunny Fresh” trademark is “owned by the LLC.” On February 20, 2012, Paladin, Marinaro and a third partner, Gary Parris, formed another company, Sunny Fresh Packing, LLC, the purpose of which was to run a fruit-packing house in Okeechobee, Florida. Equipment for the packing house was obtained from a packing house in Ft. Pierce, Florida, which was indebted to Marinaro, in some capacity, and went “belly up.” In March 2013, the Okeechobee packing house was struck by lightning. Shortly after the lightning strike, Marinaro, Paladin, and Mr. Parris, signed a letter addressed “To our valued Growers.” The letter explained that, due to both the lightning strike, which shorted out all computers and electrical components at the packing house, and reduced demand for product due to severe weather in the northeastern United States, they had made a “business decision to end the year now and prepare for next year.” The letter further explained that, “rather than spending thousands of dollars all at once, we feel, it makes better sense to use our cash flow to pay our growers first . . . . We will be sending out checks every week or every other week until everyone is paid or until we receive supplemental cash infusions that we are working on. In that case we would just pay everyone in full, from that.” The letter was prepared on letterhead bearing the “Sunny Fresh” trademark logo. Paladin made a number of payments to Partners on the contracts during 2012 and 2013. Each check shows payor name as “Sunny Fresh” with an address of 2101 15th Avenue, Vero Beach, Florida 32960. Mr. Phypers met with Paladin a number of times to collect checks and understood that Paladin was making concerted efforts to pay all the growers. However, Partners did not receive full payment on the contracts. Paladin drafted a Release of Invoices Agreement (Agreement) by which creditor growers could receive partial payment on their outstanding contracts in exchange for a full release of liability from the buyer. The Agreement lists the following entities and persons as being released from liability: “Sunny Fresh Packing, LLC”; “Sunny Fresh Citrus Export and Sales Co., LLC”; and Kelly Marinaro. Paladin presented the Agreement to Partners with an offer to pay $36,449.45 in consideration for signing the Agreement. Partners did not sign the Agreement. The parties stipulated that the amount owed Partners under both contracts is $44,032.00. Respondent contends that Petitioner’s claim is filed against the wrong business entity. Respondent argues that Petitioner’s contracts were with the DBA, and that Petitioner’s claim is incorrectly brought against the LLC. Thus, Respondent reasons, the LLC is not liable to Petitioner for the monies owed. The DBA was registered with the State of Florida in 2007 and held an active fruit dealer’s license through July 31, 2012. Marinaro owned and operated the DBA at 2101 15th Avenue, Vero Beach, Florida 32960. The DBA filed a citrus fruit dealer’s bond with the Department of Agriculture for the 2008-2009 shipping season. Marinaro registered the trademark “Sunny Fresh” logo in the name of the DBA in 2007, and was still using the logo on his business letterhead in 2013. Marinaro formed the LLC in 2011, which holds an active citrus fruit dealer’s license. Marinaro and his wife, Jean, are the only members of the LLC. The principal address is 2101 15th Avenue, Vero Beach, Florida 32960. The LLC filed citrus fruit dealer’s bonds with the Department of Agriculture on June 28, 2012, for the shipping season ending July 31, 2013, and on May 2, 2013, for the shipping season ending July 31, 2014. Marinaro did not refile a bond for the DBA after forming the LLC. At all times relevant hereto, Marinaro’s fruit dealer’s business has been physically located at 2101 15th Avenue, Vero Beach, Florida 32960. The building at that address bears the name “Sunny Fresh.” Marinaro testified that he formed the LLC shortly after his heart attack to “protect his personal assets.” Marinaro explained that he had little revenue in the LLC “for the next two years,” and he planned for the LLC to conduct sales for the packing company. He expected the LLC would be purchasing fruit from other packing houses. In fact, he testified that, during his absence, he was not aware that either the DBA or the LLC were purchasing fruit. Marinaro was clearly upset about the financial state of his business when he resumed control in the Spring of 2013. He testified that, prior to his heart attack, he was running a business with a typical $10 to $12 million yearly revenue, but that he returned to a business in debt to the tune of roughly $790,000.00. Marinaro lamented that Paladin entered into contracts to buy citrus when that was not the plan for the LLC. Alternately, he blamed Paladin for taking too much money out of the LLC to set up the packing house. Marinaro’s testimony was inconsistent and unreliable. He first testified that Paladin had full authority to purchase fruit in his absence, but later professed to be “dismayed” that his company was purchasing fruit in his absence. The evidence does not support a finding that the LLC was formed for any reason other than to continue his fruit dealings in a legal structure that would protect his personal assets. Marinaro’s explanation that the purpose of the LLC was to conduct sales for the packing company also lacks credibility. The LLC was organized in November 2011, but the packing house in Ft. Pierce from which he acquired the equipment to set up a packing house in Okeechobee did not go “belly up” until February 2012. Marinaro would have had to be clairvoyant to set up an LLC for the sole purpose of sales to a packing house about which he was not aware until four months later. Marinaro’s testimony that he was in the dark about the running of his business and that he was somehow duped by Paladin is likewise unreliable. Marinaro testified that, during his absence, he was “concerned that Paladin was entering into contracts where a bond was required, but not secured.”4/ He could not have been concerned about contracts to buy fruit without posting the required bond if he was not even aware that his company was purchasing fruit. Further, Marinaro neither questioned Paladin about entering into the citrus contracts, nor suggested Paladin use a different contract form for the LLC. The evidence establishes that Marinaro knew Paladin was purchasing fruit during Marinaro’s absence to continue the regular fruit-dealer’s business, and further, that Marinaro knew Paladin was entering into contracts on behalf of the LLC, the company formed just one day prior to Marinaro granting Paladin full power of attorney to run his business. Finally, Marinaro knowingly participated in the formation of Sunny Fresh Packing, LLC, in February 2012, four months after he became incapacitated. This required his involvement in a complicated business scheme in which his company collected on a debt owed by a packing house in Ft. Pierce, and acquired the equipment to run the new packing house, with two partners, Parris and Paladin, located in Okeechobee on property owned by a third party, Mr. Smith, who is not a member of Sunny Fresh Packing, LLC. It is unlikely Marinaro was clueless as to the fruit dealings of the LLC in his absence. Further, it is disingenuous, at best, for Marinaro to suggest that the contracts entered into in 2012 are not with the LLC, the corporation he formed in 2011 to protect his personal assets from his business obligations.
Recommendation 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 approving the claim of DP Partners, Ltd., against Sunny Fresh Citrus Export and Sales Co., LLC, in the amount of $44,032.00. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2014.
Findings Of Fact Petitioner, Deerfield Groves Company (Deerfield), is a licensed citrus fruit dealer under Chapter 601, Florida Statutes, and Chapter 20-34, Florida Administrative Code. 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. Deerfield has legal standing as a party petitioner in this case. 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. 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. 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. 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. 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/ 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. 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.
The Issue What is the amount owed by D. L. Scotto and Company, Inc., d/b/a Tuxedo Fruit Company, to Thomas E. Davis, Inc., for Valencia oranges purchased in January, April, and May 2013?
Findings Of Fact A "dealer in agricultural products" is defined as a person, partnership, corporation, or other business entity, "engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer . . . for resale or processing for sale " § 604.15(2), Fla. Stat. (2013).1/ Respondent is licensed as a dealer in agricultural products. Petitioner is a "producer" for purposes of sections through 604.34, Florida Statutes. See § 604.15(9), Fla. Stat. (defining "producer" as "any producer of agricultural products produced in the state"). Contract #077 On January 25, 2013, Petitioner and Respondent entered into citrus fruit contract #077 wherein Respondent, for the price of $9.50 per box, agreed to purchase 5,000 boxes of Valencia oranges from Petitioner's Cock Pen grove. Petitioner delivered, and Respondent accepted, 2,925 boxes of the promised oranges. To date, Respondent has only paid Petitioner for 1,962 ($9.50 x 1,962 = $18,639) boxes of oranges from the Cock Pen grove. Contract #078 On January 25, 2013, Petitioner and Respondent entered into a second citrus fruit contract (#078) wherein Respondent, for the price of $9.50 per box, agreed to purchase 4,500 boxes of Valencia oranges from Petitioner's Patrick grove. Petitioner delivered, and Respondent accepted, 2,988 boxes of the promised oranges. To date, Respondent has only paid Petitioner for 792 ($9.50 x 792 = $7,524) boxes of oranges from the Patrick grove. Contract #M012 On April 25, 2013, Petitioner and Respondent entered into a third citrus fruit contract (#M012) wherein Respondent, for the price of $11.00 per box, agreed to purchase 1,200 boxes of Valencia oranges from Petitioner's Johnson grove and 1,500 boxes of Valencia oranges from Petitioner's Allegato grove. Petitioner delivered, and Respondent accepted, 1,161 boxes of the promised oranges from the Johnson grove and 1,296 boxes of oranges from the Allegato grove. To date, Respondent has not paid Petitioner for the oranges received from the Johnson and Allegato groves. Contract #M013 On May 2, 2013, Petitioner and Respondent entered into a fourth citrus fruit contract (#M013) wherein Respondent, for the price of $11.00 per box, agreed to purchase 1,500 boxes of Valencia oranges from Petitioner's Tommy Ann grove. Petitioner delivered, and Respondent accepted, 1,674 boxes of the promised oranges from the Tommy Ann grove. To date, Respondent has not paid Petitioner for the oranges received from the Tommy Ann grove. Respondent's defense Each of the citrus fruit contracts at issue provides that the oranges "must be merchantable for fresh usage at the time of harvest and delivery." Respondent claims that significant quantities of the oranges that were received from Petitioner were not merchantable for fresh usage at the time of harvest and delivery. In reviewing the documentary evidence presented by both parties, it is evident that Petitioner's oranges were harvested and delivered to Respondent during the months of January through May 2013. From this period forward to the date of the final hearing held herein, Respondent never informed Petitioner that there was an issue with the merchantability of the oranges. Instead, whenever Petitioner contacted Respondent about the status of payment for the oranges, Respondent repeatedly assured Petitioner that payment was forthcoming. Respondent's testimony regarding the alleged compromised merchantability of the oranges that he received from Petitioner is not credible.
Recommendation 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 finding that D. L. Scotto and Company, Inc., d/b/a Tuxedo Fruit Company, is indebted to Thomas E. Davis, Inc., in the amount of $75,501.50 (includes filing fee) for the balance due for the oranges it purchased from Petitioner on January 25, April 25, and May 2, 2013. DONE AND ENTERED this 17th day of April, 2014, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2014.
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.
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.
Recommendation 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.
The Issue Whether Respondent A & J Pak Ship, Inc., owes Petitioner $551.16 for "gift fruit,” as alleged in Petitioner's Complaint.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Petitioner and A & J have been licensed by the Department of Citrus as "citrus fruit dealers." As part of its operations, A & J sells "gift fruit" to retail customers. The "gift fruit" consists of oranges or grapefruits, or both, that are packaged and sent to third parties identified by the customers. In November and December of 1999, A & J took orders for "gift fruit" from retail customers that it contracted with Petitioner (doing business as Fresh Fruit Express) to fill. Under the agreement between A & J and Petitioner (which was not reduced to writing), it was Petitioner's obligation to make sure that the "gift fruit" specified in each order was delivered, in an appropriate package, to the person or business identified in the order as the intended recipient at the particular address indicated in the order. Among the intended recipients identified in the orders that Petitioner agreed to fill were: the Uthe family, the Weckbachs, Mr. and Mrs. T. Martin, Angelo's, Susan Booth, Mr. and Mrs. E. Coello, Mr. and Mrs. Dalbey, Carol Baker and family, the Tarvin family, Shelly and Mark Koontz, Pamela McGuffey, Jerome Melrose, Russell Oberer, Mrs. Josephine Scelfo, Curt and Becky Tarvin, Heidi Wiseman, Kay and Artie Witt, and the William Woodard family, who collectively will be referred to hereinafter as the "Intended Recipients in Question." A & J agreed to pay Petitioner a total of $438.18 to provide "gift fruit" to the Intended Recipients in Question, broken down as follows: $21.70 for the Uthe family order, $21.70 for the Weckbachs order, $22.82 for the Mr. and Mrs. T. Martin order, $27.09 for the Angelo's order, $21.70 for the Susan Booth order, $31.67 for the Mr. and Mrs. E. Coello order, $17.50 for the Mr. and Mrs. Dalbey order, $21.70 for the Carol Baker and family order, $27.09 for the Tarvin family order, $21.70 for the Shelly and Mark Koontz order, $21.70 for the Pamela McGuffey order, $32.44 for the Jerome Melrose order, $21.70 for the Russell Oberer order, $17.60 for the Mrs. Josephine Scelfo order, $21.70 for the Curt and Becky Tarvin order, $17.50 for the Heidi Wiseman order, $17.50 for the Kay and Artie Witt order, and $31.67 for the William Woodard family order. All of these orders, which will be referred to hereinafter as the "Intended Recipients in Question 'gift fruit' orders," were to be delivered, under the agreement between A & J and Petitioner, by Christmas day, 1999. On Sunday night, December 12, 1999, fire destroyed Petitioner's packing house and did considerable damage to Petitioner's offices. With the help of others in the community, Petitioner was able to obtain other space to house its offices and packing house operations. By around noon on Tuesday, December 14, 1999, Petitioner again had telephone service, and by Friday, December 17, 1999, it resumed shipping fruit. Scott Wiley, A & J's President, who had learned of the fire and had been unsuccessful in his previous attempts to contact Petitioner, was finally able to reach Petitioner by telephone on Monday, December 20, 1999. After asking about the status of the Intended Recipients in Question “gift fruit” orders and being told by the employee with whom he was speaking that she was unable to tell him whether or not these orders had been shipped, Mr. Wiley advised the employee that A & J was "cancelling" all "gift fruit" orders that had not been shipped prior to the fire. Mr. Wiley followed up this telephone conversation by sending, that same day, the following facsimile transmission to Petitioner: As per our conversation on 12-20-99, please cancel all orders sent to you from A & J Pak-Ship (Fresh Fruit Express). After trying to contact your company numerous times on December 13, I called the Davie Police Department, who [sic] informed me that you had experienced a major fire. I tried to contact you daily the entire week with no luck. Since I had no way to contact you, it was your responsibility to contact me with information about your business status. Without that contact, I had to assume that you were unable to continue doing business. With Christmas fast approaching and with no contact from anyone on your end, I had no choice but to begin to issue refunds. While I understand the fire was devastating for you, understand that my fruit business is ruined, and will take years to reestablish. Please note that I will not pay for any orders shipped past the date of your fire, 12-13-99, as I have already issued refunds, and I will need proof of delivery for all those orders delivered before the fire. Again, cancel all orders including the remainder of multi-month packages, and honeybell orders. Your lack of communication has put me in a very bad situation with my customers. One short phone call to me could have avoided all this difficulty. Had I not tried your phone on 12-20, I would still have no information from you. Petitioner did not contact Mr. Wiley and tell him about the fire because it did not think that the fire would hamper its ability to fulfill its obligations under its agreement with A & J. By the time Mr. Wiley made telephone contact with Petitioner on Monday, December 20, 1999, Petitioner had already shipped (that is, placed in the possession of a carrier and made arrangements for the delivery of) all of the Intended Recipients in Question "gift fruit" orders (although it had not notified A & J it had done so). Petitioner did not ship any A & J "gift fruit" orders after receiving Mr. Wiley's December 20, 1999, telephone call. On or about February 18, 2000, Petitioner sent A & J an invoice requesting payment for "gift fruit" orders it had shipped for A & J. Among the orders on the invoice for which Petitioner was seeking payment were the Intended Recipients in Question "gift fruit" orders (for which Petitioner was seeking $438.18). The invoice erroneously reflected that all of these orders had been shipped on December 25, 1999. They, in fact, had been shipped on December 18, 1999, or earlier. 1/ Mr. Wiley, acting on behalf of A & J, wrote a check in the amount of $858.26, covering all of the invoiced orders except the Intended Recipients in Question "gift fruit" orders, and sent it to Petitioner, along with the following letter dated February 22, 1999: As per my conversation on 12/20/90 at 11:20 a.m. with Yvette we cancelled all orders shipped after the fire, and also followed up with a certified letter. We had to reorder all of those orders and also refunded a lot of orders as they were not there in time for Xmas as all orders are required to arrive before Xmas. As I said in my certified letter to you it was a[n] unfortunate fire but all you had to do was to inform me what was going on and we could have worked something out. Our fruit business has been ruined by this incident, and quite possibly our entire company. It is unbelievable that more than sixty days after the fire we still have had no correspondence from you whatsoever. We have deducted those orders that were cancelled and arrived well after Xmas and remitted the remainder. A & J has not yet paid Petitioner the $438.18 for the Intended Recipients in Question "gift fruit" orders.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order dismissing Petitioner’s Complaint. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 12th day of September, 2001.
The Issue Whether Respondent, Citrus Direct, LLC, owes Petitioner, Marvin Hajos, the sum of $5,397.00 for citrus that was purchased, but not harvested.
Findings Of Fact At all times material to the instant case, Petitioner and Citrus Direct were involved in the growing and marketing of citrus fruit in the State of Florida. On June 12, 2008, Citrus Direct agreed to purchase fruit from Petitioner. The terms of their agreement were reduced to writing. The "Fresh Fruit Contract" provided that Citrus Direct would purchase from Petitioner all of the varieties of citrus fruits of merchantable quality as delineated in the contract. More specifically, Citrus Direct was entitled to purchase "Valencia" oranges from Petitioner for "$3.00 on tree net" per box. The terms of the contract suggests that it is for "citrus fruit for the year 2005/2006 and merchantable at the time of picking. . . ." The contract does not identify a total amount of fruit expected from the grove. Prior to entering into the above-referenced contract, Petitioner had made arrangements with an unidentified third party to have the grove picked, but for some reason, that agreement fell through. Jason Cooper, known in the citrus business as a "bird dog," brought the parties together. Mr. Cooper is an independent contractor who finds grove owners who need to have their groves picked and refers them to buyers. The "Fresh Fruit Contract" was signed on June 12, 2008. The grove was picked on June 15, 17, 26 and 30, 2008. Two hundred and sixty-four boxes of fruit were picked from Petitioner's grove. Petitioner received payment of $603.00. Citrus Direct forwarded an additional check for $189.00 to Petitioner; however, Petitioner did not receive the check. No admissible evidence was received regarding the number of boxes of fruit that were anticipated from the grove. However, on June 30, 2008, all the fruit that was reasonably available to be picked in the grove had been picked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department Agriculture and Consumer Services enter a final order dismissing Petitioner, Marvin Hajos', Amended Complaint, but requiring Respondent, Citrus Direct, LLC, to pay Petitioner $189.00, if that amount has not already been paid. DONE AND ENTERED this 27th day of April, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2009. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, Mail Station 38 Tallahassee, Florida 32399-0800 Marvin Hajos 3510 Northwest 94th Avenue Hollywood, Florida 33024 State Farm Fire and Casualty Company One State Farm Plaza Bloomington, Illinois Hans Katros Citrus Direct, LLC 61710 1406 Palm Drive Winter Haven, Florida 33884
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Citrus enter a final order dismissing the application filed by the Petitioner for licensure as a citrus fruit dealer. DONE AND ENTERED this 30th day of May, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2013. COPIES FURNISHED: Douglas Ackerman, Executive Director Department of Citrus Post Office Box 9010 605 East Main Street Bartow, Florida 33831-9010 Joseph P. Mawhinney, Esquire Reed and Mawhinney, P.L. 1611 Harden Boulevard Lakeland, Florida 33803-1826 Guillermo Vazquez East West Citrus Packers, LLC 11860 Southwest 183rd Street Miami, Florida 33177-2453
The Issue Is the general partnership, Schiller Investments, a party to the fruit purchase agreement that is the subject of this proceeding with standing to bring a claim for payment? Does the failure of Schiller Investments to register "Shell Creek Groves" as a fictitious name require abating this proceeding?1/ Does the election of remedies provision of section 601.65, Florida Statutes (2011)2/ prohibit the Florida Department of Agriculture and Consumer Services and the Division of Administrative Hearings from taking jurisdiction of this matter? Is Gulf Citrus Marketing, LLC, liable to Schiller Investments in the amount of $259,817.41?
Findings Of Fact Schiller Investments is a general partnership formed by Friedrich Schiller and his wife, Barbara Ann Schiller, in Kansas on February 1, 2005. In the transactions involved in this matter, Mr. Schiller acted on behalf of Schiller Investments with full authority as a general partner. Although Schiller Investments has sometimes used the name Shell Creek Groves in business transactions, Schiller Investments has never registered Shell Creek Groves as a fictitious name in Florida. Schiller Investments and Mr. Schiller also used the name Shell Creek Citrus interchangeably with Shell Creek Groves. They also did not register Shell Creek Citrus as a fictitious name. Respondent, Gulf Citrus Marketing, LLC (Gulf Citrus), is a licensed fruit dealer in Florida. George Winslow is the managing member of Gulf Citrus and acted on behalf of Gulf Citrus in all of the communications and transactions with Mr. Schiller and Schiller Investments involved in this matter. On September 23, 2009, Schiller Investments and Gulf Citrus entered into Gulf Citrus Marketing Fruit Purchase Agreement No. 936 (Purchase Agreement). Mr. Winslow drafted the agreement with the assistance of a lawyer. Mr. Winslow has a college degree in agronomy. In contrast, Mr. Schiller's formal education ended with completion of the eighth grade. Mr. Schiller executed the Purchase Agreement on behalf of Schiller Investments. Mr. Winslow executed it on behalf of Gulf Citrus. The signature blocks in the document, drafted by Mr. Winslow and Gulf Citrus's lawyer, do not state the position either man held in the entities on whose behalf they signed, as shown below. But it is plain they are signing on behalf of an entity not as individuals. SELLER: SCHILLER INVESTMENTS dba Shell Creek Groves By: Name: Friedrich Schiller BUYER: GULF CITRUS MARKETING, LLC By: Name: George Winslow The Purchase Agreement was a contract between Gulf Citrus and Schiller Investments. The Purchase Agreement provided for Gulf Citrus to purchase all oranges grown in the Prairie Grove and Shell Creek Grove for four consecutive citrus seasons, beginning with the 2009-2010 season and ending with the 2012-2013 season. The Purchase Agreement provides specific descriptions by survey coordinates of the Charlotte County locations of the groves. Shell Creek Grove is much larger than Prairie Grove. It produced the vast majority of the oranges. From 2009 to present day, Mr. Schiller has owned Shell Creek Grove. Mr. Winslow always knew that Mr. Schiller owned Shell Creek Grove. Mr. Winslow brokered the foreclosure sale of the grove to Mr. Schiller from Metropolitan Life. Before then, Mr. Winslow was one of three co-owners of Shell Creek Grove. From May 17, 2002, until January 25, 2012, Prairie Groves, LLC, owned the Prairie Grove. Throughout the course of their various dealings, Mr. Winslow was aware that Mr. Schiller controlled both groves and business dealings involving them. He regularly communicated with Mr. Schiller about the groves and dealt exclusively with him on matters involving the groves. The Purchase Agreement provides that in the event of the sale of the groves, Gulf Citrus has the right, but not the obligation, to terminate the agreement. It contains other clauses that give Gulf Citrus the right to terminate the contract in certain circumstances. The Purchase Agreement also gives Gulf Citrus the right to assign or transfer the Purchase Agreement to any third party or successor in interest. Schiller Investments timely delivered the oranges from both groves for the 2010-2011 season, as provided in the Purchase Agreement. The oranges satisfied all of the quality standards and other requirements of the Purchase Agreement. Gulf Citrus accepted the oranges. It in turn sold the oranges and received payment for them. Gulf Citrus has not paid $259,817.41 owed for the oranges. During this time, Mr. Winslow experienced financial difficulties. Mr. Schiller allowed Mr. Winslow time to cure his problems and pay the debt. In September and October, 2011, Mr. Schiller communicated regularly with Mr. Winslow and his staff about the unpaid amount and Gulf Citrus's plan to pay it. Mr. Winslow promised payment several times and explained various plans to raise the money, including re-financing real estate. But he never delivered. One scheme Mr. Winslow proposed was for Schiller Investments to enter into a new fruit purchase agreement with a New Jersey company named Johanna Foods. Mr. Schiller chose not to do this. He had reasonable concerns. They were the fact that Johanna Foods was not a licensed Florida Fruit dealer4/, that he was unfamiliar with the company, and that the proposal included an unexplained payment described as a "bonus" that was to make up for the money Gulf Citrus had not paid. Mr. Winslow did not propose to assign the agreement to Johanna Foods. And Gulf Citrus never assigned the agreement.5/ Mr. Winslow acknowledged the failure to pay in writing on October 25, 2011. The letter he wrote and signed that day in Mr. Schiller's presence reads: Fred Schiller It is my intent to pay Shell Creek Grove $259,818.00, of past due fruit proceeds due; on or about Nov 10th subject to refinancing of property owned by George Winslow. In the interim I will advise you weekly of the progress beginning November 1st. George Winslow [signature] In the event payment is not tendered to Shell Creek Grove by Nov 15th Gulf Citrus Marketing will cancel the Fruit Purchase agreement between Gulf Citrus Mkt. and Shell Creek Grove. George Winslow [signature] On October 28, 2011, Mr. Schiller sent Mr. Winslow a handwritten letter stating he was terminating the Purchase Agreement. The letter quoted verbatim below states: Dear George, Due to your financial difficulties and your inability to meet your obligations in a timely manner I am terminating the agreements between "Prairie Grove-Shell Creek Citrus" and your companies at Gulf Citrus effective Nov. 30th 2011. I like to thank your staff especially Lori for everything they have done in the past years. Thank you Fred Schiller Prairie Creek Groves Shell Creek Citrus Cc: Lory Sabrina Mr. Schiller and Mr. Winslow have done business with each other since 2001. They and the entities that they controlled were engaged in other business relationships, including ones involving Prairie Grove and Shell Creek Grove. They included business relationships with Citrus Sweet, Inc., and Florida Gulf Citrus Management, Inc. The relationships included an agreement between Mr. Schiller and Gulf Citrus Management, a Mr. Winslow entity, for management of the Shell Creek Grove. In the course of their business dealings, Mr. Schiller twice provided Mr. Winslow with copies of the Schiller Investments partnership agreement. He provided it personally to Mr. Winslow in 2002. He provided it to Mr. Winslow's staff in 2008 or 2009.6/ Through Mr. Winslow, Gulf Citrus was fully aware of the parties that it was dealing with in all the business relationships including the Purchase Agreement. Gulf Citrus has sued Mr. Schiller in circuit court for claims involving the Purchase Agreement. There is no evidence that Schiller Investments has filed suit in circuit court. There is also no evidence that Gulf Citrus filed its circuit court action before the Department took jurisdiction of the claim of Schiller Investments.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department enter a final order approving the claim of Schiller Investments against Gulf Citrus Marketing, LLC, in the amount of $259,817.41. DONE AND ENTERED this 24th day of May, 2012, in Tallahassee, Leon County, Florida. JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2012.
The Issue In summary, the issues for decision in this case are: (1) Whether in pari materia rule provisions in Chapter 5B-58, Florida Administrative Code, which define and make operative the term "exposed" to citrus canker disease, together constitute an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8), Florida Statutes; and (2) Whether the Department's policy of removing so-called "exposed" trees located within a 1900-foot radius of infected trees is an unpromulgated rule-by-definition in violation of Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Citrus Canker Background Citrus canker is a bacterial disease that afflicts citrus plants, attacking their fruits, leaves, and stems and causing defoliation, fruit drop, and loss of yield. The disease also causes blemishes on the fruit and loss of quality, which negatively affect marketability, and it can be fatal to the plant. Citrus canker spreads in two ways. First, it can be transmitted through human movement, since the bacteria can, for example, attach to the equipment and clothing of lawn maintenance workers. Second, citrus canker can spread from an infected citrus tree to a previously uninfected citrus tree by wind-driven rain. The Department is the state agency charged with the responsibilities of eradicating, controlling, and preventing the spread of citrus canker in Florida. Although the events that have led to the instant dispute began in 1995 when the Department detected Asian strain citrus canker in Miami-Dade County near the International Airport, the Department’s earlier experience with an outbreak of the disease in the 1980’s sheds light on its recent actions; as well, these past events illuminate a presently-relevant legislative enactment, namely, Section 581.184(2), Florida Statutes. Briefly, in September 1984, the Department’s field inspectors discovered a bacterial plant disease in Ward’s Citrus Nursery. Samples were sent to the U.S. Department of Agriculture (“USDA”) for analysis, and the federal agency mistakenly identified the bacteria as Asian strain citrus canker. On October 16, 1984, the Secretary of the USDA declared an extraordinary emergency in the State of Florida because of citrus canker. See generally Chapter 89-91, Laws of Florida; see also Department of Agriculture and Consumer Services v. Polk, 568 So. 2d 35 (Fla. 1990). Then-Governor Bob Graham summoned the legislature to convene on December 6, 1984, in special session to consider, among other things, “[l]egislation relating to the research and eradication of citrus canker, indemnification for certain private losses relating to citrus canker eradication, and consideration of supplemental appropriations relating to citrus canker.” 1995 Laws of Florida, Vol. I, Part One, pg. xix. During the special session, the legislature enacted an appropriations bill that made funds available for inspection, control, and eradication of citrus canker, and for financial assistance to persons suffering losses because of citrus canker. See Chapter 84-547, Laws of Florida. Meantime, the Department, working with the USDA, began implementing a joint federal-state citrus canker eradication program (from which the federal government later would withdraw in March 1986 due to inadequate funding). See Chapter 89-91, Laws of Florida. The Department promulgated extensive and detailed rules governing this program. These rules, set forth in Chapter 5B-49, Florida Administrative Code, took effect on March 6, 1985. Included within these rules were provisions requiring the destruction of certain commercial plants located within 125 feet in every direction from an infected plant. The legislature’s interest in the apparent citrus canker emergency continued beyond the December 1984 special session. During the 1985 regular session, it passed a bill that enhanced the Department’s powers to respond to the perceived citrus canker threat. See Chapter 85-283, Laws of Florida. Most important to this case, the following year, 1986, the legislature enacted a law that directed the Department to “adopt rules specifying facts and circumstances that, if present, would require the destruction of plants for purposes of [stopping the spread] of citrus canker in this state.” See Chapter 86-128, Laws of Florida. This rulemaking directive, which took effect July 1, 1986, is currently codified in Section 581.184(2), Florida Statutes. The Department responded promptly, publishing proposed revisions to Chapter 5B-49, Florida Administrative Code, in the September 5, 1986, Florida Administrative Weekly. These proposed rules, which took effect March 4, 1987, provided clearer, more comprehensive regulations in the form of a Florida Citrus Canker Action Plan, which was incorporated by reference into the rules. As it turned out, the strain of citrus canker found in Ward’s Citrus Nursery was not the virulent Asian strain after all, but a nonaggressive and less dangerous type of canker later dubbed Florida Nursery strain. See Chapter 89-91, Laws of Florida. After the putative emergency had ended, the Department repealed the remaining provisions of Chapter 5B-49, Florida Administrative Code, effective November 29, 1994. The Current Crisis In 1995, when the Department detected Asian strain citrus canker in Miami-Dade County, it quickly became alarmed that the disease could spread to commercial citrus groves, and accordingly implemented a new Citrus Canker Eradication Program (“Eradication Program”) to eradicate and prevent the spread of citrus canker to other parts of the state.1 Since the initial detection in Miami-Dade County in 1995, the Department has found citrus canker in six additional Florida counties: Hillsborough, Manatee, Hendry, Collier, Broward, and Palm Beach. At the time of the 1995 outbreak, the Department’s policy and practice was to destroy each “infected” tree and all “exposed” trees, the latter which the Department, following historical precedent, then considered to be all citrus trees within a 125-foot radius of an infected tree. In November 1995, the Department commenced rulemaking to adopt regulations governing the Eradication Program. Initially taking effect January 17, 1996, the Department’s citrus canker rules, found in Chapter 5B-58, Florida Administrative Code, have since been amended and revised from time to time. The Department, however, did not adopt its 125-foot radius policy as a rule, then or ever. The primary methods for eradicating and controlling the spread of citrus canker pursuant to the Eradication Program are the prevention of spread by human means and the prevention of spread from infected trees to uninfected trees by wind-driven rain. Chapter 5B-58, Florida Administrative Code, contains numerous, detailed provisions designed to prevent human spread of citrus canker bacteria. Petitioners do not challenge these provisions. The Department also seeks to prevent the spread of the bacteria by removing trees that can host the bacteria. To that end, the Department cuts down two separate categories of trees. The removal of these trees, defined as “infected” or “exposed” to citrus canker, is foundational to the Eradication Program. “Infected” trees are defined in the rule as being trees that harbor the citrus canker bacteria and express visible symptoms. See Rule 5B-58.001(1)(i), Florida Administrative Code. The Rule’s definition of “infected” is substantially the same as the statutory definition of the term “infected or infested,” which is located in Section 581.184(1)(a), Florida Statutes. The Department’s current policy, as expressed in Rule 5B-58.001(5), is that “[a]ll citrus trees which are infected or infested shall be removed.” Pursuant to this policy, the Department is removing every infected tree it finds. Petitioners do not challenge the Department’s policy decision to remove all infected trees. The second category of trees removed by the Department comprises those it defines as “exposed.” In Rule 5B-58.001(h), the Department has defined “exposed” trees as being those that are without visible symptoms of citrus canker but which have been “[d]etermined by the department to likely harbor citrus canker bacteria because of their proximity to infected plants or probable contact with [sources of human spread].” It is the Department’s policy regarding the removal of “exposed” trees that is at the core of Petitioners’ challenge. In Section 581.184(3), Florida Statutes, the Department is given authority to remove healthy trees——that is, trees that are neither infected, nor exposed, nor suspected of being exposed——to create a citrus canker host-free buffer area to “retard the spread of citrus canker from known infected areas.” Unlike trees that are destroyed on grounds of infection or suspected exposure to infection, however, trees removed from a rule-designated buffer area are considered valuable property, and their owners must be paid “subject to annual legislative appropriation.” Id. It is undisputed that the Department is not removing any trees under its authority to establish buffer zones. The “1900-Foot Radius Policy” Despite the Department’s efforts in the early years of the citrus canker outbreak discovered in 1995, the disease continued to spread into other parts of Miami-Dade County and into Broward County. In 1998, the Department commissioned Dr. Timothy R. Gottwald, a plant pathologist with the USDA, to conduct a study that would measure the distances that citrus canker could spread in South Florida. The objectives of the study, which commenced in August 1998, included: determining the amount of citrus canker spread from bacterial hosts (foci of infection); (b) examining the spread resulting from normal and severe weather events; (c) evaluating whether the Department’s then-current use of the 125-foot radius for defining and destroying “exposed” trees was adequate to control spread; and (d) providing, if necessary, evidence for any adjustment of the radius distance. By December 1998, before his report was completed, Dr. Gottwald’s data were sufficiently conclusive that he was able to present his study in Orlando to a group of Department officials, scientists, and citrus industry representatives. As Dr. Gottwald testified during the trial in Broward County circuit court, at that meeting in December 1998, the group reviewed his data and “came to a consensus . . . that we’re using 1,900 feet,” meaning that all trees within a 1900-foot radius of a diseased tree should be destroyed to prevent the further spread of citrus canker. A few months later, Dr. Gottwald presented his study to the Citrus Canker Risk Assessment Group (the “Risk Assessment Group”).2 A creature of the Department, the Risk Assessment Group, as defined in Rule 5B-58.001(1)(e), Florida Administrative Code, is a committee composed of knowledgeable scientists and regulatory officials that makes recommendations for the control and eradication of citrus canker; the Director of the Division of Plant Industry appoints its members.3 Dr. Gottwald persuaded the Risk Assessment Group to recommend that a 1900-foot zone be employed. Accordingly, in May 1999, the Risk Assessment Group recommended to the Department that all “exposed” trees, i.e. all trees within 1900 feet of an infected tree, should be destroyed in order to eradicate citrus canker. Dr. Gottwald completed his preliminary report on or about October 13, 1999. Although the title of his report describes it as a draft, Dr. Gottwald’s cover letter to the Department assures that the “data will not change, so for regulatory purposes this report may be useful for planning eradication/disease suppression activities.” In December 1999, then-Commissioner Bob Crawford approved the previous recommendation of the Risk Assessment Group, adopting on behalf of the Department a policy to remove citrus trees within 1900 feet of infected trees beginning January 1, 2000. This new policy was a bold and aggressive step——breathtaking in scope——that significantly ratcheted-up the Department’s eradication efforts. To grasp its magnitude, consider that the 1900-foot radius policy entails a swath of tree destruction that encompasses approximately 262 acres for each infected tree found. The science underpinning the 1900-foot radius policy has not changed materially or become more refined. After December 1999, any scientific or technical data received by the Department has served to confirm or provide additional support for the decision to adopt the 1900-foot radius policy. The parties disagree about——and the evidence is somewhat in conflict concerning——the substance of the Department's 1900-foot radius policy. Petitioners urge that the policy has two facets: (1) it determines which trees are deemed “exposed”; and (2) it dictates that all trees so identified shall be removed. Both aspects of the Department’s policy, as Petitioners describe it, can be conflated into a single statement: All trees within 1900 feet of an infected tree shall be removed. Petitioners acknowledge that the Department has, in a very few instances in commercial grove settings, spared some trees within the 1900-foot radius, but they maintain that the few exceptions which have been made do not alter the essentially mandatory nature of the Department’s removal policy as it relates to "exposed" trees. The Department counters that its policy is less rigid than Petitioners would have it. While admitting that the 1900-foot radius policy determines which trees are considered “exposed,” the Department denies that all trees so identified must be removed. Instead, claims the department, the 1900-foot radius establishes a bright-line starting point that may be adjusted outward or inward based upon the recommendations of the Risk Assessment Group. The greater weight of the evidence establishes that Petitioners have correctly summarized the Department’s policy. In public statements, such as press releases, in actual practice, and through the sworn testimony of its officials, the Department has made clear that its policy is, in fact, to remove all trees within 1900 feet of an infected tree, barring extraordinary circumstances that have presented only occasionally in commercial grove settings (and never, to date, in noncommercial or residential settings). Indeed, the general applicability, widespread implementation, and public articulation of the Department’s policy are such that three district courts of appeal have described its essence in terms substantially similar to Petitioners’ allegations: “Trees are deemed exposed if they lie within a 1900-foot radius of an infected tree.” Sapp Farms, Inc. v. Florida Department of Agriculture and Consumer Services, 761 So. 2d 347, 348 (Fla. 3d DCA 2000). “The Citrus Canker Risk Assessment Group has determined that in order to assure at least 99% eradication, all trees within 1900 feet of a canker-infested tree must be destroyed.” State v. Sun Gardens Citrus, LLP, 780 So. 2d 922, 924 (Fla. 2d DCA 2001)(emphasis added). “On January 1, 2000, Commissioner Bob Crawford adopted the recommendation of the task force [that the Department adopt a policy to destroy trees within a 1900 foot radius of a diseased tree in order to eradicate citrus canker] and the 1900 foot buffer zone policy became effective.” Florida Department of Agriculture and Consumer Services v. City of Pompano Beach, 2001 WL 770096, *2 (Fla. 4th DCA July 11, 2001). In addition, the legislature described the Department’s policy indirectly in a statement of legislative findings made during the year 2000 regular session: “WHEREAS, the Third District Court of Appeals [sic], in Sapp Farms, Inc., v. Florida Department of Agriculture and Consumer Services, DCA Case No. 3D00-487, held that citrus trees within a certain radius of infection (originally thought to be 125 feet but now scientifically determined to be at least 1,900 feet) necessarily harbor the citrus canker bacteria and thus are diseased and have no value . . . . ” Chapter 2000-308, Laws of Florida, at pg. 3226 (emphasis added).4 Thus, a preponderance of evidence persuasively establishes that the Department adopted a policy of general applicability in December 1999 that took effect on January 1, 2000, and has been applied consistently since that time. A succinct and accurate expression of that policy, taking into account the relatively remote but nevertheless unexcluded possibility that adjustments might be made in exceptional situations in accordance with recommendations arising from the risk assessment process, emerges clearly and convincingly from the evidence as follows: All trees located within a 1900-foot radius (the "Presumptive Removal Zone") of any infected tree shall be removed; provided, however, that the Commissioner, after taking into consideration the recommendations of the Risk Assessment Group, may determine that some or all of the trees within the Presumptive Removal Zone need not be destroyed if such tree(s), which will be specifically identified by the Department, do not pose an imminent danger in the spread of the citrus canker disease. This agency statement will be referred to hereinafter as the "PRZ Policy."5 The Department’s Proposed Rule Revisions Shortly before the final hearing of this matter, the Department initiated rulemaking to amend the existing provisions of Rule 5B-58.001, Florida Administrative Code. The rule amendments proposed by the Department (the “Proposed Amendments”), if adopted, would, among other things: Replace the existing definition of “exposed” found in Rule 5B-58.001(1)(h) with a new definition for the term “exposed to infection” and substitute the newly-defined term “exposed to infection” in place of “exposed” wherever the latter appears in the existing rule. The new definition of “exposed to infection” would be identical to the definition of the same term found in Section 581.184(1)(b), Florida Statutes;6 and Define the phrase “citrus trees harboring the citrus canker bacteria due to their proximity to infected citrus trees,” which is the determinative component of the proposed definition for the term “exposed to infection,” to mean citrus trees located within 1900 feet of an infected citrus tree. The effect of these revisions would be to specify that the Department considers all trees within 1900 feet of an infected tree to be, by definition, “exposed to infection” and subject to removal. Critically, however, the Proposed Amendments do not specify the Department’s policy of general applicability, which exists in fact and has been in effect since January 1, 2000, that all trees within the 1900-foot-radius removal zone shall be destroyed except those, if any, designated by the Commissioner of Agriculture as not posing an imminent danger in the spread of the citrus canker disease. Pursuant to Section 120.54(2), Florida Statutes, a Notice of Proposed Rule Development with respect to the Proposed Amendments was published in the Florida Administrative Weekly on July 6, 2001. Thereafter, on July 20, 2001, the Department caused to be published a notice of proposed rulemaking concerning the Proposed Amendments pursuant to Section 120.54(3), Florida Statutes. As of the date of the final hearing, the Department had scheduled a workshop on the Proposed Amendments to be held in Broward County on Tuesday, July 24, 2001. The Department is currently engaged in the rulemaking process with respect to the Proposed Amendments both expeditiously and, as far as the record in this case shows, in good faith. For reasons that will be discussed in the following Conclusions of Law, however, the Proposed Amendments do not “address” the PRZ Policy as that term (“address”) is used in Section 120.54(1)(a)1.c., Florida Statutes. About the Challengers As set forth more particularly below, Petitioners and Intervenors each own residential or noncommercial citrus trees in Broward or Miami-Dade County that are located within a citrus canker quarantine area and hence are immediately subject to the Department’s PRZ Policy.7 Petitioner Broward County owns a noncommercial citrus grove that is situated in a residential area and lies within 1900 feet of other citrus trees. Broward County owns other residential citrus trees as well, including trees within 1900 feet of infected citrus trees. Petitioner City of Plantation owns at least one “exposed” citrus tree that the Department has earmarked for destruction through the issuance of an IFO. Intervenors John and Patricia Haire own several “exposed” residential citrus trees in Broward County; they have received an IFO notifying them that all such trees will be removed. Intervenor Dr. Melvyn Greenstein owns residential citrus trees in Miami-Dade County that the Department has deemed “exposed.” He, too, has received an IFO giving notice that his “exposed” citrus trees will be removed. CONCUSIONS OF LAW The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.56, 120.569, and 120.57(1), Florida Statutes. Standing The Department contends that Petitioners Broward County and Pompano Beach lack standing to maintain this proceeding because, according to the Department, they have failed to prove that they are “substantially affected” by the challenged agency statement. See Section 120.56(4)(a), Florida Statutes (“Any person substantially affected by an agency statement may seek an administrative determination that the statement violates s. 120.54(1)(a).”). In particular, the Department argues that these Petitioners have failed to demonstrate that they are subject to a real and sufficiently immediate injury-in-fact as a result of the alleged statement, namely, the PRZ Policy. The burden rests on Petitioners to prove their respective rights to maintain this action. To show that they are “substantially affected” by the alleged rule-by-definition, each Petitioner must establish: (a) a real and immediate injury-in-fact; and (b) that the interest invaded is arguably within the zone of interests to be protected or regulated. E.g. Lanoue v. Florida Department of Law Enforcement, 751 So. 2d 94, 96 (Fla. 1st DCA 2000). The Department does not dispute that the property interests asserted by these Petitioners are within a protected “zone of interests,” and it is concluded that they are. To satisfy the injury-in-fact element, “the injury must not be based on pure speculation or conjecture.” Ward v. Board of Trustees of the Internal Improvement Trust Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995). These Petitioners have carried their burden on this issue. Each owns trees within a citrus canker quarantine area in Broward County. Clearly, under the Department’s PRZ Policy, Petitioners’ trees are presently located within a potential path of destruction, even if these trees have not already been targeted for removal, and even if they do not all lie within 1900 feet of an infected tree. The threat of danger to these trees——indeed all citrus trees in a quarantine area——is neither speculative nor conjectural but rather real and immediate. Without question, Petitioners and Intervenors have standing to maintain this proceeding. The Existing Rules Section 120.56(1)(a), Florida Statutes, provides that "[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." The burden is on the challenger to show that an existing rule is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8), Florida Statutes. See Cortes v. State Board of Regents, 655 So. 2d 132, 136 (Fla. 1st DCA 1995). The phrase "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, as "action which goes beyond the powers, functions, and duties delegated by the Legislature." The statute then enumerates seven alternative grounds, upon any one of which a rule must be invalidated: The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter; The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.; The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.; The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; The rule is arbitrary or capricious; The rule is not supported by competent substantial evidence; or The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives. In addition to these grounds, the statute provides general standards "to be used in determining the validity of a rule in all cases." Southwest Florida Water Management District v. Save the Manatee Club, Inc., 773 So. 2d 594, 597-98 (Fla. 1st DCA 2000). Contained in the closing paragraph of Section 120.52(8), Florida Statutes, these general standards consist of the following: A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute. See also Section 120.536(1), Florida Statutes (reiterating these general standards regarding rulemaking authority). Plainly, a grant of rulemaking authority, while essential, is not enough, without more, to authorize a rule. Rather, as summarized by the first district, the general rulemaking standards make clear that "authority to adopt an administrative rule must be based on an explicit power or duty identified in the enabling statute." Save the Manatee Club, 773 So. 2d at 599. "Either the enabling statute authorizes the rule at issue or it does not[, and] this question is one that must be determined on a case-by-case basis." Id. Here, the legislature has vested the Department with rulemaking authority through several statutory grants, ranging from the broadest permissible warrant (Section 570.07(23), Florida Statutes8), to a duty-specific commission (Section 581.031(17), Florida Statutes), to the narrowly focused, citrus- canker-oriented charge in Section 581.184(2), Florida Statutes. Through these grants, the legislature clearly has given the Department the general rulemaking authority which is necessary, as a threshold matter, to permit the promulgation of the challenged existing rule; the determinative question, then, is whether the enabling statutes explicitly authorize the rule provisions at issue. In examining the Department’s specific authority to make the existing rules, Section 581.184(2) is of particular interest, not only because it deals directly with citrus canker- related rules, but also because this statute’s mandatory nature distinguishes it from the other grants of rulemaking authority extended to the Department. Enacted in 1986,9 the first sentence of Section 581.184(2)10 requires careful scrutiny: In addition to the powers and duties set forth under this chapter, the department is directed to adopt rules specifying facts and circumstances that, if present, would require the destruction of plants for purposes of eradicating, controlling, or preventing the dissemination of citrus canker disease in the state. Such rules shall be in effect for any period during which, in the judgment of the Commissioner of Agriculture, there is the threat of the spread disease in the state. Section 581.184(2), Florida Statutes (emphasis added). The legislature's use of the verb "direct" (in passive form) in this statute plainly manifests an intent to command the Department to act——and connotes the legislature's expectation that the Department will obey. This, then, is more than a mere grant of authority to make rules; it is also, according to its plain language, an order that requires compliance. By directing (rather than simply authorizing) the Department to promulgate rules specifying facts and circumstances that, if present, would require the destruction of plants to control citrus canker, the legislature effectively, albeit indirectly, placed a qualification——which will be discussed in due course below——on the broad "mandate and grant of authority to deal with problems such as the one at hand"11 found in Section 581.031(17), Florida Statutes. It is this latter section that delegates to the Department the state's power to destroy plants in the interests of controlling citrus canker (among other plant pests).12 Section 581.031(17) provides: The Department has the following powers and duties: * * * (17) 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.13 As the final clause of Section 581.031(17) makes clear, at the time the legislature directed the Department to adopt rules relating to citrus canker,14 the Department already had the power to adopt rules implementing and interpreting that statute’s specific grant of legislative authority to oversee the destruction of plants infected by or infested with plant pests, or suspected of being infected, or exposed to infestation—— including rules specifying the facts and circumstances under which plants would be destroyed to control citrus canker (a major plant pest). Thus, the first sentence of Section 581.184(2) conferred no new rulemaking authority or regulatory jurisdiction upon the Department. Instead, when in 1986 the legislature enacted the bill that ultimately became Section 581.184(2), Florida Statutes, it imposed a new duty on the Department: the obligation to develop, and adopt as rules, statements of general applicability setting forth, clearly and precisely, facts and circumstances requiring the destruction of plants for purposes of controlling citrus canker. While the Department, if left to its own devices, might have elected to specify such facts and circumstances on a case-by-case basis through adjudication, eschewing the articulation of generally applicable principles (and hence evading the burden of rulemaking), with the passage of the law that is now Section 581.184(2), the legislature took that option away from the agency. The legislature’s rulemaking directive to the Department had (and continues to have) profound consequences for the Department’s regulatory authority because, as a matter of law——and as the legislature is presumed to have known when it gave the command——the rules required by Section 581.184(2) necessarily will control the Department’s exercise of its power and duty to destroy plants for purposes of citrus canker eradication. See Cleveland Clinic Florida Hospital v. Agency for Health Care Administration, 679 So. 2d 1237, 1242 (Fla. 1st DCA 1996), rev. denied, 695 So. 2d 701 (1997)(agencies must follow their own rules.) Accordingly, by ordering the Department to adopt particular rules, the legislature purposefully qualified the Department’s authority under Section 581.031(17)——not by diminishing that authority (no power was taken away), but by requiring that the authority be carried out pursuant to certain pre-determined and publicly available guidelines. It follows, then, that the scope of the Department’s rulemaking authority with regard to citrus canker eradication must be determined based on a reading together of Sections 581.031(17) and 581.184(2), which are, on the common subject of citrus canker, in pari materia;15 these enabling statutes, taken as a whole, either authorize the Department’s existing rules, or they do not. See Southwest Florida Water Management District v. Save the Manatee Club, Inc., 773 So. 2d 594, 599 (Fla. 1st DCA 2000). If the Department’s existing rules fail to comply with the rulemaking directive of Section 581.184(2), then, to the extent of the deficiency, the Department has exceeded its rulemaking authority, by adopting rules that would permit the Department to exercise its power and duty to destroy plants in the absence of legislatively mandated (though Department devised) guidelines. Obviously, therefore, the legislative intent behind the 1986 rulemaking directive is crucial. The plain and unambiguous statutory language is determinative, as it should be, and reveals several important points about the legislative mindset. First, as just mentioned, but to repeat for emphasis, the legislature clearly intended that the Department's citrus canker eradication program be implemented according to, and hence to that extent be governed by, rules specifying the generally applicable facts and circumstances that will require plant destruction. In this regard, it is significant that the legislature did not direct the Department to adopt rules specifying “factors” or “variables” to consider in deciding whether a plant should be destroyed, nor did it mandate that the desired rules specify facts that “might” require the destruction of plants, depending on the presence of other, non-specified circumstances or at the Department’s discretion; rather, the plain language of the statute leaves room for only one contingency: whether the rule- prescribed facts and circumstances exist. When those facts and circumstances are present, the destruction of plants will be required, not as a discretionary matter, but as a function of the statutorily compelled regulatory framework.16 Second, the legislature evidently concluded that the adoption of rules specifying facts and circumstances that would require the destruction of plants in the interests of eradicating citrus canker was, in 1986, feasible and practicable, for it did not condition the directive to make rules on the later concurrence of these or any other factors. Then, as now, whenever the legislature adopts an act that “requires implementation of the act by rules of an agency . . . , such rules shall be drafted and formally proposed . . . within 180 days after the effective date of the act, unless the provisions of the act provide otherwise.” See Section 120.54(12), Florida Statutes (1985). Having said nothing to the contrary, the legislature intended that the Department complete its assigned rulemaking task within 180 days. Third, although this might go without saying, the legislature clearly intended that the Department do more in its rules than merely restate the language in Section 581.031(17) that confers the agency’s powers and duties. That is, because the statute itself already provided (and continues to provide) unambiguously that the Department has the power and duty to supervise the destruction of a plant if the plant is (1) infested; or (2) suspected of being infested or infected due to its proximity to a known infestation; or (3) reasonably exposed to infestation, a rule that simply repeats or paraphrases these statutorily prescribed categories of plants subject to destruction would serve no useful purpose, and so the legislature, being presumed to have had a useful goal in mind, must have intended that the compulsory, rule-specified “facts and circumstances” be more explicit than the existing statute. As the First District Court of Appeal explained (in describing agencies’ rulemaking authority generally): [Agencies have authority] to “implement or interpret” specific powers and duties contained in the enabling statute. A rule that is used to implement or carry out a directive will necessarily contain language more detailed than that used in the directive itself. Likewise, the use of the term “interpret” suggests that a rule will be more detailed than the applicable enabling statute. There would be no need for interpretation if all the details were contained in the statute itself. Southwest Florida Water Management District v. Save the Manatee Club, Inc., 773 So. 2d 594, 599 (Fla. 1st DCA 2000)(emphasis added). In sum, the legislature plainly intended that the Department “flesh out” the broad legislative policy articulated in Section 581.031(17) by formulating specific facts and circumstances pertinent to citrus canker eradication. In addition to examining the plain statutory language, a complete and accurate understanding of the legislative intent is facilitated by the knowledge that before the 1986 regular legislative session began, the Department had adopted a number of rules prescribing detailed guidelines for citrus canker eradication and treatments. First published, as proposed rules, on January 25, 1985, in Volume 11, Number 4, of the Florida Administrative Weekly, Chapter 5B-49, Florida Administrative Code, consisting of Rules 5B-49.01 through 5B-49.21, took effect on March 6, 1985. See Florida Administrative Weekly, Vol. 11, No. 8, at pg. 663 (Feb. 22, 1985). These rules were published in the 1985 Annual Supplement to the Florida Administrative Code Annotated, Volume 2, Titles 4, 5, which was issued about the time the 1986 legislature convened.17 The legislature is presumed to have been aware of and familiar with these then-existing rules at the time it directed the Department to adopt rules specifying the facts and circumstances that would require the destruction of plants in connection with citrus canker eradication. That the legislature directed the Department to make the rules described in Section 581.184(2), with knowledge that the Department recently had promulgated extensive rules on the very subject of the legislative directive, is telling. Presumably aware of the Department’s then-existing citrus canker rules, the legislature must have determined that those rules did not adequately specify the facts and circumstances that, if present, would require the destruction of plants. This observation is as self-evident as the common-sense converse proposition: If the legislature had been completely satisfied with Chapter 5B-49, Florida Administrative Code, as it existed at the time of the 1986 session, then the rulemaking directive not only would have been unnecessary, but also, by gratuitously ordering the Department to write additional or amended rules where none were needed or wanted, it would have engendered a potential for mischief. It is presumed that the legislature did not intend to put the Department to a pointless task but rather desired that the Department supplement its then-existing rules with missing information that the legislature deemed necessary for inclusion within them. With that in mind, the rules that existed as of the 1986 legislative session stand as a benchmark, for whatever else the legislature meant by “rules specifying facts and circumstances,” it surely meant rules that would set forth the required information with greater clarity and precision than had been done to date (i.e. mid-1986).18 Turning now to the existing rules to determine whether the challenged provisions are valid or not, it will be seen, initially, that Chapter 5B-58, Florida Administrative Code, specifies surprisingly few facts and circumstances that, if present, would require the destruction of plants. There are, to be precise, only two. The first such circumstance is the one most expected: “All citrus trees which are infected or infested shall be removed.” Rule 5B-58.001(5)(a), Florida Administrative Code. The term “infected” is defined as “[h]arboring citrus canker bacteria and expressing visible symptoms.” Rule 5B- 58.001(1)(i), Florida Administrative Code. Thus, in other words, if a knowledgeable person can tell just by looking at a plant that it is suffering from citrus canker infection, that plant will be destroyed. Petitioners have not challenged the provisions dealing with the destruction of visibly infected or infested trees. The other circumstance is found in Rule 5B-58.001(15), Florida Administrative Code, which provides that “[c]itrus plants in containers found in quarantine areas will be confiscated immediately and destroyed without compensation,” unless such storage is authorized under one of two narrow exceptions stated in the same subsection. Petitioners have not challenged these provisions either. The bone of contention, of course, concerns the facts and circumstances under which trees not visibly affected by citrus canker bacteria will be destroyed. On this subject, the existing rule is notably non-committal and evasive. It says, in the fourth sentence of Rule 5B-58.001(5)(a), Florida Administrative Code, that "[t]he decision to remove exposed trees will take into consideration the recommendations of the Citrus Canker Risk Assessment Group." (Emphasis added). Although the rule fails to specify any facts and circumstances that would require the removal of "exposed" trees, the implications are that every "exposed" tree is subject to destruction at the discretion of the Department, and that the Department is inclined to exercise its discretion in favor of destruction.19 The critical term "exposed," which is made to operate through and hence must be read in conjunction with the just- quoted sentence of Rule 5B-58.001(5)(a), is defined in the rule to mean: [1] Determined by the department [2] to likely harbor citrus canker bacteria [3] because of [a] proximity to infected plants, or [b] probable contact with personnel, or regulated articles, or other articles that may have been contaminated with bacteria that cause citrus canker, [4] but not expressing visible symptoms. Rule 5B-58.001(1)(h), Florida Administrative Code (bracketed numbers and letters added). Petitioners complain that this definition constitutes an invalid exercise of delegated legislative authority. They are correct. The rule's definition of "exposed" is constructed of four parts. The first clause——"[d]etermined by the department"——makes plain that the Department is the exclusive arbiter of the evidence, the decision-maker. The second clause is a summary statement of the conclusion that the Department must make and frames the ultimate issue for the Department's determination thusly: whether a plant is likely to harbor citrus canker bacteria. The third part, ushered in by the words "because of," purports to set out the factual premises upon which the Department will base its decision. It consists of two clauses, call them (a) the "proximity clause" and (b) the "probable contact" clause. The fourth and final clause confirms that all plants not visibly suffering from citrus canker (which set consists of all plants not "infected" therewith) are subject to being deemed "exposed." As the introductory words "because of" suggest, the third clause is the only structural component of this definition that could plausibly satisfy the rulemaking directive to specify dispositive facts and circumstances. The others make no genuine attempt. To begin, the first clause plainly does not set forth a specific fact and circumstance that would require the destruction of plants. Continuing, the second clause also does not comply with the directive, for reasons that, while equally compelling, are perhaps less plain. Consider whether, if a person were asked to specify facts and circumstances that, if present, would require a finding of negligence, the following would be responsive: a likely failure to have used reasonable care. The answer obviously is "no," because the statement does not, in and of itself, describe a particular factual scenario that can be perceived by the senses; it reflects, rather, a judgment about facts observed but not specified.20 The same is true of the phrase "likely [to] harbor citrus canker bacteria;" it fails to specify a particular factual occurrence capable of objective observation and instead reflects a judgment about perceivable facts. Skipping over the third part momentarily, the fourth clause, unlike the first two, does express a fact—— but it is not one that, if present without more, would require the destruction of plants. Whether the proximity and probable contact clauses that comprise the "exposed" definition's third part comply with the legislative directive requires a closer look. The starting point is Section 581.184(2), Florida Statutes. When, as here, the statute in question does not contain a specific definition of its terms, it is assumed that the words contained therein were used according to their ordinary dictionary definitions. See Save the Manatee Club, 773 So. 2d at 599 (citing WFTV, Inc. v. Wilken, 675 So. 2d 674 (Fla. 4th DCA 1996)). The ordinary meaning of the verb “specify” is “to name or state explicitly[21] or in detail.” See Merriam-Webster’s Online Collegiate® Dictionary (hereafter Merriam-Webster’s)(http://www.m-w.com/). The term "fact," as used in everyday discourse, denotes “information presented as having objective reality.” Id. "Circumstance" commonly means "a condition, fact, or event accompanying, conditioning, or determining another: an essential or inevitable concomitant." Id. Putting these common definitions of ordinary words together, it becomes apparent that the directive in Section 581.184(2), Florida Statutes——to "specify[] facts and circumstances"——requires the Department to state explicitly, that is, with clarity and precision and thus without vagueness or room for doubt, particular pieces of information having objective reality (i.e. that describe perceivable scenarios) which, if found to exist in the real world, will require the destruction of plants. Against this statutory backdrop the subject definition's shortcomings stand out in bold relief. The phrase “proximity to infected plants” does not have intrinsic objective reality; it does not, without more, communicate information that is observable, provable, or falsifiable; it is not, therefore, a “fact.”22 While the phrase may, in a loose sense, describe a “circumstance,” it cannot seriously be contended that “proximity to infected plants” is meaningfully precise or explicit, as the statute requires; in fact, it is neither, being instead both elastic and malleable, an empty vessel for the Department to fill with content at its sole discretion. Indeed, for all that appears in the rule, “proximity” might be ten (or 1900) feet, or ten miles, or ten thousand miles, depending on the unstated facts and circumstances. At bottom, a conclusion of “proximity to infected plants” constitutes a subjective judgment or opinion that must be based upon objective facts and circumstances, in the same way that the judgment whether a plant is "likely [to] harbor citrus canker bacteria" also requires a factual foundation upon which to rest. The puzzle piece missing from the existing rule is the description of facts and circumstances that, if present, would require that conclusions of "proximity"——and hence "likelihood"——be drawn. The definition allows the Department to reach the ultimate conclusion ("likely [to] harbor citrus canker bacteria") based upon an opinion ("proximity to infected plants") grounded upon unspecified facts and circumstances. This deficiency is fatal to the rule’s validity. The probable contact clause contains greater detail but is likewise defective. It says that the Department may consider a plant "exposed" if the plant has probably come into contact with a possibly contaminated person or thing. The problem with this provision is that it is vague and leaves too much unsaid; it fails to set forth facts and circumstances upon which the Department will base determinations of probable contact and possible contamination. It does not, in short, "specify[] facts and circumstances that, if present, would require the destruction of plants," as required by Section 581.184(2), Florida Statutes. In view of these flaws in the definition of "exposed," it is evident that, while the Department has announced in Rule 5B-58.001(5)(a) its intent and power to destroy potentially all trees that are not visibly affected by citrus canker bacteria, it has failed to specify the facts and circumstances under which it will remove such trees, despite a clear legislative directive to articulate those facts and circumstances, precisely and in detail, in its rules. Instead of submitting itself to pre- determined guidelines of its own making, as directed by the legislature, the Department has promulgated a rule that, with regard to “exposed” trees, retains maximum——indeed, essentially unfettered——discretion. The plainest and most egregious example of this is the proximity clause. Nothing in the existing rules would prevent the Department from declaring that the entire state of Florida is exposed to citrus canker because of proximity to infected plants and thereupon commencing to destroy every fruit tree in the state. As the plain language of Section 581.184(2), Florida Statutes, makes clear, the legislature intended and expected a more explicit and informative rule. Contrary to the legislative directive, the rule’s definition of “exposed,” as well as the fourth sentence of Rule 5B-58.001(5)(a), Florida Administrative Code, which expresses the Department’s intent to destroy some or all “exposed” trees (but only after listening to the Risk Assessment Group’s non-binding recommendations), do nothing whatsoever to “flesh out” Section 581.031(17), Florida Statutes. At best, the Department has merely restated its statutory duty to oversee the destruction of plants “located in an area which may be suspected of being infested or infected due to its proximity to a known infestation” or "reasonably exposed to infestation." Id. This is inadequate.23 Reinforcing these conclusions is an examination of the citrus canker rules that were in effect at the time the legislature enacted the law that is now codified at Section 581.184(2), Florida Statutes. As it existed in mid-1986, Chapter 5B-49, Florida Administrative Code, was far more detailed and explicit regarding the facts and circumstances under which plants would be destroyed than is the present rule. See, e.g., Rules 5B-49.09 (provisions for eradication of citrus canker); 5B-49.10 (requirements for greenhouses, slathouses, shadehouses or bench-growing facilities); 5B-49.11 (requirements for ornamental nurseries, dooryard citrus nurseries, stock dealers or agents); 5B-49.13 (requirements for public and private properties not considered to be commercial citrus groves, nurseries, stock dealers, or agent establishments), Florida Administrative Code Annotated, Vol. 2, pp. 167-69 (1985 Supp.) These rules even contained a precursor to the unpromulgated 1900-foot radius policy now under attack: a 125- foot radius rule that applied under certain circumstances. See, e.g., Rules 5B-49.09(2)(b); 5B-49.11(1), Florida Administrative Code Annotated, Vol. 2, pp. 167-68 (1985 Supp.). These relatively detailed citrus canker rules were already in effect when the legislature directed the Department to make rules specifying facts and circumstances that would require the destruction of plants. From that it can only be presumed that the legislature wanted more detailed rules on the subject of plant destruction. By any reasonable measure, however, existing Chapter 5B-58, Florida Administrative Code, is less detailed and explicit than the citrus canker rules which the legislature, by directing the adoption of specific rules, implicitly deemed imprecise. This confirms the conclusion that existing Rule 5B-58.001, as it relates to the destruction of “exposed” plants, fails to satisfy the legislative directive to make particular citrus canker rules. The existing rule is not saved by its enumeration of two dozen or so “variables” that the Risk Assessment Group is supposed to consider in formulating its non-binding recommendation to the Department whether to remove “exposed” trees. Rule 5B-58.001(5)(a) states, in pertinent part: In developing [its] recommendations, the Citrus Canker Risk Assessment Group will take the following variables into consideration: property type, cultivar, cultivar susceptibility, tree size and age, size of block, tree spacing, horticultural condition, tree distribution, tree density, weather events, wind breaks, movement factors, disease strain, exposure, infection age, infection distribution, disease incidence, Asian citrus leafminer damage, survey access, security of property, sanitation, management practices, closeness of other host properties, and closeness of other infected properties. These “variables” provide at most a patina of precision. On inspection, it is clear that the rule merely sets forth a laundry list of potentially relevant factors that conveys little more information than if the rule had simply stated that the Risk Assessment Group will consider all pertinent data. Moreover, Section 581.184(2) requires dispositive “facts and circumstances,” not “variables” for consideration. Listing two dozen unweighted factors for an agency-appointed committee to consider in making a non-binding recommendation is a far cry from “specifying facts and circumstances that, if present, would require the destruction of plants for purposes of eradicating . . . citrus canker[.]” Section 581.184(2), Florida Statutes. Finally, and most important, the Risk Assessment Group is not the Department, and its recommendations, according to Rule 5B-58.001(5)(a), need only be “take[n] into consideration” by the Department in making a decision whether to order the destruction of an “exposed” tree. The Rule pointedly does not require the Department to consider the “variables” (or any other objective criteria) either in determining whether a tree is "exposed" or in deciding to remove an "exposed" tree. The bottom line is that the risk assessment provisions and the definition of "exposed," taken together, do not communicate the information required by Section 581.184(2), Florida Statutes, with anything approaching the intended clarity, precision, and detail. In connection with “exposed” trees (a set that potentially includes all citrus trees in the state that are not visibly affected by citrus canker bacteria), the Department has failed to implement its citrus canker eradication program according to the kind of specific rules that the legislature intended be in place. For that reason, the enabling statutes do not authorize either Rule 5B-58.001(1)(h) or the fourth sentence of Rule 5B-58.001(5)(a), Florida Administrative Code, which implements the “exposed” definition.24 Accordingly, these provisions are invalid exercises of delegated legislative authority. See Section 120.52(8)(b), Florida Statutes. In addition to being unauthorized by the enabling statutes, the fourth sentence of Rule 5B-58.001(5)(a), Florida Administrative Code, is invalid for an independent reason: it “fails to establish adequate standards for agency decisions, [and] vests unbridled discretion in the agency.” Section 120.52(8)(d), Florida Statutes. The leading case on rule-engendered standardless discretion is Cortes v. State Board of Regents, 655 So. 2d 132 (Fla. 1st DCA 1995). There, a rule was challenged that granted university presidents not only (1) the exclusive power to decide, upon being presented with a petition signed by at least a majority of the student body requesting such action, whether to authorize the collection of fees for funding "public interest research groups," but also (2) the "sole discretion" to determine by which of two rule-prescribed means students would be required to assent to the fee, if approved: either a positive checkoff or a negative checkoff on the registration card. Id. at 135. The court held that the enabling statutes authorized the rule to the extent it empowered university presidents to decide, in the first instance, whether to allow the collection of such student fees at their respective institutions. Id. at 140. The court reached a different conclusion, however, regarding the rule's grant of unbridled presidential discretion to decide between the two different methods of obtaining students' consent to pay the fee. The court's analysis is instructive and warrants a lengthy quotation: In one respect, however, the challenged rule itself confers unguided discretion on university presidents that they did not have before the rule was promulgated, viz., the "sole discretion" to decide between a "positive checkoff" and a "negative checkoff." While student contributions are no novelty as a source of funds for student activities, the rule calls certain mechanics into being. Until the rule was adopted, university presidents had no need to choose between "positive" and "negative checkoffs," which [the rule] now requires, under circumstances specified in the rule. An administrative rule which creates discretion not articulated in the statute it implements must specify the basis on which the discretion is to be exercised. Otherwise the "lack of . . . standards . . . for the exercise of discretion vested under the . . . rule renders it incapable of understanding . . . and incapable of application in a manner susceptible of review." Staten v. Couch, 507 So. 2d 702 (Fla. 1st DCA 1987). Because a reviewing "court shall not substitute its judgment for that of the agency on an issue of discretion," § 120.68(12), Fla. Stat. (1993), an agency rule that confers standardless discretion insulates agency action from judicial scrutiny. By statute, a rule or part of a rule which "fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency," § 120.52(8)(d), Fla. Stat. (1983), is invalid. * * * [T]he rule [under review] "fails to establish adequate standards for agency decisions," . . . for or against employing the "negative checkoff," i.e., collecting "donations" from registering students unless they expressly decline to contribute. In this one respect, [the challenged rule] itself "vests unbridled discretion in the agency." [The challenged rule] is devoid of any standards purporting to guide this exercise of discretion. No such standards are implicit in the statutes implemented. Even students who have signed a petition will not necessarily be alerted that a "negative checkoff" choice must be made when they register for classes. [The rule] supplies no principled basis on which a university president can decide whether a registering student's failure to indicate otherwise should be taken as a decision to contribute to the funding of a public interest research organization. No statute creates the "negative checkoff" device or requires that it be sprung on entering freshmen or other unwary registrants. Id. at 138-39; see also Florida Public Service Commission v. Florida Waterworks Association, 731 So. 2d 836, 843 (Fla. 1st DCA 1999)(distinguishing Cortes and upholding proposed rule against attack because, unlike the rule in Cortes, it did not create discretion not articulated in the enabling statute). In Cortes, the court invalidated the negative checkoff option, and thereby effectively eliminated the rule's unlawful delegation of unfettered discretion. Cortes, 655 So. 2d at 140. Like the rule at issue in Cortes, sentence number four in Rule 5B-58.001(5)(a), Florida Administrative Code, confers unguided discretion on the Department that it did not have before the rule was promulgated, namely, the discretion to accept or reject the Risk Assessment Group's recommendations concerning whether to destroy "exposed" trees. Similar to the negative checkoff device, no statute creates the Risk Assessment Group or requires the Department to consider that committee's recommendations. Just as the board in Cortez created by rule discretion for university presidents that was not articulated in the enabling statute, so too the Department, having created the Risk Assessment Group and devised a non-binding risk assessment process, has conferred upon itself a new and exclusively rule- based discretionary power. Consequently, to be valid, the Department's Rule must specify the bases upon which the newly-created discretion is to be exercised. See Section 120,52(8)(d), Florida Statutes. The existing Rule is devoid of standards purporting to guide this exercise of discretion, however, and no standards are implicit in the enabling statutes. The Rule supplies no principled basis on which the Department can decide, for example, whether to override the Risk Assessment Group's recommendation that a tree be spared or, conversely, to reject its advice that a tree be cut down. The fourth sentence of Rule 5B-58.001(5)(a) must be invalidated because it confers standardless discretion and thereby unlawfully insulates the Department from judicial scrutiny. Cortes, 655 So. 2d at 138. This unlawful grant of discretion is particularly troublesome in light of the context in which it is exercised. The Department wields its power to destroy trees in furtherance of the Eradication Program pursuant to immediate final orders premised on the conclusion that the targeted trees are a source of immediate public danger. Because the exigency of the situation precludes the development of a traditional trial-level record, appellate review is somewhat limited, as the first district explained: When an agency enters an immediate final order as a result of a determination that there exists an immediate danger to the public health, safety, or welfare, [appellate] review will determine whether the order recites with particularity the facts underlying such finding. Denney v. Conner, 462 So. 2d 534, 535-36 (Fla. 1st DCA 1985); see also Nordmann v. Florida Department of Agriculture and Consumer Services, 473 So. 2d 278, 279 (Fla. 5th DCA 1985)("Appellate review centers on the particularity with which the order recites the factual findings"). Plainly, the Department is shielded from searching judicial review simply by virtue of the type of decision it is making——and that shield would remain difficult to penetrate even if the rule were filled with adequate standards to guide the agency's discretion. The existing Rule's conspicuous failure to specify the bases upon which the Department's extraordinarily broad discretion in these matters is to be exercised, however, results, intolerably, in the Department being doubly insulated from judicial scrutiny, to the point of being practically immune. The absence of meaningful appellate review in these circumstances led an obviously fed-up panel of the Third District Court of Appeal to vent its frustration recently in Markus v. Florida Department of Agriculture and Consumer Services, 785 So. 2d 595 (Fla. 3d DCA 2001), a homeowners' appeal from an immediate final order pursuant to which their three fruit trees were destroyed. In a seething opinion, the court wrote: Property owners as well as judicial tribunals are struggling with the issue of how and why the Department of Agriculture embarked on its dogged obliteration of the healthy back (or front) yard citrus tree. The frustrations of challenging this policy, either in a Chapter 120 proceeding or before this court, are staggering. Both infected and condemned trees are removed and ground into dust before any meaningful action can be taken by the property owner. The "final agency order" is nothing but a "Dear Resident" form from the Department of Agriculture. A "record on appeal" is an oxymoron. There is no record. Hence there is no meaningful appeal. We find that situation unacceptable as a mater of law, policy, and principle, yet we must affirm. Id. at 596 (emphasis added). Requiring the Department to promulgate rules setting forth principled grounds upon which to exercise its considerable discretion whether to follow the Risk Assessment Group's recommendations will provide meaningful opportunities, through the rulemaking and rule challenge procedures, for public comment and input, legislative oversight, and, ultimately, judicial scrutiny, based on a complete evidentiary record developed in a Chapter 120 proceeding, of the Department's heretofore hidden factual and policy premises. Such vehicles for accountability are the very least the law should (and does) demand of an executive branch agency that has been vested with enormous discretion to implement a program capable of summarily depriving large numbers of citizens of their private property. The Rule-By-Definition The burden of proof is on the party seeking to prove the affirmative of an issue unless a statute provides otherwise. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 786-87 (Fla. 1st DCA 1981). In a proceeding under Section 120.56(4) to determine a violation of Section 120.54(1)(a), Florida Statutes, therefore, the burden is on the petitioner to establish by a preponderance of evidence: (1) the substance of the agency statement; (2) facts sufficient to show that the statement constitutes a rule-by-definition; and (3) that the agency has not adopted the statement according to the rulemaking procedures. Section 120.56(4)(a), Florida Statutes. If the petitioner meets its burden, then the agency must carry the burden of proving that rulemaking is not feasible and practicable as provided in Section 120.54(1)(a). Section 120.56(4)(b), Florida Statutes. Section 120.52(15), Florida Statutes, defines the term “rule” to mean “each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule.” A statement is a rule if it has the effect of a rule regardless whether the agency calls it a rule. In determining whether a statement meets the statutory definition of a rule, the important question is: What consequences does this statement cause within its field of operation? As the Court of Appeal, First District, explained, the breadth of the definition in Section 120.52(1[5]) indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them. Any agency statement is a rule if it "purports in and of itself to create certain rights and adversely affect others," [State Department of Administration v.] Stevens, 344 So. 2d [290,] 296 [(Fla. 1st DCA 1977)], or serves "by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." McDonald v. Dep't of Banking & Fin., 346 So. 2d 569, 581 (Fla. 1st DCA 1977). State Department of Administration v. Harvey, 356 So. 2d 323, 325 (Fla. 1st DCA 1978); see also Amos v. Department of Health and Rehabilitative Services, 444 So. 2d 43, 46 (Fla. 1st DCA 1983). Because the focus is on effect rather than form, a statement need not be in writing to be a rule-by-definition. See Department of Highway Safety and Motor Vehicles v. Schluter, 705 So. 2d 81, 84 (Fla. 1st DCA 1998). Given the circumstances of this case, it is instructive to take special note that the definition of “rule” expressly includes statements of general applicability that implement or interpret law. An agency’s interpretation of a statute that gives the statute a meaning not readily apparent from its literal reading and purports to create rights, require compliance, or otherwise have the direct and consistent effect of law, is a rule. See Beverly Enterprises-Florida, Inc. v. Department of Health and Rehabilitative Services, 573 So. 2d 19, 22 (Fla. 1st DCA 1990); St. Francis Hospital, Inc. v. Department of Health and Rehabilitative Services, 553 So. 2d 1351, 1354 (Fla. 1st DCA 1989). As set forth in the Findings of Fact, Petitioners have proved, by the required quantum of evidence, that the Department adopted and has implemented a statement of general applicability which has been denominated herein, for convenience, the PRZ Policy.25 The PRZ Policy is, ironically, the kind of rule that Section 581.184(2), Florida Statutes, requires, because (unlike the Department's adopted rules) it specifies facts and circumstances that, if present, would require the destruction of asymptomatic plants for purposes of eradicating citrus canker. That the PRZ Policy includes an exception under which some trees within the Presumptive Removal Zone might be spared does not diminish its general applicability or dampen its effect, which is that of a rule. Rules often have exceptions; there is nothing novel about that, just as there is nothing extraordinary about rule provisions, such as the PRZ Policy's exception, that authorize a discretionary act.26 In addition, the PRZ Policy implements, and constitutes the Department's interpretation of, Section 581.031(17), Florida Statutes, bringing rigor to the inexact statutory phrase: "area which may be suspected of being infested or infected due to its proximity to a known infestation." The wisdom of this interpretation is not presently before the undersigned. The unavoidable conclusion regarding this interpretation, however, is that it gives the statute a meaning which is not readily apparent from a literal reading thereof and, moreover, requires compliance, adversely affects the rights of property owners, and has the direct and consistent effect of law. In sum, the PRZ Policy falls squarely within the meaning of the term "rule" as defined in Section 120.52(1); it is, put simply, a rule-by-definition. According to Section 120.54(1)(a), “[r]ulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s. 120.52 [such as the PRZ Policy] shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable.” (Emphasis added). Once Petitioners met their obligation at hearing to prove that the challenged statement is a rule-by-definition, it became the Department’s burden to prove that adopting the PRZ Policy as a rule would have been either unfeasible or impracticable. Section 120.56(4)(b), Florida Statutes. The Department failed to rebut by a preponderance of evidence the presumption, established in Section 120.54(1)(a)2., Florida Statutes, that rulemaking is practicable. Accordingly, it has been presumed that rulemaking was in fact practicable as of January 1, 2000, when the PRZ Policy took effect. In contrast, the Department did prove that it is currently using the rulemaking process expeditiously and in good faith to adopt rules that articulate the PRZ Policy in part, as discussed below. Thus, in accordance with Section 120.54(1)(a)1.c., Florida Statutes, the Department arguably rebutted the statutory prescription that rulemaking "shall be presumed feasible." The Proposed Amendments to Chapter 5B-58, Florida Administrative Code, effectively incorporate so much of the PRZ Policy as deems trees within a 1900-foot radius of an infected tree to be "exposed" (or, in the proposed rule's terminology, "exposed to infection") and hence subject to destruction. The Proposed Amendments do not, however, address that part of the PRZ Policy which requires the destruction of all trees located within the Presumptive Removal Zone except those designated by the Commissioner as posing a less-than-imminent danger. Indeed, the invalid fourth sentence of Rule 5B- 58.001(5) would subsist substantially intact, save only for the substitution of the term "exposed to infection" for "exposed," after adoption of the Proposed Amendments. Thus, the Proposed Amendments are silent on a crucial aspect of the PRZ Policy. To rebut the presumption of feasibility pursuant to Section 120.54(1)(a)1.c., Florida Statutes, an agency must show that it "is currently using the rulemaking procedure expeditiously and in good faith to adopt rules which address the statement." Whether an agency that it is actively attempting to adopt rules which address some portion of a rule-by-definition, as the Department is doing, should be found to have rebutted the presumption of feasibility is the question. Guidance on this issue is found in a closely related statutory provision, Section 120.56(4)(e), Florida Statutes, which provides in relevant part: Prior to entry of a final order that all or part of an agency statement violates s. 120.54(1)(a), if an agency publishes, pursuant to s. 120.54(3)(a), proposed rules which address the statement and proceeds expeditiously and in good faith to adopt rules which address the statement, the agency shall be permitted to rely upon the statement or a substantially similar statement as a basis for agency action if the statement meets the requirements of s. 120.57(1)(e). (Emphasis added). The "substantially similar" statement upon which an agency in such circumstances is permitted to rely should be found, presumably, within its proposed rules. (Why should the agency be allowed to apply a third variation on the same theme?) Sections 120.54(1)(a)1.c. and 120.56(4)(e), being in pari materia, should be construed together to achieve a unified legislative purpose. Accordingly, it is concluded that, for a proposed rule to "address" an agency statement for purposes of Section 120.54(1)(a)1.c., it must be, if not identical, at least "substantially similar" to the statement. The proposed revisions to Chapter 5B-58.001, Florida Administrative Code, do not, taken as a whole, constitute a statement "substantially similar" to the PRZ Policy. The missing component——which specifies the requirement that trees in the Presumptive Removal Zone be destroyed unless exempted by the Commissioner's discretionary act——is fundamental to the rule-by- definition. Without it, the Proposed Amendments fail to articulate——to "address"——the Department's generally applicable policy. As a result, the Department has failed to rebut the presumption of feasibility. The outcome would be the same, however, even if the Department were given the benefit of a decision that its proposed rule revisions "address" the challenged agency statement for purposes of Section 120.54(1)(a)1.c., Florida Statutes. The reason is that, in this alternative ruling, all the Department has done is erase the presumption of feasibility to which Petitioners otherwise would be entitled in aid of their proof. Evidence that an agency is currently engaged in rulemaking with regard to a statement is not, without more than the Department showed, the equivalent of proof that the agency began the rulemaking process as soon as feasible.27 And an agency that belatedly has commenced rulemaking on a statement of general applicability is no less in violation of Section 120.54(1)(a), Florida Statutes, than one that has not begun at all——although the consequences of a violation may be less severe for the dilatory, as opposed to the recalcitrant, agency. See Section 120.54(4)(e), Florida Statutes. Naturally, however, without the benefit of the presumption, the burden returns to the challenger to establish that the agency failed to timely (i.e. as soon as feasible) begin to adopt the statement as a rule.28 In this case, the evidence showed that the Department feasibly could have started to adopt the PRZ Policy as a rule as early as December 1999, if not sooner. It is concluded that rulemaking was feasible as of, and not later than, January 1, 2000, the date upon which the PRZ Policy took effect.29 In short, the Department's current rulemaking efforts are not only too little for it to benefit from Section 120.54(1)(a)1.c., Florida Statutes, but also come too late to avoid a finding that Section 120.54(1)(a) has been violated. Consequently, it is concluded that the Department has violated Section 120.54(1)(a), Florida Statutes, in connection with the PRZ Policy. Attorneys’ Fees and Costs Section 120.595(4)(a), Florida Statutes, provides that “[u]pon entry of a final order that all or part of an agency statement violates s. 120.54(1)(a), the administrative law judge shall award reasonable costs and reasonable attorneys' fees to the petitioner, unless the agency demonstrates that the statement is required by the Federal Government to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds." The Department has not proved the applicability of an exception to the mandate that attorneys’ fees and costs be awarded to the successful petitioner in a Section 120.56(4) proceeding. Accordingly, it is hereby determined that Petitioners are entitled to recover a reasonable sum for the attorneys’ fees and costs they have incurred in the prosecution of this action. The amount of the award shall be determined by separate order.
