Findings Of Fact On August 6, 1986, an indemnity bond was executed between RAINMAKER as principal and FIDELITY as surety. The effective dates of the bond were from October 21, 1986, to October 20, 1987. The bond was required under Sections 604.15-604.30, Florida Statutes, in order for RAINMAKER to become licensed as a dealer in agricultural products in Florida. The purpose of the bond is to secure the faithful accounting for a payment to producers or their agents or representatives of the proceeds of all agricultural products handled or purchased by RAINMAKER. The Petitioner, SHAN-RON, is a corporation whose address is 276 Cypress Street, La Belle, Florida. Its purpose is to conduct business by finding buyers for sod located on acreage owned by various cattle ranchers in Lee County, Florida. This practice is commonly known as "bird dogging" in the agricultural trade. The way the business is conducted is as follows: SHAN-RON is contracted by sod installers to whom it sells sod in specific quantities for a fixed price. Once the oral agreement is made, SHAN-RON tells the sod installer where a sod field is located. At this point in the business transaction, the sod installer sends independent truck drivers to the designated sod field. If the sod installer is unable to locate truckers, he telephones a SHAN-RON field foreman. The foreman, as a courtesy, will check to see if any of the independent truckers currently as the sod field can haul a load for the sod installer. Once a trucker is located, employees from SHAN-RON mow the grass, cut the sod, and load it onto pallets owned by SHAN-RON. The truck is loaded with pallets by SHAN-RON employees and the driver is given two copies of the load ticket, one for him and one for the sod installer. The driver delivers the sod and pallets to the address placed upon the load tickets. Upon delivery, the driver has the responsibility to deliver the load ticket to the business office of the sod installer. If he does not deliver the ticket, he does not get paid for hauling the sod. Employees of the sod installer are usually at the delivery site. The sod is laid and the empty pallets are returned to the sod field by the truckers. Every Friday, a representative of SHAN-RON personally delivers a weekly bill to the sod installer in order to collect is owed. When the money is collected, the funds are divided between the rancher whose sod was sold and SHAN-RON. The accountability system used within the sod industry leaves room for a high margin of error at various stages. The SHAN-RON employees occasionally short pallet loads or two layers of sod. The truck drivers occasionally misnamed the sod installer to whom the sod is to be delivered. The truck drivers also occasionally do not take empty pallets under their control back to SHAN-RON. They sell the pallets and pocket the money. The sod installer is financially responsible for the pallet costs. RAINMAKER is a corporation whose address is Post Office Box 7385, Ft. Myers, Florida. The company is primarily in the business of installing sod. It transacted business with SHAN-RON between November 11, 1986, and January 8, 1987. At the time of these transactions, RAINMAKER was licensed as a dealer in agricultural products supported by surety bond number 974 52 23 in the amount of $13,500.00. SHAN-RON, through testimony and the introduction of its business records, proved a prima facie case that RAINMAKER owes $12,964.00 for the purchase of sod between November 11, 1986, and January 8, 1987. Both parties Stipulated that $4,000.00 has been paid on the balance of the account which should be deducted from the balance owed SHAN-RON. In rebuttal to SHAN-RON's presentation, RAINMAKER presented testimony and a business record summary which revealed that six invoices were improperly charged, against its account in the amount of $1,260.00. The record summary was based upon a comparison of load tickets against production records during the time period involved. In addition, RAINMAKER's records reveal that the two drivers, Stormy and Fred Bower, were not paid for delivering the sod to RAINMAKER under the load ticket presentation to the sod installer which was previously described as an accounting method within the business. Because RAINMAKER set forth the issue of delivery discrepancies in its answer to the complaint and competent evidence was presented, $1,260.00 should be deducted from the `balance owed. SHAN-RON presented testimony that it is customary for the company to spray the sod for pest control. RAINMAKER received defective sod from SHAN-RON which contained "Creeping Charlie" weeds during the time of the deliveries in dispute. SHAN-RON was timely notified of the problem, and toad RAINMAKER to have the sod sprayed. A copy of the invoice for $300.00 was sent to SHAN-RON and has not been paid. Although the issue was not raised in RAINMAKER's answer to the complaint, it is properly before the Hearing Officer because of RAINMAKER's timely notification and cure of the defect in the product. The $300.00 should be deducted from the amount owed. Testimony relating to possible sod shortages was rejected as no evidence was presented that shortages occurred in the orders for which SHAN-RON seeks payment. The customary procedure In the sod business for handling credits for shortages requires the buyer to notify the seller within a responsible length of time of the shortages. Such notification did not take place as to the orders in dispute. The amount owed to SHAN-RON by RAINMAKER is $7,404.00. It is officially noticed that SHAN-RON's complaint was originally filed with the department on June 19, 1987, within nine months from the date of sale.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Agriculture enter a final order requiring the Respondent RAINMAKER to make payment to the petitioner SHAN-RON in the amount of $7,404.00. In the event that RAINMAKER does not comply with the department's order within fifteen days from the date it final, FIDELITY should be ordered to provide payment and the conditions and provisions of the bond furnished to RAINMAKER. DONE and ENTERED this 12th day of April, 1988, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1987. COPIES FURNISHED: Clinton H. Coutler, JR., Esquire Department of Agriculture Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of License and Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 Shan Ron Sod, Inc. 276 Cypress Street LaBELLE, FLORIDA 33935 Rainmaker Sod, Inc. 2290 Bruner Lane, South East Fort Myers, Florida 33912 Fidelity & Deposit Company of Maryland Post Office Box 1227 Baltimore, Maryland 21203 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain General Counsel Department of Agriculture Mayo Building, Room 513 Tallahassee, Florida 32399-0800
The Issue Whether Respondents, Ag-Mart Produce, Inc. (Ag-Mart), and its employees' Justin Oelman (in DOAH Case No. 06-0729) and Warrick Birdwell (in DOAH Case No. 06-0730), committed some, any, or all of the violations alleged in the Administrative Complaints detailed herein and, if so, what penalty should be imposed.
Findings Of Fact Based upon the evidence presented at the final hearing, the following relevant findings of fact are made: The Department is the state agency charged with administration of the Florida Pesticide Law, Chapter 487, Part I, Florida Statutes. Among the duties of the Bureau of Compliance Monitoring within the Division of Agricultural Environmental Services are the designation and regulation of restricted-use pesticides, the testing and licensure of certified pesticide applicators, and the enforcement of federal worker protection standards regarding the exposure of farm workers to pesticides. §§ 487.011, 487.042, 487.044, and 487.051, Fla. Stat.; Fla. Admin. Code R. 5E-2.039. The Administrative Complaints allege two types of violation of the Florida Pesticide Law. First, they allege that Ag-Mart harvested tomatoes prior to the end of the pre-harvest interval, the period of time that must pass after a pesticide is applied to a tomato plant before that plant's fruit may be safely harvested. The pre-harvest interval is specified on the labels of restricted-use pesticides. Second, they allege that Ag-Mart allowed workers to enter sprayed fields prior to the end of the restricted entry interval, the period of time that must pass after a pesticide is applied before it is safe for a worker to enter or remain in the treated area. The restricted entry interval is also specified on the labels of restricted-use pesticides. In 2004, Ag-Mart operated farms in several locations in Florida and North Carolina. Ag-Mart operated packing houses in Plant City, Florida, and in New Jersey. Ag-Mart grows, packages, and distributes grape tomatoes under the "Santa Sweets" label, and a round-type tomato marketed as "Ugly Ripe." During all times relevant to this proceeding, Ag-Mart's principal administrative offices were located in Plant City, Florida, and Ag-Mart's operations were managed by its president, Donald Long. At the final hearing, several Ag-Mart employees, including Mr. Long, testified as to Ag-Mart's practices in establishing planting and pesticide spraying schedules, carrying out those schedules in the field, and ensuring that legal restrictions on pesticide use are observed. This testimony is credited as to Ag-Mart's general pattern and practice, but does not disprove the Department's evidence as to particular instances of pre-harvest interval or restricted entry interval violations. Among other duties, Mr. Long was responsible for scheduling Ag-Mart's cultivation of tomato plants at the company's farms, so that product is available year-round. Mr. Long prepared a 2004 planting schedule that spaced the planting of new crops a week to ten days apart to ensure a continuous flow of tomatoes once the plants matured. For the 2004 season, the South Florida farm began planting in September 2003, with harvesting commencing in December 2003 and continuing through May 2004. The North Florida farm started its spring season plantings in March and April 2004, with harvest beginning in early June 2004 and lasting until August 2004. Each "planting" at Ag-Mart consists of a specific amount of acreage that is cultivated for a specific period of time to produce an expected yield of tomatoes. Mr. Long determines the size of each planting based on past yields and projected needs. A single planting of grape tomatoes is harvested multiple times. Depending on conditions, a planting of grape tomatoes at the South Florida farm can be harvested between ten and 15 times in the fall, with fewer harvesting opportunities in the spring. A planting of grape tomatoes at the North Florida farm may be harvested between eight and ten times. Each planting takes up portions of acreage called "fields," which are divided by land features and irrigation systems. Fields are of varying sizes, depending on the nature of the terrain and the irrigation system. The fields are numbered, and a planting is usually done in a certain number of roughly contiguous fields. A field is further divided into separately numbered "blocks," each block consisting of six rows of tomato plants, three rows on each side of a "drive area" through which tractors and harvest trucks can maneuver to reach the plants. The blocks are numbered in sequence from the beginning to the end of the field. At the South Florida farm in 2004, Ag-Mart cultivated ten separate plantings of between 79 and 376 gross acres. Each planting contained as few as three and as many as ten separate fields. At the North Florida farm in 2004, Ag-Mart cultivated five separate plantings of between 92 and 158 gross acres. Each planting contained either two or three separate fields.2 The cycle of farming activities at the Ag-Mart farms included ground preparation, planting, staking, tying, harvesting, and post-harvest clean-up. Farm laborers were recruited and transported to the fields by crew leaders, who must be registered as farm labor contractors with the Department of Business and Professional Regulation pursuant to Chapter 450, Part III, Florida Statutes, and Florida Administrative Code Rule 61L-1.004. The crew leaders supervised the field laborers and prepared their weekly time cards. The crew leaders were directed by Ag-Mart's labor supervisors as to where the laborers were to work and which tasks were to be performed at any given time. Crew leaders providing services to Ag-Mart in 2004 included: Sergio Salinas, d/b/a Salinas & Son, Inc.; Pascual Sierra; and Juan Anzualda, d/b/a Juan Anzualda Harvesting, Inc. Mr. Salinas and Mr. Anzualda were crew leaders at the South Florida farm in the spring 2004 season. Mr. Sierra was a crew leader at the North Florida farm in 2004. At the South Florida farm, Mr. Salinas and three or four supervisors called "field walkers" oversaw the daily work of the 150 to 200 farm laborers who worked in Mr. Salinas' crew. Mr. Salinas owned and operated buses that transported the workers to and within the farm. Mr. Salinas also operated trucks to haul the harvested tomatoes from the fields to the shipping dock on the South Florida farm. A truck was also needed to move portable toilets to the fields for the use of the laborers. Because of the amount of equipment necessary to conduct a harvest, and the intense hand labor required to pick a row of tomatoes, Mr. Salinas always kept his crew together in one location while harvesting. During the period of January through May 2004, Mr. Salinas' crew typically harvested in one or two fields per day, and never more than four fields in one day. Mr. Anzualda and his 15 field walkers supervised a crew of 150 laborers at the South Florida farm during March and April 2004. Mr. Anzualda always kept his crew together when performing harvesting activities, due to the amount of equipment and the time necessary to set up near the work areas. Mr. Anzualda estimated that it took between 45 and 90 minutes to set up his equipment and line up his workers along the rows before harvesting could commence in a given field. Mr. Anzualda's crew typically harvested in one or two fields per day at the South Florida farm during the peak harvest period of March and April 2004, and never in more than four fields in one day. Ag-Mart paid the farm laborers the piece rate of $2.50 per tub of grape tomatoes. A "tub" weighs about 21 pounds. Different piece rates applied to different forms of work. For tying activities, the laborers under Mr. Salinas were paid $0.75 per 100 linear feet of work, while those under Mr. Anzualda were paid $0.50 per 100 linear feet. The laborers were paid the minimum wage of $5.15 per hour for some work, such as weeding and the harvest of Ugly Ripe tomatoes. In any event, the laborers were guaranteed the minimum wage, and were paid $5.15 per hour if that amount was greater than their pay would have been under piece work rates. Planting activities are performed by hand. Tomato plants are started in greenhouses, and then transplanted to the field when they are six weeks old and about six inches high. Staking is performed manually and by machine, as stakes are placed between the tomato plants to support the plants as they mature. Tying is performed manually, from about the second week after planting until the eighth or ninth week. "Tying" involves tying the tomato plants with string to the stakes to allow them to grow up the stakes as they mature. The tomato plants are six to seven feet tall at maturity. After the tomatoes were planted in 2004, Ag-Mart's farms began the application of pesticides according to a company-wide spray program devised by Mr. Long prior to the season. The spray program outlined the type and volume of pesticide products to be applied to the maturing tomato plants from the first week of planting through the end of the harvest. Once tying and harvesting activities began, Ag-Mart's spray program called for the application of pesticides "behind the tying" or "behind the harvest," meaning that spraying was done immediately after tying or harvesting was completed in a field. The spraying was done behind the workers because picking and tying opens up the plants, which enables the pesticide to better penetrate the plant. The timing of the spraying also allows fungicide to cover wounds from broken leaves caused by picking, thus preventing infection. Harvesting is performed manually by the farm laborers, who pick the ripe fruit from the tomato plants and place it into containers. The crew leader lines up the laborers with one person on each side of a row of tomatoes, meaning that a crew of 150 laborers can pick 75 rows of tomatoes at a time. The farm workers pick all of the visible fruit that is ripe or close to ripe on the blocks that are being harvested. Once the picking is complete on a block, it takes seven to ten days for enough new fruit to ripen on that block to warrant additional harvesting. Justin Oelman was Ag-Mart's crop protection manager at the South Florida farm in 2004. Mr. Oelman worked for Ag-Mart for eight years as a farm manager and crop protection manager before leaving in 2005 and had three years prior experience as a crop protection manager for another tomato grower. As crop protection manager in 2004, Mr. Oelman was the licensed pesticide applicator responsible for ordering chemicals and directing the application of pesticides. His job included writing up the "tomato spray ticket" for each pesticide application. The spray ticket is a document that, on its face, indicates the date and time of a pesticide application and its location according to planting, field, and block numbers. The spray ticket also states the name of the tractor driver who physically applies the pesticide, the type and amount of the pesticide applied, and the number of acres treated. Licensed pesticide applicators are required by Department rule to record the information included on the spray ticket. Fla. Admin. Code R. 5E-9.032. In applying pesticides to the South Florida farm's grape tomato crop in 2004, Mr. Oelman followed the spraying program designed by Mr. Long before the season. Because the pesticides were applied behind the farm workers' field activity, Mr. Oelman maintained close communications with Josh Cantu, the Ag-Mart labor supervisor in charge of tying activities on the South Florida farm, and with Eduardo Bravo, the labor supervisor in charge of grape tomato harvesting. Mr. Bravo in turn directed crew leaders such as Mr. Salinas and Mr. Anzualda on where to take their crews to conduct harvesting work. These communications kept Mr. Oelman apprised of where the crews were working and how much progress the tying or harvesting activities were expected to make by the end of the day. Mr. Oelman was then able to plan the next day's pesticide applications so that his tractor drivers would be ready to enter the field and apply the pesticides soon after the tying or harvesting activities were completed. Mr. Oelman typically wrote the spray tickets on the day before the actual pesticide application, based on the information gathered from Mr. Bravo and Mr. Cantu. Thus, the starting times shown on the tickets are times that were projected by Mr. Oelman on the previous afternoon, not necessarily the time that spraying actually commenced. Spraying could be delayed for a number of reasons. At times, the work in the fields would not progress as quickly as Mr. Cantu or Mr. Bravo had anticipated, due to the heaviness of the harvest. Pesticides are not applied to wet plants; therefore, rain could delay a planned spray application. Mr. Oelman's practice was to write a new spray ticket if a day's planned application was completely cancelled. However, if the planned spray application was merely delayed for a time, Mr. Oelman did not create a new spray ticket or update the original ticket to reflect the actual starting time. Mr. Oelman failed to explain why he did not always create a new ticket when the information on the existing ticket ceased to be accurate. Mr. Oelman directly supervised the Ag-Mart employees who drove the tractors and operated the spray rigs from which pesticides were applied to the tomato plants. Mr. Oelman trained the tractor drivers not to spray where people were working, but to wait until the tying or harvesting activities in designated fields had been completed. Once the fields had been sprayed, Mr. Oelman would orally notify Mr. Bravo and Mr. Cantu of the location of the pesticide applications. Mr. Oelman would also post copies of the spray tickets at the farm's central posting board, on which was posted relevant information regarding the pesticides being used at the farm, the restricted entry intervals and pre-harvest intervals for the pesticides, and other safety information.3 When restricted-use pesticides4 were to be applied, Mr. Oelman posted the entrances to the field with warning signs before the application began. The signs, which stated "Danger/Pesticides/Keep Out" in English and Spanish, were left in place until twelve hours after the expiration of the restricted entry interval for the applied pesticide. Mr. Oelman attested that he always made these postings when restricted-use pesticides such as Monitor and Danitol were applied at the South Florida farm. Mr. Salinas and Mr. Anzualda testified that they never harvested tomatoes from fields posted with pesticide warning signs. Mr. Anzualda checked for warning signs every day to ensure that his crew was not being sent into fields where pesticides had recently been applied. The restricted entry interval (REI) and the pre- harvest interval (PHI) are set forth on the manufacturer's label of each restricted-use pesticide, in accordance with 40 C.F.R. Parts 156 (labeling requirements for pesticides and devices) and 170 (worker protection standard). The REI, a worker safety standard, is the time period after application of a restricted- use pesticide that must elapse before workers are allowed to enter the treated area. The PHI, a food safety standard, is the time period that must elapse after a spray application before harvesting can begin. The REI and PHI vary according to individual pesticides. In 2004, Warrick Birdwell was the farm manager at Ag- Mart's North Florida farm in Jennings. Prior to 2004, Mr. Birdwell had worked ten years for other tomato growers in Virginia and Florida. As farm manager, Mr. Birdwell was responsible for all operations from ground preparation through post-harvest clean-up at the North Florida farm. Mr. Birdwell was also a licensed restricted-use pesticide applicator and was responsible for the application of pesticides at the North Florida farm. In 2004, Mr. Birdwell was assisted in carrying out the spray program by Dale Waters, who supervised the tractor drivers and equipment.5 During 2004, grape tomatoes were harvested at the North Florida farm on a rotation of at least seven days per block, meaning that it would take at least seven days after a harvest, in a given field, to grow enough vine ripe fruit to warrant another harvest. Mr. Birdwell prepared the spray tickets for the planned application of pesticides. He created his spray tickets a day or two before the actual date that the application was scheduled to take place. At times, delays occurred due to weather, equipment failures, or slower than anticipated progress in the harvest. Mr. Birdwell's practice was to create a new ticket and destroy the old one if the delay prevented a scheduled application from occurring on the scheduled date. However, if the spraying was commenced on the scheduled date, but had to be completed on the next day, Mr. Birdwell kept the original spray ticket without amendment. Mr. Birdwell failed to give a reason why a new ticket was not created each time the information, included in the original ticket, ceased to be accurate. Mr. Birdwell communicated throughout the day with Charles Lambert, the North Florida farm's labor supervisor, to monitor the progress of the harvesting activities and ensure that workers did not enter fields where REIs or PHIs were in effect. Mr. Birdwell also directed that warning postings be placed at the entrances to fields where restricted-use pesticides had been applied. Farm labor crews were allowed to move on the farm property only at the specific direction of Mr. Lambert, whose constant communication with Mr. Birdwell helped ensure that labor crews stayed out of treated fields until it was safe to enter them. Harvested product received at Ag-Mart's packing houses is tracked by foreman receiving reports, which identify the product and its quantity, the name of the crew leader responsible for harvesting the product, the farm from which the product was shipped, and the planting number from which the product was harvested. The receiving reports are used to calculate the commission payments due to the Ag-Mart crew leaders, who are paid based on the amount of fruit their crews harvest, and to analyze the yields of specific plantings. The "date received" column on the receiving reports showed the date the product was shipped from the farm to the packinghouse. In March 2005, the Palm Beach Post published an article stating that three women, who harvested tomatoes for Ag- Mart in 2004, bore children who suffered from birth defects. The article questioned whether the birth defects were connected to the pesticides used by Ag-Mart on its tomatoes. The women had worked at both the South Florida and North Florida farms, and at an Ag-Mart farm in North Carolina. In response to the article, the Collier County Health Department began an inquiry to determine the cause of the birth defects and asked for the Department's help in performing a pesticide use inspection at the South Florida farm, where the three women, identified as Francisca Herrera, Sostenes Salazar, and Maria de la Mesa (also called Maria de la Mesa Cruz), worked from February through July 2004. The Department's investigation commenced with a work request sent from Tallahassee to Environmental Specialist Neil Richmond in Immokalee on March 7, 2005.6 Mr. Richmond regularly conducts inspections at golf courses, farms, chemical dealers, and fertilizer plants throughout Collier County. The work request directed Mr. Richmond to obtain pesticide use records for Ag-Mart covering the period of February through July 2004 and employee records showing the names of the three employees and the dates they worked in 2004. The work request further directed Mr. Richmond to conduct a pesticide use inspection at the South Florida farm to document the pesticide products used in the field. Finally, the work request directed Mr. Richmond to conduct a full worker protection standard inspection to document the posting of fields, central posting information, and REIs at the South Florida farm. Mr. Richmond initially visited Ag-Mart's South Florida farm on March 28, 2005, accompanied by two persons from the Collier County Health Department. During the course of the inspection, Ag-Mart's farm manager, Doug Perkins, produced spray tickets for both the South Florida and North Florida farms for the period February through July 2004. Mr. Perkins also produced a spreadsheet identifying the dates worked and the farm locations for each of the three women named in the newspaper article. This spreadsheet was prepared at the direction of Ag- Mart's human resources manager, Angelia Cassell, and was derived from the three workers' timesheets for 2004. On March 30, 2005, Mr. Richmond filed a written report with the documents he received from Ag-Mart. The Department's Bureau of Compliance Monitoring then assigned the matter to Case Reviewer Jessica Fernandez in Tallahassee. Ms. Fernandez was given the task of reviewing all the information gathered by the Department's inspectors to determine whether Ag-Mart had violated the Florida Pesticide Law or any of the Department's implementing rules. On April 12, 2005, Ms. Fernandez sent a request for additional information to Mr. Richmond, which stated in relevant part: According to the work log included in this file, Ms. Fransisca [sic] Herrera, Ms. Maria de la Mesa Cruz and Ms. Sostenes Salazar worked at the Ag-Mart farm located in Immokalee between January 2004 and October 2004. Please obtain as much information as possible regarding the specific Planting, Field and Block numbers in which these workers worked during the period of February 2004 through June 2004. Mr. Richmond went to the South Florida farm on March 13, 2005, and communicated this request for additional information to Mr. Oelman, who responded that it would take several days to gather the requested information. Mr. Richmond returned to the farm on April 15, 2005. On that date, Mr. Oelman explained to Mr. Richmond the sequencing of harvesting and spray activities at the South Florida farm. Mr. Oelman told Mr. Richmond that Ag-Mart's harvest records indicate, only, which planting the laborers were working in on a given day and that a planting includes more than one field. Mr. Oelman also told Mr. Richmond that Ag-Mart's spray records are kept according to field and block numbers and that his practice was to spray behind the picking. On April 22, 2005, Ms. Cassell faxed to Mr. Richmond a spreadsheet entitled "Field Locations for SFL 2/04 thru 6/04." All involved understood that "SFL" referred to the South Florida farm.7 With the assistance of subordinates in her office, Ms. Cassell produced this document to show, in her words, "the total of what field locations the [three] women might have worked in." Ms. Cassell started with time cards, which indicated the dates and hours the three women worked. Then she obtained foreman receiving reports, which she understood to tell her which plantings were harvested on which dates. Finally, she obtained, from the farm, a handwritten document showing which fields were included in each planting. From this information, Ms. Cassell was able to fashion a spreadsheet indicating the range of fields each woman could have worked in from February through June 2004. Mr. Richmond testified that he read the spreadsheet's title and understood the document to show where the women actually worked each day. The document appeared self- explanatory. No one from Ag-Mart told Mr. Richmond that the spreadsheet showed only where the women could have worked, or "possible" locations. Mr. Richmond passed the spreadsheet on to Ms. Fernandez, with a report stating that it showed "the field locations for Ms. Herrera, Ms. Salazar, and Ms. de la Mesa where they worked on respective dates." Ms. Fernandez also operated on the assumption that the spreadsheet showed what its title indicated, the actual field locations of the three women on any given day from February through June 2004. Ms. Cassell testified that she put the title on the spreadsheet without much thought, simply as an identifier for the file on her computer's hard drive. Ms. Cassell understood that she was creating a spreadsheet of all the fields the women could possibly have worked in on a given day. She could be no more precise, because Ag-Mart did not keep records that would show the specific fields where an individual worked on a given day. The president of Ag-Mart, Mr. Long, confirmed that Ag- Mart does not keep records on which fields a worker is in on a given day. At the time the Department made its request, Mr. Long told Ms. Cassell that there was no way Ag-Mart could provide such precise worker location data. The closest they could come would be to correlate harvest or receiving data, which showed what plantings a crew had harvested from, with the workers' time cards. Ag-Mart knew whose crew each woman had worked in; so the spreadsheet listed all the fields in the planting worked by the crew, as a way of showing which fields the women might have worked in. On May 4, 2005, Ms. Fernandez sent Compliance Monitoring Bureau Chief Dale Dubberly a request for additional information, which Mr. Dubberly forwarded to Mr. Richmond the next day. Ms. Fernandez first requested the time work started and ended for each worker in each field on every date listed in the spreadsheet provided on April 22, 2005. Ms. Fernandez next asked for the field location for each worker from July 2004 to November 2004. She asked for the block numbers corresponding to each of the fields in North Florida, South Florida, and North Carolina during the 2004 season and a map showing the distribution of blocks, fields and plantings for those farms during the 2004 season. She asked for spray records for South Florida for October and November 2004. Finally, Ms. Fernandez requested a more legible copy of the spreadsheet, which she stated "shows each worker's field location." Upon receiving this request through Mr. Richmond, Ms. Cassell, her staff, and Ag-Mart farm compliance manager, Amanda Collins created a new spreadsheet, which Ms. Cassell titled "Field Locations for 3 Employees for 2004." This spreadsheet was identical in format to the earlier document, but was expanded to include the dates the three women worked for all of 2004. For each worker, the spreadsheet provided a cell for each day worked, and within that cell a list of field numbers. Again, the Department took these field numbers to represent fields in which the women actually worked, when Ag-Mart actually intended them to represent fields in which the women possibly worked. Some of the cells listed as many as 23 field numbers for one day. The method of developing this spreadsheet was similar to that employed for the first one. The weekly time cards of the three women were used to provide the days they worked. Ag-Mart's weekly time cards show the name of the employee, the rounded hours worked each week, the number of piece units worked, the hours worked for minimum wage, and the initials of the crew leader for whom the employee worked that week. For their South Florida farm work in 2004, Ms. Herrera and Ms. Salazar worked exclusively for crew leader Sergio Salinas. Ms. de la Mesa worked at South Florida for crew leader Juan Anzualda and at North Florida for crew leader Pascual Sierra.8 To identify the fields where the three women might have worked on a given day, Ms. Cassell and her staff again used foreman receiving reports and planting schedules. The receiving reports were understood to provide the dates of shipping for harvested product, and these were correlated to the dates on which the three women worked. Again, Ms. Cassell listed every field within a planting as a possible work location, because Ag-Mart kept no data that identified the fields in which the women actually worked on a given date. On May 6, 2005, Mr. Richmond met with Ms. Cassell and Ms. Collins at Ag-Mart's Plant City administrative offices. The meeting lasted no more than 15 minutes and consisted of Ag-Mart employees turning over various documents to Mr. Richmond, along with some explanatory conversation. Ms. Cassell specifically recalled explaining to Mr. Richmond that the field location spreadsheet indicated the "total possible fields that the three employees could have worked in." Mr. Richmond denied that Ms. Cassell gave him any such explanation. Ms. Collins recalled that Mr. Richmond and Ms. Cassell had some discussion about the spreadsheet, but could recall no particulars.9 Mr. Richmond forwarded the documents received at the May 6, 2005, meeting to Ms. Fernandez in Tallahassee. His written summary, also dated May 6, 2005, represents Mr. Richmond's contemporaneous understanding of the meaning of the documents he was given at the Plant City meeting. The summary stated, in relevant part: Ms. Collins provided the times which the three ladies worked at the various locations which came from the three ladies time cards (See Exhibits V-1 through V-3, copies of time worked information). Ms. Collins stated that this has the start and finished [sic] times, but does not have which fields they worked at a particular time as they may pick in several fields throughout the day. Ms. Collins provided another copy of the field locations for each of the three ladies (See Exhibits W-1 and W-2, copies of field locations of workers). Ms. Collins also provided maps with field locations depicting blocks and plantings (See Exhibits X-1 through X-13, maps depicting field locations with blocks and plantings). The field no. is the main number in each block, the first two numbers are the numbers of the planting, while the remaining number in the set is the block number. . . . At the hearing, Mr. Richmond testified that he "absolutely" would have communicated to Ms. Fernandez any conversation he had with, either, Ms. Cassell or Ms. Collins indicating that the field location spreadsheet was anything other than a document showing where the women worked on a given day. This testimony is credible and, coupled with Mr. Richmond's contemporaneous written statement, leads to the finding that Mr. Richmond's testimony regarding the May 6, 2005, meeting in Plant City should be credited. On May 12, 2005, Ms. Cassell sent Mr. Dubberly an e- mail with an attachment correcting some aspects of the spreadsheet. Ms. Cassell's e-mail message stated: I have attached the the [sic] revision to the original sheet given on the 3 woman's [sic] field locations. I included which field location for NC. There was one revision I made for Francisca on week ending 4/24/05 [Ms. Cassell clearly means 2004]. She was in NC that week and on the last two days of that week I had SFL field numbers and it should of [sic] been NC [sic] please discard old report and replace with revised one. The Department cites this e-mail as further indication that Ag-Mart represented the spreadsheet as indicating actual field locations for the three women, or at least that Ag-Mart said nothing to clarify that the spreadsheet showed something other than the fields where the women actually worked. Ms. Fernandez, the case reviewer whose analysis led to the filing of the Administrative Complaints against Ag-Mart, believed that the field location spreadsheets prepared by Ms. Cassell and her staff reflected the actual work locations for Ms. Herrera, Ms. Salazar, and Ms. de la Mesa. As a case reviewer, Ms. Fernandez receives files compiled by the field staff and reviews the files to determine whether a violation of the Florida Pesticide Law has occurred. The procedure of the Bureau of Compliance Monitoring appears designed to ensure that the case reviewers have no contact with the subjects of their investigation and, instead, rely on field inspectors to act as conduits in obtaining information from companies such as Ag-Mart. As a result, Ms. Fernandez had no direct contact with anyone from Ag-Mart and, thus, had no direct opportunity to be disabused of her assumptions regarding the field location spreadsheet. Ms. Fernandez conceded that she had never been on a tomato farm at the time she conducted her review of the Ag-Mart case. She did not take into consideration the acreage of the fields or the size of the work crews and their manner of operation. She made no attempt to visualize the effort it would take for one worker to harvest in ten or 20 fields in one day. She assumed that each woman worked in at least part of each field listed on the spreadsheet for each day listed. Ms. Fernandez believed that the spreadsheet was clear on its face and saw no need to make further inquiries as to the plausibility of the assumption that it reflected actual, not possible, field locations. As found above, Ag-Mart made no statement to any Department employee to qualify that the spreadsheet meant only possible field locations. Nonetheless, common sense should have caused someone in the Department to question whether this spreadsheet really conveyed the information that its title appeared to promise. On some days, the spreadsheet places a single field worker in 23 fields. Ag-Mart's crew leaders credibly testified that their crews never worked in more than four fields in one day and more often worked in only one or two. Even granting Ms. Fernandez' ignorance, Mr. Dubberly or some other superior in the Department should have had enough knowledge of farm operations to question the plausibility of Ms. Fernandez' assumptions. While Ag-Mart is at fault for not explaining itself clearly, the Department is also at fault for insisting that the spreadsheet be taken at face value, no matter how implausible the result.10 At the hearing, Ms. Fernandez explained how she used the documents provided by Ag-Mart to draft the Administrative Complaints. As an example, Counts I and II of the North Florida Complaint provide: Count I On June 6, 2004, Mr. Cesar Juarez and Mr. Alexis Barrios treated approximately 157.6 acres of grape tomatoes, planted in fields 7-8, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The Monitor 4 Spray supplemental label states: "REMARKS . . . Do not apply more than a total of 10 pints per acre per crop season, nor within 7 days of harvest." Worker field location records show that tomatoes were harvested from fields 7 and 8 on June 7, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre- harvest interval stated on the Monitor 4 Spray label. Count II The Danitol 2.4 EC Spray label states: "TOMATO . . . Do not apply the DANITOL + MONITOR 4 Spray tank mix within 7 days of harvest." As noted in the previous paragraph, fields 7-8 were treated with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray on June 6, 2004. Tomatoes were harvested from these same fields on June 7, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Danitol 2.4 EC Spray label. Ms. Fernandez obtained the information regarding the date, time, and manner of pesticide application from the spray tickets described above. She obtained the Monitor and Danitol PHI information from the product label. She obtained the harvest information from the spreadsheet, which indicated that Ms. de la Mesa worked in fields 7 and 8 on June 7, 2004. Counts I and II alleging violations of the PHIs for Monitor and Danitol had an accompanying Count XIX, alleging a violation of the REI for Monitor arising from the same set of facts: Count XIX The Monitor 4 Spray and the Danitol 2.4 EC Spray labels contain the following language: "AGRICULTURAL USE REQUIREMENTS. Use this product only in accordance with its labeling and with the Worker Protection Standard, 40 CFR part 170. This Standard contains requirements for the protection of agricultural workers on farms, forests, nurseries, and greenhouses, and handlers of agricultural pesticides. It contains requirements for training, decontamination, notification, and emergency assistance. It also contains specific instructions and exceptions pertaining to the statements on this label about personal protective equipment (PPE) and restricted entry interval. The requirements in this box only apply to users of this product that are covered by the Worker Protection Standard." On June 6, 2004, Mr. Cesar Juarez and Mr. Alexis Barrios treated approximately 157.6 acres of grape tomatoes, planted in fields 7-8, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The application started at 11:30 am and ended at 5:30 pm on June 6, 2004. The Monitor 4 Spray label states: "Do not enter or allow worker entry into treated areas during the restricted entry interval (REI) of 48 hours." Work records show that Ms. de la Mesa, directed by licensed applicators Mr. Charles Lambert (PV38793)11 and Mr. Warrick Birdwell (PV36679), worked in fields 7 and 8 on June 7, 2004, and that her working hours for June 7, 2004, were 8:00 am to 6:30 pm. Therefore, Ms. de la Mesa and other workers were instructed, directed, permitted or not prevented by the agricultural employer, Ag-Mart Produce, Inc. from entering treated fields before the expiration of the REI stated on the Monitor 4 Spray label. Throughout the hearing, Ag-Mart contended (and the Department did not dispute) that no statute or rule requires Ag-Mart to keep a daily log of the fields where its employees work. The Department also conceded that Ag-Mart was cooperative throughout its investigation.12 Ag-Mart contends that all counts should be dismissed because of the Department's reliance on the field location spreadsheet, which shows only the possible field locations of the workers. This contention goes to far. For example, the counts set forth above are well taken, because the spray tickets indicate that fields 7 and 8 were sprayed on June 6, 2004, and the field location spreadsheet indicates that Ms. de la Mesa worked only in fields 7 and 8 on June 7, 2004. Ag-Mart further attacked the spreadsheet by suggesting the unreliability of the dates on the foreman receiving reports. As found above, the receiving reports generally showed the date the product was shipped from the farm to the packinghouse, as well as the crew leader who provided the tomatoes and the planting from which the tomatoes were harvested. At the hearing, Ag-Mart contended that the date the product was shipped was not always the same date it was harvested. Further, Ag-Mart demonstrated that one of the receiving reports relevant to this proceeding showed the date the product was received at the packing house, rather than the date the product was shipped from the farm, due to a clerical error. Ag-Mart argued that this example showed that the receiving reports were not a reliable source for determining the precise dates of harvest in a given field on the North Florida farm. Ag-Mart's evidence is insufficient to demonstrate the unreliability of the receiving reports, where Ag-Mart itself relied on the reports to provide the Department with the spreadsheet showing possible field locations of the three workers. Ag-Mart had ample opportunity to make a thorough demonstration of the reports' alleged unreliability and failed to do so. Ag-Mart also attempted to cast doubt on the accuracy of the spray tickets through the testimony of Mr. Oelman and Mr. Birdwell, both of whom stated that the spray tickets are written well in advance of the pesticide applications and are not invariably rewritten or corrected when the spraying schedule is pushed back due to rain or slow harvest. However, the pesticide applicator is required by law to maintain accurate records relating to the application of all restricted-use pesticides, including the date, start time and end time of the treatment, and the location of the treatment site. Fla. Admin. Code R. 5E-9.032(1). The Department is entitled to inspect these records. Fla. Admin. Code R. 5E-9.032(6). Ag-Mart may not attack records that its own employee/applicators were legally required to keep in an accurate fashion. The Department is entitled to rely on the spray tickets as accurate indicators of when and where pesticide applications occurred. Thus, the undersigned has accepted the accuracy of the spray records and the receiving reports, but not of the field location spreadsheet. However, there are some dates on which the fields shown on the spreadsheet perfectly match the fields shown on the spray tickets, as in Counts I, II, and XIX of the North Florida Complaint set forth above. It is found that the Department has proven these counts by clear and convincing evidence. In addition to Counts I, II, and XIX of the North Florida Complaint, the Department has proven the following counts of the North Florida Complaint by clear and convincing evidence: Counts XI, XII, and XXII (spraying in fields 7 and 8 on June 17, 2004; Ms. de la Mesa worked only in fields 7 and 8 on June 19, 2004); and Count XIII (spraying Agrimek 0.15 EC Miticide/Insecticide, with PHI of seven days, in fields 7 and 8 on June 3, 2005; Ms. de la Mesa worked only in fields 7 and 8 on June 7, 2004). The Department has proven none of the counts in the South Florida Complaint by clear and convincing evidence. Some explanation must be made for the finding that Counts XXXI and XXXII were not proven by clear and convincing evidence. Those counts allege as follows: Count XXXI On April 17, 2004, Mr. Lorenzo Reyes, Mr. Demetrio Acevedo and Mr. Francisco Vega treated approximately 212.5 acres of grape tomatoes, planted in fields 11, 6 and 4, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The Monitor 4 Spray supplemental label states: "REMARKS . . . Do not apply more than a total of 10 pints per acre per crop season, nor within 7 days of harvest." Worker field location records show that tomatoes were harvested from fields 11, 6 and 4 on April 21, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Monitor 4 Spray label. Count XXXII The Danitol 2.4 EC Spray label states: "TOMATO . . . Do not apply the DANITOL + MONITOR 4 Spray tank mix within 7 days of harvest." As noted in the previous paragraph, fields 11, 6 and 4 were treated with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray on April 17, 2004. Tomatoes were harvested from these same fields on April 21, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Danitol 2.4 EC Spray label. These counts base their allegation that tomatoes were harvested from fields 11, 6, and 4 on April 21, 2004, on the field location spreadsheet, which indicates that Ms. Salazar possibly worked in fields 4, 6, 9, 10, and/or 11 on April 21, 2004. Thus, the spreadsheet does not definitely prove that Ms. Salazar harvested tomatoes in the three sprayed fields within the PHI. At the final hearing, the Department introduced a spray ticket showing that Monitor and Danitol were also applied to fields 9 and 10 on April 15, 2004. This additional spray ticket completed the Department's demonstration that every field in which Ms. Salazar harvested tomatoes on April 21, 2004, had been sprayed with Monitor and Danitol within the seven-day PHI. However, the Department did not amend the South Florida Complaint to allege the fact of the second spray ticket, and, so, must be held to the allegations actually made in the complaint. Ag-Mart may not be found guilty of facts or violations not specifically alleged in the South Florida Complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (facts not alleged in the Administrative Complaint). See also B.D.M. Financial Corporation v. Department of Business and Professional Regulation, 698 So. 2d 1359, 1362 (Fla. 1st DCA 1997) (violations not alleged in the Administrative Complaint). In similar fashion, Counts XLI and XLII of the South Florida Complaint allege that fields 21, 22, 18, and 19 were sprayed with Monitor and Danitol on May 15, 2004, and allege PHI violations in fields 21, 22, 18, and 19 on May 20, 2004, based on the field location spreadsheet's indication that Ms. Salazar possibly worked in one or more of fields 18 through 25 on that date. Thus, the spreadsheet does not definitely prove that Ms. Salazar harvested tomatoes in the four sprayed fields within the PHI. At the final hearing, the Department introduced a spray ticket showing that Monitor and Danitol were, also, applied to fields 20, 23, 24, and 25 on May 14, 2004. This additional spray ticket completed the Department's demonstration that every field in which Ms. Salazar harvested tomatoes on May 20, 2004, had been sprayed with Monitor and Danitol within the seven-day PHI. Again, however, the Department failed to amend the South Florida Complaint to reflect its subsequently developed evidence. Subsection 487.175(1)(e), Florida Statutes, provides that the Department may enter an order imposing an administrative fine not to exceed $10,000 for each violation. The statute further provides as follows: When imposing any fine under this paragraph, the department shall consider the degree and extent of harm caused by the violation, the cost of rectifying the damage, the amount of money the violator benefited from by noncompliance, whether the violation was committed willfully, and the compliance record of the violator. Mr. Dubberly testified that the Department does not have a rule for determining the amount of fines, but uses a matrix, attaching a rating of 0 to 5 for each of the criteria named in the quoted portion of the statute, with 5 representing the most egregious violation. The extent of harm caused by the violation is divided into two classifications: (A) the degree and extent of harm related to human and environmental hazards and (B) the degree and extent of harm related to the toxicity of the pesticide(s). The remaining criteria considered in the matrix are: (C) the estimated cost of rectifying the damage, (D) the estimated amount of money the violator benefited by noncompliance, whether the violation was committed willfully, and (F) the compliance record of the violator. Each factor is given its numerical value. The values for factors (B) through (F) are added, then the total is multiplied by the value for factor (A). The resulting number is then multiplied by $100.00 to determine the amount of the fine. The PHI violations were primarily food safety violations, the concern being that there might be an unacceptable pesticide residue on the tomatoes if they were harvested within the PHI. The REI violations were based on concerns for worker safety from pesticide exposure. In determining the fines for PHI violations, the Department assigned a numerical value of 2 for factor (A). In determining the fines for REI violations, the Department assigned a numerical value of 3 for factor (A), based on a reasonable probability of human or animal death or injury, or a reasonable probability of serious environmental harm. For purposes of this proceeding, all the pesticides used by Ag-Mart were restricted-use pesticides. In considering the value to be assigned to factor (B), the Department relied on the pesticide labels, which contain signal words for the category of potential hazard to human or animal life posed by that pesticide. Monitor contained the signal word "Danger," which represents the highest level of potential hazard. A value of 5 was assigned for factor (B) in the alleged violations involving the use of Monitor. Danitol and Agrimek contained the signal word "Warning," which indicated a lesser potential hazard. A value of 3 was assigned for factor (B) in the alleged violations involving Danitol or Agrimek. Because the estimated cost of rectifying the damage and the estimated amount of money the violator benefited by noncompliance was unknown, the Department assigned a value of 0 to factors (C) and (D). As to factor (E), dealing with the willfulness of the violation, the Department assigns a value of 0 if there is no evidence of willfulness, a value of 1 if there is apparent evidence of willfulness, and a value of 5 if it determines the violation was intentional. Because of the large number of alleged PHI and REI violations, the Department assigned a value of 1 for factor (E), finding apparent evidence of willful intent for each alleged violation. As to factor (F), dealing with the violator's compliance history, the Department considers the three years immediately preceding the current violation. The Department assigns a value of 0 if there are no prior violations, a value of 1 for a prior dissimilar violation, a value of 2 for multiple prior dissimilar violations, a value of 3 for a prior similar violation, and a value of 4 for multiple prior similar violations. Because Ag-Mart had one prior dissimilar violation within the preceding three years, the Department assigned a value of 1 for factor (F) for each alleged violation. Because the sole basis for finding apparent evidence of willful intent was the number of alleged violations, the Department calculated its recommended fines in two ways: by assigning a value of 0 based on no evidence of willful intent and by assigning a value of 1 based on apparent evidence of willful intent. In DOAH Case No. 06-0730, the North Florida Complaint, the Department recommended a fine of either $1,200 (no evidence of willful intent) or $1,400 (apparent evidence of willful intent) for each of the PHI violations alleged in Counts I, III, V, VII, IX, and XI, which involved the use of Monitor. The Department recommended a fine of either $800 (no evidence) or $1,000 (apparent evidence) for Counts II, IV, VI, VIII, X, and XII, involving the use of Danitol, and for Counts XIV, XV, and XVI, involving the use of Agrimek. For each of the REI violations alleged in Counts XIX through XXII, the Department recommended a fine of either $1,800 (no evidence) or $2,100 (apparent evidence). The Department established by clear and convincing evidence seven of the 20 counts of the North Florida Complaint that remained at issue at the time of the hearing, and none of the 58 counts of the South Florida Complaint that remained at issue at the time of the hearing. The undersigned accepts the Department's calculation of the recommended fines for these violations and recommends that the Department apply the lower calculation for each of the violations. Thus, the recommended fines are as follows: Count I, PHI violation involving the use of Monitor, $1,200; Count II, PHI violation involving the use of Danitol, $800; Count XI, PHI violation involving the use of Monitor, $1,200; Count XII, PHI violation involving the use of Danitol, $800; Count XIII, PHI violation involving the use of Agrimek, $800; Count XIX, REI violation, $1,800; and Count XXII, REI violation, $1,800. Thus, the total recommended fine for the seven proven violations is $8,400. In conclusion, it is observed that these cases demonstrate a gap in the enforcement mechanism of the Florida Pesticide Law, at least as it is currently understood and practiced by the Department. The law requires licensed applicators to comply with the PHI and REI restrictions on the labels of the restricted-use pesticides they apply to these crops. The law requires the applicators to keep accurate records of when and where they apply pesticides and of the kind and quantity of pesticides applied in each instance. Yet all parties to this proceeding agreed that the law does not require either the applicators or the growers to keep accurate records of when and where farm workers enter the fields and conduct the harvest. This failure to complete the record- keeping circle makes it extremely difficult for the Department to prove by clear and convincing evidence that a PHI or REI violation has taken place. The PHI and REI restrictions appear virtually unenforceable through company records, except when some fluke of record keeping allows the Department to establish that a given worker could only have been in a recently sprayed field on a given day. It does little good to know when the pesticides were applied to a field if there is no way of knowing when workers first entered the field or harvested tomatoes after the spraying. Ag-Mart credibly demonstrated that its general practices are designed to minimize worker exposure and guarantee safe harvest, but the company keeps no records to demonstrate to its customers that it observes these practices in particular instances and is under no legal obligation to keep such records. This state of regulatory affairs should be as disturbing to Ag-Mart as to the Department, because purchasers of tomatoes in Florida's grocery stores do not require clear and convincing evidence in order to switch brands.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department enter a final order that provides as follows: That Ag-Mart committed the violations alleged in Counts I, II, XI, XII, and XIII of the North Florida Complaint, for which violations Ag-Mart should be assessed an administrative fine totaling $8,400; That Ag-Mart pay to the Department $3,000 to resolve Counts L through LIV of the South Florida Complaint and Counts XVII and XVIII of the North Florida Complaint; and That all other counts of the North Florida Complaint and the South Florida Complaint be dismissed. DONE AND ENTERED this 16th day of March, 2007, 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 16th day of March, 2007.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found. At all times pertinent to these proceedings, respondent MacDonald was a licensed dealer in agricultural products, licensed by the State of Florida, and bonded by Sentry Indemnity Company in the sum of $10,000.00. At all times pertinent to these proceedings, petitioner was a producer of agricultural products produced in the State of Florida. At all times pertinent to these proceedings, respondent Sentry Indemnity Company was authorized to transact business in the State of Florida. At all times pertinent to these proceedings, Rosario Strano was president of Homestead Tomato Packing Company, Inc. On December 30, 1983, petitioner at respondent MacDonald's request, loaded 704-20 pound flats of Poppas Famous tomatoes, size "5 x 6", and 88-20 pound flats of Poppas Famous tomatoes, size "6 x 7", onto the truck of respondent MacDonald's customer, V. F. Lanasa, Inc., and loaded 88-20 pound flats of Poppas Famous, size "6 x 6", tomatoes on respondent MacDonald's truck. Respondent MacDonald was billed $7.50, $6.50, and $5.50 per flat for size "5 x 6", "6 x 6", and "6 x 7", respectively, plus $132.00 for palletizing, for a total invoice of $6,1460.00. All tomatoes (880 flats) loaded by petitioner on respondent MacDonald's truck and the truck of V. F. Lanasa, Inc. had been inspected by a federal inspector and graded as "U. S. COMB." prior to loading and each flat was stamped as having been inspected. Upon the tomatoes arriving at the warehouse of V. F. Lanasa, Inc., in Richmond, Virginia, they were inspected by USDA Inspector C. E. Short on January 3, 1984. The inspection report indicated some damage. Respondent MacDonald contacted petitioner's business manager, Phyllis Ernst and she, without seeing the inspection report, but relying on respondent MacDonald as to its contents, agreed with respondent MacDonald to a reduction of $1.50 per flat on all sizes. This reduced the original invoice to $5,118.00. On March 12, 1984, respondent MacDonald paid petitioner $3,344.00 leaving a balance of $1,804.00 which respondent MacDonald has refused to pay.
Recommendation Based upon the Findings of Fact and Conclusion of Law recited herein, it is RECOMMENDED that respondent MacDonald Import Company, Inc. be ordered to pay to the petitioner, Homestead Tomato Packing Co., Inc., the sum of $1,804.00. It is further RECOMMENDED that if respondent, MacDonald Import Company, Inc. fails to timely pay the petitioner as ordered, then respondent, Sentry Indemnity Company be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the petitioner in accordance with Section 604.21, Florida Statutes (1983). DONE and ORDERED this 10th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1985. COPIES FURNISHED: Rosario Strano, President Homestead Tomato Packing Company, Inc. P. O. Box 3064 Florida City, Florida 33030 Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Mr. Glenn Bissett Room 418 Mayo Building Tallahassee, Florida 32301 Homestead Packing Company, Inc. Post Office Box 3064 P. O. Box 3064 Florida City, FL MacDonald Import Company, Inc. P. O. Box 97134 Miami, FL
The Issue Whether Respondent Quality By Design, Inc. (QBD) owes Petitioner $2,166.75, or some lesser amount, for 45 Washingtonia Palms it purchased from Petitioner in June 2009.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a producer of Washingtonia Palms and other trees. It grows these agricultural products on its 140-acre tree farm located in Moore Haven, Florida. The farm utilizes a ditch/canal irrigation system. In June 2009, Petitioner received two separate orders from QBD for a total of 45 Washingtonia Palms, ten-to-14 feet in overall height: a June 16, 2009, order for 27 trees (Invoice 1081); and a June 24, 2009, order for 18 trees (Invoice 1083). For both orders, the agreed-upon purchase price was $45.00 per tree. Accordingly, the amount due, including sales tax (of $85.05), for the trees ordered on June 16 was $1,300.05, and the amount due, including sales tax (of $56.70), for the trees ordered on June 24 was $866.70. QBD took delivery of the trees at Petitioner's tree farm. David Lindsey and Buddy Ward were the truck drivers dispatched by QBD to Petitioner's tree farm to take delivery of the trees. Mr. Lindsey picked up the 27 trees that had been ordered on June 16. Mr. Ward picked up the 18 trees that had been ordered on June 24. Petitioner readied the trees for delivery before they were picked up. Among the things it did as part of the preparation process was to wrap the root ball of each tree in plastic sheeting to retain moisture. After arriving at Petitioner's tree farm, Mr. Lindsey and Mr. Ward each inspected the trees Petitioner had readied for pick up and accepted them on behalf of QBD (Mr. Lindsey by signing Invoice 1081, and Mr. Ward by signing Invoice 1083). After being inspected and accepted, the trees were loaded onto Mr. Lindsey's and Mr. Ward's semi-trailer trucks and transported to QBD's tree farm in Umatilla Florida, approximately five hours away (by truck). Each of the 45 trees was in excellent condition when loaded. Mr. Lindsey's trip to QBD's tree farm was uneventful. Mr. Ward, on the other hand, was not so fortunate. As he was leaving Petitioner's property, he drove his semi-trailer truck into a ditch while making a turn. Mr. Ward was not seriously injured, and none of the trees fell off the trailer bed as a result of the mishap. A tow truck was called to the scene. Within 15 minutes of the tow truck's arrival, Mr. Ward's truck was pulled out of the ditch and he "went on [his] way," with his load of 18 Washingtonia Palms. The morning after they arrived at QBD's tree farm, the trees on Mr. Lindsey's and Mr. Ward's trucks were offloaded and "watered down." They were then put in the ground. Subsequently, fronds on each of the trees "turned brown." QBD was able to "rehabilitate" the trees by cutting off the outside row of fronds on each tree and "re-tying the heads." The labor cost of this "rehabilitation" work was $13.50 per tree. The QBD employees who did the work used a piece of equipment that QBD rented at the rate of approximately $75.00 per hour. At no time prior to the initiation of the instant litigation did QBD notify Petitioner that any of the 45 trees it had purchased was defective or non-conforming, nor did it seek to revoke its acceptance of the trees or to return the trees to Petitioner.
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 (1) finding that QBD is indebted to Petitioner in the amount of $2,166.75 for the 45 Washingtonia Palms it purchased from Petitioner in June 2009; (2) directing QBD to make payment to Petitioner in the amount of $2,216.75 ($2,166.75, plus $50.00 for reimbursement of the filing fee Petitioner paid) within 15 days following the issuance of the order; (3) providing that Petitioner, upon receipt of this payment, shall remit $141.75 to the appropriate taxing authority; and (4) announcing that if QBD fails to make timely payment in full, the Department will seek recovery from OCIC, QBD's surety. DONE AND ENTERED this 14th day of April, 2010, in Tallahassee, Leon County, Florida. S 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 14th day of April, 2008.
The Issue The issue presented for decision herein is whether or not the Petitioner is entitled to an award of $11,952 for payment of a shipment of tomatoes made to Respondent, Georgia Tomato Company, Inc.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, including the proposed ore tenus requests by Petitioner's counsel, I hereby make the following relevant factual findings. Petitioner, Corky Foods Corporation, is a diversified agri-business company engaged in, among other things, the sale of produce from one of its warehouses in Boynton Beach, Florida. On January 21, 1985, Pat Adams, a broker for Adams brokerage company in Bonita Springs, Florida, placed an order with Petitioner's salesman, Daniel Garcia, for a load of tomatoes from Georgia Tomato Company. The tomatoes were sold to Respondent, Georgia Tomato Company, on January 21, 1985. The invoice of these products (No. 18917) was dated January 23, 1985 and contained a total of 1,440 boxes. Respondent was allowed a $1 credit under the market price which amount reflects the amount of the initial claim by Petitioner against Respondent, Georgia Tomato Company; i.e., $25,560 less the credit of $1,440 for a total claim of $24,120. During this period of time, there was a freeze in South Florida which occurred on January 20, 1985 and the price of produce dropped substantially for products picked after January 20, 1985. The market value for tomatoes picked on January 19, 1985 was as follows: 5 x 6 #1 @ $18.00 6 x 6 #1 @ $16.00 6 x 7 #1 @ $14.00 This amount, less the $1 credit given to Respondent, Georgia Tomato Company, by Petitioner represents the amount initially claimed by Petitioner; i.e., $24,120. Respondent, Georgia Tomato Company, failed to pay Petitioner's invoiced amount which resulted in a complaint being filed by Petitioner against Respondent, Georgia Tomato Company, on March 4, 1985. Once that complaint was filed, Respondent, Georgia Tomato Company, tendered to Petitioner an amount of $12,168 which reduced the complaint by that amount leaving a balance now due and owing Petitioner of $11,952 based on its amended claim filed herein dated April 24, 1985. Respondent, Georgia Tomato Company, contends that it was overcharged on the amount of this shipment of tomatoes and attempted to substantiate its position by showing several invoices for tomatoes that it purchased subsequent to January 21, 1985. Daniel Garcia, Petitioner's vice-president in charge of marketing, determined the market price for the tomatoes shipped to Respondent, Georgia Tomato Company, on January 21, 1985. In doing so, he called brokerage houses in Homestead, Bonita Springs, and other brokers, including Pat Adams, the broker who purchased the tomatoes here in question on behalf of Adams Brokerage House, and established the market price as per the invoice sent to Respondent, Georgia Tomato Company. In addition, Mr. Garcia referred to the Southeastern Fruit and Vegetable Report, Volume 30, No. 17, which is a guide to the pricing information for fruit and vegetables in the southeast and which is relied upon to ascertain fruit and vegetable prices in this area. (Petitioner's Exhibit 1) This data supports Petitioner's claim for the amount invoiced to Respondent, Georgia Tomato Company. Respondent, Georgia Tomato Company, did not dispute the quality of the tomatoes shipped by the Petitioner. Respondent offered no other defenses against the amount claimed by Petitioner. Based thereon, it is herein concluded that the Petitioner is entitled to an award of the amount in its amended claim of $11,952.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Georgia Tomato Company, Inc., be ordered to pay Petitioner, Corky Foods Corporation, the amount of $11,952 as set forth in its amended complaint filed herein dated April 24, 1985, within fifteen (15) days of the date of entry of the Final Order by the Department of Agriculture and Consumer Services, Bureau of License and Bond. DONE and ORDERED this 9th day of October, 1985, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1985. COPIES FURNISHED: Roger C. Lambert, Esquire 250 South County Road, Suite 201 West Palm Beach, Florida 33480 Glenn Vaughn, General Manager Georgia Tomato Company, Inc. Building F State Farmers Market Forest Park, Georgia 30050 Joe Kight, Chief Bureau of License & Bond Department of Agriculture and Consumer Services Mayo Building, Room 418 Tallahassee, Florida 32301 Continental Insurance Company Legal Section (License & Bond) 80 Maiden Lane New York, New York Robert Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Doyle Conner Commissioner Department of Agriculture The Capitol Tallahassee, Florida 32301
The Issue Whether the Respondent Terra Bella and Associates, Inc., owes the Petitioner $17,806.20 for sod purchased from Petitioner, Action Sod and Landscape, LLC.
Findings Of Fact Action Sod is a 25-year-old business that sells plants and sod for lawn and landscaping. Terra Bella is a construction landscape maintenance company that has been in existence since 2004. 2011. Great American was the surety for Terra Bella during In the latter part of 2011, Action Sod sold and invoiced Terra Bella the following sod orders: Invoice 114825 on November 16, 2011, for Vero Beach in the amount of $1,979.50; Invoice 114828 for Parkland Heron Bay on November 16, 2011, in the amount of $1,979.50; Invoice 114875 for Parkland on November 16, 2011, in the amount of $2,268.40; Invoice 115360 for Pickup at Okechobbe Farm on November 21, 2011, in the amount of 1,455.20; Invoice 116151 for Harron Beach on November 29, 2011, in the amount of 3,852.00; Invoice 116350 for Enin 5613480172 on December 1, 2011, in the amount of $3,852.00; and Invoice 116880 for Pickup at Okechobbe Farm on December 6, 2011, in the amount of $1,369.60. Action Sod expected payment of each invoice within 30 days from date of pick up or delivery. After Barbara Callado Lopez ("Lopez"), Action Sod's President and Director, did not receive payment for the outstanding November and December invoices totaling $26,396.90, she called Terra Bella repeatedly to request payment. On January 24, 2012, Terra Bella paid Action Sod $9,640.00 for Invoices 113134, 113750, 114132, and 114626, leaving an outstanding balance of $16,756.20. On February 22, 2012, Action Sod filed a claim against Terra Bella with the Department because $16,756.20 had not been paid. Action Sod ultimately amended the claim to $16,806.20 to include the remaining monies owed for sod purchased plus the $50.00 filing fee for a claim. On February 29, 2012, Lopez went to Terra Bella's office requesting payment. The parties had a heated argument about the sod and monies owed. Lopez requested payment in the amount of $16,756.20. Terra Bella provided a counter offer to Action Sod of $13,006.20, which was calculated by subtracting $750.00 for pallets returned and $3,000.00 for the sod that didn't pass inspection and had to be replaced. Even though Lopez was dissatisfied with the offered amount of $13,006.20, she accepted it. Terra Bella paid Action Sod $13,006.20 with check #5098, which stated in the memo section, "Final Payment of Agreed Upon Open Bal." During the meeting, Lopez also signed six Final Waiver and Release of Lien forms for the following properties: Vero Lago, LLC,; The Ranches at Cooper City, LLC; Parkland Reserve, LLC; Miami Dade Aviation Department; Heron Bay; and Monterra Clubhouse. The waivers neither provided invoice numbers nor identified and described the property locations as listed on the invoices. Each waiver provided in relevant part the following: The undersigned lienor, received FINAL payment and hereby waives and releases its lien and right to claim a lien for labor, services, equipment, or materials furnished to Terra Bella & Associated, Inc., though February 29, 2012, on the . . . project. . . to the following property. . . Action Sod cashed check #5098 and therefore Terra Bella is not indebted to Petitioner for any sod sold in November and December of 2011.
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 dismissing the complaint of Action Sod and Landscape against Terra Bella and Associates. DONE AND ENTERED this 5th day of September, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 5th day of September, 2012. COPIES FURNISHED: Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Lorena Holley, General Counsel Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capital, Plaza Level 10 Tallahassee, Florida 32399-0810 Barbara Callado, President Action Sod and Landscape, LLC Post Office Box 833143 Miami, Florida 33283-3143 Dan Hurrelbrink Great American Insurance Company 580 Walnut Street Post Office Box 2119 Cincinnati, Ohio 45201-3180 Dennis Hall, President Terra Bella and Associates, Inc. PO Box 22397 Hialeah, Florida 33002
The Issue The issue is whether Respondent materially breached a contract with Petitioner, South Florida Water Management District (District), as alleged in the District's Final Order dated November 10, 2005, and if so, whether Respondent should be placed on the temporarily suspended list for a period of one year.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Respondent is engaged in the business of exotic vegetation control. The firm's office is located in Loxahatchee, Florida, and its principals are Dr. Howard E. Westerdahl, president and majority owner (52 percent), and Christopher P. Bless, minority owner (48 percent). The business has been in existence for around ten years, operating first under the name of Enviroglades, Inc. and then Enviroglades, LLC. When this matter first began before the District in 2004, the firm's majority stockholder was Irene Goltzene, who now serves as its office manager, and the firm was classified as a District Non-Certified Minority Business Enterprise. In April 2005, the business was sold to its current majority shareholder, Dr. Westerdahl, and on May 15, 2005, Enviroglades, LLC, changed its name to Eco-Engineering, LLC. The District is a public corporation created under Chapter 373, Florida Statutes. Its Vegetation Management Division is responsible for administering its exotic vegetation control program. On May 28, 2004, the District issued Request for Proposal OT040866 (RFP) soliciting "technical and cost proposals from qualified respondents to provide crews, equipment, and supplies for ground based control of exotic plant species via the application of herbicides and the hand removal of small seedlings using licensed applicators and laborers." The RFP called for responses to be submitted no later than June 25, 2004. Three companies, including Respondent, then known as Enviroglades, LLC, timely submitted proposals. On September 23, 2004, the District conducted a negotiation meeting with Respondent. During that meeting, Francois B. LaRoche and Donald Hill, both employees in the Vegetation Management Division, discussed items on a prepared Agenda concerning the RFP, including the type of contract, contract execution, cost proposal, invoicing, statement of work, and general questions. Also, Mr. Hill negotiated labor rates to be charged for Respondent's labor and supervisory positions. On October 14, 2004, the District awarded a contract (Contract) to Respondent and the other two companies who submitted proposals. The Contract with Respondent is a three- year "work order contract," that together with the other two contracts awarded was not to exceed the total project funding of $18 million. A work order contract and the work orders issued pursuant to the contract are based on time and materials, which obligates the District to pay the contractor for labor and chemicals when the invoices are submitted to the District up to the "not to exceed" amount in the work order. Under this process, Respondent would invoice the District for the actual cost of materials, such as herbicides, and for labor according to the negotiated rate schedule attached to the Contract as Exhibit L. Reimbursement under the work order, however, could not exceed $50,000.00. Paragraph 1 of the Contract's Special Provisions, found in Exhibit A of the Contract, provides as follows: . . . The DISTRICT does not guarantee or represent that any minimum number of Work Orders for any dollar amount will be issued as a result of this CONTRACT. Multiple contracts have been awarded for ground application services for exotic plant control, stated on the cover page as the Project Title, to be provided under this CONTRACT. The DISTRICT does not guarantee or represent that any minimum number of Work Orders for any dollar amount will be issued as a result of this CONTRACT. The amount stated on page one of this CONTRACT represents funding that may be used among the multiple CONTRACTS awarded by the DISTRICT'S Governing Board and in no way represents the amount to be paid under any single CONTRACT issued herein. This language meant that the District does not guarantee that any contractor will receive any minimum number of work orders or be issued more than one work order to complete a job. On November 2, 2004, the District conducted a second meeting, identified as a Contractor Review Meeting, which was attended by all contractors, including representatives of Respondent. At the meeting, the District discussed the following topics: statement of work, applicator safety and training, herbicide mixing, loading, and on-site storage of BMP's, new daily activity report, inspection, billing, anticipated Fiscal Year 2005 projects, questions and discussions, and facility and equipment inspection. On November 24, 2004, the District issued several work orders to Respondent for execution under the Contract. Under the District's customary practice, in order for the District to encumber the funds for the current budget year, the work orders were executed in advance of Respondent starting the work under each work order. One of the work orders issued by the District to Respondent was Work Order No. 01 for $50,000.00 to "treat exotics on SandHill Crane Property" (SandHill). This property encompasses approximately 1,400 acres, is located in Central Western Palm Beach County (west of the City of Riviera Beach), and is bordered by the Beeline Expressway on the south side, the District's C-18 Canal on the north side, an unnamed canal that dumps into C-18 on the west side, and a fence that separates the property from a development on the east side. Although Work Order No. 01 stated, without greater specificity, that the contractor was to "treat exotics on the SandHill Crane property," the District intended for the work order to cover all targeted vegetation on the entire site, and not just certain exotics or portions of the property. This was consistent with the type of work that had been performed on the same property for the two prior years (2003 and 2004) by other contractors. The District also intended that under Work Order No. 01, the $50,000.00 represented a ceiling, and Respondent could be reimbursed up to, but not in excess of, that amount. The Work Order called for the work to begin on November 22, 2004, and to be completed no later than March 31, 2005. It can be inferred from the evidence that the purpose of the March 31, 2005, completion date was to ensure that the work would be completed before the rainy season began a few months later. In determining the ceiling of a work order, and whether the value of the work order will afford sufficient labor and materials for the job, the District, through its Vegetation and Management Division staff, considers at least two factors. First, Mr. LaRoche, who is Senior Supervising Scientist in the Vegetation and Management Division, and/or his staff, makes a visit to the site to assess the extent of work to be performed. While on the site, the staff engages in discussions with the property's land manager to better ascertain the scope of the work. Also, Mr. LaRoche considers whether the property is being treated for the first time, or whether only follow-up treatment is required. In this case, Mr. LaRoche knew that the initial clearing of the exotics on the site had been done in 2003 (by another contractor) for $110,000.00 (consisting of two work orders - one for $50,000.00 and a second for $60,000.00), while a second contractor was paid $75,000.00 to maintain the site in 2004. (Prior to 2003, treatment of vegetation had been performed by mechanical removal, and not with herbicides.) Therefore, because the property had already been treated twice, and only follow-up work was required, he concluded that in 2005 it could be completed for a lesser amount, or $50,000.00. Finally, Mr. LaRoche described SandHill as "a very small property" (apparently in comparison to other sites) on which "a lot of work" had already been performed, "a very easy site," and one with "fairly clear boundaries." The Work Order itself did not contain a map or any information regarding the size of the property, the level of infestation of exotic species, the difficulty in performing the work, or ease of access to the property. Even so, Respondent's representative accepted the Work Order by affixing his signature to the document on November 24, 2004. In addition, Respondent's proposal in response to the RFP contained the following language: The office will receive a work order from SFWMD. The project manager will then schedule a meeting with the SFWMD project supervisor at the site where work is to be performed. When meeting with the SFWMD on site Enviroglades will obtain all necessary information, maps, target species, methodology, type and rate of chemical to be used to perform the work specified in the work order. Enviroglades project manager will then relay all information to the crew leader making sure all aspects of the work order are understood. The crew will then be scheduled to perform the work. The project manager and crew leader will be in contact daily while the work is performed. Daily reports will be turned into the office and reviewed by the project manager. The daily reports will then be processed for invoicing to SFWMD. Enviroglades uses Microsoft Projects to track work orders and all pertaining information. By including this language in its proposal, Respondent understood and agreed that if it needed maps or any additional information to understand the nature or scope of the work to be performed under the work order, that it was required to ask the District for that information. It also understood that before the actual work began, its project supervisor would visit the SandHill site with a District representative to better understand the scope of the work. While Section 1.5 of the Contract provided that "[t]he District shall provide additional guidance and instructions to Contractors' employees or hired workers where necessary or appropriate as determined by the District," this did not mean that the District would micromanage the job or provide continual guidance and assistance to a contractor while the work was being performed. In its proposal, Respondent also indicated that it had experienced no problems performing work for the District under other contracts. (Respondent had performed work for the District under at least one other contract in prior years.) More specifically, it stated in its proposal that "while working on a similar contract several years ago Enviroglades was able to handle all project tracking responsibilities set forth by the SFWMD." Before Respondent began any work, on January 18, 2005, the District project manager, David K. Johnson, a District Environmental Scientist in the Vegetation Management Division, met with Respondent's representative, Shaun E. Bless, at the SandHill site. In preparation for the site visit, Mr. Bless acknowledges that he did not read the contract or the Work Order. (Shaun Bless' supervisor, Christopher P. Bless, his older brother, minority owner of the firm, and listed as project manager, also admitted that he only "briefly looked through [the contract].") Mr. Johnson testified that during the site visit, he drove Mr. Bless around the perimeter of the property, described what exotics needed to be treated, and explained the methodology for treating those exotics. He also provided a small map of the property to Mr. Bless, which was admittedly not "very detailed." While on the site, Mr. Johnson and Mr. Bless met with SandHill's land manager, Bill Helfferich, who was familiar with the property and could answer any questions regarding its size or the type and extent of vegetation present on the property. At hearing, Mr. Bless denied that Mr. Johnson was able to provide a map, a list of exotics to be treated, or the actual size of the site. However, because his deposition testimony directly conflicts with his testimony at hearing in several material respects, Mr. Bless' assertions have not been accepted as being credible. For example, at his deposition, Mr. Bless acknowledged that he knew he was supposed to treat Australian Pine, Melaleuca, Lygodium, Acacia, and Brazilian Pepper. He also stated that he understood what the boundaries of the site were and that Respondent had to treat all exotics, identified above, within the boundaries. There is no evidence that, before the work began, any representative from Respondent ever asked for clarification of any provision in the Contract, a more specific description of the area to be treated, or whether $50,000.00 was sufficient to complete the work. An assertion by Mr. Bless that he asked Mr. Johnson on January 18, 2005, whether there were additional funds (over and above the $50,000.00) to do the work is not deemed to be credible. Mr. Johnson denied that he was asked this question, and no other employee of Respondent expressed this concern to the District. Under Section 4.5 of Exhibit C of the Contract, the District spelled out detailed procedures for the treatment of exotic vegetation. Specifically, Subsection 4.5.3 provided that "[e]xotic vegetation to be treated includes, but is not limited to, melaleuca, Brazilian pepper, Australian pine, Java plum, earleaf acacia, Old World climbing fern, and torpedograss." At the same time, Subsection 4.4.2 of Exhibit C of the Contract spelled out the following level of performance expected to be achieved by the contractor: Minimum acceptable performance is defined as 90% control of targeted vegetation within the timeframe of the manufacturers recommended period for control to occur. This meant that ninety percent of the targeted exotic vegetation (in this case everything identified by the District to be treated) "needs to be showing sign of death or dying once they are treated." Therefore, since specific vegetation on the entire SandHill site was targeted for treatment, at a minimum, it was expected that ninety percent of the targeted vegetation on the entire site "would be dead." Finally, Subsection 4.4.3 of Exhibit C of the Contract specified how Respondent had to remedy the situation if it performed poorly by not meeting the minimum performance standards. Specifically, that provision stated that: If minimum acceptable performance is not achieved for any area of the project within a reasonable time frame following project completion (time frame dependent upon species targeted, mode of action of treatment, site and weather conditions), additional thorough treatment of the target plant(s) shall be the responsibility of the CONTRACTOR at no cost to the District. Areas not treated or not responding to treatment may be required to be retreated at the CONTRACTOR'S expense, if it is determined that the CONTRACTOR provided faulty treatment measures or products. Vegetation treatments will be determined in terms of 'surface acres,' i.e., 43,560 square feet equal one surface acre. In short, this meant that if Respondent did not achieve the minimum acceptable performance for treating any area of the site, it was required to retreat that area at its own expense. Each of these provisions has been used in the District's contracts for many years. Until this case arose, the District represented without contradiction that no contractor had ever claimed to be "confused" by any of these requirements, particularly since there is a negotiation meeting, a contractor review meeting, and a site visit before any work begins. Respondent began work on the SandHill site around January 19, 2005. The District's project manager, Mr. Johnson, visited the site approximately two times per week to check on the progress. If he found a problem, he would prepare a written report, known as an Exotic Plant Treatment Inspection Report. Apparently, no significant problems were noted until the last week in February, when Mr. Johnson prepared two reports. See Finding of Fact 25, infra. However, before those reports were prepared, Mr. Johnson says there were several oral communications to one of the supervisors and the office manager, Irene Goltzene, concerning the proper equipment to be used and the number of employees that were performing the work. It is also worth noting that it takes two to three weeks after vegetation is treated to "figure out what's been killed, what's been treated." At a minimum, then, an evaluation of the quality of the work could not be made until several weeks after the work began. In late February 2005, Ms. Goltzene notified Mr. LaRoche (presumably by telephone) that Respondent had finished its work at the SandHill site, but that Respondent "would require more money to complete the property." By that time, the District had paid invoices totaling $49,300.00 to Respondent. After receiving this request, Mr. LaRoche requested a meeting with Respondent's representatives to discuss what he characterized as a lack of performance at the site and the District's expectation that the site would be retreated at Respondent's own expense. On February 28, 2005, the parties met to discuss the work being performed on the site. According to Mr. Johnson, the District discussed "the problems that we've had," "[s]howed them the pictures we took of both sites, the SDS site and the SandHill Crane site," and "show[ed] them the improper treatments done at both locations." (It can be inferred that Respondent was simultaneously performing work under another work order at "the SDS site.") Finally, the District advised Respondent that "they would have to retreat the SandHill Crane at their own expense." During the course of the meeting, Mr. Johnson documented two instances indicating that Respondent was doing a less than adequate job at the site. These deficiencies were noted in two Exotic Plant Treatment Inspection Reports, which are summarized below: On February 23, 2005, Mr. Johnson inspected the site and found one of Respondent's supervisors (Paul Eversley) asleep in his truck while the truck was running. This activity constituted a safety hazard since a running vehicle could possibly cause a fire. (District Exhibit 12) On February 25, 2005, or two days later, Mr. Johnson again inspected the site and found an "unsystematic treatment of the property and the poor treatment that was done of the property, specifically to Brazilian pepper, Lygodium and . . . melaleuca." Mr. Johnson concluded in his Exotic Plant Treatment Inspection Report that Respondent's treatment was "not a very systematic approach to treatments." (District Exhibit 13) In response to the concerns expressed at the meeting, on March 2, 2005, Ms. Goltzene sent an email to Mr. LaRoche advising that Mr. Eversley "was orally reprimanded and told he was never to sleep while at the job site, this included during lunch and break time. Also that he would not be able to perform work on any SFWMD job for a period of 2 months." (The email notes that a similar oral reprimand was given to Mr. Shaun Bless, who apparently was observed sleeping on another job.) The email did not respond in any manner to criticisms raised at the meeting concerning the "poor treatment" of the vegetation. On March 14, 2005, Daniel D. Thayer, Director of the Vegetation Management Division, received an email from SandHill's manager, Mr. Helfferich, who stated in part: I don't want Enviroglades setting foot on any SOR property again if I have anything to say about it. They did a shitty job and charged us $50k. Steve Smith told me Veg. Manage. was trying to get some answers from the contractor about why the work was so poor and spotty. . . . I would like to have the rest of the area really treated this time, but not by them. After reviewing the emails from Ms. Goltzene and Mr. Helfferich, on March 17, 2005, Mr. LaRoche sent a letter to Ms. Goltzene in which he stated that he did not agree that a verbal reprimand of Mr. Eversley (and Mr. Bless) was adequate; instead, he stated that a suspension from District work for six months was the appropriate remediation. In addition, Mr. LaRoche advised as follows: We have the impression that your company is not fully committed to working for the District. You request additional work orders but are reluctant to fully staff the existing projects to accomplish the work in a timely and efficacious manner. The immediate availability of properly working equipment for all projects must also be included in the commitment. Without this type of commitment we may not be able to continue the contractual arrangement with your company. The projects you have been involved in with the District have multiple partners within the agency and with other governmental agencies. The Vegetation Management Division and its contract partners must be responsive and responsible in its operational activities. A recent evaluation of the SandHill Crane project your company completed, which we are doing for the Land Stewardship Division, is not up to their or our standards. They have indicated to us that their preference is for your company not to be allowed to perform work on any of their properties. Please indicate to us how these issues will be resolved in thirty (30) days, according to Exhibit B, Article 6 - Termination/ Remediation (copy attached) and Exhibit A. Without resolution there will not be any further work orders. (Emphasis in original) No one from Respondent answered Mr. LaRoche's letter of March 17, 2005.1 Further, the SandHill site was not retreated. However, someone from Respondent's office requested a meeting with Mr. LaRoche's supervisor, Mr. Thayer. On April 1, 2005, the parties met and discussed "questions about SandHill Crane, and also what [the District was] going to do to help Enviroglades continue the work on the property." The parties also agreed to meet again on April 13, 2005, at the SandHill site. On April 12, 2005, or the day before the site meeting, Mr. Johnson took photographs which establish that there were misapplications of chemicals at the site as well as areas that were supposed to be treated and were not. These photographs have been received in evidence as District Composite Exhibit 19. On April 13, 2005, several District employees, including Mr. Thayer, met with Shaun and Christopher Bless on the site to "see what was done, what was treated, and determine - what they were going to do about SandHill Crane." On April 22, 2005, Mr. Thayer sent Ms. Goltzene a letter which summarized the results of the April 13 meeting. In his letter, Mr. Thayer stated in part as follows: The work was satisfactory in the areas where melaleuca was treated. However, the areas where Brazilian pepper was targeted (this was throughout the majority of the property) the work was poorly done. According to the contract (Exhibit "C", Section 4.4.2) between the District and Enviroglades, "minimum acceptable performance is defined as a 90% control of the target vegetation within the timeframe of the manufacturers recommended period for control to occur." This critical standard was not met by Enviroglades with the Brazilian pepper work. Therefore in accordance with the contract, Exhibit "C", Section 4.4.3 which states "If minimum acceptable performance is not achieved . . . additional thorough treatment of the target plant(s) shall be the responsibility of the contractor at no cost to the District . . .", the District is requesting that Enviroglades re-treat the Brazilian pepper throughout the entire property. The District will provide the herbicide and Enviroglades shall provide the labor at no further cost to the District. Please respond, in writing, no later than May 1, 2005. Your prompt attention to this matter is appreciated. By this time, Dr. Westerdahl had just purchased controlling interest in the business. (Whether he was fully aware of the problems which the former owners had created under Work Order No. 01 is unknown.) At hearing, Dr. Westerdahl produced an undated letter (District Exhibit 23), which he states was a response to Mr. Thayer's letter of April 22, 2005. Mr. Thayer denied ever receiving a copy, and the District has no record of such a letter being filed or date-stamped. In the letter, Dr. Westerdahl pointed out that a change in ownership had occurred, that he was now the "point person . . . for relations with the District," and that while he disagreed with the "assessment of the work product," Respondent agreed "to do the labor [to retreat the property if] SFWMD [would] supply the chemical." On April 29, 2005, Dr. Westerdahl sent a short email to Mr. Thayer in which he stated in part that the "[o]riginal is being sent in the mail. I would like to set up a meeting with you so you understand that this is important to us and we would like to have the opportunity to re-express our commitment to this[.]" He also asked that Mr. Thayer call him at his cell phone number, which was shown on the email. Dr. Westerdahl says he did not receive a return call from Mr. Thayer. By May 9, 2005, the SandHill property had still not been retreated. About the same time, Mr. LaRoche spoke with J. J. Flathmann, Deputy Director of Procurement, concerning the problems the District had encountered under the Contract. They reached a concensus that Respondent had breached the contract in a material respect. A "material breach" is defined as "any substantial unexcused nonperformance. The breach is either failing to perform an act that is an important part of the transaction or performing an act inconsistent with the terms and conditions of the contract." Fla. Admin. Code R. 40E-7.215(5). They concluded that by failing to meet the minimum performance standard in the Contract, Respondent had performed an act inconsistent with the terms and conditions of the contract. Ms. Flathmann then spoke with Frank Hayden, then Director of Procurement, who had the responsibility of issuing Cure Notices. A "cure notice" is defined in Florida Administrative Code Rule 40E-7.215(3) as follows: a letter citing the specific nature of the material breach, the corrective action required by the District and a thirty (30) day time frame for curing the breach, starting from receipt of the Cure Notice. The letter shall also state that if the contracting entity fails to cure the breach within the thirty (30) day period, the contracting entity will be found in default and may be placed on the District's Temporary or Permanent Suspension List. Mr. Hayden agreed with the assessment of Ms. Flathmann and Mr. LaRoche and directed Ms. Flathmann to prepare a Cure Notice and authorized her to sign it. On May 10, 2005, a Cure Notice was sent to Respondent indicating that the District considered Respondent's failure to comply with the District's vegetation control requirements a material breach of the terms and conditions of Contract No. OTO40866. The Cure Notice went on to say: Pursuant to Exhibit "C" of the contract, paragraph 4.4 you are required to achieve 90% control of targeted vegetation. On February 25, 2005, [sic] Enviroglades, LLC was issued a work order to treat exotic vegetation at the SandHill Crane Property. The completed work did not meet the acceptable performance as defined as 90% control of targeted vegetation. Accordingly, unless this material breach is corrected within thirty (30) days after receipt of this Cure Notice, the District shall terminate Contract No. OTO40866 for default pursuant to Article 6 titled Termination/Remedies of the contract, and shall initiate Governing Board action for determination of temporary or permanent suspension, if any. Please direct all questions concerning this matter to the undersigned . . . . Thus, the Cure Notice provided that all deficiencies must be cured no later than June 10, 2005. After Dr. Westerdahl received the Cure Notice on May 11, 2005, he immediately telephoned Mr. Thayer and reiterated that he desired to work with the District to resolve any outstanding issues. He also retained new counsel (John J. Fumero, Esquire) to assist in resolving the problem. (Enviroglades' counsel to the former owners had been terminated after sending a letter on May 4, 2005, to the District's Executive Director accusing the District of "favoritism, pettiness and discrimination" and other "unfair, illegal, [and] discriminatory" acts in administering the Contract, accusations which apparently did not sit well with the District.] On May 26, 2005, Respondent's new counsel sent a letter to Mr. Hayden advising that he now represented Respondent and confirming that a meeting with District staff was scheduled for May 31, 2005. Dr. Westerdahl stated that he had never received a Cure Notice before, and on advice of his new counsel, did not begin working on the SandHill site after receiving the Cure Notice. He was also told by counsel that the cure period of thirty days could be "stayed." On May 31, 2005, a meeting by District staff and Respondent's representatives took place. At the meeting, which Dr. Westerdahl described as being "a very accusatory meeting" accompanied by considerable "disagreement," the parties apparently agreed to allow Respondent to re-enter the site and complete any remaining work. This was confirmed in a letter from Mr. Fumero to District counsel on June 7, 2005. See District Exhibit 35. (It appears that much of the meeting addressed the accusations raised in the letter which Respondent's former counsel had sent to the Executive Director on May 4, 2005.) A written response to the May 10, 2005 Cure Notice was not sent by Respondent until June 2, 2005, or eight days before the deficiency was expected to be cured. In his letter to Mr. Hayden, Dr. Westerdahl stated in part that Respondent intended to complete the exotic plant treatment on the Sandhill Crane Property in the manner required and expected of the SFWMD staff. Our goal is to start the treatment program NLT [no later than] Monday, June 5, 2005. Arrangements have been made to meet with Mr. David Johnson, SFWMD, on Friday, June 3, 2005, to conduct a thorough site visit, obtain map(s), estimate treatment acreage, and identify herbicides required and quantities required." The letter also indicated that a treatment plan would be submitted to the staff by June 6, 2005. Dr. Westerdahl acknowledged that he prepared a treatment plan because he knew (as of June 2) that he would not be able to begin retreatment of the site until June 9 or 10 at the earliest (or when the time for curing the deficiency expired), even though his letter stated that work would begin no later than June 5. Finally, the letter outlined "some of the key changes that have been made specific to this contract as well as company policy." On June 3, 2005, the south and north areas of the SandHill site were reinspected by Mr. Johnson, who was accompanied by Dr. Westerdahl and Mr. Christopher Bless. (Due to the rainy season, which had now begun, other areas on the site were temporarily inaccessible.) In his Exotic Plant Inspection Treatment Report (District Exhibit 31), Mr. Johnson noted that the treatment of the Brazilian pepper was not "thorough," that the Lygodium in the south area "had not been treated at all," that there were "mis-applications" of chemicals to the north and west of a pasture area, and that hardwood species like Acacia "were not treated in the initial sweep." At the conclusion of the inspection, Mr. Johnson provided a treatment list for Dr. Westerdahl indicating the plant species to be treated, the treatment method, and the chemical to be used. See District Exhibit 32. Based on the information received at the June 3 meeting with Mr. Johnson, on June 6, 2005, Dr. Westerdahl advised Mr. Hayden by letter that there were two areas on the property which needed retreatment. The letter indicated that the first area would be treated on eight days between June 9 and June 20, 2005, while the second area would be treated on ten days between June 13 and 24, 2005. Finally, the letter listed the herbicides and chemicals that would be required for the retreatment. (The District had previously agreed to provide the chemicals if Respondent would provide the labor to complete the job. See Finding of Fact 33, supra.) On June 8, 2005, or more than two months after the Contract called for the work to be completed, Respondent's counsel advised Mr. Hayden by letter that Respondent's personnel misunderstood the terms and conditions of the Contract. Specifically, counsel stated that Respondent understood Subsection 4.4.2 of the Contract to call for "90% of the treated species rather than 90% of all the exotics on the property," and this was responsible for Respondent's "perceived nonperformance" under the Contract. (In other words, Respondent interpreted the provision to mean that whatever areas it was able to treat within the dollar amount of the work order, a ninety percent kill rate was expected; it did not interpret the provision to mean that at least ninety percent of all targeted exotic vegetation on the site must be killed.) The letter also noted that while the Cure Notice required Respondent to cure all deficiencies by June 10, 2005, Dr. Westerdahl's plan to correct the deficiencies "will require additional time to properly complete," and that "[s]ite work will resume on the site upon the District's authorization." By letter dated June 13, 2005, District counsel advised Mr. Fumero that "[d]ue to the unusually wet weather we have experienced, the District is willing to extend the cure notice by ten (10) working days starting on Tuesday, June 14, 2005." The letter also noted that "under no circumstances will the District allow the cure period to extend beyond June 30, 2005." (Emphasis supplied) The purpose of this language was to make it explicitly clear that no further extensions of the cure period would be granted. The letter further stated that Mr. Fumero's letter of June 8, 2005, was the first time the District learned that Respondent did not understand the terms of the Contract. Finally, the letter advised that Respondent should contact Mr. Hayden to make arrangements to visit the site. On June 16, 2005, Dr. Westerdahl, Christopher Bless, and a District Environmental Scientist, Gordon Baker, met on the SandHill site "to review policies and procedures for the retreatment of property in accordance with the Cure Notice." Dr. Westerdahl had a work crew present that day and intended for it to be supervised by Shaun Bless. However, because Mr. Bless had been suspended from all District work for six months (for sleeping while on duty), see Finding of Fact 28, supra, the work could not begin and was delayed until another supervisor could be found. Mr. Baker prepared a memorandum summarizing the meeting and pointed out that Mr. Johnson would meet with Respondent's representatives again the following day (June 17, 2005) at which time it would be emphasized that the entire property had to be "swept." See District Exhibit 38. Based on his inspection of the site and the amount of vegetation that needed to be retreated, on June 17, 2005, Mr. Baker signed a new work order which authorized Respondent to purchase herbicides in the amount of $15,000.00 (rather than $5,000.00) for the retreatment of the site. On June 17, 2005, Dr. Westerdahl prepared a memorandum to Mr. Baker concerning their meeting on the site the previous morning. He confirmed that he had been given a map which marked all areas to be retreated, that Mr. Shaun Bless and Mr. Eversley could not work on the property, and that work would commence the day after the meeting, or on June 17. On June 17, 2005, Mr. Johnson prepared an Exotic Plant Treatment Inspection Report for the two targeted species: Brazilian pepper and Lygodium. He noted that personnel were now working on the site treating the Brazilian pepper. On June 23, 2005, another Exotic Plant Treatment Inspection Report was prepared by Mr. Baker, who reported on the progress of the work to treat the Brazilian pepper. He noted that "at this rate they may not be able to complete the property. Called Howard [Westerdahl] to request additional crews. He said he planned to have additional crew tomorrow." Dr. Westerdahl submitted progress reports to Mr. Baker on June 24, 28, 29, and 30, 2005. See Respondent's Exhibit 4. In his June 28 report, he noted that afternoon rains were delaying the completion of the work. He also stated that out of ten targeted areas, Areas I, II, and V were completed or would be completed no later than June 27; that Areas III, VI, and VII should be completed by July 1; that areas VIII, IX, and X may not be finished until "early next week"; and that Areas III and IV may require "a little follow up spraying" the following two days. Accordingly, he requested "a few extra days to complete this work." In his final progress report submitted on June 30, 2005, Dr. Westerdahl stated that his crews worked all that day and "all B. peppers, melaleuca, and acacia in Area III will be treated by the end of Friday, July 1." He further stated that he anticipated "being finished with all open areas" by July 7; treatment of Brazilian peppers and acacia in Areas VI and VI would be completed by July 5; the "[r]emaining Lygodium in Areas III, VI, and VII will be treated starting again on Tuesday, July 5"; and "[t]he wooded areas (VIII, IX, and X) should be finished by Monday, July 11 or before, if weather permits." Finally, he stated that July 12 would "be used to survey and re- spray colonies that do not appear to be dying." Notwithstanding the District's earlier admonition that no further extensions of the cure period would be granted, on June 30, 2005, Respondent's counsel submitted a letter to District counsel requesting "an extension of time for the SandHill Crane project up to and including July 14, 2005." The letter noted that Respondent had lost "a couple of days due to rain," that access to the certain areas of the property was limited to marsh buggies due to the amount of rainfall, and that two new workers would not begin work until July 11, 2005. As of June 30, 2005, the work was not completed, and Respondent had failed to cure the breach within the time period specified by the Cure Notice. This was treated by the District as a default on the Contract under Florida Administrative Code Rule 40E-7.217. Under that rule, the District is required to issue a Termination for Default Notice by Certified U.S. Mail "[i]n the event that the contracting entity fails to cure the material breach within the time specified in the Cure Notice." In making this determination, Section 6-4 of the Contract requires in part that the District shall specify the reasons for taking this action, "which shall not be arbitrary or capricious." After discussions by Ms. Flathmann and Mr. Hayden, on July 1, 2005, the District, through Mr. Hayden, issued a Stop Work Order, which was provided to Respondent's counsel. (One of Respondent's work crews was also ordered off the site the same day.) The Stop Work Order constituted a termination of the Contract and provided in relevant part as follows: The South Florida Water Management District (District) hereby provides notice that your client has failed to cure the conditions of the material breach under Contract No. OTO40866 as specified in the District's certified letter of May 10, 2005 and the extension letter dated June 13, 2005. Pursuant to clause 6.1 of the contract, the District is therefore issuing this Termination for Default Notice (Notice), effective immediately upon your receipt of this certified Notice for failure to perform ground application services for exotic plant control at SandHill Crane Property. All contract performance shall cease as of the effective date of this Notice and the District shall initiate Governing Board actions for determination of temporary or permanent suspension, if any. * * * The District is in receipt of your letter dated June 30, 2005, in which you have requested additional time for your client to finish spraying at the SandHill Crane project. As the attached letter states, your client materially breached its contract with the District and was given a thirty (30) day cure notice. Your client failed to cure the breach within the required time. The District provided your client an additional 13 days to cure the breach due to the extraordinary circumstances surrounding the impossibility to perform due to the weather. Even after your client was afforded more time to complete the job, Enviroglades failed to show up at the site for over a week while the weather was good. As the attached letter states under no circumstances would your client be provided an extension of time after June 30, 2005. This letter shall serve as notice to have your client cease work on the SandHill Crane Project effective at the close of business on June 30, 2005. On July 29, 2005, Mr. Johnson made a post-treatment inspection of the SandHill site. In his final Exotic Plant Treatment Inspection Report, he noted as follows: The entire property was divided into 10 units which were to be treated sequently (sic) before proceeding to the next. Our inspection revealed that units 1, 2 and 3 were swept while unit 5 had some partial treatments. On units 1, 2 and 3 the Brazilian pepper treatments revealed [at] 80% control, while the Lygodium treatment were around 5% control. Unit 5 had only the western and southwestern area treated. The total area of the three units and one partial unit totaled approximately 30% of the property. When a default on a contract occurs, the District is required to determine "whether the contracting entity should be suspended, and if so, whether it should be temporarily suspended and for what period of time, or permanently suspended from doing business with the District." Fla. Admin. Code R. 40E-7.218(1). Section (2) of the rule identifies seventeen factors to take into account in making this determination. Three such factors are "[t]he economic impact of the material breach to the District," whether "the breach caused or will cause delay in the completion of a District project," and "if the breach caused a delay in performance, whether it was a substantial delay." Fla. Admin. Code R. 40E-7.218(2)(a), (b), and (c). Pursuant to the rule, Mr. Hayden "gathered material that would assist [him] in making the recommendation to the governing board," which included discussions with members of the Vegetation Management Division, the contract administrator, his deputy, and counsel, and a review of documents pertaining to the matter. The evidence shows that because of the breach, the District incurred additional costs due to an "inordinate amount of staff time supervising Enviroglades during the time they performed at SandHill Crane." This included additional site visits, inspections, and monitoring by the staff, numerous meetings with Respondent's representatives, the preparation of written communications, and the provision of further instructions and guidance not normally given to the contracting entity. Mr. Hayden also took into consideration the fact that the District incurred additional expenses in purchasing herbicides while Respondent attempted to complete the job. In all, the District says it incurred an economic impact of $6,264.15. (Mr. Hayden's testimony is unclear as to whether that amount is for the herbicides alone, or whether it also includes the value of the additional staff time expended on this job. It is assumed, however, that this amount represents the cost of the herbicides only, as this would be consistent with the District's Final Order.) Finally, Respondent's inability to complete the work "put the job performance into the rainy season," which caused a substantial delay in getting the project finished. It can reasonably be inferred from the evidence that because of the delay, the site could not be completed by another contractor until a new fiscal year (Fiscal Year 2006), at which time it would have to treat not only the normal vegetation growth which occurs from year to year, but also any targeted vegetation not treated by Respondent in 2005.2 On November 9, 2005, Mr. Hayden recommended that given these considerations, Respondent should be placed on the temporarily suspended list for a period of one year. The Governing Board accepted this recommendation and a Final Order was entered on November 10, 2005. This appeal followed. At hearing, among other things, Respondent contended that the $50,000.00 was insufficient to treat the entire site, and because the Contract was a time and materials contract, Respondent could do as much as it could for that amount, and consistent with District practice on other contracts, then request additional work orders to complete the project. If a contractor expresses concern about going over the ceiling amount in a work order in order to complete a job, the District customarily meets with the contractor to assess the property. This can occur before the job begins, during the job, or near the completion of the work. In determining whether funding is adequate for treatment at a particular site, and additional work orders should be issued for a job, the District takes into consideration such matters as the job performance of the contractor at the time the request is made, the manner in which the money to date has been expended by the contractor, any new conditions unknown to the District at the time the work order was written (such as access problems), and any other circumstances that may affect the price of the work. There are also certain types of sites and work that have constantly changing conditions that often require more than one work order. Examples are the District's Stormwater Treatment Areas (STAs) and the spraying of exotic vegetation in canals. The evidence suggests that Respondent had a work order under the Contract for one such area known as "STA One East." The SandHill site did not fall into either category. Respondent correctly points out that the District issued two work orders for the same site in 2003, and it has issued additional work orders to other contractors to complete a job, including the STA One East job, which Respondent was then performing under the same Contract. In the case of the work performed on the SandHill property in 2003, the contractor was doing the first herbicidal treatment of the site, it was meeting the minimum performance standards under its contract, and the District agreed that the contractor needed and deserved additional money to complete the job. Unlike that situation, Respondent failed to meet the minimum performance standard under the Contract, the District (and SandHill's land manager) did not believe that $50,000.00 worth of work had been performed, and therefore no additional work orders were justified. To issue work orders under these circumstances would be in direct conflict with Subsections 4.4.2 and 4.4.3 of the Contract. As to the issuance of a second work order for the STA One East job, STAs and canals are uniquely different from other projects (such as SandHill) and often times require additional work orders to complete the job. Respondent also contends that the District rule governing cure notices does not contain any prohibition against extending the cure period, and there is no evidence to justify not extending the period for another ten working days when the job was not completed on June 30, 2005. Neither Florida Administrative Code Rule 40E-7.215(3), which defines a "cure notice," or 40E-7.216, which describes the procedure for issuing one, address the issue of whether or not an extension of time to satisfy a cure notice can be granted. Here, the evidence does not show that the District was arbitrary or capricious or otherwise abused its discretion by failing to approve a second extension of time for Respondent to complete the work. Respondent further suggests that after the meeting on May 31, 2005 (which was two months after the work should have been completed), it was prohibited by the District from entering the SandHill site to finish the work for several weeks. The evidence shows that the District's primary concern was to get the job completed as soon as possible, given the fact that the rainy season began in June. Although there may have been some confusion on Respondent's part, particularly since its counsel instructed it not to enter the property until permission was given, there is no credible evidence that any District staffer told Respondent that it was prohibited from entering the site, or that retreatment must be delayed until a treatment plan had been formally approved by the District. Indeed, the evidence shows that Respondent had keys to the property at all times, and notification to the Vegetation Management Division is all that would have been required to access the site. Respondent further contends that it was confused over the language in Section 4.4.2 of the Contract calling for "90% control of targeted vegetation," that the cited provision is ambiguous, and that it did not learn the actual scope of the work until specific instructions were given after the Cure Notice was issued. Given the fact that Respondent's representatives attended a negotiation meeting and a contractor's review meeting, Mr. Bless visited the site prior to the beginning of the work, and no other contractor has ever been confused by this language, this argument has been rejected. All other contentions raised by Respondent have either been addressed in other Findings of Fact, or they are deemed to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order determining that Eco-Engineering, LLC, breached its Contract C-OT040866 in a material respect, and that it be placed on the temporarily suspended list from doing business with the District for a period of one year. DONE AND ENTERED this 25th day of July, 2006, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 25th day of July, 2006.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Respondent, William R. Daniels, has been a farm labor contractor since 1949. Respondent retained the services of Edward J. Smith to assist him in fruit harvesting activities during the 1987 season. On February 18, 1988, Tommy L. Sumpter, a Compliance Officer employed by Petitioner, performed a compliance check on fruit harvesting activities located off 66th Avenue in Vero Beach, Florida. The compliance check by Sumpter revealed, that Edward J. Smith was supervising citrus workers on behalf of Respondent. Smith transported workers to the citrus field in Vero Beach in van owned by Respondent. Smith displayed his Federal Certificate of Registration which was valid through December 1988. Smith displayed his State Certificate which expired in December 1987. A confirmation check of Smith's Florida Certificate of Registration reveals that his certificate, in fact, expired on December 31, 1987. Smith registered at the Petitioner's Fort Pierce Job Service Office on February 23, 1988. Mr. Smith was cited for failing to register as required by section 450.30, Florida Statutes. Respondent submitted a verification of employment form which indicates that Smith was employed by him on October 15, 1987, and was paid $75.00 minus social security contributions, per truck load of citrus harvested by Smith's workers. By letter dated May 3, 1988, Respondent was issued the subject Administrative Complaint and notified that a civil money penalty was being assessed against him in the amount of $500.00 on the basis that he contracted for the employment of farm workers with a farm labor contractor before that contractor displayed a current certificate of registration issued by Petitioner. When Respondent retained the services of Smith, as a farm labor contractor, Smith's Florida Certificate of Registration was expired and he therefore could not have displayed a current certificate of registration to Respondent before he was employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order imposing a $500.00 civil penalty against Respondent payable within thirty days of the issuance of its final order, for contracting for the employment of farmworkers with a farm labor contractor before the farm labor contractor displayed to him a current certificate of registration issued by Petitioner. DONE and ORDERED this 19th day of January, 1989, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1989. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Suite 117, Montgomery Building 590 Executive Center Circle East Tallahassee, Florida 32399-2152 William R. Daniel 227 Sterrett Circle Port St. Lucie, Florida 33395 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
