The Issue Whether Respondent is indebted to Petitioners for agricultural products and, if so, in what amount?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties Petitioners are producers and sellers of tomatoes. They own and operate Sunfresh Farms in Florida City, Florida. Respondent is a dealer in agricultural products. The Controversy The instant case involves two separate transactions involving the sale of tomatoes pursuant to verbal agreements between Petitioners (as the sellers) and Respondent (as the buyer). Both transactions occurred in January of 1995. The First Transaction (Petitioners' Invoice Number 5270) Under the terms of the first of these two verbal agreements (First Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 96 boxes of cherry tomatoes for $12.65 a box (which was the market price at the time). In accordance with the terms of the First Agreement, Petitioners delivered 96 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 23, 1995. Respondent accepted the delivery. Respondent sold these 96 boxes of cherry tomatoes to a local produce house, which subsequently sold the tomatoes to another local produce house. The tomatoes were eventually sold to a company in Grand Rapids, Michigan. On January 28, 1995, five days after Petitioners had delivered the 96 boxes of cherry tomatoes to Respondent, the tomatoes were inspected in Grand Rapids, Michigan. According to the inspection certificate, the inspection revealed: "Decay (3 to 28 percent)(mostly early, some advanced stages);" "Checksum;" and "Average approximately 85 percent light red to red." Petitioners have yet to be paid any of $1,214.40 Respondent owes them (under the terms of the First Agreement) for the 96 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the agreement. The Second Transaction (Petitioners' Invoice Number 5299) Under the terms of the second verbal agreement at issue in the instant case (Second Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 132 boxes of ("no grade") cherry tomatoes for $12.65 a box. In accordance with the terms of the Second Agreement, Petitioners delivered 132 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 27, 1995. Respondent accepted the delivery. Respondent sold 84 of these 132 boxes of cherry tomatoes to a Florida produce house, which subsequently sold the tomatoes to a company in Houston, Texas. These 84 boxes of cherry tomatoes were inspected in Houston, Texas, on January 31, 1995, four days after Petitioners had delivered them to Respondent. The defects found during the inspection were noted on the inspection certificate. Petitioners have yet to be paid in full for the 132 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the Second Agreement. Respondent tendered payment (in the form of a check) in the amount of $811.20, but Petitioners refused to accept such payment because it did not represent the full amount ($1,669.80) Respondent owed them (under the terms of the Second Agreement) for these cherry tomatoes. (Although they have not endorsed or cashed the check, Petitioners are still holding it in their possession.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that Respondent is indebted to Petitioners in the amount of $2,884.20, (2) directing Respondent to make payment to Petitioners in the amount of $2,884.20 within 15 days following the issuance of the order, (3) indicating that the $811.20 check that was previously tendered to Petitioners by Respondent (and is still in Petitioners' possession) will be considered partial payment of this $2,884.20 indebtedness, if Respondent advises Petitioners, in writing, that it desires the check to be used for such purpose and if it provides Petitioners written assurance that the check is still a valid negotiable instrument; and (4) announcing that if payment in full of this $2,884.20 indebtedness is not timely made, the Department will seek recovery from the Farm Bureau, Respondent's surety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February, 1996. STUART M. LERNER, 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 2nd day of February, 1996.
The Issue Whether Petitioner's license to operate an assisted living facility should be renewed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to Chapter 400, Florida Statutes. Orchard Meadows is an assisted living facility (ALF) which is owned by Nathaniel Gallon, and is located in Monticello, Florida. Prior Case and Administrative Fine In a prior case involving AHCA and Nathaniel Gallon, d/b/a Orchard Meadows, AHCA issued a Final Order dated September 27, 2001. The Final Order incorporated by reference a Settlement Agreement entered into between the parties, which read in pertinent part: The Respondent agrees to pay half of the administrative fine imposed, in the amount of seven thousand eight hundred seventy-five ($7,875) dollars, to be paid within sixty (60) days of entry of the Final Order adopting this settlement stipulation agreement. The Respondent agrees to maintain the facility in substantial compliance with all applicable statutes and rules governing assisted living facilities, as determined by the Agency field office manager, for a period of one year from the entry of the Final Order incorporating this settlement stipulation agreement. In the event that the conditions in paragraph 6 and 7 are not met, the following consequences shall result: the remaining seven thousand eight hundred seventy-five ($7,875) dollars outstanding from the administrative fine initially imposed by the Agency in the amount of fifteen thousand seven hundred fifty ($15,750) dollars, shall become due immediately. the Agency shall consider Respondent ineligible for renewal of licensure as an assisted living facility based on the demonstrated inability to comply with requirements of continued licensure. Eula Fogle is the Administrator of Orchard Meadows and has been in that position since May of 2000. According to both Mr. Gallon and Ms. Fogle, Orchard Meadows made efforts to acquire the funds to pay the $7,875.00 administrative fine referenced in paragraph 6 of the stipulation but acknowledge that they were unable to do so within the 60 days following the entry of the Final Order referenced above. However, a few days after the 60-day time period expired, they were able to acquire the funds and Ms. Fogle personally took a check for $7,875.00 to Mr. Rice at AHCA. AHCA did not accept the check but referred Ms. Fogle to the agency's lawyers. Ms. Fogle attempted to get in touch with the appropriate agency lawyer(s) in an effort to pay the fine but was unsuccessful in doing so. License renewal Orchard Meadows first received a license to operate an ALF by AHCA effective December 23, 1994. Orchard Meadows renewed its license and was issued a conditional license from December 23, 1996 through March 22, 1997. Orchard Meadows received a standard license for the period March 23, 1997 through December 22, 1998. On August 18, 1999, AHCA sent a letter to Orchard Meadows enclosing a standard renewal license #AL8362 issued for the period December 23, 1999 to December 22, 2002. Greg Rice is a Government Operations Consultant III in the Assisted Living Licensing Office of AHCA. According to Mr. Rice, ALF licenses are issued for two-year periods. Thus, the license issued from December 23, 1999 until December 22, 2002, was issued in error. On October 25, 1999, AHCA sent another letter to Orchard Meadows with a standard renewal license enclosed. The letter stated that the enclosed license was being issued to correct the dates of the one previously sent. The letter also requested that Orchard Meadows return the license previously issued. The renewal standard license #AL8362 was issued for the period December 23, 1998 until December 22, 2000, which resulted in a two-year licensure period beginning one year prior to the first renewal license and ending two years earlier. On July 31, 2000, AHCA sent a letter to Orchard Meadows notifying Petitioner that the license to operate expired December 22, 2000. The letter instructed Orchard Meadows to complete an enclosed application and return it with the appropriate fee 90 days before the expiration date. The letter further stated that failure to file a renewal application within that time frame will result in a late fee as allowed by law. The return-receipt card was signed by Demetria Poe on August 2, 2000. Ms. Poe is a former employee of Orchard Meadows and did not testify at the hearing. There is no evidence of any correspondence from AHCA to Orchard Meadows regarding the license status between the July 31, 2000 letter and a January 11, 2002 letter, a period of approximately one and one-half years. Despite the position by AHCA that the license expired December 22, 2000, AHCA continued to come to the facility to conduct surveys during the period of time in which AHCA contends that Orchard Meadows was operating without a license. According to Ms. Fogle, AHCA's most recent survey of the facility was conducted four to six months prior to the final hearing date. Mr. Rice's explained why Orchard Meadows was permitted to operate: Q. And even though that renewal was not submitted, they were permitted to continue to operate because they were in litigation; is that correct? A. Yes. Q. Okay. And so, because they were in litigation and because there was a settlement that needed to be complied with, is that the reason that there was no further notice to the facility after the July 2000? A. Yes. On January 11, 2002, AHCA sent a letter to Eula Fogle, Administrator of Orchard Meadows. The letter notified Ms. Fogle that the license to operate Orchard Meadows expired on December 22, 2000, and that no renewal application had been filed nor had the license fee been paid. The letter instructed Ms. Fogle to cease and desist operating Orchard Meadows. Ms. Fogle was surprised to receive the January 11, 2002 letter as the license with the 2002 expiration date was on the wall of the office in Orchard Meadows. According to Ms. Fogle, she was unaware of the July 31, 2000 letter signed for by the former employee, Demetria Poe, or of the license with the expiration date of December 22, 2000, that was issued in 1999. It was her understanding that Orchard Meadows' license was current until December 2002. Orchard Meadows filed a renewal application in early 2002. The record is not clear as to the exact date it was filed. However, Mr. Rice established that it was filed sometime subsequent to the January 11, 2002 letter from AHCA to Orchard Meadows. On February 27, 2002, AHCA issued the subject Notice Of Intent to Deny Orchard Meadows' renewal of their ALF license, which states as follows: Dear Ms. Fogle: It is the decision of this Agency that your renewal application for an assisted living facility (ALF) license be DENIED. The Specific Basis for this determination is: The applicant's failure to submit a completed renewal license application within the specified time frames pursuant to Section 400.414(1)(i), Florida Statutes (F.S.), and Section 400.417, F.S. Specifically, the applicant failed to provide proof of liability insurance and failed to pay an outstanding fine in final order status (AHCA Case No's: 02-00-063-ALF, 02-00-004-ALF, 02-00-016-ALF and 02-00-053- ALF). The omitted information was requested by the Agency in a certified letter dated February 4, 2002, received by the applicant on February 6, 2002. The applicant failed to submit the required information to the Agency by February 25, 2002. No proof was presented at hearing describing any omissions request as referenced in the Notice of Intent to Deny. Nonetheless, Orchard Meadows' current liability insurance is with United National Insurance Company with an effective date of March 27, 2002 until March 27, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order requiring Orchard Meadows to pay the $7,875.00 fine and any renewal application fees, including any appropriate late fees, within 30 days of the issuance of the final order. Upon payment of the fine and license fees, Orchard Meadows' license should be renewed. If the fine and license fees are not paid within 30 days of the final order, the renewal application of Orchard Meadows should be denied and Orchard Meadows should cease operations as a licensed assisted living facility. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 September, 2002. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Lee Dougherty, Esquire 245 East Washington Street Monticello, Florida 32344 Leland McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Valinda Clark Christian, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact On March 25, 1980, Willard Sutliff, broker for Okun and Charles Weisinger, salesman for Six L's, met at the Six L's packing facility in Immokalee. On that date, Sutliff inspected, purchased and took delivery of a load of tomatoes for an agreed price of $10,198.50. The tomatoes were shipped the same day by transport arranged by Sutliff, and arrived in New York at the Okun facility on March 28, 1980. They were immediately inspected by a United States Department of Agriculture (U.S.D.A.) representative and found to be "Now approximately 60 percent U.S. No. 1 quality, 9 percent soft, 5 percent decay." Following harvesting, sorting and packing, tomatoes are taken to the Six L's "gas room" where they are normally held for a period of 48 to 60 hours prior to shipment. During this period the tomatoes continue to ripen. The tomatoes at issue here had been placed in the gas room on March 19 and were well past the optimum shipping point at the time of sale on March 25. These tomatoes were initially inspected by a U.S.D.A. representative on March 19 at the Six L's facility and were assigned a U.S. combination grade. This grade indicates the tomatoes are a combination of U.S. No. 1 and U.S. No. 2 grade, but are at least 60 percent U.S. No. 1. Sutliff was aware of the March 19 U.S.D.A, report, but contends he purchased the load with the understanding from Weisinger that the tomatoes would grade at least 75 percent U.S. No. 1, and his broker's memorandum so indicates. Weisinger denies such representation. The Six L's office manager received his copy of the broker's memorandum on April 3 and regarded the 75 percent U.S. 1 entry as a minor error not requiring repudiation since the tomatoes had already been delivered. Sutliff was accorded ample opportunity to inspect the tomatoes prior to purchase. Although the tomatoes were in crates on pallets which limited his access, Sutliff did observe the color of the tomatoes and also determined that they were "second picking" rather than "crown picking". Had he elected to do so, Sutliff could have required the crates to be opened or requested a further U.S.D.A. inspection. Sutliff purchased the load at a price somewhat lower than market for high grade tomatoes. Weisinger contends he "discounted" the price due to their ripeness while Sutliff contends he paid the lower price because the tomatoes were second picking and were not represented to be 85 percent U.S. No. 1 which would have justified a higher price. The price was arrived at through negotiation and, obviously, all relevant factors including the ripened condition of this highly perishable commodity were taken into account by the parties. The tomatoes were acknowledged to be in good condition by the trucker when he accepted them for loading on March 25th. The temperature records and the three days for transit to New York indicate reasonable shipping conditions. Thus, the deterioration was not due to mishandling, but primarily to the age of the tomatoes when they arrived in New York on March 28th. Okun did not attempt to reject this shipment upon delivery in New York, nor did it furnish any written notice of a price dispute. Okun did, however, furnish Six L's a copy of the March 28 U.S.D.A. inspection report. The parties became involved in a separate dispute in late March when Sutliff claims he purchased a second load of tomatoes from Weisinger which he intended to leave in the gas room for further ripening. When he attempted to take delivery, Petitioner refused claiming no promise of sale or contract had been made. Sutliff's diary and broker's memorandum indicate the purchase was made. However, no signed agreement was produced and Six L's denied the purported sale by telegrams on March 26 and March 31, 1980. Further testimony surrounding the two disputes was given by both parties regarding their face to face end telephone conversations. Their recollections of these conversations were self-serving and conflicting, and are thus assigned no evidentiary weight.
The Issue The issue in this case is whether Respondent, Mo-Bo Enterprises, Inc., is indebted to Petitioner, Orrin H. Cope Produce, Inc., as alleged in the complaint filed by Petitioner with the Department of Agriculture and Consumer Services dated March 14, 1994.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Cope was a produce broker located in Homestead, Florida. At all times pertinent to this proceeding, Mo-Bo was a purchaser of produce located in Pompano Beach, Florida. Mo-Bo is an agricultural dealer as defined by Section 604.15(1), Florida Statutes. As such, Mo-Bo is obligated to obtain a dealer's license from the Department and to post a surety bond executed by a surety corporation to insure that payment is made to producers for agricultural products purchased by the dealer. At all times pertinent to this proceeding, General Accident Insurance Company of America was the surety for Mo-Bo pursuant to Section 604.20, Florida Statutes. For several years prior to the growing season that began in the fall of 1993, Cope sold produce to Mo-Bo on an intermittent basis. As a result of Mo- Bo's alleged failure to pick up orders and because of its alleged unauthorized price adjustments, there were some disputes between the companies during this period. At the beginning of the growing season in the Fall of 1993, a representative of Mo-Bo contacted Cope about buying cherry tomatoes. Cope agreed to sell cherry tomatoes to Mo-Bo provided the billing disputes that had occurred in the past were avoided. Cope advised Mo-Bo that the parties should agree to a sales price for a shipment of produce before a truck was loaded. The next day, Cope would fax a manifest to Mo-Bo setting forth the terms of the sale, including the price. An invoice would be sent by Cope to Mo-Bo two or three days later. The reason for this delay in sending the invoice was to allow Mo-Bo an opportunity to review the manifest and put Cope on notice of any objections. The delay also allowed the parties to make price adjustments if the market had not settled. Mo-Bo was supposed to immediately notify Cope if the invoice did not reflect the correct price so that the price could be verified and, if a mistake was made, a credit memo would be issued. The price for cherry tomatoes varies according to their color. They are classified from lightest to darkest as follows: breakers, light pinks, pinks, or high color. Cope would determine the color and the condition of the produce at the time the tomatoes were loaded on the truck. If, after receiving the produce, Mo-Bo felt there were quality problems (which would include a dispute as to the color classification), Mo-Bo was required to order an USDA inspection. This requirement for an inspection was discussed between Mo-Bo's buyer and the president of Cope at the beginning of the growing season. In addition, the invoices issued by Cope include the following: "No claims accepted unless supported by USDA inspection within twenty-four hours from arrival and when confirmed by Adjustment Memo from our Sales Office. Notification by mailgram is required." Between December 24, 1993, and January 10, 1994, Cope invoiced Mo-Bo for three shipments of cherry tomatoes. Invoice #1 was for 576 loads of light pink cherry tomatoes at $8.75 per case and 480 cases of pink cherry tomatoes at $8.75 per case, for a total of $9,240. The order was placed and loaded on December 24, 1993. Mo-Bo did not notify Cope of any complaint or dispute with the invoice until approximately sixty days after shipment. On or about February 2, 1994, Mo-Bo returned a marked-up copy of Invoice #1 to Cope along with a check in the amount of $8,414. The changes to the Invoice included a claimed credit of $298 for 149 damages boxes on an unrelated shipment and a reduction in the price per case from $8.75 to $8.25. Cope acknowledges that the $298 credit was authorized. However, the change in the unit price was never authorized by Cope. Cope returned the check sent by Mo-Bo with the marked-up version of Invoice #1 and advised Mo-Bo that the practice of clipping, i.e., unilaterally reducing the price on invoices was not acceptable. Cope advised Mo-Bo that any price disputes had to be raised at the time the manifest was received or, at the latest, when the invoice was received. Mo-Bo's buyer indicated that he would review the situation. As of the date of the hearing in this matter, Mo-Bo had not made any further attempts to pay Invoice #1. After considering all the evidence, it is concluded that Mo-Bo is indebted to Cope in the amount of $8,942 plus interest1 pursuant to Invoice #1. Invoice #2 was for 372 cases of light pink cherry tomatoes at $6.90 per case and for 190 cases of pink cherry tomatoes at $6.90 per case, for a total of $3,877.80. The order was placed on January 8, 1994, and loaded on January 10, 1994. Mo-Bo did not dispute the price or complain about the invoice until approximately one month after shipment. On February 7, 1994, Mo-Bo returned a marked-up version of Invoice #2 to Cope along with a check in the amount of $3,315.80. The change to the Invoice reflected a reduction in price from $6.90 to $5.90 per unit. The change in unit price was never authorized by Cope. Cope refused to accept the price adjustment reflected on the marked-up version of Invoice #2 and returned the check to Mo-Bo. As of the date of the hearing in this case, Mo-Bo had not made any further attempts to pay the Invoice. After considering all the evidence, it is concluded that Mo-Bo owes Cope $3,877.80 plus interest pursuant to Invoice #2. Mo-Bo's buyer testified that he had a verbal agreement with Cope for the lower prices reflected on the marked-up versions of Invoices #1 and #2. This contention is rejected as not credible. In any event, alleged verbal agreements were not consistent with the procedures the parties had agreed upon for doing business. Invoice #3 was for 960 cases of pink cherry tomatoes at $6.25 per case, for a total of $6,000. The order was placed on January 3, 1994, and loaded on January 5, 1994. The truck upon which the tomatoes were loaded was controlled by Mo-Bo. The shipment was sent to New Jersey where it arrived on January 10, 1994. This was an abnormally long shipping time to New Jersey. By the time the tomatoes reached New Jersey, the pink cherry tomatoes had ripened to high color. No explanation was provided for the delay in shipping. Based upon the evidence presented, it is concluded that Mo-Bo should bear the responsibility for any over-ripening that occurred during the extended shipping time. Mo-Bo claims that its customer wanted light pink tomatoes. This contention is rejected as not credible. Both the manifest and the invoice described the shipped tomatoes as "pink." Mo-Bo did not timely and properly object when it received the manifest and/or invoice. On January 10, Mo-Bo's buyer contacted Cope and advised that the cherry tomatoes that had arrived in New Jersey were high color and had been rejected by the purchaser. Cope responded that, since the tomatoes were on the truck for five days, this development was not surprising. Mo-Bo's buyer stated that his customer no longer wanted the cherry tomatoes, but he would try to sell them to another customer. He asked Cope whether it wanted a federal inspection. Cope stated that no inspection would be necessary unless there was going to be a problem in receiving the price as invoiced. No federal inspection was obtained. The cherry tomatoes included in the shipment reflected in Invoice #3 came from three different days of shipments from the same grower. Cope did not receive any complaints from other buyers who received portions of those shipments. Mo-Bo contends that Cope agreed that the transaction would be converted to a consignment rather than a sale. This contention is rejected. Mo-Bo's buyer told Cope he would move the tomatoes and get a good price for them, but Mo-Bo's unilateral attempt to convert the transaction to a consignment was not accepted by Cope and was never confirmed in writing. Mo-Bo delivered 104 cases to its original customer and the remaining 856 cases were sent by Mo-Bo to a second customer at a substantially reduced price. After freight expenses, Mo-Bo claims that it lost money on the transaction. On or about February 7, 1994, Mo-Bo sent a marked-up version of Invoice #3 to Cope showing a zero balance due. As of the date of the hearing, Mo-Bo, has not made any further attempts to pay the invoice. After considering all the evidence, it is concluded that Mo-Bo owes Cope $6,000 plus interest pursuant to Invoice #3. At the conclusion of the hearing, Mo-Bo indicated that it was willing to pay Cope the amounts that were not in dispute without prejudice to Cope's right to collect any remaining amounts that are determined to be owed at the conclusion of this proceeding. There is, however, no proof of record that any such payment has been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order directing Mo-Bo Enterprises, Inc., to pay Orrin H. Cope Produce, Inc., a total of $18,819.80 for the shipments of cherry tomatoes reflected by Invoices #1, #2 and #3, along with interest in accordance with the Invoices. In the event Mo-Bo does not comply with this directive, the surety for the dealer should pay the amount due to the Department for the benefit of the producer in accordance with Section 604.21(8), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of November 1994. J. STEPHEN MENTON 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 30th day of November 1994.
The Issue Whether Respondent Five Brothers Produce Inc. is indebted to Petitioner for agricultural products and, if so, in what amount?
Findings Of Fact Petitioner grows tomatoes on its farm in Dade County. Jack Wishart is in charge of the farm's operations. Five Brothers Produce, Inc., is a dealer in agricultural products. At all times material hereto, Pete Johnson was responsible for buying and selling produce for Five Brothers. He was assisted by Robert Barbare. On Friday, January 19, 1990, Johnson met with Wishart at Petitioner's farm. During their meeting, they discussed the possibility of Five Brothers purchasing all of Petitioner's 6x7 tomatoes. They ultimately entered into a verbal agreement concerning the matter. Under the terms of the agreement, Five Brothers agreed to purchase from Petitioner, and Petitioner agreed to sell to Five Brothers, Petitioner's supply of 6x7 tomatoes, which consisted of 293 packages, for $26.00 a package. At the time, tomatoes were in scarce supply because of the damage that had been done to the South Florida tomato crop by the freeze of the prior month. As a result, the market price for U.S.#1 grade 6x7 tomatoes was $32.00 a package. Wishhart agreed to a lower price for Petitioner's 6x7 tomatoes because they were U.S.#2 grade. The 293 packages of tomatoes were delivered to Five Brothers on the following day, Saturday, January 20, 1990. Johnson had purchased the tomatoes for Five Brothers to resell to a customer in Atlanta, Georgia. Upon inspecting the tomatoes after their arrival at Five Brothers' loading dock in Florida City, Johnson determined that they did not meet the needs of this particular customer because, in Johnson's opinion, they were too ripe to be shipped out of state. Johnson thereupon telephoned Wishart to tell him that the tomatoes were not suitable for his Atlanta customer. Later that same day, January 20, 1990, pursuant to Johnson's instructions, Barbare, Five Brothers' "late night clerk," contacted Wishart and advised him that Five Brothers wanted to return the tomatoes to Petitioner. The gates of Petitioner's farm were closed, and Wishart so informed Barbare. He then asked Barbare to store the tomatoes in Five Brothers' cooler until they could be returned to Petitioner's farm. Barbare agreed to do so. Approximately a day or two later, Barbare again telephoned Wishart. He told Wishart that Five Brothers had found a customer to whom it could sell the tomatoes, which were still in Five Brothers' cooler. Wishart, in response, stated that Petitioner would lower its sale price and "take $20.00," instead of $26.00 as previously agreed, for the tomatoes. 1/ On Monday, January 22, 1990, Five Brothers consummated a deal with Leo Genecco & Sons, Inc., (Genecco) of Rochester, New York, which agreed to purchase the tomatoes from Five Brothers. 2/ The tomatoes were priced "open," that is, the price of the tomatoes was to be established after the sale. Five Brothers ultimately received $3,149.75 ($10.75 a package) for the 293 packages of 6x7 tomatoes it had sold to Genecco. It thereupon sent a check in that amount to Petitioner as payment for these tomatoes. In the transaction at issue in the instant case, Five Brothers was not acting as a broker or agent for Petitioner. It purchased the tomatoes from Petitioner. The sales price was initially $26.00 a package and was later reduced to $20.00 a package. Accordingly, for the 293 packages of tomatoes Petitioner sold Five Brothers, it should have received from Five Bothers $5,860.00, $2,710.25 more than it was paid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Agriculture and Consumer Services enter a final order (1) finding that Five Brothers is indebted to Petitioner in the amount of $2,710.25, (2) directing Five Brothers to make payment to Petitioner in the amount of $2,710.25 within 15 days following the issuance of the order, and (3) announcing that, if such payment is not timely made, the Department will seek recovery from the Florida Farm Bureau Mutual Insurance Co., Five Brother's surety. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March, 1991. STUART M. LERNER 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 March, 1991. COPIES FURNISHED: Jack Wishart Pine Islands Farms, Inc. Post Office Box 247 Goulds, Florida 33170 Pete Johnson Five Brothers Produce, Inc. Post Office Box 3592 Florida City, Florida 33034 Florida Farm Bureau Mutual Insurance Co. 5700 Southwest 34th Street Gainesville, Florida 32608 Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issue in this case is whether Respondents John and Shelby Mahon (the "Mahons"), d/b/a John's Citrus Trees, committed any or all of the violations alleged in the Administrative Complaint dated March 12, 2010, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency statutorily charged with protecting the State of Florida from invasive and destructive plant pests and diseases. See § 581.031, Florida Statutes (2010).1/ John's Citrus Trees is a wholly owned business of the Mahons, and holds nursery registration number 47218720. Citrus canker Citrus canker (Xanthomonas axonopodis pv. citri) is a bacterial disease of citrus. It affects all types of citrus. The bacteria requires water to enter the plant tissue and is easily spread by wind driven rain, by movement of infected trees, and by contact with contaminated tools or people. Citrus canker in plants cannot be cured. The only treatment is the destruction of infected and exposed plants. If the infected plants were in the ground, then the ground must be dried out and treated with chemicals, because the bacteria can remain in the ground water after the plant has been removed. The scientific consensus is that 95 percent of new infections occur within 1900 feet of infected trees, when the trees are outdoors. Thus, trees within 1900 feet of an infected tree are considered to have been "exposed" to citrus canker. Within an enclosed structure, citrus canker infection can be spread by worker contact or by overhead irrigation systems. For many years, Florida has followed a program aimed at citrus canker eradication. Several hurricanes swept through the state in 2004 and 2005, resulting in widespread citrus canker. Since the most recent outbreak, the Department has tracked and sought to eradicate citrus canker through the Citrus Health Response Program ("CHRP") developed by the Department in coordination with the United States Department of Agriculture's Animal and Plant Health Inspection Service ("USDA/APHIS"). See Fla. Admin. Code R. 5B-63.001. In the two years preceding the hearing in this matter, the Department found citrus canker in three commercial nurseries, out of 56 commercial nurseries that grow citrus in Florida. One of the three nurseries, in Polk County, has been released from quarantine and is now free of citrus canker. In that case, the owners destroyed the entire bench on which the infected plants were found. Depending on the size of the propagation house, one bench may contain from 10,000 to 40,000 plants. When a follow-up inspection found canker, the nursery destroyed all infected and exposed plants. Subsequent inspections found no further infection. The second location, in Desoto County, was still under quarantine at the time of the hearing. Citrus canker remained in one of the three growing structures at the nursery even after the destruction of 1,200 trees. The Department intended to release the nursery from quarantine if the follow-up destruction entirely eliminated the infection. The process of inspection, quarantine, destruction and, if necessary, repeat, as followed in the cases of the Polk and Desoto County nurseries, is the standard industry practice for the control of citrus canker in nurseries. The third commercial nursery with a citrus canker infestation was John's Citrus Trees in Clermont. As of the date of the hearing, there was still a citrus canker infection in all parts of the nursery, and the quarantine remained in effect at both the Clermont and Fruitland Park locations of John's Citrus Trees. Movement of citrus trees from quarantined locations The Mahons operate a citrus nursery at 7401 Laws Road in Clermont and a retail operation in Fruitland Park at the front of the North Lake Flea Market on U.S. 441. At the Clermont location, the Mahons have a propagation house, a screened enclosure and an outdoor retail area. The nursery is classified as a propagation nursery because the operators grow citrus from budwood that is grafted onto rootstock and then matured for sale. A propagation house is an enclosed structure that is entered through a decontamination station to prevent the introduction of pests and diseases into the propagation area. Commercial citrus propagation houses are also required to have a double entryway with positive airflow, so that when inspectors or workers enter, air is pushing out against them, to blow away any pests. A screen house is an additional structure in which plants are stored prior to sale. The screening prevents insects from infecting the plants and provides some protection from windblown infection by bacterial diseases such as citrus canker. On June 1, 2009, inspectors from the Department's Division of Plant Industry ("DPI") conducted a routine inspection of the Clermont nursery. The inspectors found structural deficiencies in the propagation house itself, as well as plants outside the screen house that they suspected of having citrus canker. The inspectors collected samples and sent them to the DPI pathology laboratory in Gainesville. The pathology report confirmed citrus canker on the leaves of the plant samples taken from outside the Clermont nursery's screen house. On June 3, 2009, a total of 1281 screen house and outside plants at the Clermont nursery were quarantined until follow-up sampling showed no signs of citrus canker. The inspection report notes that 36 plants at the nursery showed positive signs of citrus canker. The Clermont nursery was re-inspected on June 29, 2009. Following the re-inspection, the quarantine was extended to the 27,400 plants in the propagation house due to the presence of citrus canker there. Re-inspections were conducted on July 31, September 3, October 12, November 12, and December 14, 2009, and on January 15, 2010. Samples were taken at each re-inspection, and pathology testing revealed a continuing infection of plants with citrus canker at the Clermont nursery. During each inspection, the inspectors made a count of the plants in each area of the nursery. On two of the dates, June 29, 2009 and July 31, 2009, the inspection report shows only a total for the outside and screen house areas combined. The other reports give a separate number for the outside and screen houseplants. The counts for the outside location were as follows: 2009 June 3 471 plants September 3 402 plants October 12 439 plants November 12 391 plants December 14 400 plants 2010 January 15 524 plants On July 1, 2009, DPI inspectors conducted an inspection at the Fruitland Park retail location of John's Citrus Trees. The inspectors took samples from plants that displayed the visual symptoms of citrus canker. The samples were sent to the DPI laboratory in Gainesville for analysis. The Fruitland Park location was placed under temporary quarantine pending the results of the laboratory analysis. A DPI pathology report dated July 2, 2009, confirmed that the plants were infected with citrus canker. On July 7, 2009, the quarantine was extended for an additional 30 days to allow time to confirm that the Fruitland Park location was free of citrus canker. On July 6, 2009, the Department's inspectors witnessed the destruction of 21 citrus trees at the Fruitland Park location. Four of these trees had been confirmed with citrus canker, and the other 17 were suspected of having citrus canker. On July 10, 2009, a Department representative witnessed the destruction of another nine trees at the Fruitland Park location. On August 26, 2009, DPI inspectors conducted a re- inspection at the Fruitland Park location, taking additional samples from plants showing signs of citrus canker. In a pathology report completed on the same date, the samples were confirmed to be infected with citrus canker. Subsequent inspections on October 19 and December 15, 2009, and on January 20, February 23, March 29, April 19, and May 24, 2010, each resulted in additional samples of suspected citrus canker being taken for analysis. Pathology reports dated October 21 and December 15, 2009, and January 27, February 25, April 1, April 23, and May 26, 2010, confirmed the continuing infection of the Fruitland Park location with citrus canker. At each of the inspections at the Fruitland Park location, the inspectors made a count of the plants at the nursery. On December 15, 2009, a DPI inspector discovered that the Mahons had between 50 and 100 citrus trees (later determined to be 76 plants) in a spot at the North Lake Flea Market, near a recreational vehicle approximately 200 feet behind the retail location at the front of the flea market. The inspector, James Holm, a supervisor in DPI's Tavares office, gave the Mahons notice that that these plants were under quarantine because of their proximity to the infected plants already under quarantine. The Mahons received written notice of the quarantine on December 18, 2009. The Department considered the additional plants to be at John's Citrus Trees' registered location at Fruitland Park. The alternative would have been to consider the additional trees to be placed at an unregistered location, which would have constituted a different violation than that alleged in the Administrative Complaint. The plant counts, based on the inspection reports and taking into account the plant destruction witnessed by Department inspectors, were as follows: 2009 July 1 470 plants July 6 449 plants, accounting for 21 destroyed July 10 440 plants, accounting for 9 destroyed August 26 449 plants September 10 444 plants, accounting for 5 destroyed October 19 437 plants December 15 452 plants in front area and 50-100 new plants in rear December 18 528 total plants (76 plants counted in rear plus 452 plants in front) 2010 January 20 529 total plants and 22 (424 plants in front area, 76 in rear and 29 plants farther to the rear) Even when the destroyed plants are accounted for, the plant counts appear to show movement of trees exposed to or infected with citrus canker into and out of the Fruitland Park location while it was under quarantine for citrus canker and the owners had knowledge of the continuing infection. The tree count rose from 440 plants on July 10, 2009 to 449 plants on August 26, 2009. The Mahons had no explanation for this change, which they attributed to counting error by the Department. The tree count dropped from 444 plants on September 10, 2009 to 437 plants on October 19, 2009. The Mahons had no evidentiary explanation for this change. They speculated that the seven trees in question were stolen, noting that they were kept in an unlocked, unprotected area of the flea market directly off U.S. 441. As to the additional trees discovered by the Department in the rear area of the flea market on December 15, 2009, the Mahons testified that their conversations with Mr. Holm led them to believe that the Department would approve of their bringing in plants from other locations and selling them in the rear area. The Mahons testified that the plants in the rear area actually belonged to their son, Danny Mahon. The Mahons produced invoices for trees purchased by Danny Mahon from Pokey's Lake Gem Citrus Nursery. (Gary "Pokey" Mahon is the brother of Respondent John Mahon.) The plants named on the invoices could not be definitely matched with the 76 trees in the rear area of the flea market, though the dates on the receipts leave open the possibility that the 76 trees were the property of Danny Mahon. See Findings of Fact 80 and 81, infra, for detailed findings as to the invoices. Even if the Mahons testimony as to the provenance and ownership of the trees is credited, Mr. Holm denied giving the Mahons permission to sell trees from the rear area of the flea market while maintaining a quarantine on the location at the front of the flea market. Mr. Holm acknowledged having a discussion with Mr. Mahon along those lines, but also stated that he told Mr. Mahon that DPI headquarters in Gainesville would have to approve such a plan. The Mahons would have had to register the rear area as a separate retail location. As noted above, on December 15, 2009, Mr. Holm gave the Mahons telephonic notice that the both the front and rear sites at the flea market were under quarantine. The new plants in the rear area were quarantined due to their proximity to the known infected plants in the front of the flea market. Mr. Holm provided the Mahons with written notice of the quarantine on December 18, 2009. Danny Mahon did not have a registered nursery at the Fruitland Park location. The Department therefore attributed ownership of all of the trees, in the front and the back areas of the flea market location, to the only registered location at the North Lake Flea Market on U.S. 441 in Fruitland Park: John's Citrus Trees. On January 22, 2010, inspectors found another 29 plants at a third site, behind the recreational vehicle near which the 76 plants were found on December 15, 2009. The Mahons did not clarify whether these were new plants or plants that had been moved from one of the other two flea market locations. It is noted that the number of plants in the front area was 452 on December 15, 2009, and 424 on January 20, 2010, a difference of 28 plants, very nearly the number of plants found at the third site. The total count of trees at the Fruitland Park location changed from 528 on December 18, 2009, to 529 on January 20, 2010. The Mahons plausibly attributed these small discrepancies to a counting error. The sale of trees to Fred Thomas In 2009, Fred Thomas contacted John's Citrus Trees regarding the availability of 720 Minneola tangelo, or "honeybell," citrus trees. Mr. Thomas, an experienced grove caretaker, had been hired by Victor Roye, the owner of an abandoned grove, to remove the existing trees and replant the grove with honeybell citrus. Mr. Thomas testified that honeybells are "packing house fruit," and that Mr. Roye's intention was to sell the honeybells as edible fruit. The value of such market fruit is much greater than the value of fruit sold for juice. Citrus infected with citrus canker can be sold for juice, but is not salable as market fruit. On the telephone, Mr. Mahon assured Mr. Thomas that he could supply the requested trees. On March 3, 2009, Mr. Mahon and Mr. Thomas met in a McDonald's parking lot and signed a contract for the purchase of 720 honeybell citrus trees. Mr. Thomas gave Mr. Mahon a 25 percent deposit of $1620.00 towards the purchase price of $6,480.00 (720 trees x $9.00 per tree). At the time the contract was entered, the Mahons' propagation location in Clermont was not under quarantine. Under the terms of the contract, the trees were to be delivered by June 10, 2009. When the appointed date passed and he had not received the trees, Mr. Thomas contacted Mr. Mahon, who stated that the trees hadn't grown as they should. Mr. Mahon asked for an additional 30 days to deliver the trees. Mr. Thomas agreed to the extension only because he already had a contract with Mr. Mahon. Mr. Thomas thought it would likely take longer to find a new seller and negotiate a contract than the 30 days requested by Mr. Mahon. Mr. Mahon knew that Mr. Thomas was upset, and asked him to come to the Clermont nursery and see what he had. Mr. Thomas and his wife subsequently met with Mr. Mahon at the Clermont location. Mr. Mahon took the Thomases into the propagation house and showed them some trees in the ground that he identified as their honeybells. Mr. Thomas agreed that the trees were too small and reiterated his agreement to the 30-day extension. Mr. Mahon stated that he might obtain half of the 720 trees from his brother Pokey, and promised full delivery in July. Mr. Thomas testified that when he visited another nursery's propagation house, there was a pan of disinfectant outside the first door, and he was required to step into the disinfectant before proceeding. When the first door was opened, he was hit with a gust of air from a fan. As Mr. Thomas stated, "You walk into the second door, you're clean." Mr. Thomas noted that the Mahons' propagation house had none of those protections from infection. Mr. Thomas further noted that the propagation house itself was in poor condition, with gaps and openings in the enclosure. On about July 10, 2009, Ms. Mahon and one of her sons delivered about half of the promised 720 trees, then delivered the remaining trees two or three days later. Mr. Thomas testified that the trees were delivered "bare root," not in pots. Mr. Thomas paid the remainder of the purchase price to Ms. Mahon as the trees were delivered. Mr. Thomas testified that the trees did not look good when he planted them. "I didn't like the looks of them from the word 'go,' 'cause they were so small, and I seen stuff on them." In August, Mr. Thomas went to Triangle Chemical Company in Mascotte to seek the advice of Richard Hoffman, a salesman who was familiar with citrus pests. Mr. Hoffman was not available, but another Triangle Chemical employee accompanied Mr. Thomas to the grove. This man told Mr. Thomas, "Your trees are eat up with citrus canker." Mr. Thomas was incredulous and chose not to believe the man, though Mr. Thomas acknowledged his expertise. Mr. Thomas simply could not believe that the trees he had just planted were infested with canker, and decided to "try to take care of them." Later, Mr. Hoffman came out to the grove, because it still did not look right. Mr. Hoffman agreed with the earlier Triangle Chemical employee's assessment that the trees were "eat up with canker," in Mr. Thomas' words. Justin Nipaver, a CHRP inspector, is charged with ensuring that all citrus groves can be tracked in the Department's database. During the summer, Mr. Nipaver had noted that an old grove on the Roye property had been pulled out and destroyed. On November 22, 2009, Mr. Nipaver stopped in to inspect the newly planted grove, in order to obtain the information necessary to add the grove to the Department's database. During this inspection, Mr. Nipaver noted visible symptoms of citrus canker on the plants. He collected samples for laboratory analysis. He spoke with Mrs. Thomas, who told him that she and her husband had planted the grove for Mr. Roye and were acting as caretakers. Mrs. Thomas told Mr. Nipaver that the plants had been purchased from John's Citrus Trees. Mr. Nipaver did not tell Mrs. Thomas that he suspected a citrus canker infestation, preferring to wait for laboratory confirmation. Mr. Nipaver returned to the grove on November 30, 2009, accompanied by Mr. Holm, Detective Daniel Shaw of OALE, and two other Department employees. The team surveyed part of the grove and determined that 65 to 70 percent of the trees were suspected of having citrus canker. Mr. Nipaver testified that there was no need to survey the entire grove because of the severity of the infestation in the sample portion. Detective Shaw attempted to contact the Thomases but was unable to reach them. In a report dated December 2, 2009, the DPI pathology laboratory confirmed that the samples taken from the grove on November 30 were infected with citrus canker. The grove was placed under quarantine. Mr. Thomas testified that he told Mr. Mahon about the situation and that Mr. Mahon assured him that he could sell the fruit for juice. Mr. Thomas found this an inadequate response because his entire purpose in planting honeybells was to produce packing house fruit. He asked Mr. Mahon for a refund, but Mr. Mahon claimed that the Department had him "broke and tied up." Mr. Thomas subsequently pulled all of the trees and burned them under the supervision of Department employees. Mr. Nipaver testified that there were no groves with citrus canker near the Roye grove. The Mahons Clermont nursery was released from quarantine on April 1, 2009. Mr. Mahon testified that he feared that the Department would impose another quarantine on his nursery, not necessarily for good reason but just because "they were gunning for me." He therefore potted the 720 honeybell trees promised to Mr. Thomas and moved them, along with many other trees, to his son Paul Mahon's nursery in Groveland. Mr. Mahon testified that the plants were kept in a screen house at Paul's nursery until they were delivered to Mr. Thomas in July. Mr. Mahon's testimony conflicts with Mr. Thomas' testimony regarding his visit to the Mahon's nursery in June. Mr. Mahon had shown him plants in the propagation house that Mr. Mahon stated were the plants to be delivered to Mr. Thomas. Mr. Mahon had also stated that, in the alternative, he might obtain half of the plants from his brother Pokey. This June meeting was well after the April time period during which Mr. Mahon claimed to have moved the plants to Paul's nursery. Mr. Mahon's testimony that the plants being held for Mr. Thomas at Paul's nursery were potted is contradicted by Mr. Thomas' testimony that the plants were delivered bare root. Mr. Holm testified that Paul Mahon's nursery in Groveland was a propagation nursery and as such was inspected every thirty days. Mr. Holm testified that between April 2009 and early July 2009, the period during which Mr. Mahon claimed to be holding Mr. Thomas' plants in pots at Paul Mahon's nursery, there were no such potted plants on the nursery grounds. Mr. Holm testified that in April 2009, Paul Mahon's screen house was overgrown with grass and had "an issue" with tropical spiderwort, an aggressive, difficult to control weed. Part of the screen house structure was collapsed and the entryways were open. Mr. Holm described it as in a "deteriorating condition," and testified that this condition remained unchanged through October 2009. Mr. Mahon testified that Paul Mahon was very ill and awaiting a liver transplant during the period in question. Paul Mahon's illness accounts for the abandoned appearance of his nursery but not for the absence of the 720 plants that Mr. Mahon testified were stored there. Mr. Thomas' testimony was consistent and credible, and was supported by the testimony of Mr. Holm as regards the provenance of the 720 honeybell plants. Based on all the evidence, it is found that the plants delivered to Mr. Thomas in July 2009 came directly from the Mahons' propagation house at the Clermont nursery, and that they had not been stored at Paul Mahon's nursery between April and July 2009. Mr. Mahon knew that these plants were under quarantine and had a substantial probability of being infected with citrus canker. Sale of infected plants to a homeowner On October 20, 2009, DPI fruitfly inspection trapper Wayne Nichols drove past the John's Citrus Trees location at Fruitland Park and noticed plants being unloaded from a Budget rental truck. Mr. Nichols, who had prior experience as a citrus canker inspector with the Department, knew that the Fruitland Park Flea Market location was under quarantine for citrus canker. He therefore phoned his supervisor, Mr. Holm, to inform him of the activity. Mr. Nichols parked his car at the north entrance of the flea market and watched the activity while waiting for instructions from Mr. Holm. He saw a hatchback car leaving the flea market with two citrus trees hanging out of the back window. Mr. Nichols recognized driver of the car as a man he had just seen in the canopy tent from which John's Citrus Trees conducted business at the flea market. Mr. Nichols followed the car until it reached a gated portion of The Villages community. He could not follow further. The next day, Mr. Nichols and Mr. Holm returned to the gated neighborhood in The Villages. They located recently planted citrus trees in a homeowner's yard. Further inspection revealed that at least one of the trees had a citrus nursery identification tag with the registration number of John's Citrus Trees. Trees are tagged in this fashion by the original producer to allow the regulatory authorities to trace the origin of diseased plants. Mr. Nichols and Mr. Holm called the OALE and were met at The Villages location by Detective Shaw, who took over the investigation and photographed the trees and their location. The photographs were entered into evidence at the hearing. Mr. Mahon testified that during the periods when the Fruitland Park location was under quarantine, he would nonetheless take "special orders." He would purchase trees from other certified nurseries to satisfy the customers making these special orders. Mr. Mahon testified that this particular sale was to have been performed "truck to truck," with the plants never touching the ground at the flea market before being loaded into the customer's car. Mr. Mahon stated that if one of the trees had a tag indicating that its place of origin was John's Citrus Trees, then one of his employees must have mistakenly tagged the tree. Mr. Mahon testified that these special order plants were purchased from Pokey's, and were brought to the flea market via pickup truck. The plants in the pickup were covered and kept away from the other plants at the flea market, and they never touched the ground. This testimony is inconsistent with Mr. Nichols' credible testimony that he saw plants being unloaded from a Budget rental truck at the flea market. Mr. Mahon's testimony as to the origin and handling of "special order" trees is not credible. If the plants were kept covered in the back of a pickup truck until the customer took them away, and they never touched the ground at the flea market, it is difficult to see when an employee would have had the opportunity to "mistakenly" affix a John's Citrus Trees identification tag to one of the plants. Even if Mr. Mahon's testimony were credited, the act of bringing the "special order" trees into a quarantined nursery and selling them from that location would itself violate the quarantine. Purchase by undercover officers On December 18, 2009, officers from OALE went to the Fruitland Park location of John's Citrus Trees to purchase citrus trees as part of an undercover investigation. The attendant, Charles Harris, identified himself as an employee of John's Citrus Trees. He told the officers that he could not sell trees from the front portion of the flea market, but that there were trees further back near a recreational vehicle that he could sell. Mr. Harris told the officers that the trees in the back belonged to John's Citrus Trees. The officers purchased four citrus trees from Mr. Harris at the location near the recreational vehicle. As described at Finding of Fact 31, supra, the rear location near the recreational vehicle was within 200 feet of the quarantined location that held trees known to have citrus canker. Trees within this range are considered to have been exposed to citrus canker. See Finding of Fact 5, supra. As set forth at Findings of Fact 37 through 41, the rear location was not separately registered either to the Mahons or to their son Danny. Therefore, the rear location was either a part of the quarantined John's Citrus Trees facility at Fruitland Park, or it was an unregistered location. In either event, sale of trees from that location was unlawful. As noted at Finding of Fact 40, supra, Mr. Holm had given the Mahons telephonic notice that the both the front and rear sites at the flea market were under quarantine, and then provided the Mahons with written notice of the quarantine on December 18, 2009. The Mahons claimed that the trees had been purchased from Pokey's nursery by their son Danny Mahon. They submitted into evidence several invoices ranging in date from April 27, 2009, to November 27, 2009. The Mahons contended that the invoices proved that the trees in the rear location on December 18, 2009, belonged to Danny Mahon, not to John's Citrus Trees. However, the six invoices merely show that on four occasions Danny Mahon purchased citrus trees from Pokey's Lake Gem Citrus Nursery, and on two occasions John's Citrus Trees purchased citrus trees from Pokey's. In total, the invoices show that 254 plants were purchased from Pokey's. John's Citrus Trees is listed as the customer for 110 of the plants, and Danny Mahon is listed as the customer for 114 of the plants. The Mahons offered no details as to the numbers in the invoices, the timing of the deliveries, or how or where the deliveries were made. The invoices establish no necessary connection between the trees purchased by Danny Mahon and the trees found in the rear location of the flea market in December 2009. As stated in Finding of Fact 41, supra, the Department reasonably attributed ownership of all of the trees at the flea market location to the only registered location at the North Lake Flea Market on U.S. 441 in Fruitland Park: John's Citrus Trees. The Budget rental truck On October 8, 2009, a Budget rental truck containing a large number of potted citrus trees was intercepted at the Department's interdiction station on U.S. 90 in White Springs. The driver and passenger of the truck were asked for the bills of lading. The driver of the truck was Bruce Turner, who told Detective Shaw that he was an employee of Danny Mahon. The passenger was Gary Mahon, the youngest son of John and Shelby Mahon. They produced invoices indicating that the trees were to be delivered to eight different nurseries in Madison, Perry, Tallahassee, Marianna, and Kinard. The inspectors found that the invoices lacked the nursery certification that is required to accompany citrus plants transported in the state for commercial purposes. The invoices purported to come from "Danny Mahon Citrus." The invoices carried no street address. They listed an address of P.O. Box 120399, Clermont, which is the mailing address of John's Citrus Trees. Gary Mahon told the interdiction officers that the Danny Mahon nursery was located at 12603 Phillips Road in Groveland. The officers checked the Department's database and found no registered nursery at that address. They also failed to find any registration under the name "Danny Mahon Citrus." They did find a registration for "Danny's Citrus Trees" at the same address as the Mahons' registered location at Laws Road in Clermont. Additional DPI personnel were summoned to the interdiction station. Upon inspection, some of the citrus plants in the truck showed visible symptoms of citrus canker infection. Samples of the plants were sent to the DPI pathology laboratory in Gainesville. Subsequent test results confirmed the presence of citrus canker. Because he suspected citrus canker, the interdiction officer issued a "refusal of transport" form, sealed the lock on the truck with a metal Department seal, and ordered the truck to return to its initial location. Gary Mahon indicated that the initial location was 12603 Phillips Road in Groveland. Mr. Holm and Detective Shaw arranged to meet the truck when it returned that day. Detective Shaw drove to the Phillips Road address and found an empty field and no Budget truck. Mr. Holm arrived a short time later with Mr. Nichols. Mr. Holm made a phone call to Shelby Mahon, who directed him to drive to the Mahons' registered location at 7401 Laws Road in Clermont. Mr. Holm, Mr. Nichols, and Detective Shaw drove to the Clermont location, where they found a Budget rental truck carrying the Department's metal seal on its lock, inside the gates of John's Citrus Trees. Shelby Mahon insisted that the truck be taken to the Phillips Road location, which she stated was the origination point of the plants. On the morning of October 9, 2009, the truck was driven to the Phillips Road location. Detective Shaw followed the truck from Clermont to Phillips Road. Also present at Phillips Road were Mr. Holm, DPI regional administrator Christine Zamora, and DPI canker inspector Mike Hatcher. The Phillips Road property gave the appearance of a derelict orange grove. There was no disturbance on the ground to indicate that the plants had been stored at that location prior to being loaded onto the truck, either in individual pots or on pallets. There was no nursery infrastructure such as sheds or equipment. There was no irrigation system, though Shelby Mahon told Ms. Zamora that there was a well and pump on the property. OALE officers broke the seal on the truck. Shelby Mahon supervised the unloading, which was done by Mr. Turner and other employees of the Mahons. The plants were set out in blocks of 50 to make it easier for the Department's personnel to count them. There were 517 potted citrus plants on the truck, ranging in size from three gallon to 30-gallon pots. The plants in the three and five-gallon pots looked very young. Ms. Zamora noted that the trees fell out of the pots easily. The plants' root systems were very undeveloped and did not conform to the circular shape of the pots, indicating that they had only recently been placed in the pots. The DPI personnel agreed it was unlikely that the plants had been in the pots for more than a week. Many of the trees bore handwritten tags with the registration number of Paul Mahon's nursery. Many of the plants were double-tagged, bearing tags from Pokey's nursery as well as those from Paul Mahon's. None of the plants bore tags from John's Citrus Trees. Many of the plants had visible symptoms of citrus canker. Samples were taken and sent to the DPI pathology laboratory, and subsequent results confirmed that the plants were infected with citrus canker. Shelby Mahon told the Department's inspectors and investigators that the smaller plants had been stored at the Phillips Road location since February 2009. She stated that the smaller plants belonged to Danny Mahon, who had purchased them from his brother Paul Mahon. At the hearing, Ms. Mahon testified that her son Danny was the source of her knowledge as to where the plants had been since February 2009. Ms. Mahon stated that the larger plants in the 15 and 30-gallon pots were from Pokey's nursery, and that her son Gary had brokered the sales to the nurseries named on the invoices on behalf of Pokey and Danny Mahon. At the hearing, Ms. Mahon admitted that she prepared the invoices. Detective Shaw testified that Ms. Mahon told him that she drew up the invoices because Danny Mahon had never sold citrus before. Ms. Mahon recalled at least one customer calling her after obtaining the number of John's Citrus Trees on the internet. Ms. Mahon testified that she took the order on behalf of her son Danny because her own nursery was still under quarantine. She stated that orders were taken for the exact number and type of plants that had been stored at Danny Mahon's nursery since February 2009. The invoices indicated that the trees in the shipment consisted of 449 three-gallon, 15 five-gallon, and 33 ten-gallon plants, for a total of 497 plants. On October 5, 2009, three days before the Budget truck was interdicted at the White Springs station, the Mahons refused access to DPI inspectors at their Clermont nursery. John Mahon claimed that this denial was based on the agreement of DPI's bureau chief, Tyson Emery, to give the Mahons a little more time to clean up the nursery after cutting down and trimming seedling trees. According to Mr. Mahon, the inspector who turned up at the nursery was unaware of Mr. Emery's agreement and demanded access to the nursery. An argument ensued and the Mahons refused to allow the inspector on their property. Mr. Emery was not called as a witness in this proceeding. The inspector named by Mr. Mahon, Bryan Benson, was called as a witness by both sides, and testified a third time in rebuttal. However, the Mahons failed to question him regarding the events of October 5, 2009. The Mahons had previously refused to allow DPI inspectors to conduct an inspection on September 28, 2009.2/ At the hearing, John Mahon stated that access was refused on this date because he had a previous commitment and because he believed that DPI was attempting to schedule the inspection too soon after the previous one. Evidence at the hearing established that the Budget rental truck had been parked at the Laws Road location in Clermont overnight on October 7, 2009, prior to embarking on its intended deliveries to the nurseries listed on the invoices early on the morning of October 8. The Budget rental truck agreement indicated that the truck was rented on October 7 by Rebecca Mahon, the wife of Danny Mahon. At the hearing, John Mahon stated that the truck was parked overnight at the Laws Road location because Danny Mahon feared leaving it unprotected at the Phillips Road location. The Laws Road property is fenced, whereas the Phillips Road property is unfenced. The Mahons steadfastly denied that the trees on the Budget truck came from their Clermont nursery. There was no evidence presented that directly tied the trees to the Mahons' nursery, though the circumstances clearly indicate that Shelby Mahon was involved in arranging the sale of the trees, that there was no indication the plants had been kept at Danny Mahon's Phillips Road property, and that the Budget truck was parked at the Mahons' nursery the night before it set out to deliver the plants. The nearly contemporaneous refusal to allow the Department to inspect their nursery also directs some suspicion at the Mahons. The Department contends that one further piece of circumstantial evidence makes its case convincing: the presence of citrus canker in the plants on the Budget truck. As noted at Findings of Fact 8 through 12, supra, John's Citrus Trees was the only nursery in the state under quarantine for citrus canker at the time of the hearing, with the exception of one in DeSoto County that had destroyed all infected and exposed plants. Because the Mahons asserted that the trees on the Budget truck came from either Pokey's nursery or Paul Mahon's nursery, DPI inspectors sampled citrus trees at both nurseries after the truck was unloaded. Neither nursery showed any sign of citrus canker. The location where Danny Mahon was said to have stored approximately 500 citrus trees between February and October 2009 showed no signs of potted plants having been stored at that location. Nowhere did the ground show matting from having been under pots or pallets. On October 9, 2009, Shelby Mahon pointed the inspectors to a large oak tree, freshly trimmed, on the Phillips Road property. She stated that all of the plants had been stored under that tree, and that she could prove it because Sumter Electric and its tree service had forced her to move the potted plants in order to trim the tree. Detective Shaw contacted Sumter Electric and its contractor, Nelson's Tree Service. Their employees recalled trimming the tree on the Phillips Road property, but had no recollection of potted plants under the tree or anywhere in the vicinity of the tree. Ralph Bowman, the Nelson's Tree Service employee who oversaw the Sumter Electric contract trimming work at Phillips Road, testified at the hearing. He stated that when his team worked on the property during the first two weeks of September 2009, there were no potted plants on the property. An equipment problem forced Mr. Bowman to stop work in September. When he returned during the second week of October, there were potted plants on the property. Mr. Bowman described them as dry, with spots on the leaves. Failure to produce records On June 3, 2009, Tyson Emery, chief of the Bureau of Plant Inspection, sent a letter to the Mahons requesting records of their inventory since January 1, 2009. As of the date of the hearing, the Mahons had not responded to this request. The Mahons contended that the Department already had all of their records. However, the records referenced by the Mahons in their response pertained to transactions that occurred in 2008, not 2009. Further, even if the Mahons contention were correct, such would not justify their complete failure to respond to Mr. Emery's letter. Failure to maintain quarantine tape During a routine inspection of the Fruitland Park location on January 20, 2010, the Department discovered that yellow agriculture hold tape with the statement "Do Not Move" that had been wrapped around citrus trees at the quarantined location at the Fruitland Park flea market location was missing. The Mahons testified that they did not know how the tape went missing. They noted that the flea market is on a highway, that the trees were not secured, and that the presence of quarantine tape was not popular with their fellow vendors at the flea market. I. Ultimate findings As to the allegations that the Mahons moved citrus trees infected with citrus canker from quarantined locations, the evidence was clear and convincing that they moved plants into and out of the quarantined nursery in Clermont. The wide variations in the plant count between June 2009 and January 2010 is otherwise inexplicable. With one exception, the evidence was clear and convincing that the Mahons moved citrus trees into and out of their Fruitland Park location on numerous occasions while it was under quarantine. Regardless of their source, trees offered for sale at that location were under quarantine and could not lawfully be sold. The exception was the change in the count from 528 plants on December 18, 2009, to 529 plants on January 20, 2010, which could reasonably be attributed to a counting error. As to the allegations regarding the sale of trees to Fred Thomas, the evidence was clear and convincing that the Mahons sold and delivered citrus trees to Mr. Thomas directly from the propagation house of their Clermont nursery, and that Mr. Mahon knew that the plants were under quarantine and had a substantial probability of being infected with citrus canker. As to the allegations regarding the sale of two citrus trees from the Fruitland Park location to a purchaser who subsequently planted the trees at his home in The Villages, the evidence was clear and convincing that the Mahons knowingly sold citrus plants to the homeowner while their location was under quarantine for citrus canker. Mr. Mahon's explanation regarding the treatment of "special orders" was not credible. As to the allegations regarding the undercover purchase of citrus trees from the Mahon's quarantined location at Fruitland Park, the evidence was clear and convincing that the Mahons sold trees from a quarantined location to OALE officers on December 18, 2009. As to the allegations regarding the interdiction of the Budget rental truck, the evidence was not clear and convincing that the trees on the truck were taken from the Mahons' registered location in Clermont. While the presence of citrus canker in the interdicted fruit strongly suggested that the plants came from the Mahons' nursery, and other circumstantial evidence pointed toward the Clermont nursery as the origination point of the plants, nothing directly tied the plants to John and Shelby Mahon. All of the tags on the plants were from either Paul or Pokey Mahon's nursery. Mr. Turner identified himself as an employee of Danny Mahon. Shelby Mahon's testimony that her son Gary was brokering the plants for Danny and Pokey Mahon was not implausible in light of all the evidence. Though a preponderance of the evidence indicates that the Mahons' Clermont nursery was the most likely origination point of the trees on the Budget rental truck, the undersigned cannot find that the Department's proof on this point met the standard of clear and convincing evidence. As to the allegation regarding the failure to produce records, the evidence was clear and convincing that the Mahons failed to comply with the Department's letter of June 3, 2009, requesting the production of their inventory records since January 1, 2009. As to the allegation regarding the removal of the quarantine tape, the evidence was not clear and convincing that the Mahons were responsible for the missing quarantine tape at the Fruitland Park location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order revoking the nursery registration of John L. and Shelby Mahon, d/b/a John's Citrus Trees, imposing an administrative fine of $18,500 on John L. and Shelby Mahon, and ordering the destruction of the citrus trees at both of the registered locations of John's Citrus Trees. DONE AND ENTERED this 15th day of February, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2011.
Findings Of Fact Junior Martin, Petitioner, is a farmer d/b/a/ Junior Martin Farms in the State of Florida. Bastista Madonia is a farmer doing business in Florida and West Virginia and a licensed broker in Florida and packer of agricultural products d/b/a/ East Coast Brokers and Packers. Madonia holds Florida license no. 3906 supported by bond no. 743F4618 written by Travelers Indemnity Company as surety. In the summer of 1984 James DiMare, Bastista Madonia, and Junior Martin entered into a Farming Agreement (Exhibit 1) to establish a joint venture to grow cherry tomatoes in the fall 1984 farming season and, if successful, to continue this agreement into the spring season. Pursuant to this agreement approximately fifty (50) acres of tomatoes would be grown by Martin. DiMare and Madonia agreed to supply all plants and $500 cash per acre for which they would own 25 percent of the crop and the profits derived therefrom. East Coast Brokers (Madonia) was to supply picking bins and advance all picking money. Two dollars ($2) per package was to be charged for packing and thirty cents ($.30) per package for selling. Costs for growing the tomatoes was approximately $2,250 per acre. With their advance of $500 per acre and providing plants DiMare and Madonia financed approximately 25 percent of the growing cost of which they were to receive 25 percent of the profits. They were also to advance funds to harvest the tomatoes and deliver them to the packing house. In addition, Madonia paid for two (2) deliveries of tomato stakes to Martin's farm. The tomato crop planted in the fall of 1984 froze and was a total loss. DiMare then pulled out of the agreement. The agreement provided that if both parties are satisfied and things are going well by October 15, all parties will continue this venture by planting a spring crop. Madonia offered to contribute DiMare's share as well as his own for a spring Crop and Martin agreed to plant the spring crop. The spring crop was harvested from late March 1985 through late May 1985 (exhibit 4) at a profit. It is from this venture only that Martin bases his claim. In auditing the records, the Department of Agriculture investigator did not consider the transactions involving the fall crop because that had occurred more than nine (9) months before Martin's complaint. Section 604.21(1) Florida Statutes limits the time frame in which a complaint may be brought. Following the harvesting of the spring crop, Martin and Madonia went to Virginia to look into the feasibility of planting a summer crop in Virginia. They obtained suitable land to lease and, under a modification of their agreement, Madonia would put up most of the money required for the land, fertilizer, etc., and would be entitled to 50 percent of the profits. This venture was unsuccessful and resulted in a large loss, none of which has been paid by Martin. This endeavor was not included in the Department of Agriculture's audit because it occurred outside Florida and beyond the jurisdiction of the Florida Department of Agriculture. The parties discussed a fall 1985 crop after the debacle in Virginia and the Respondent advanced $10,000 to Petitioner for this crop (exhibit 16). This crop was never planted and the Petitioner has rendered no accounting for this advance. The endeavors by Madonia and Martin to grow fall and spring crops in Florida and a summer crop in Virginia were ongoing farming operations carried out pursuant to the Farming Agreement (Exhibit 1). As such, the endeavor was a joint farming venture with Martin providing the land (in Florida) and the farming expertise while Madonia provided plants and funds equal to one-fourth of the expenses and the marketing experience to sell the crops. Accordingly this endeavor was exempt from the provisions of Section 604.15-604.34 Florida Statutes, by Section 604.16(1) (Florida Statutes). The audit conducted by the Department of Agriculture (exhibit 6) showed Petitioner was owed $18,401.91 by Madonia as a buyer for the 1985 spring crop only. This figure does not include any advances over and above the $500 per acre advanced to Martin by Madonia for the fall crop 1984, or the advances for the Virginia operation in excess of the amount agreed to be provided by Madonia. Nor does this figure reflect the 25 percent of the profits due Madonia pursuant to the Farming Agreement. The amount Petitioner claims is owed to him by the Respondent for the spring crop is $60,632.86 (exhibit 7). This balance was prepared by Mrs. Martin from her records. Numerous checks endorsed by Petitioner which he received from Madonia were not included in those figures. Although cashed by Petitioner, they did not get into Mrs. Martin's bookkeeping records. Mrs. Martin acknowledged that she was not sure that she properly credited all of the checks she did receive from Madonia to the spring crop account. Accordingly, this figure is totally unreliable. Disregarding the fall 1984 crop and the Virginia episode, and accepting the Department of Agriculture's audit figures of $18,401.91 as the profits on the spring crops, 25 percent should go to Respondent pursuant to the Farming Agreement. This would leave $13,801.43 owed to Petitioner. From this should be deducted, at least, the $10,000 advance given to the Petitioner for the fall crop of 1985 which was never planted. The parties are engaged in civil litigation to resolve the disputes engendered by the farming activities above discussed. In those proceedings, all of the activities in which they participated pursuant to the Farming Agreement can be considered by the tribunal and resolved. Accordingly, that is the proper forum to resolve the disputes here in issue.
The Issue The issue presented is whether Respondents Harbor Island Citrus, Inc., and Fidelity & Deposit Company of Maryland are indebted to Petitioner Rio Indio Fruit Company in the amount of $80,684.
Findings Of Fact Petitioner Rio Indio Fruit Company operates a citrus packinghouse located in St. Lucie County, Florida. Respondent Harbor Island Citrus, Inc., operates a citrus packinghouse in Indian River County, Florida. On approximately November 20, 1999, Albert Valdes from Harbor Island contacted Ralph Viamontes from Rio Indio to ascertain if Rio Indio might have a source that Harbor Island could use to obtain colored grapefruit for Harbor Island's annual fund-raising program. It was the industry practice, and Harbor Island's practice, for the fund-raising program to run from late-November through mid-December. During that time period, students in the north sell the fruit to raise money for their projects. The fruit used in such a fund-raising program can be a quality inferior to the quality demanded by the Japanese market, the primary market for Harbor's Island's citrus. Viamontes told Valdes he would see if he could find a grower with colored grapefruit suitable for Harbor Island's fund-raising program. Viamontes telephoned Valdes the following day and said he had located a grower. On that day or possibly the following day Valdes and two other Harbor Island employees, Dennis Downs and James Morris, met Viamontes at the Rio Indio facility. The four men drove in Viamontes' vehicle to the Sorge VII grove in Martin County to look at the grove's colored grapefruit. The amount of fruit in the grove was much larger than Harbor Island needed to fulfill its fund-raising program commitment. Viamontes estimated that the grove contained the equivalent of 30,000 boxes of colored grapefruit. Valdes told Viamontes that Harbor Island might need 18,000 to 20,000 boxes of the grapefruit for its fund-raising program. Viamontes told the Harbor Island employees that they could still make a deal for the grapefruit in the grove because since he had his own packing house, he would take the fruit that Harbor Island did not need. The men discussed that Harbor Island could take 2/3 of the colored grapefruit in the grove, and Rio Indio could take 1/3. They further discussed that the manager of Sorge VII wanted $5.50 a box for the fruit, that Viamontes would contract to take all the fruit in the grove, that Harbor Island would pay Viamontes $5.50 a box for the fruit Harbor Island took, and that Viamontes would pay the grower. James Morris from Harbor Island specifically asked Viamontes what would happen if Harbor Island wanted less than 18,000 to 20,000 boxes. Viamontes told the Harbor Island employees that there would be no problem if Harbor Island took less fruit because Viamontes would take whatever was left after Harbor Island took what it wanted. Valdes consulted with Donald Groves, Jr., the owner of Harbor Island to verify that Harbor Island would make the arrangement suggested by Viamontes, and Groves approved the arrangement. Thereafter, Viamontes entered into a written contact with the manager of Sorge VII to purchase all of the fruit for $5.50 a box, and that written contract included deadlines for 20,000 boxes of fruit to be picked by December 31, 1999, and the remainder to be picked by the end of February 2000. Rather than the 30,000 field boxes that Viamontes had estimated the grove contained, the grove contained substantially more grapefruit than Viamontes estimated. The record in this cause suggests that the grove may have contained as many as 43,762 boxes of colored grapefruit. In accordance with its understanding of the arrangement with Viamontes, Harbor Island began harvesting colored grapefruit from the Sorge VII grove on November 26, 1999, and completed all picking at the grove on December 8, 1999. During that time Harbor Island picked 9,000 boxes of colored grapefruit for which it was obligated to pay Viamontes $5.50 per box. Harbor Island paid Viamontes in full for the fruit it took. During the time Harbor Island was at the Sorge VII grove picking colored grapefruit, Rio Indio's crews were there picking grapefruit. Rio Indio's crews also picked fruit at the grove during the months after Harbor Island completed its picking. In addition to Rio Indio's crews knowing that Harbor Island had completed its picking, James Morris specifically told Viamontes that Harbor Island had taken all the fruit it wanted from the Sorge VII grove as of December 8, 1999. During the months of December 1999, January 2000, February 2000, and the first half of March 2000, Viamontes spoke with Valdes of Harbor Island several times a day to check on the status of other unrelated fruit being packed and sold by Harbor Island for Viamontes. In addition, Viamontes was present at the Harbor Island packinghouse on a weekly basis to pick up checks due to him or Rio Indio for the unrelated fruit being sold by Harbor Island for Viamontes. Yet, at no time between December 8, 1999, and the middle of March 2000 did Viamontes tell anyone that he believed Harbor Island had an obligation to harvest additional fruit from the Sorge VII grove. Rather, in late January 2000 Viamontes asked Valdes if Harbor Island were going to take any more fruit from Sorge VII. When Valdes said the fund-raising program was over, Viamontes told Valdes not to worry because Rio Indio would take the rest. Further, on or about March 1, 2000, during one of Viamontes' visits to the Harbor Island packinghouse, Dennis Downs of Harbor Island asked Viamontes how the harvesting in Sorge VII was proceeding. Viamontes responded that Rio Indio was harvesting the remaining colored grapefruit and that Harbor Island need not be concerned about any further harvesting at the Sorge VII grove. On or about March 15, 2000, the price and demand for colored grapefruit suddenly and dramatically dropped due to an oversupply of fruit for which the industry was not prepared. After the dramatic decline, Viamontes contacted Valdes from Harbor Island and inquired whether Harbor Island was going to pick any additional fruit at the Sorge VII grove. Valdes responded that Harbor Island had no obligation to pick any additional colored grapefruit from the Sorge VII grove based upon the agreements between Harbor Island and Rio Indio, specifically, Viamontes' continued representations that Harbor Island should not be concerned about picking any additional colored grapefruit from the grove because Rio Indio would take the remainder. In July 2000 Viamontes appeared at Harbor Island and advised Donald Groves, for the first time, that Harbor Island owed Rio Indio the amount of $80,684 for an additional 20,171 boxes of colored grapefruit from the Sorge VII grove, which Viamontes now contends Harbor Island should have harvested. Rio Indio claims that it suffered a loss of $4 per box for that additional fruit. The documentation presented by Rio Indio to support its demand is questionable and does not substantiate Rio Indio's claimed damages. First, the majority of the documents submitted by Rio Indio indicate that the fruit described therein was from a grove in St. Lucie County, and Sorge VII is in Martin County. Second, the majority of the documents indicate that the fruit described therein was from packinghouse eliminations although Viamontes alleges that the fruit went directly from the field to the cannery without going through a packinghouse. Third, the cannery records reflect that the "pound solids per box" are significantly less than what would be expected from fruit coming from the Sorge VII grove based upon the grove's historical production.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Harbor Island Citrus, Inc., is not indebted to Rio Indio Fruit Company and dismissing the Complaint filed by Rio Indio Fruit Company in this cause. DONE AND ENTERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2001. COPIES FURNISHED: Theodore W. Herzog, Esquire 1101 Simonton Street Key West, Florida 33040 Fred L. Kretschmer, Jr., Esquire Moss, Henderson, Blanton, Lanier, Kretschmer & Murphy, P.A. 817 Beachland Boulevard Post Office Box 3406 Vero Beach, Florida 32964-3406 Kathy Elves The Fidelity and Deposit Companies 300 Saint Paul Place Post Office Box 87 Baltimore, Maryland 21203 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services 500 Third Street, Northwest Post Office Box 1072 Winter Haven, Florida 33882-1072 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services 541 East Tennessee Street India Building Tallahassee, Florida 32308 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issues presented for decision in this case are whether Respondent violated Section 760.10, Florida Statutes, as alleged, by discriminating against Petitioner in her employment on the basis of her sex and her condition of pregnancy, and, if that violation occurred, what relief is appropriate.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Petitioner, Minchi Torres, was 34 years old at the time of the hearing. She is married and has three children. In January 1995, she began working for Garden Fresh Restaurant Corporation, d/b/a Sweet Tomatoes Restaurant, a restaurant chain with its main corporate offices in California. Sweet Tomatoes operates restaurants in Brandon, Carrollwood, and Sarasota, Florida. Ms. Torres began her employment as a manager trainee in the Carrollwood restaurant. After completing her training, Ms. Torres transferred to the Brandon restaurant and began work as a service manager late in the summer of 1995. The service manager in a Sweet Tomatoes restaurant supervises the "front of the house": the area where guests are seated and the salad bar. After about a year and a half, Ms. Torres was promoted to production manager. The production manager supervises the "back of the house," i.e., the kitchen area. The production manager also performs inventories, orders food and supplies for the restaurant, and monitors expenses. While working as production manager in the Brandon store, Ms. Torres became pregnant. She had complications, and her physician allowed her to undertake only "light duty," which was inconsistent with her position as production manager. Ms. Torres was placed on unpaid maternity leave, effective April 1, 1997. During her maternity leave, Ms. Torres approached Robert Wilson, the local director of operations for the Sweet Tomatoes chain. She told Mr. Wilson that she needed income and asked if there was anything she could do with her limited capabilities. At the time, Mr. Wilson had an opening for a "technical shopper," a person who evaluates the restaurants for service, quality, and cleanliness. This was a contractual position, paid on an hourly basis. Mr. Wilson offered Ms. Torres the position, and she accepted. Ms. Torres worked part-time in the technical shopper position from April 1997 until shortly before she gave birth to her daughter on July 1, 1997. She then reverted to unpaid maternity leave. She requested and was granted an extension of the maternity leave and returned to work on September 13, 1997. She reported to the Tampa restaurant and was promoted to assistant general manager. Ms. Torres remained an assistant general manager in Tampa until September 1998, when she was promoted to general manager of the Brandon restaurant. In late 1999, Ms. Torres again became pregnant. She developed problems with this pregnancy in November 1999. She expressed to Mr. Wilson concern that she might lose the baby. Ms. Torres requested that she be relieved of her general manager's duty and placed in the less arduous position of service manager, at a different restaurant. Mr. Wilson accommodated her request, moving her to a service manager's position at the Carrollwood restaurant, but leaving her salary at a general manager's level. Ms. Torres' health problems kept her out of work from late November until December 27, 1999. Mr. Wilson testified that from November 15, 1999, through March 8, 2000, Ms. Torres was able to work a total of approximately four weeks. On February 9, 2000, Ms. Torres was at work when she began to have contractions. She left work and went directly to her physician's office. The physician determined that Ms. Torres required bed rest while he monitored her progress. She remained off work for the remainder of February. Ms. Torres returned to work on March 4, 2000, pursuant to a written release signed by her physician. The release specified that Ms. Torres should spend "limited hours on [her] feet," and that her work day should be limited to 6 hours of "limited activity" or "light duty." The job description for Ms. Torres' position as service manager called for a minimum shift of 10 hours, five to eight hours of which are spent standing or walking. Ms. Torres gave the release to the general manager of the Carrollwood restaurant, who relayed it to Mr. Wilson. The general manager told Ms. Torres that she would need to have a meeting with Mr. Wilson before resuming her duties. Ms. Torres met with Mr. Wilson at 10:30 a.m. on March 3, 2000. She requested light duty with limited time on her feet, consistent with her medical release. She asked if she could perform the technical shopping job she had done during her previous pregnancy. She also suggested performing marketing and auditing for the company or traveling to the various restaurants and updating their files. Mr. Wilson responded that none of these positions were available. He told Ms. Torres that accommodating her would require him to create a position for her, or to displace people who were already performing the jobs, and that he could not do either one. Mr. Wilson also noted that none of the jobs suggested by Ms. Torres were consistent with her actual position as a service manager in a restaurant. At the hearing, Ms. Torres testified that, though she requested a change in her duties, she also told Mr. Wilson that she was capable of performing as a service manager if that was her only option. She estimated that the job required her to spend three to four hours on her feet and that she could delegate duties and sit down occasionally. Mr. Wilson told her that the duties of a service manager were inconsistent with the medical release calling for "light duty." At the hearing, Mr. Wilson testified that he believed Ms. Torres could not perform the functions of a service manager. He stated that he was "torn," because Ms. Torres wanted to work, but he had nothing for her that did not conflict with the terms of her medical release. Mr. Wilson consulted Wendy Jewell, at that time the employee relations manager for Sweet Tomatoes. Ms. Jewell testified that, after Mr. Wilson apprised her of the situation, she investigated Ms. Torres' request. She independently confirmed that there were no openings for the type of light duty requested by Ms. Torres. She also consulted the company's vice-president for human resources and in-house legal counsel. She discussed the matter with Ms. Torres and told her that accommodating her request would mean displacing someone already in a job or creating a new job, which Sweet Tomatoes could not do. Ms. Jewell, in consultation with Sweet Tomatoes' director of employee benefits, made the decision not to accommodate Ms. Torres' request for light duty and to place Ms. Torres on unpaid leave under federal Family Medical Leave Act ("FMLA"). Ms. Jewell testified that this decision was consistent with the company's practice regarding employees who are unable to perform the essential elements of their jobs. Ms. Jewell pointed out that this decision was consistent with the company's actions toward Ms. Torres in 1997, when she was also placed on unpaid maternity leave. Ms. Jewell stated that the only distinction was that in 1997 the company happened to have an opening for a technical shopper, paid by the hour on a contractual basis, and that in 2000 there was no such opening. Ms. Torres was placed on FMLA leave, effective February 15, 2000, and continuing until April 31, 2000. She requested and was granted an extension of her leave until September 1, 2000. She delivered her child on June 29, 2000. Ms. Torres returned to work on September 11, 2000, as a production manager. She was dismissed by Sweet Tomatoes in November 2000, for reasons unrelated to her pregnancy. Ms. Torres claimed that Sweet Tomatoes' failure to accommodate her situation in 2000 was discriminatory because the company had made such an accommodation early in 1999 for a male employee, James Smith. In January 1999, James Smith was production manager in the Brandon restaurant. Ms. Torres was the general manager and his immediate supervisor. Early in January, Mr. Smith fell through the ceiling of his attic at home. He suffered four fractured vertebrae and two herniated discs. He was off work for virtually the entire month of January, taking either vacation days or sick leave. At some point in January, he attempted to return to work, but was sent home by Mr. Wilson because he was in obvious pain. Mr. Smith returned to work with a "light duty" physician's release on February 7. Mr. Smith's light duty release specified that he perform no heavy lifting and work for a period of six to eight hours. He followed these instructions until March 8, 1999, when he was transferred to the Sarasota restaurant as general manager. At that time, he resumed a full work schedule without restrictions. Ms. Torres testified that during the period of Mr. Smith's light duty restriction, he was unable to perform his duties as production manager. She stated Mr. Wilson asked her to "see what we can do for him," meaning that she should find work that Mr. Smith could do consistent with his physician's release. She had Mr. Smith perform office work, such as preparing schedules and placing orders. Ms. Torres testified that Mr. Smith worked about five hours per day during this period. Mr. Smith was allowed to take time off during the work day to attend physical therapy. Mr. Wilson testified that he was unaware that Ms. Torres had extended an accommodation to Mr. Smith and was unaware whether Ms. Torres had consulted the human resources department of Sweet Tomatoes about allowing Mr. Smith to work while injured. He did not recall telling Ms. Torres to make work for Mr. Smith. Mr. Wilson testified that the only accommodation he made for Mr. Smith was to allow him to attend physical therapy, because it was available only during working hours. Mr. Wilson testified that he knew Mr. Smith had been injured in a fall, but that he became aware of the extent of Mr. Smith's injuries only when he came to the restaurant and saw Mr. Smith attempting to work, in obvious pain. Mr. Wilson recalled that this occurred on or about January 21. Mr. Wilson testified that he ordered Mr. Smith to seek further medical attention and to obtain a medical release before returning to work. Mr. Smith's testimony corroborated Mr. Wilson's version of this event. Ms. Torres' testimony on the question of Mr. Smith's treatment by Sweet Tomatoes is not entirely reliable. She changed her testimony as to when and how long Mr. Smith was on light duty. Her testimony was inconsistent as to whether Mr. Wilson asked her if she had work that Mr. Smith could do or whether Mr. Wilson ordered her to create work for Mr. Smith. Mr. Wilson's version of events was more consistent with the documentary evidence and is therefore credited. Even if Ms. Torres' testimony were credited on this point, it would not establish that Mr. Smith enjoyed an accommodation denied to Ms. Torres. Mr. Smith's period of light duty lasted for a period of three to four weeks, whereas Ms. Torres would have required light duty from March 2000 until the completion of her pregnancy, a period of approximately four months. For that reason, the two situations are not comparable. In summary, the evidence established that Sweet Tomatoes was able to accommodate Ms. Torres' limitations in 1997, because there happened to be an opening for a technical shopper. The evidence established that Sweet Tomatoes made a good faith effort to accommodate Ms. Torres in 2000, but that no work was available and that Sweet Tomatoes reasonably declined to create a position or to displace other workers.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint and Petition for Relief. DONE AND ENTERED this 20th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ 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 20th day of February, 2001. COPIES FURNISHED: Donald E. Cope, Esquire Fine, Boggs, Cope & Perkins, LLP 225 South Cabrillo Highway Suite B-200 Half Moon Bay, California 94019 Scott Charlton, Esquire Clark, Charlton, Martino & Borders, P.A. 3407 West Kennedy Boulevard Post Office Box 24268 Tampa, Florida 33623-4268 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether respondents owe petitioner money on account of watermelon sales?
Findings Of Fact Last spring, her first working on behalf of respondent McKay & Associates, Inc., Pat Harper nee ' Maddox accompanied Randy Finch, the company president, to Florida to help buy and ship produce. Because petitioner Bubba Hurst had sold watermelons to Ms. Harper season before last, she sought him out again. On Tuesday night, May 28, 1991, Ms. Harper orally agreed on behalf of McKay & Associates, Inc. (after Ruth Neuman, the company's secretary-treasurer, had been consulted by telephone) to pay Mr. Hurst 12 cents a pound for two truckloads of watermelons "as is." (Earlier she had seen the watermelons piled in the smaller trucks in which petitioner's crew had brought them from the fields to the melon yard, after harvesting them that day.) With Wednesday morning came a truck and driver (engaged by Ms. Harper or Mr. Finch) to haul the watermelons from petitioner's melon yard to truck scales some ten miles away, then to a farm in Denton, Georgia, for crating and transshipment to their ultimate intended destinations in Maryland and Pennsylvania. After the first truck left at 4:58 that afternoon, loaded with watermelons aggregating 43,280 pounds, Petitioner's Exhibits Nos. 1 and 2, a second truck and driver arrived. Mr. Finch had agreed to pay Mr. Hurst cash for the watermelons, but a complication arose before they could settle that night: Only after the crew had gone home was it discovered that the second truck was overloaded by some 9,000 pounds; and the driver refused to risk the fines he might incur by hauling an overload. As a result, it was not clear exactly how many watermelons McKay & Associates, Inc. would owe petitioner for. After some discussion, Mr. Finch wrote and signed a check in petitioner's favor but left blank the amount; petitioner then endorsed and returned the check. The plan was, once the exact amount was known, for Mr. Finch to complete the check, cash it, and give Mr. Hurst the proceeds. Afterwards it occurred to Mr. Hurst that if the check were made out for more than what he was to be paid for the watermelons, he could have problems with the Internal Revenue Service. Apprehensive, he asked Mr. Finch to void the check, which he did, by writing "VOID" across it. Respondent's Exhibit No. 1. Later somebody filled in an amount ($5,193.60, which corresponds to the first load, 43,280 pounds at 12 cents per) and wrote "melons no good," perhaps in anticipation of a formal administrative proceeding like the present one. The check was never negotiated. On Thursday, May 30, 1991, while watermelons were being unloaded from the second truck, two men with a brief case full of cash expressed an interest in the lightening truckload. When Ms. Harper told Mr. Hurst, he said the watermelons were hers to do with as she pleased. She then sold the load to the two men for 12 cents a pound cash, and handed the money over to petitioner. The excess watermelons on the second truck had been offloaded onto a third truck. Of like capacity as the first, the third truck was empty when it accompanied the overloaded truck to the melon yard on Thursday morning. With the departure of the second truck, Ms. Harper and Mr. Finch told Mr. Hurst to fill the third truck up and agreed to buy that truckload. For a while, Mr. Finch was actually "in the line" handing some watermelons along for loading in the third truck, and rejecting others. They weighed 20 pounds each on average. Meanwhile, when Ms. Neuman saw the first truckload, after its arrival in Denton, Georgia, on Thursday morning, she exclaimed, "My God! These are sun scald[ed]!" At hearing, she testified she was incredulous Florida would let such watermelons leave the state. Ms. Neuman telephoned Mr. Finch and told him she was sending the first load back, but that she would take the other load if it "meets federal." She also called the trucking company (then reportedly owned by the late Sam Walton), however, and told the trucker not to load any more watermelons. When Evelyn Hurst, Bubba's mother, answered the telephone at the melon yard lunchtime Thursday, she was asked to tell the driver of the third truck to call home because there was an emergency. The driver made a telephone call, after which he told Mrs. Hurst nothing was wrong at his home. Then he made a second telephone call. After that call, he ordered a stop to the loading then in progress. Bubba Hurst was eating when his mother called with word that no more watermelons were being loaded onto the third truck. He then telephoned the motel where Mr. Finch was staying, and inquired. Mr. Finch told him to finish loading the third truck; and later went to the melon yard and told the driver that loading should go forward. Loading resumed. Later Mr. Finch raised with the driver the possibility of taking the load to New York, but the driver declined the suggestion. Around four o'clock Thursday, the renewed efforts to fill the third truck with watermelons came to an abrupt end, about 250 melons shy of a full load, and the driver, who had ordered the halt, drove away. Mr. Hurst called the motel, and spoke to Ms. Harper, in hope of obtaining the cash he had been promised for his watermelons, but to no avail. The next day the first truck returned from Georgia with the watermelons whose presence on the other side of the state line had so surprised Ms. Neuman; and a federal agricultural inspector, a friend of Mr. Hurst's father, arrived at petitioner's melon yard to inspect them. Mr. Hurst told the inspector (who had been called by Ms. Neuman) that he was welcome to inspect but that the whole load had been sold "as is" and that he - Mr. Hurst - would not be paying for the inspection. Hearing this, the inspector left. Disinterested testimony established that inspections by USDA- certified inspectors are routinely called for by shippers when produce is refused by buyers claiming that produce spoiled before reaching them; but that, at least in the environs of Wildwood, Florida, it is not customary to call for a federal inspection at the point from which watermelons are shipped (unless the shipment is to the Government itself.) Of course, these particular watermelons had already been to Georgia and back. After the inspector left, the driver of the first truck asked that the watermelons be removed from his truck. When Mr. Hurst told him he was trespassing and asked him to leave the melon yard, the driver (or Ms. Neuman by long distance telephone call) summoned a Sumter County deputy sheriff. But the deputy sheriff, informed upon his arrival that the melon yard was a good quarter mile on the Marion County side of the county line, left to perform other duties. Still loaded, the first truck eventually left the melon yard a second time.
Recommendation It is, accordingly, RECOMMENDED: That DACS order McKay & Associates, Inc. to pay petitioner nine thousand seven hundred eighty seven dollars and twenty cents ($9,787.20) within fifteen (15) days of the final order. That, in the event McKay & Associates, Inc. fails to pay petitioner nine thousand seven hundred eighty seven dollars and twenty cents ($9,787.20) within fifteen (15) days of the final order, DACS order payment by State Farm Fire & Casualty Co., to the extent necessary to satisfy the requirements of Section 604.21(8), Florida Statutes (1991), for disbursal to petitioner. DONE and ENTERED this 7th day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 9 and 10 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, see findings of fact Nos. 5 and 6. With respect to petitioner's proposed finding of fact No. 7, petitioner said the load may have been as many as 250 melons light. With respect to petitioner's proposed finding of fact No. 11, the value of the second load established by the evidence is $4,591.60, representing 38,280 pounds at 12 cents a pound. Respondent's proposed finding of fact No. 1 has been adopted, in substance, insofar as material. With respect to Respondent's proposed findings of fact Nos. 2 and 3, Ms. Neuman's testimony that she directed her agents to procure federal inspection before the first truck left has not been credited, but she did try to arrange one later. With respect to respondent's proposed finding of fact No. 4, the second truck load was never rejected. Respondent's proposed finding of fact No. 5 is rejected. With respect to respondent's proposed finding of fact No. 6, see paragraphs 5 and 6 of the findings of fact. Respondent's proposed finding of fact No. 7 is immaterial. With respect to respondent's proposed finding of fact No. 8, Mr. Finch agreed to buy the third truckload and ordered that loading go forward even after Ms. Neuman registered her dissatisfaction with the first load. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agricultural and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agricultural and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Julian E. Harrison, Esquire 324 West Dade Avenue Bushnell, Florida 33513 John Sowa, Esquire Robert L. Rehberger, Esquire 5025 North Henry Boulevard Stockbridge, Georgia 30281
