The Issue This matter began with the filing of a complaint by Homestead Tomato Packing Company, Inc., (Homestead Tomato) with the Florida Department of Agriculture asserting that it was due $9,502.50 for tomatoes sold January 21, 1985, to Seymour Cohen Brokerage Company (Cohen Brokerage). While Cohen Brokerage did not appear, due to the death of the owner, Seymour Cohen, the surety on its Agricultural Products Bond, Fidelity and Deposit Company of Maryland did appear. Because it represents the interest of Cohen Brokerage, in this order its position will be characterized as that of Cohen Brokerage. Cohen had already paid $16,360.00 for the tomatoes. The dispute centers upon the agreement between the parties as to the price of the tomatoes. The parties agree that the price was to be set after the tomatoes were shipped, due to an impending freeze which had caused volatility in the price for tomatoes. Homestead Tomato contends that other purchasers bought tomatoes at about the same time and agreed to the price which Homestead Tomato claims is due from Cohen Brokerage. Cohen Brokerage maintains that the price claimed is excessive, and that the payment made was full payment.
Findings Of Fact Homestead Tomato Packing Company, Inc., sells tomatoes as agent for Strano Farms of Florida City, Florida, which produces tomatoes. Cohen Brokerage is a licensed dealer in agricultural products holding license number 3047, which is supported by a bond written by the Fidelity and Deposit Company of Maryland, number 9634509. Seymour Cohen died, apparently before the complaint in this action was filed. See the Verified Suggestion of Death of Party and Motion to Dismiss filed on June 26, 1986. On Thursday, January 17, 1985, Rosario Strano, the President of Homestead Tomato, learned that a freeze would occur in South Florida on or about January 22, 1985. Strano notified Homestead Tomato's sales staff, including Thomas Banks, that beginning January 19, 1985, all sales were to be made at prices to be determined following the freeze. On January 21, 1985, Cohen Brokerage, acting through Rick Cohen (the son of Seymour Cohen, now deceased), purchased 1,600 boxes of Strano Pride #25, 6X7 (medium) tomatoes. Both parties testified that the price was not established on Monday, January 21, but that it would be established "sometime in the middle of the week" (Testimony of T. Banks, Transcript 177)) on or about Wednesday, January 23, 1985 (Testimony of R. Cohen, Transcript 225). This is consistent with the brokerage confirmation from Cohen Brokerage dated January 21, 1985, which was belatedly submitted to Homestead Tomato, stating that the tomatoes were "to be priced on or about Wednesday, 1/23/85, in line with Florida Tomato industry Market". The parties intended that the tomatoes would be priced by Wednesday, January 23, 1985, in accordance with the market price for U.S. number one tomatoes 85 percent or better. The freeze did occur on January 21 and 22, 1985, which caused a shortage of high quality unfrozen tomatoes. The expectation of the freeze had caused uncertainty in the market price for tomatoes during the period January 19 through January 25, 1985. From January 19 through January 22, 1985, Homestead Tomato sold 43 loads of tomatoes to buyers at prices to be determined later. On Wednesday, January 23, 1985, Rosario Strano set his price for 6x7 Strano Pride tomatoes at $16.00 a box and told sales staff to inform those who had purchased from Homestead Tomato before the $16.00 per box price had been set that they could return the tomatoes if they were dissatisfied with his price. According to Mr. Strano, he was unable to compare his prices the week after the freeze to what competitors were charging for like quality, unfrozen tomatoes because there were not enough others with tomatoes to make a price comparison. (Transcript 44-45). On January 23, Homestead Tomato's salesman Banks called Rick Cohen and gave him the price. The Florida Fruit and Vegetable Report is a market quotation service for agricultural commodities published by the United States Department of Agriculture, Agricultural Marketing Service, Fruit and Vegetable Division and the Florida Department of Agriculture and Consumer Services, Division of Marketing, Bureau of Market News. It is used and generally relied on by those in agriculture. It shows that tomatoes sold January 21, 1985, were sold with sales prices to be established later. The January 24th edition of the report shows that on January 23, 6x7 tomatoes sold for $16.00 per box. Homestead Tomato also introduced evidence that other buyers purchased 6 x 7 tomatoes which were shipped between January 19 and January 23, 1985, who were invoiced at $16.00 per box and paid that amount. This evidence of price is undercut, however, by the testimony of Rosario Strano with respect to disputes he had with other tomato purchasers, such as acme Pre-Pack over his price of $16.00 for medium tomatoes. Under cross-examination about whether he had reduced his billing or given a discount to protesting purchasers, Mr. Strano testified: The only -- Way back last -- latter part of February, I told them I would not give rebates. I told Mr. -- when they bought future tomatoes, when we got back in the tomatoes, we would work out an arrangement. I never quoted $2. I heard quoted $2, 4, 6, 8. I never quoted the price. I told them that I understood their plight but that I was not -- they had to take that then and there, settle and pay in full, or I was not going to do anything, and [there] was a reason for that, [which] was to expedite the collections of some very, very serious money, as you can see in this [case] right here. Transcript pages 165-166. Cohen Brokerage was invoiced $16.00 per box on January 25, 1986, for the tomatoes it had received on January 21, 1985. The total amount of the bill was $25,862.50. Cohen Brokerage made a payment on the invoice in the amount of $16,360.00 which then caused Homestead Tomato to file the instant complaint for the balance billed of $9,502.50.
Recommendation It is RECOMMENDED that the complaint filed by Homestead Tomato against Cohen Brokerage be dimissed. DONE AND ORDERED this 2nd day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 2nd day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3923A The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Covered in Finding of Fact 4. 4. Covered in Finding of Fact 5. 5. Covered in Finding of Fact 6. 6. Covered in Finding of Fact 6. 7. Covered in Finding of Fact 7. 8. Covered in Finding of Fact 7. 9. Covered in Finding of Fact 8. Covered in Finding of Fact 9. Covered in Finding of Fact 10. Covered in Findings of Fact 9 and 11. Covered in Finding of Fact 11. Rejected as argument. Covered in Finding of Fact 11. Covered in Finding of Fact 11. Rejected as inconsistent with the more significant testimony of Mr. Strano relied on in Finding of Fact 9. Rejected as unnecessary. Rejected as inconsistent with other evidence, see for example Petitioner's Exhibit #29. Covered in Finding of Fact 12. Covered in Finding of Fact 13. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 6. Rejected because the prices quoted were asking prices but not necessarily market prices. See Conclusion of Law 3. Rejected as a recitation of evidence. Rejected as a recitation of evidence. Rejected as a recitation of evidence. Rejected as unnecessary. Rulings on Proposed Findings of Fact Submitted by Respondent (Seymour Cohen Brokerage Company) Covered in Finding of Fact 1. Covered in Finding of Fact 3 and the statement of the issues. Covered in Finding of Fact 6. Covered in Finding of Fact 7. Covered in Finding of Fact 9. To the extent relevant, covered in Finding of Fact 11. Covered in Finding of Fact 12. Covered in Finding of Fact 13. Covered in Finding of Fact 6. Rejected as a conclusion of law. To the extent necessary, covered in Finding of Fact 11. Covered in Finding of Fact 11. Rejected because the testimony of Mr. Scherer was unpersuasive because the methodology implied to determine the price of $10.00 per box for 6x7 tomatoes was not adequately explained. Rejected as unnecessary. Sentence 1 rejected as unnecessary. Sentence 2 covered in Finding of Fact 9. Rejected as unnecessary. COPIES FURNISHED: Alexander J. Pires, Jr., Esquire 2501 M. Street, N.W., Suite 400 Washington, D.C. 20037 Murray H. Dubbin, Esquire 1000 Rivergate Plaza 444 Brickell Avenue Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 =================================================================
The Issue Does the Florida Department of Agriculture and Consumer Services (Department)'s proposed rule 5E-1.023 constitute an invalid exercise of delegated legislative authority?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: On February 2, 1996, the Department published in the Florida Administrative Weekly, Volume 22, Number 5, the text of proposed rule to be known as Rule 5ER-1.023, which the Department indicated that it intended to adopt. The proposed rule reads: 5E-1.023 Fertilizer. Procedures for Landowners and Leaseholders to Submit the Notice of Intent to Comply with Nitrogen Best Management Practices (BMPs). Definitions "Interim Measures" means primarily horticultural practices consistent with the fertilizer recommendations published by the University of Florida or the Florida Agricultural and Mechanical University, or modified by the Department, to reflect public input. "Notice of Intent to Comply with BMPs" means a notice of intent to comply with nitrogen Interim Measures and/or BMPs, or to no longer apply fertilizers or other soil-applied nutritional materials containing nitrogen. Notice of Intent to Comply with Nitrogen BMPs and all document requests made of the department must be submitted to the Environmental Administrator, Florida Department of Agriculture and Consumer Services, Division of Agricultural Environmental Services, 3125 Conner Blvd., Tallahassee, Florida 32399-1650. Proof of providing Notice of Intent to the Department must be retained by the submitter. The Notice must contain the following information related to the implementation of the BMPs and Interim Measures: the name of the BMP or Interim Measures to be followed, the date of implementation, the name or other identification of the parcel or land unit upon which the practices will be implemented, the county(s) where said parcels are located, and the signature of the landowner(s) or leaseholder(s). The Department will consider requests to: (a) adopt Best Management Practices and Interim Measures as defined in this rule, other than those incorporated herein, in accordance with Section 576.045(3)(b), Florida Statutes; and, (b) modify adopted Best Management Practice and Interim Measures as defined in this rule based upon submission of adequate data in accordance with Section 576.045(3)(b), Florida Statutes. Approved Nitrogen BMPs Shadehouse Grown Leatherleaf Ferns. The BMP for Shadehouse grown leatherleaf ferns found in the University of Florida, Cooperative Extension Service, Institute of Food and Agricultural Sciences Bulletin 300 (published February 1995), Irrigation and Nutrient Management Practices for Commercial Leatherleaf Fern Production in Florida" is hereby adopted. Copies may be obtained from Central Florida Research and Education Center, Institute of Food and Agricultural Sciences, University of Florida, 2807 Binion Road, Apoka, Florida 32707. The associated record keeping requirements specified in "Record- keeping For The Nitrogen Best Management Practices For Shadehouse Grown Leatherleaf Ferns" dated 12-01-95 is also adopted. Copies are available from the Department of Agriculture and Consumer Services, Division of Agricultural Environmental Services, 3125 Conner Blvd., Doyle Conner Building, Tallahassee, Florida 32399-1650. (a) Approved Nitrogen Interim Measures. Citrus. [The approved "Nitrogen Interim Measure For Florida Citrus", dated 12-01-95], and the associated recordkeeping requirements dated 12-01-95 [are hereby adopted and incorporated by reference into this rule]. Copies may be obtained from the Department of Agriculture and Consumer Services, Division of Agricultural Environ- mental Services, 3125 Conner Blvd. Doyle Conner Building, Tallahassee, Florida 32399-1650. The foregoing documents are incorporated by reference into this rule. [Emphasis added] Specific Authority 576.045 FS. Law Implemented 576.045. History - New Section 576.011(2), Florida Statutes, provides: (2) "Best-management practices" means practices or combinations of practices determined by research or field testing in representative sites to be the most effective and practicable methods of fertilization designed to meet nitrate groundwater quality standards, including economic and technological considerations. Because of the lack of research or field testing with citrus to determine the most practicable methods of fertilization of citrus in conjunction with nitrate groundwater quality standards, the Department is proposing the Nitrogen Interim Measure for Florida Citrus rather than Best-management practices for citrus. Interim Measures is not defined by statute. However, the Department has defined Interim Measure in proposed rule 5E-1.023. For 1, 2, and 3 year old citrus groves, the Approved Nitrogen Interim Measure For Florida Citrus (Nitrogen Interim Measure), dated 12-01-95, provides for maximum nitrogen (N) rates per calendar year to be determined by set amounts of N per tree. The range of annual N rates for groves four years old or older is set out in pounds per acre. For oranges the range is 120 - 240 pounds of N per acre per year. For grapefruit the range is 120 - 210 pounds N per acre per year. On February 21, 1996, Petitioners filed a Petition challenging the Department's proposed rule 5E-1.023 on the basis that the proposed rule was an invalid exercise of delegated legislative authority. More specifically, the Petitioners challenges the Nitrogen Interim Measure dated 12-01-95, and more particularly, that portion of the Nitrogen Interim Measure setting the range of annual N rates for grapefruit and oranges in groves four years old or older which Petitioners contend is arbitrary and capricious. GBS Groves, Inc. is a Florida corporation which owns a grapefruit grove in Polk County, Florida and such corporation is solely owned by James T. Griffiths and Anita N. Griffiths. Withers and Harshman, Inc. is a Florida corporation owning grapefruit groves in Polk County and Highlands County, Florida with its principal place of business located in Sebring, Highlands County, Florida. Petitioners would be substantially affected by the adoption of this proposed rule and thereby have standing to bring this action. The parties have stipulated that: on November 5, 1993, the Department gave notice in the Florida Administrative Weekly of its intent to adopt proposed rule 5E-1.023; and proposed rule 5E-1.023 implements Section 576.045(6), Florida Statutes, by: establishing procedures for landowners and leaseholders to submit notice of intent to comply with nitrogen best management practices (BMPs) and interim measures; (2) adopting a specific BMP for shadehouse grown fern; and (3) adopting an interim measure for citrus. Petitioners concede that their challenge to the proposed rule is based solely on Section 120.52(8)(e), Florida Statutes, in that the proposed rule is arbitrary and capricious. Prior to, and independent of, the Department's work on proposed rule 5E-1.023, the faculty of the University of Florida, Institute of Food and Agricultural Sciences (IFAS), had begun work on revising IFAS's citrus fertilization guidelines. This revision eventually became SP 169, Nutrition of Florida Citrus Trees (SP 169), and supersedes the Agricultural Experiment Station Bulletin 536 series A through D, Recommended Fertilizers and Nutritional Sprays for Citrus (Bulletin 536), which had provided guidelines for Florida citrus fertilization since 1954. SP 169 is the official position of IFAS on the subject of nutritional requirements for citrus in Florida. Sometime around August 1994, Department met with and requested IFAS to provide the Department with a interim measure for citrus fertilization which could be adopted by the Department. The Department reviewed the first draft of the proposed interim measure for citrus fertilization prepared by IFAS and concluded that it would not be acceptable to the citrus industry because it was too detailed. Thereafter, the first draft was revised by IFAS and now appears as: 6. Fertilizer Guidelines, SP 169, pages 21 through 25. While IFAS's interim measure contains many recommendations, the recommendation most relevant to this proceeding is the recommended range of the annual rate of N for groves four years old or older. The recommended rates are expressed in pounds of N per acre per year. For oranges a range of 120 - 200 pounds of N per acre per year is recommended. For grapefruit a range of 120 - 160 pounds of N per acre per year is recommended. For other varieties a range of 120 - 200 pounds per acre per year is recommended. SP 169 also provides the criteria, including, but not limited to, soil load, varieties, leaf and soil analysis, fertilizer placement and application frequency and timing for determining a rate within the recommended range and to exceed the upper level of the range. Using these criteria a range of 120 - 180 pounds of N per acre per year for grapefruit can be supported and range of 120 - 240 pounds of N per acre per year for oranges can be supported. SP 169 also recommends that all available sources of N, including, but not limited to, organic sources and foliar applications, be included in the calculation of the annual N rate. Also recommended is that while the annual N rate may be exceeded in any given calendar year, the average annual rate over three years should not exceed the guidelines. Subsequent to receiving the proposed citrus interim measure from IFAS, the Department held a series of meetings and public workshops wherein growers and representatives from the fertilizer industry and grower organizations were given an opportunity to be heard and to make suggestions. In an effort to make the interim measure more flexible so as to gain industry acceptance, the Department compromised on several of the citrus fertilization guidelines set out in SP 169. The comprises were: (a) not to include any N from foliar application in the calculation of the annual N rate; (b) to include only fifty percent of the total N content of the source from all organic sources in the calculation of the annual rate of N; and (c) increase the recommended range of the annual rate of N for grapefruit and oranges to 120 - 210 pounds per acre and 120 - 240 pounds per acre, respectively, without considering the criteria set out in SP 169 for determining a rate within the recommended range or to exceed the upper limits of the range. In deciding not to include any N from foliar application in the calculation of the annual rate of N, the Department considered: (a) the fact that N from foliar application would be quickly absorbed through the leaf and reduce the likelihood of any N leaching into the ground water; (b) that the cost of foliar application of N would prevent the indiscriminate use of foliar application of N; and (c) that foliar application would give the grower wishing to obtain maximum yield a source of N not included in the calculation of the annual rate. However, the Department did not consider the additional cost of the N to the grower who heretofore had used sources of N other than foliar application for obtaining maximum yield. In making the decision to include only 50 percent of the content of the source of N from all organic sources the Department took into consideration the public policy of encouraging the use of municipal sludge and other similar products, and the fact that on an average only fifty percent of the content of the source of N would be an available source of N. Although IFAS disagreed with the Department on not counting all the N in organic sources, IFAS did agree that since it was not known how much of the N in organic sources was immediately available, the figure of 50 percent of the content of the source was as good a figure as any. Increasing the range of the annual rate of N per acre from 120 - 160 pounds to 120 - 180 pounds for grapefruit and from 120 - 200 pounds to 120 - 240 pounds for oranges came about as a result of a meeting on April 20, 1995, at Florida Citrus Mutual. Apparently, the justification for the increase was due to the recommendations contained in the Criteria for selecting a rate within the recommended rate set out in SP 169, Fertilizer Guidelines which provides: Crop load. Nitrogen requirements vary as crop load changes. Replacement of N lost by crop removal is the largest requirement for N. Groves producing low to average crops do no require high fertilizer rates. Higher rates may be considered for very productive groves. Rates for oranges up to 240 lb per acre may be considered for groves producing over 700 boxes per acre. However, rates above 200 lb per acre should be used only if there is a demonstrated need based on leaf analysis, and if optimal fertilizer placement, timing, and irrigation scheduling are employed. For grapefruit producing over 800 boxes per acre, 180 lb N may be considered. The increase in the range of the annual rate per acre of N from 120 - 180 pounds to 120 - 210 pounds for grapefruit came about as result of Dr. Koo's concern over a potassium deficiency. Most fertilizers are formulated on a 1 to 1 ratio of N and potassium, and the application of only 180 pounds of potassium could result in a potassium deficiency. The Department did not consider if citrus trees could absorb N and potassium in a ratio other than a 1 to 1 which would have allowed the proper application of potassium without increasing the annual N rate. The following language appears in SP 169, Fertilizer Guidelines, 6.2 Bearing Trees: Rates of 0.4 lb N per box for oranges land lb N per box for grapefruit were recommended previously. With good manage- ment, oranges frequently exceed 600 boxes per acre and grapefruit production is commonly above 800 boxes per acre. Use of lb N per box in groves producing over 500 boxes per acre results in application of over 200 lb N per acre. The advantage of rates above 200 lb has not been demonstrated. Economic benefits are quest- ionable, and the potential for groundwater contamination increases. A significant yield response to rates above 200 lb N per acre appears unlikely, and other management practices should be first evaluated if grove performance at 200 lb N per acre is not satisfactory. Experts, both growers and researchers, testifying for Petitioners and previous IFAS Research Bulletins on citrus fertilization, disagree with the statements: (a) that the advantage of annual rates of N above 200 pounds per acre has not been demonstrated; (b) that economic benefits of annual rates of N above 200 pounds per acre are questionable; and (c) that a significant yield response to annual rates of N above 200 pounds per acre appears unlikely. This language also appears to be in conflict the language quoted above dealing with the criteria, "Crop load". Petitioners' experts and previous IFAS Research Bulletins disagree with the conclusion that there is a basis for a higher annual rate of N per acre for oranges over grapefruit. On November 14, 1995, the Department presented the citrus Interim Measure which recommended a range of 120 - 210 pounds N per acre annual rate for grapefruit and a range of 120 - 240 pounds N per acre annual rate for oranges to the Fertilizer Technical Council. After hearing testimony on the merits of the citrus Interim Measure, the Fertilizer Technical Council voted to recommend changing the citrus Interim Measure to provide that oranges and grapefruit be treated the same with a range of annual N rate per acre of 120 - 240 pounds for both. The Commissioner of Agriculture did not accept the recommendation from the Fertilizer Technical Council. In addition to the Fertilizer Technical Council, a large segment of the citrus industry, including, but not limited to, growers and grower organizations, expressed their approval of using the same range of annual rates of 120 - 240 pounds of N per acre for both oranges and grapefruit. However, the Department had already compromised by increasing the maximum annual rate of nitrogen per acre for grapefruit by 30 pounds above the maximum annual rate suggested by IFAS in SP 169, while leaving the maximum annual rate of nitrogen per acre for oranges at 240 pounds, the maximum rate suggested by IFAS in SP 169.
The Issue Whether Respondent owes payment to Petitioner for tomatoes sold by Petitioner to Respondent and, if so, in what amount payment is due.
Findings Of Fact Six L's Packing Company, Inc., (Six L's) is a corporation doing business in Immokalee, Florida. Insofar as relevant to this case, Six L's produces tomatoes for shipment and sale. DeBruyn Produce Company (DeBruyn) is a corporation headquartered in Michigan and doing business in Castleberry, Florida. Insofar as relevant to this case, DeBruyn purchases produce for resale to other buyers. On March 3, 1992, DeBruyn contacted Six L's and inquired about availability of "vine ripe" tomatoes. DeBruyn subsequently placed orders for Six L's tomatoes. DeBruyn purchased the tomatoes on behalf of and for resale to C. H. Robinson Company. Under the terms of the sales, the tomatoes were purchased F. O. B. ("Free On Board") point of shipping. The term F.O.B. point of shipping means that the buyer assumes responsibility for product in suitable shipping condition at time of delivery from the seller to the buyer. Otherwise stated, Six L's was not responsible for shipment of the tomatoes. The tomatoes were shipped pursuant to arrangements made by representatives of DeBruyn and C. H. Robinson Company. DeBruyn did not inform Six L's of the final destination of the tomatoes. DeBruyn asserts that, as to both loads of tomatoes, the tomatoes were defective when shipped and were not in suitable shipping condition. The greater weight of the evidence establishes that during all relevant periods of time, tomatoes shipped by Six L's were inspected pursuant to federal guidelines by a state inspector prior to shipment and were found to be within tolerances allowed by the State of Florida for shipment outside the state. On March 4, 1992, Six L's sold 640 cartons of tomatoes to DeBruyn. The tomatoes were largely mature green, with some breakers and pinks. Prior to shipment of the March 4 tomatoes, the Florida inspector noted that the produce displayed internal discoloration (commonly referred to as "gray wall") not exceeding four per cent of the produce examined. Such meets standards for suitable shipping condition of the produce. Gray wall is a common disorder which occurs throughout agricultural regions. The causes of gray wall are unknown. The malady causes discoloration spreading from the stem through the fruit. If gray wall occurs, it will be found throughout the entire harvest from a specific growing field. Tomatoes ripen at a temperature between 55 and 75 degrees. Gray wall is exacerbated when tomatoes are chilled to below 50 degrees. The damage will become apparent when the tomatoes become warm and begin to further ripen. DeBruyn took delivery of the produce and shipped it to Salt Lake City, Utah, where it arrived on March 8, 1992. Upon arrival, the quality of the tomatoes was unsatisfactory. An inspection was requested and performed on March 10, 1992. The inspection at the delivery point indicated gray wall discoloration of approximately 70 per cent of the lot. The greater weight of the evidence establishes that such damage occurred through improper chilling and shipment of the tomatoes after control of the produce passed to DeBruyn. On March 6, 1992, Six L's sold 1,120 cartons of tomatoes to DeBruyn. Again, the tomatoes were largely mature green, with some breakers and pinks. Prior to shipment of the March 6 tomatoes, the Florida inspector noted that the produce displayed internal discoloration (commonly referred to as "gray wall") not exceeding four per cent of the produce examined. As previously stated, such produce meets standards for suitable shipping condition. DeBruyn took delivery and shipped the produce to Salt Lake City where it arrived on March 10, 1992. Again, the quality of the tomatoes was unsatisfactory upon arrival. An inspection was requested and performed on March 11, 1992. The inspection at the delivery point found light red to red tomatoes. A large quantity of the tomatoes were bruised and rotting. The greater weight of the evidence establishes that such damage occurred through lack of proper refrigeration of the produce during shipment. DeBruyn asserts that the March 6 tomato shipment was improperly packed in bulk boxes and should have been packed in layers to prevent bruising during the shipment to Salt Lake City. There is no evidence that DeBruyn informed Six L's that the tomatoes should have been packed in layered boxes or that the March 6 tomatoes would be shipped a substantial distance. Six L's was to have received $11,888 for the March 4 shipment. Six L's was to have received $20,167.50 for the March 6 shipment. The total of the two shipments is $32,055.50. DeBruyn salvaged 354 cartons of the March 4 load of tomatoes and dumped the remainder. The salvaged tomatoes were sold for a total of $6,170. DeBruyn paid to Six L's $4,953.60 for the produce which Six L's rejected. DeBruyn salvaged 640 cartons of the March 6 load of tomatoes and dumped the remainder. The salvaged tomatoes were sold for a total of $10,459.10. DeBruyn paid to Six L's $8,897.50 for the produce which Six L's retained. Six L's is due a balance of $23,158 for the tomato shipments. Six L's asserts that, based on the sales invoices, it is due interest on the outstanding balance due at an annual rate of 18 per cent compounded monthly. However, none of the sales invoices relevant to this proceeding indicate any agreement between the parties as to interest charges and the evidence fails to establish that any interest is due to be paid.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: The Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent DeBruyn Produce Company to pay to Petitioner Six L's Packing Company, Inc., the sum of $23,158. DONE and RECOMMENDED this 17th day of June, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4925A To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3, 7-9, 11, 13-14. Rejected as unnecessary or cumulative. 15. Rejected. Request for fees is not supported by citation to legal authority. 16-17. Rejected, not supported by the greater weight of credible and persuasive evidence. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6-8, 13, 18. Rejected, contrary to credited evidence. The fact that tomatoes had ripened between inspections does not preclude improper shipping conditions. The greater weight of the evidence establishes that sufficient time passed between initial inspection, shipping, delivery, and subsequent inspection to permit the tomatoes to have continued ripening. 9, 19-21, 23, 29. Rejected, unnecessary. 17, 28. Rejected, immaterial. 22. Rejected, not supported by greater weight of credible and persuasive evidence. COPIES FURNISHED: The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Mark S. London, Esq. 4030-C Sheraton Street Hollywood, Florida 33021 Clayton D. Simmons, Esquire 200 West First Street, Suite 22 Post Office Box 4848 Sanford, Florida 32772-4848
Findings Of Fact Petitioner, Monticello Nursery Company of Florida, Inc., is a corporation whose address is Post Office Box 190, Monticello, Florida. (Petitioner's Complaint) Respondent, Paul Pent, d/b/a Paul Pent Landscape Company, is located at 1660 Emerson Street, Jacksonville, Florida. At the time of the transactions involved, Respondent was licensed as a dealer in agricultural products under License No. 3531. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985) Corespondent, Transamerica Insurance Company as surety provided bond number 5182-39-34 for Respondent in the amount of $4,750. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985) Petitioner's complaint for $6,159.30 is based upon two invoices for nursery plants: Invoice 1060 in the amount of $2,612.80, and Invoice 1308 in the amount of $6,109.30. From the total of $8,722.10 is deducted "payments and credit" of $2,562.80. (Petitioner's Complaint) The figures on the complaint and the attached invoices accurately reflect the statement of account for the subject transactions. (Testimony of Sandy Mazza) Invoice No. 1060 is for several kinds of nursery plants and is dated 12/31/84. On the invoice the order date is 10/26/84 and the "ship date" is 12/07/84. Whether the sale occurred upon order, shipment or date of invoice is immaterial, as all three dates are more than nine months prior to the filing of the complaint on September 5, 1985. Invoice No. 1308 is for a quantity of crepe myrtle trees and is dated 1/31/85. The order date and "ship date" are both 1/28/85. One invoice supports, and the other conflicts with, the date of 12/31/84, stated on the face of the complaint as the "date of sale". The invoices are competent evidence as supported by the bookkeeper's testimony. The finding in the November 15, 1985 order of the Department of Agriculture and Consumer Services that the sale totaling $6,159.30 was made on September 5, 1985, conflicts with both the complaint and the invoices and is unsupported by any evidence in the record.
Recommendation Based on the foregoing, it is recommended that a Final Order be issued requiring Respondent Paul Pent, pay Petitioner $3,546.50. The Final Order should specify that failure to comply will result in a requirement that Transamerica Insurance Company pay said sum to the Department of Agriculture and Consumer Services for distribution to Monticello Nursery. DONE and RECOMMENDED this 1st day of May, 1986, in Tallahassee, Florida. MARY CLARK, 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 1st day of May, 1986. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 John C. Cooper, Esquire Douglas, Cooper & Coppins, P.A. 211 East Call Street Tallahassee, Florida 32302-1674 Mr. Paul Pent Pent Landscape Company 1660 Emerson Street Jacksonville, Florida 32207 Transamerica Insurance Company 1150 South Olive Street Los Angeles, California 90015 Joe W. Kight, Chief Division of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Ron Weaver, Esquire Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Room 513 Tallahassee, Florida 32301
The Issue Whether Respondent is indebted to Petitioners in the amount of $7,152, as alleged in Petitioner's complaint. The hearing in this matter was originally set for January 22, 1979. Respondent orally requested a continuance on January 19, 1979, which was granted. At the rescheduled hearing on February 26, 1979, neither Respondent nor any representative in his behalf appeared at the hearing. A Supplemental Notice of Hearing had been issued by the Hearing Officer on February 2, 1979. In view of Respondent's absence, the matter was tried as an uncontested proceeding.
Findings Of Fact Petitioners are producers of agricultural products in Florida. Respondent Don R. Smith, d/b/a Wabash Valley Sales, Vincennes, Indianna, is a licensed dealer in agricultural products pursuant to Chapter 604, Florida Statutes. Respondent was bonded pursuant to Chapter 604 as such a Florida dealer in the amount of $20,000 during the period June 4, 1977 to June 3, 1978. Surety on the bond was Fidelity and Deposit Company of Maryland, Baltimore, Maryland. The bond is conditioned to secure the faithful accounting for and payment to producers of the proceeds of all agricultural products handled or sold by the bonded dealer. (Testimony of Addison, Petitioners' Exhibit 4) During the spring of 1978, Petitioners made arrangements with M. A. Bridgeman, representative of Respondent, to grade, pack, sell, and ship tomatoes produced by Petitioners at varying prices per box. It was agreed between the parties that Respondent would be paid $1.60 per box for the above services and that the balance of the selling price would be remitted to Petitioners. There was no written contract between the parties, as is customary in the trade, nor any specified period for accounting for the proceeds of the sales. (Testimony of Addison, Bridgeman, Complaint) During the period April 10 to May 5, 1978, petitioners provided a total of 2,460 boxes of various size tomatoes to be sold for the total price of $12,588.80, in accordance with the terms of their agreement. Six of the lots were sold in April, 1978, and two were sold on May 3 and May 5, 1978, to various in-state and out-of-state purchasers by Respondent. In some instances, Bridgeman received payment from purchasers which he immediately placed in Respondent's bank account. Some payments were made directly to Respondent's place of business in Indiana. The entire sum of $12,588.80 was collected in this manner by Respondent or his agent. (Testimony of Addison, Bridgeman, Petitioners' Exhibits 2-3) Under the terms of the agreement, Respondent's fee for handling the tomatoes amounted to $3,936, leaving a balance due and owing Petitioners of $8,652.80. Although Petitioners demanded an accounting from Respondent on several occasions, Respondent did nothing in this respect until August 22, 1978, at which time he remitted a check to Petitioners in the amount of $1,500. A notation on the check indicated that it was in partial payment for tomatoes. (Testimony of Addison, Bridgeman, Petitioners' Exhibit 6) Not having received the balance of $7,152.80 from Respondent, Petitioners filed a complaint with the Florida Commissioner of Agriculture on August 30, 1978, pursuant to Chapter 604, Florida Statutes, and notice of such complaint was provided Respondent by the Department of Agriculture and Consumer Services on September 26, 1978. Respondent filed an answer to the complaint on October 10, 1978, wherein he admitted indebtedness in the amount of $5,652, but claimed that the total amount involved in the transactions was only $7,152, and further requested a hearing in the matter. (Testimony of Addison, Petitioner's Exhibits 5-6)
Recommendation That the Department of Agriculture and Consumer Services issue a final order requiring the Respondent herein to make payment in the amount of $7,152.80 to Petitioners herein within fifteen days of Respondent's receipt of the said final order. DONE and ENTERED this 9th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph S. Marcus, Esquire 317 North Krome Avenue Homestead, Florida 33030 Don R. Smith d/b/a Wabash Valley Sales Post Office Box 266 Vincennes, Indiana 47591 Earl Peterson Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
The Issue The issues for determination in this case are whether Respondent, as a licensed citrus fruit dealer, misappropriated and marketed citrus fruit owned by Petitioner during the 1992-1993 shipping season, and further, whether such actions constitute a violation of the Florida Citrus Code for which proceeds of the citrus fruit dealer's bond executed by Co-Respondent should be paid to Petitioner in satisfaction of Petitioner's claim pursuant to Section 601.66, Florida Statutes.
Findings Of Fact Petitioner, Thompson Fruit Company, is a Florida company with an office in Winter Haven, Florida. Petitioner has been in the business of buying and selling citrus fruit for many years. James Thompson, Jr., (Thompson) is the President of Petitioner. Petitioner was actively engaged in the business of buying and selling citrus fruit during the 1992-1993 shipping season. Respondent, Golden Gem Growers, Inc., is a Florida corporation located in Umatilla, Florida, and was, at all material times, a licensed citrus fruit dealer under the provisions of chapter 601, Florida Statutes. Respondent is a cooperative organization comprised of citrus fruit grower members. Respondent offers various services to its members including harvesting and marketing services. Respondent enters into individual contracts with its grower members to accept and market citrus fruit. During the 1992-1993 shipping season Respondent entered into more than one hundred contracts with its grower members relating to the acceptance and marketing of citrus fruit. Co-Respondent, Fidelity & Deposit Company of Maryland, is a surety company qualified to do business in Florida, which, pursuant to section 601.61, Florida Statutes, during the 1992-1993 shipping season, executed a citrus fruit dealer's bond for Respondent in the amount of $100,000. E.J. Higgins (Higgins) at all material times hereto was a citrus fruit grower and member of Respondent's cooperative organization. On July 23, 1991, Higgins entered into a Revised Grower Member Agreement with Respondent. In accordance with its contract with Higgins, Respondent was obligated to provide citrus fruit harvesting and marketing services to Higgins. On July 5,1990, Higgins had entered into a Crop Agreement and a separate Lease Agreement relating to a citrus grove owned by Pomco Associates, Inc., (Pomco) in Manatee, County, Florida. The grove consisted of approximately 52 acres of red grapefruit trees. The Crop Agreement made no reference to the duration of the agreement. The separate Lease Agreement between Higgins and Pomco expressly stated that the lease ended one year from the date of signing. Higgins provided Respondent with a copy of his July 5, 1990 Crop Agreement and Lease Agreement with Pomco. Respondent thereafter accepted citrus fruit from Higgins which was harvested in the Pomco grove in the 1991-1992 season, and Respondent paid Higgins for the citrus fruit from the Pomco grove at that time. In 1992 and early 1993, Higgins informed Phillip Conant, a Vice- President and Director of the Grower Division of Respondent, that Higgins was a holdover lessee under the Pomco lease, and was entitled to harvest the fruit from the Pomco grove. Under Higgins' contract with Respondent, Respondent was required to provide Higgins with harvesting equipment including trailers and boxes. Respondent was further required under the contract to accept and market the citrus fruit on Higgins' behalf. Respondent advanced Higgins $2,400 toward the marketing of the citrus fruit from the Pomco grove. On January 23, 1993, Higgins requested that Respondent provide him with trailers and boxes to set up Higgins' crew for harvesting the Pomco grove. Respondent complied with Higgins' request, and dispatched a truck and trailer with a load of boxes to the Pomco grove. The truck, trailer and boxes were clearly marked and identified as belonging to Respondent. Prior to this time, on or about December 2, 1992, Petitoner, by and through its President, James Thompson, Jr., had entered into a Purchase Contract and Agreement for the citrus fruit on the same Pomco grove in Manatee County, Florida, for the 1992-1993 season. Under the terms of the contract, Petitioner advanced Pomco $3,000 toward the purchase of the citrus fruit from the Pomco grove. Shortly after Respondent dispatched its equipment to the Pomco grove on January 23, 1993, Thompson was informed that citrus fruit was being harvested from the Pomco grove. Thompson went to the grove, observed the boxes and trailers which were identified as belonging to Respondent, and called Phillip Conant to inform Conant that Thompson had a purchase contract and agreement for the citrus fruit from the Pomco grove. Thompson furnished Conant with a copy of the Petitioner's contract with Pomco. Thompson also contacted the Manatee County Sheriff's Department to remove Higgins' harvesting crew from the Pomco grove. Respondent, by and through its director, Conant, then contacted Higgins who stated that he had obtained a legal opinion that as a holdover lessee under his prior crop agreement and lease with Pomco, he had a right to harvest the fruit from the Pomco grove. Higgins further stated that he expected Respondent to fulfill its contractual obligations to provide harvesting services and to market the citrus fruit. Conant, by telephone, informed Thompson that in light of Higgins' representations, Respondent was unsure as to whether Higgins or Petitioner had a right to harvest the fruit. In response to this information, Thompson stated that he would pursue judicial remedies to resolve the dispute. By letter dated February 4, 1993, Conant confirmed to Thompson that Respondent was taking a "hands off" position as to the dispute between Petitioner and Higgins over the citrus fruit from the Pomco grove. On February 5, 1993, Conant also sent a facsimile copy of the February 4, 1993, letter to Thompson and reiterated to Thompson that Respondent was not knowledgeable of the facts of Petitioner's dispute with Higgins, and would not be involved in the dispute. Between February 7, 1993, and February 13, 1993, Respondent accepted three shipments of citrus fruit from the Pomco grove harvested by Higgins. The three shipments totalled 1,230 boxes. All the fruit accepted by Respondent from the Pomco grove was red grapefruit. At that point in the season, the market for red grapefruit was not good. The net value received by Respondent for the red grapefruit from the Pomco grove was $.9889 per box. A reasonable average price for red grapefruit at that time was $.97 per box. Respondent received a reasonable price per box for the red grapefruit from the Pomco grove during the 1992-1993 shipping season. Respondent received a total of $2,418.86 for the red grapefruit from the Pomco grove. The harvesting costs incurred by Respondent during the 1992- 1993 relating to the Pomco fruit were $1,402.40, leaving a balance of $1,216.34. Respondent has placed the funds received from the Pomco grove fruit during the 1992-1993 shipping season in its escrow account pending a determination as to who is the rightful owner of the funds. Respondent has provided an accurate accounting of the harvesting and marketing of the Pomco grove citrus fruit during the 1992-1993 season. There has not been a judicial resolution of the dispute between Petitioner and Higgins.
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 pursuant to Section 601.66(4), Florida Statutes, dismissing the proceeding. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of May, 1995. RICHARD HIXSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1995. APPENDIX Respondent's Proposed Findings: Paragraphs 1 through 21 adopted and incorporated. Paragraphs 22 revised as to amount remaining due. COPIES FURNISHED: Commissioner Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, FL 32399-0800 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Jerri A. Blair, Esquire Post Office Box 130 Tavares, FL 32778 Ray Mattox, Esquire 170 East Central Avenue Post Office Box 917 Winter Haven, FL 33882-0917 Golden Gem Growers Post Office Box 9 Umatilla, FL 32784 Fidelity & Deposit Company of Maryland Post Office Box 1227 Baltimore MD 31203
The Issue Whether Respondents are indebted to Petitioner for agricultural products and, if so, the amount of the indebtedness.
Findings Of Fact Petitioner delivered to Respondent, Fresh Pick Farms, Inc., (Fresh Pick) a total of 932 bushels of green beans on November 21 and 22, 1992. These beans were delivered and received with the agreement that Fresh Pick would attempt to sell the beans on a consignment basis in the wholesale market. At the times pertinent to this proceeding, communication in South Florida was limited because of the aftermath of Hurricane Andrew. Telephone lines were down, packing houses and storage facilities had been destroyed, and many businesses were not operating. The packer that Petitioner customarily used was out of business. Fresh Pick was operating out of temporary facilities. Lewis Walker, the president of Fresh Pick, had inspected Petitioner's beans on November 18, 1992. Mr. Walker advised Petitioner to have his beans harvested no later than November 20, 1992. This advice was based on the condition of the beans, on the fact that there was a great deal of rain in the area, and the fact that markets slow down and prices drop as Thanksgiving approaches. The beans delivered to Fresh Pick on November 21 and 22, 1992, were damaged due to the wet weather. These beans were of such poor quality that they could not be sold given the marketing conditions. Fresh Pick made every reasonable effort to find a market for Petitioner's beans without success. After it became apparent to Fresh Pick that it would be unable to sell Petitioner's beans, employees of Fresh Pick made efforts to locate Petitioner, explain to him why the beans could not be sold, and ask him for instructions. Petitioner could not be located despite good faith efforts by Fresh Pick employees to do so. Rather than dump the unsold beans, Fresh Pick gave the beans to a charity referred to as Food Share. The disposition of the beans was consistent with industry practices in South Florida.
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 in this case dismissing the Petitioner's complaint and denying the relief requested by the Petitioner. DONE AND ENTERED this 28th day of December, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1993. COPIES FURNISHED: Mr. Harvey Johnson 538 Northwest 13th Street Florida City, Florida 33304 J. James Donnellan, III, Esquire 1900 Brickell Avenue Miami, Florida 33129 Legal Department Florida Farm Bureau Mutual Insurance Company 5700 Southwest 34th Street Gainesville, Florida 32608 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue Does Respondent Consolidated Services, Inc. (CSI) owe Petitioner Richard Sapp Farms, Inc. (Sapp Farms) $24,677.66 as alleged in the Amended Complaint filed herein by Sapp Farms?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At times pertinent to this proceeding, Sapp Farms was a "producer," as defined in Section 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Squash and eggplant come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. CSI is a Florida Corporation, owned entirely by Robert "Bo" Allen, and located in Pompano Beach, Florida. At times pertinent to this proceeding, CSI was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. CSI was issued License Number 8873 by the Department, which is supported by Bond Number L&P 66186 in the amount of $25,000.00 written by Respondent New York Surety Company, as Surety, with an Inception Date of November 18, 1997, and an Expiration Date of November 17, 1998. Sometime in early April or May 1998, Sapp Farms entered into a verbal contract with CSI, through its agents, to furnish CSI with fresh vegetables during the spring and summer of 1998. From early May 1998 through July 1998, Sapp Farms furnished CSI with eggplant and squash. From June 1, 1998 through August 8, 1998, CSI paid Sapp Farms a total of $51,300.00 for eggplant and squash furnished to CSI. The Complaint was timely filed by Sapp Farms in accordance with Section 604.21(1), Florida Statutes. Sapp Farms alleges in its Complaint that CSI owes Sapp Farms $24,677.06 for eggplant and squash furnished to CSI from early May 1998 through July 1998, for which CSI has not made any payment or has only made partial payment. Sapp Farms failed to present sufficient evidence to establish facts to show an accurate or reliable market price for eggplant or squash during the period in question. Michelle Sapp, the person who gathered the information concerning the market prices, testified that she: (a) did not view the market reports for each day in question; (b) did not remember what geographic area the market reports she viewed pertained to; (c) did not know whether the market prices she viewed were "shipping point" or "terminal point" prices; (d) did not know what the range was for market price each day; and (e) did not know where in the range she chose to establish the market price. Sapp Farms contends that CSI agreed to pay a minimum price of $4.00 for squash and $5.00 for eggplant. Richard Sapp testified that CSI agreed to pay Sapp Farms a minimum price of $4.00 for squash and $5.00 for eggplant. However, I find that Richard Sapp's testimony lacks credibility in this regard due to the fact that this alleged "minimum price" applied regardless of the grade, which is highly unlikely. There is insufficient evidence to establish facts to show that CSI agreed to pay Sapp Farms a minimum price for eggplant and squash. The following is a listing of the eggplant and squash delivered to CSI by Sapp Farms for which CSI has failed to pay Sapp Farms: Date Product Grade Quantity *Price Amount Owed Ticket 6/10/98 Eggplant Fancy 208 $ 4.75 $ 988.00 422 6/10/98 Squash (CN) No. 2 4 $ 6.75 $ 27.00 425 6/15/98 Eggplant Fancy 160 $ 4.40 $ 704.00 443 6/16/98 Squash (SN) Fancy 80 $ 6.25 $ 500.00 447 6/16/98 Squash (SN) Medium 80 $ 4.25 $ 340.00 447 6/16/98 Squash (CN) No. 1 10 $ 8.50 $ 85.00 447 6/20/98 Squash (SN) Medium 47 $ 4.50 $ 211.50 466 6/27/98 Squash (CN) No. 1 126 $ 4.90 $ 617.40 497 6/27/98 Squash (CN) No. 2 59 $ 3.75 $ 221.25 497 6/29/98 Squash (CN) No. 1 113 $10.00 $1,130.00 502 6/29/98 Squash (SN) Fancy 154 $ 2.00 $ 308.00 502 7/07/98 Squash (CN) No. 2 20 $ 5.25 $ 105.00 509 7/08/98 Squash (CN) No. 1 13 $ 9.50 $ 123.50 515 7/08/98 Squash (CN) No. 2 20 $ 5.75 $ 115.00 515 Total $5,475.65 *Prices used in this calculation are the same as the price paid by CSI to Sapp Farms for the same product, with the same grade, on the same day or the nearest day to that day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating circumstances, it is recommended that the Department enter a final order granting Sapp Farms relief by ordering CSI to pay Sapp Farms the sum of $5,475.65. DONE AND ENTERED this 27th day of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1999. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 David H. Galloway, P.A. Attorney at Law 506 North Alexander Street Post Office Box 848 Plant City, Florida 33564-0848 Robert E. Goldman, Esquire 1543 Seventh Street, Suite 202 Santa Monica, California 90401 Joseph Monahan New York Surety Company 123 William Street New York, New York 10038-3804
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.
The Issue The issue in this case is whether proposed Florida Administrative Code Rule 64-4.002 (the “Proposed Rule”) is an invalid exercise of the legislative authority delegated to the Department of Health (the “Department”).
Findings Of Fact In order to better contextualize the facts presented at final hearing and discussed below, the following excerpts from the Proposed Rule and the underlying statutory provision are provided: Section 381.986, Florida Statutes (8) Medical Marijuana Treatment Centers.- (a) The department shall license medical marijuana treatment centers to ensure reasonable statewide accessibility and availability as necessary for qualified patients registered in the medical marijuana use registry and who are issued a physician certification under this section. * * * The department shall license as medical marijuana treatment centers 10 applicants that meet the requirements of this section, under the following parameters: [Previously denied applicants meeting certain requirements not relevant to the instant action.] [One applicant from a specific class pursuant to a federal lawsuit.] As soon as practicable, but not later than October 3, 2017, the Department shall license applicants that meet the requirements of this section in sufficient numbers to result in 10 total licenses issued under this subparagraph, while accounting for the number of licenses issued under sub-subparagraphs a. and b. For up to two of the licenses issued under subparagraph 2., the department shall give preference to applicants thatdemonstrate in their applications that they own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convert the facility or facilities for the processing of marijuana. (Emphasis added). Florida Administrative Code Rule 64-4.002 (Proposed) (1)(f) For applicants seeking preference for registration as a medical marijuana treatment center pursuant to ss. 381.986(8)(a)3., F.S., the applicant must provide evidence that: The property at issue currently is or was previously used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses. In order to demonstrate the property meets this criteria, the applicant may provide documentation that the applicant currently holds or has held a registration certificate pursuant to section 601.40, F.S. A letter from the Department of Citrus certifying that the property currently is or was previously used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses will be accepted as sufficient evidence. The applicant as an individual holds, in his or her name, or the applicant as an entity holds, in the legal name of the entity, the deed to property meeting the criteria set forth in subparagraph 1. above; and A brief explanation of how the property will be used for purposes of growing, processing, or dispensing medical marijuana if the applicant is selected for registration. * * * Subject matter experts will substantively and comparatively review, evaluate, and score applications using [the Scorecard incorporated by reference]. * * * (a)7.(b) Scores for each section of the application will be combined to create an applicant’s total score. The department will generate a final ranking of the applicants in order of highest to lowest scores . . . . (c) In accordance with ss. 391.986(8)(a)3., F.S., the two highest scoring applicants that own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convert the facility or facilities for the processing of medical marijuana will receive an additional35 points to their respective total score. Licenses will be awarded, subject to availability as set forth in ss. 381.986(8)(a)2. and 381.986(8)(a)4., F.S., based on the highest total score in the following manner: The highest scoring applicant that is a recognized member of the Pigford or [the Black Farmers Discrimination Litigation] will receive a license. The remaining highest scoring applicants, after the addition of the preference points for applicants pursuant to paragraph (7)(c) above, will receive licenses up to the statutory cap set forth in ss. 381.986(8)(a)2., F.S. The remaining highest scoring applications, after removing any preference points received under paragraph (7)(c), will receive licenses up to the statutory cap . . . . (Emphasis added). The Department is an agency of the State of Florida charged with administering and enforcing laws related to the general health of the people of the state. § 381.0011(2), Fla. Stat. As part of this duty, the Department is charged with implementing the Compassionate Medical Cannabis Act of 2014. See § 381.986, Fla. Stat. Favero is a Florida corporation in good standing since its incorporation in 1974, primarily engaged in the business of growing orchids. Favero aspires to file an application for licensure as a medical marijuana treatment center (“MMTC”). Following the passage of Senate Bill 8A by the 2017 Florida Legislature, which substantially rewrote section 318.986, Florida Statutes, Favero decided to seek the citrus preference described in section 381.986(3)(a)3. (hereinafter referred to as the “Preference Statute”). To that end, Favero purchased a citrus processing business in Safety Harbor, Florida, for approximately $775,000, including the business’s real property and all facilities located thereon. The purchase took place prior to publication of the Proposed Rule. The purchase of the Safety Harbor property reduced Favero’s financial liquidity but, presumably, not its net worth as the value of the property would replace the cash expenditure made for the purchase. It is Favero’s intent to convert the citrus processing facility located on the property into a medical marijuana processing facility if Favero receives the requisite license as a MMTC. Favero contends, as stated in the following paragraphs of its Petition Challenging the Invalidity of Proposed Rule 64-4.002: The Proposed Rule grants a preference to an applicant who owns “property” that was once used for citrus processing. The statute, however, clearly grants the preference only to applicants who “own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing ” By using the broader word “property” rather than “facility,” the Department is granting the citrus preference to a broader group of applicants than the statute permits, such as owners of packinghouses and other properties that fail to meet the definition of “processor” or were not used for “canning” or “concentrating.” The statute is clear and unambiguous. The use of the word “property” rather than the statutory term “facilities” renders the rule invalid because the use of that term exceeds the Department’s rulemaking authority, enlarges and modifies and contravenes the requirements of Section 381.986(8)(a)3., is vague, fails to establish adequate standards for agency decisions, vests unbridled discretion in the agency and is arbitrary and capricious. See § 120.52(8)., Fla. Stat. * * * The Proposed Rule allows for a preference to only some applicants that own a citrus processing facility. Under the scoring system, applicants demonstrating that they own a citrus processing facility may receive an additional 35 points. However, the Proposed Rule does not guarantee that any applicant owning a citrus processing facility will actually receive those points or get a license. The Proposed Rule merely grants an additional 35 points to two applicants. The Department of Citrus has indicated that more than a dozen companies will qualify for the citrus preference. Under the Proposed Rule, most of those applicants would receive no additional points despite qualifying for the statutory preference. Additionally, the Proposed Rule provides no assurance that any applicant qualifying for the citrus preference will actually receive a license. The Form adopted by the Proposed Rule allows Department evaluators to award a maximum of 1,150 points in several categories. The additional 35 points available under the Proposed Rule amount to an addition of just a 3% bonus. If those extra 35 points are not enough to exceed the scores of other applicants, then no citrus-preference qualifying applicant will receive a license. Favero contends that reduction of its liquid assets could have a negative impact on its overall financial condition when considered by the Department as it reviews Favero’s MMTC application. Favero is concerned that this negative impact may not be completely offset by the citrus preference it is seeking. Mecca is a Florida corporation located at 7965 Lantana Road, Lantana, Florida. It has existed since November 15, 1973, has operated in Florida since the early 1970s, and began citrus farming on approximately 2,000 acres in 1983. Mecca has been and is currently licensed as a citrus dealer and a regulated citrus processing plant and citrus packinghouse. The “processing” done by Mecca does not involve canning or concentrating citrus. Mecca “processes” citrus in its “fresh fruit form” (discussed more fully below). Mecca intends to convert its property and facilities for the purpose of growing, processing or dispensing medical marijuana if its application for an MMTC license is approved. Mecca contends the citrus preference in the Proposed Rule needs further clarification. Mecca also asserts the evaluation and scoring system with respect to the citrus preference constitutes an invalid exercise of the Department’s delegated legislative authority. The Scoring System The MMTC application has 16 separate sections. An applicant may be awarded up to 50 points on some sections, up to 100 points on other sections. The total number of points any application might receive is 1150, presuming a perfect score on each section. Each of the individual sections, whether for 50 or 100 points, is graded in accordance with an evaluation rubric. The rubric contains five categories of scores which are used by reviewers, allowing for a range of points in each section. The five categories each have a range depending on whether the section allows 50 or 100 points. The rubric directs that a category 5 response could be awarded between 40 and 50 points in the 50-point sections, or between 80 and 100 points in a 100-point section. A category 4 response could get between 30 and 39 points (or 60 to 79 points); a category 3 could award 20 to 29 points (or 40 to 59 points); a category 2 could be worth 10 to 19 points (or 20 to 39 points); and a category 1 might award 0 to 9 points (or 0 to 19 points). Thus, an applicant may be awarded points anywhere within the range in each category for each section of the application. By way of example, category 5 under the rubric (wherein a reviewer may give an application 40 to 50 or 80 to 100 points) directs the reviewer as follows: Applicant addressed all items. When necessary, each item has multiple, specific examples of experience and knowledge. Experience and knowledge are connected to specific, identifiable people in the application. Plans are clear, detailed, well documented, and thorough. All charts, photographs, maps, sketches, and other supplemental information are clear and legible. When necessary, applicant provides full documentation for representations of future performance. Responses related to financial reflect robust financial resources and clear lines of authority within the organizations. By comparison, under Category 3, which could award 20 to 29 or 40 to 59 points, the rubric directs the reviewer to consider: Either: Applicant responded to all items. Applicant responds to items addressing experience and knowledge, though answers tend to lack specificity. Plans are provided, but are lacking in clarity, documentation, or thoroughness. When necessary, some supplemental information is provided. Responses related to financials do not reflect robust financial resources, but do not raise doubts of applicant’s financial viability, or the organization has unclear lines of authority, or; Most responses are sufficient to be considered Category 4 or 5 Responses, but applicant fails to address some items. Favero asserts that allowing a reviewer to award points from an allowable range gives unbridled discretion to the Department. The argument misses the point that the ranges in each category direct the reviewer on how to score, while allowing some leeway in determining which applications are slightly better or worse than their competitors. Depending on the strength or weakness of one applicant’s response vis-à-vis another applicant, it is reasonable to assign more or fewer points in a comparative review. The rubric is quite descriptive and allows for a nuanced review of responses by the Department reviewers. The Preference The Preference Statute asserts a preference “for up to two of the licenses issued,” i.e., past tense. There are no licenses “issued” during the application review process, so the preference is actually assigned before licensure. The Preference Statute is somewhat confusing in this regard. The Proposed Rule attempts to reconcile this discrepancy by assigning preference points as a part of the application review process, while still approving the most qualified applicants. That approach is reasonable and has merit; it allows the preference to be assigned but does not attempt to insert it into the actual licensure process. The Proposed Rule assigns the preference points at the end of the review, i.e., after an application receives its “total score.” Thus, an applicant could conceivably be awarded 1185 points on the 0 to 1150 point scale. Regardless of how the points are assigned, Favero contends that the 35 preference points are too insignificant as compared to a possible (perfect) score of 1150 during application review. That number of points (35) would be only about three percent of a perfect score. The lower the average scores of all applications, however, the more the 35 points might come into play. If all applicants received an average score of 575 total points, the preference points would be twice as important as compared to perfect 1150 scores. The assignment of the preference points only after totaling the scores is a legitimate and acceptable method. Taking the 16 sections of the application separately, 35 points assigned in any one section could be quite significant. In fact, the Department arrived at the 35 points by taking the average number of possible points per section, i.e., 72, and assigning approximately half of that amount to reach the 35- point preference. The preference points are not just an arbitrary number assigned by the Department. Favero also objects that the Proposed Rule only assigns the 35 preference points to the two highest scoring, eligible applicants, i.e., those who will convert a citrus facility to process medical marijuana. If those two eligible applicants were more than 35 points below other, non-eligible applicants’ scores, assignment of the preference points would not result in the approval of any eligible applicants. The plain language in the Preference Statute and the Proposed Rule allows for a preference of “up to two” applicants. There is, therefore, no mandate that any applicants must receive the preference. While the Legislature can be presumed to have wanted preference points to be awarded (else why would the Preference Statute exist?), the language of the statute merely limits the number of entities which could get such a preference. The Department, interpreting a statute it is charged with implementing, interprets section 381.986(8)(a)3. to mean the issuance of available licenses to as many as two entities which are eligible for the preference. The Proposed Rule allows the Department to assess an applicant’s entitlement to the preference, to assign the preference, and to meet its statutory obligation. Property versus Facility The Legislature clearly intended to give a preference to applicants who “own . . . facilities that are, or were, used for canning, concentrating, or otherwise processing of citrus . . . and will use or convert the . . . facilities for the processing of medical marijuana.” The Legislature failed, however, to provide guidance by way of definitions. While the Legislature chose the words “facility or facilities” in the Preference Statute, the Department complicated the issue by using the word “property” for the most part, but also using the words “facility” and “facilities” at times. Favero contends that a property is much broader in scope than a facility, and the Department therefore exceeded its delegated legislative authority. The Department argues that facilities used to process citrus must be located on some property, obviously. But, facilities located on a property might be leased, so that the fee simple owner of the property is different from the leaseholder of that facility. Thus, if an applicant for a medical marijuana treatment center license wants to avail itself of the preference, it would need to own the facility. Whether that means the applicant must own the property on which the facility is located is not clear in the Preference Statute or in the Proposed Rule. The Department argues that the way to show ownership of a facility is by way of a deed to the property on which the facility is located. In fact, Favero will use a warranty deed to prove ownership of the facilities it purchased in order to obtain the preference. But if Favero purchased land on which citrus had been grown but not processed, i.e., if there had been no facilities on the land to can, concentrate or otherwise process the fruit, except in fresh fruit form, the preference would not apply. And if an applicant obtained a leasehold interest in a facility, it would not be able to “show ownership” by way of a deed to the property. The Preference Statute requires the applicant to convert the facility in order to gain the preference. It is unclear how a piece of unimproved property can be “converted” to another use; land is land. This begs the question of whether growing citrus on a piece of property, and then removing all the citrus trees in order to grow medical marijuana, is a “conversion” of a facility as contemplated by the Legislature. Neither the Preference Statute nor the Proposed Rule contain any definitional assistance to answer that question. An important question to be answered is whether the growing of citrus constitutes “processing” as alluded to by the Legislature. The Preference Statute provides no definition of the word. The Citrus Code (chapter 601, Florida Statutes) also does not define “processing,” but does describe a “processor” of citrus as: ‘[A]ny person engaged within this state in the business of canning, concentrating, or otherwise processing citrus fruit for market other than for shipment in fresh fruit form.” § 601.03(32), Fla. Stat. (Emphasis added). Processing must therefore mean something other than merely growing citrus and packing it up for shipment. That being the case, a property where citrus is grown that is “converted” to a property growing marijuana would not afford an applicant a preference. There must be some “facility” that is or has been used to process citrus, i.e., doing something more with the raw product, in order to constitute “processing.” Therefore, a “packinghouse,” i.e., “[a]ny building, structure, or place where citrus fruit is packed or otherwise prepared for market or shipment in fresh fruit form,” would not be engaged in “processing” citrus. See § 601.03(29), Fla. Stat. Mecca, which owns property where citrus was grown, picked, graded, sorted, polished, cleaned and packaged for transfer “in fresh fruit form,” would not be a processor, either. Mecca owns a packinghouse only, not a processing facility as that term seems to be used by the Legislature. Its operations were not part of the “canning, concentrating, or otherwise processing citrus fruit other than for shipment in fresh fruit form.”
