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 issues in this case are whether Raysbrook Sod, Inc. (Respondent), is indebted to Florida Sod, Inc. (Petitioner), related to the sale and purchase of sod, and, if so, in what amount.
Findings Of Fact Petitioner is a corporation engaged in the business of harvesting sod. Petitioner is located in LaBelle, Florida. Respondent is a corporation located in Riverview, Florida, and is also engaged in the sod business. In September 2007, Respondent was interested in purchasing some sod in order to satisfy a customer's needs. Respondent's regional supervisor, Gabriel Monsivais, approached a gentleman by the name of Trampis Dowdle about purchasing sod. Monsivais had never met Dowdle and, in fact, knew him only as "Mr. Trampis." Dowdle represented that he could obtain sod from Petitioner, and a deal was struck. There was no written contract between Monsivais and Dowdle, nor--quite interestingly- -between Petitioner and Respondent. Nonetheless, Respondent had its drivers go to Petitioner's sod field and begin loading sod for Respondent's use. In all, approximately 1,700 pallets of sod were acquired from Petitioner's field by Respondent. Each time a load of pallets was taken, a Load Sheet was created to show the number of pallets, the location of the field, and the name of the person taking the sod. The driver of the truck was expected to sign the Load Sheet, indicating that the sod had indeed been received. There is no dispute between the parties about the number of pallets taken by Respondent's drivers.1 As sod was taken by Respondent, Petitioner would issue an invoice reflecting the amount of sod and the price to be paid. The invoices were sent to Respondent via U.S. Mail. The total amount billed for the sod was $42,559.16. Respondent issued a check (No. 8899) in the amount of $1,271.16, made payable to Petitioner on November 30, 2007, in payment of the first invoice from Petitioner. No further checks from Respondent were received by Petitioner, leaving a balance due of $41,288.00.2 Respondent, however, did attempt to make payments for the sod it purchased. Respondent wrote checks to Dowdle based on Dowdle's representations that he either owned Petitioner's company or was working for Petitioner. In fact, Dowdle neither owned nor was in any way affiliated with Petitioner. Dowdle was apparently defrauding Respondent (and possibly Petitioner as well). Respondent's representative, Joseph Bushong, and Petitioner's representative, Jake Alderman, had never met prior to the day of the final hearing in this matter. There was no written contract between the parties. The entire business relationship between the parties was done orally, based on conversations between Monsivais and Dowdle. Nonetheless, Respondent did obtain over $42,000.00 worth of sod from Petitioner. Respondent does not contest this fact. Respondent's actions indicate acknowledgement of the presumed relationship between the parties. Respondent submitted a credit application to Petitioner with references and credit information to be used by Petitioner in extending credit to Respondent for the sod it was purchasing. Respondent issued at least one check directly to Petitioner for payment of the sod in response to an invoice issued by Petitioner. The check was made payable to "Florida Sod" in the amount of $1,271.16. That check directly corresponds to the amount in Invoice No. 1697 from Petitioner dated October 8, 2007. Respondent did receive additional invoices from Petitioner for the sod Respondent had purchased and received. Clearly, there was an understanding between the two companies that a business relationship existed. After making its first payment to Petitioner, Respondent's subsequent payments for the sod were made directly to Dowdle and his companies. One such payment, made by way of a credit card, was actually applied to a restaurant with which Dowdle apparently had some business connection. Other payments were made via checks made payable to other Dowdle interests. Respondent made payments to Dowdle in the mistaken belief that Dowdle was the agent of or employed by Petitioner. In fact, Dowdle has never been affiliated with Petitioner. Petitioner did not receive any of the payments made by Respondent to Dowdle. Petitioner and Dowdle are not related or affiliated in any fashion (other than a prior arm's-length sod purchase between the two). It is clear that Dowdle received the payments intended for Petitioner in payment for the sod purchased by Respondent. Dowdle, whose whereabouts are unknown by the parties, did not provide Petitioner with the payments. Rather, from the evidence, it appears that Dowdle kept the payments, thereby committing a fraud on both Petitioner and Respondent. Though both parties are somewhat at fault in this matter for failure to utilize normal and acceptable business practices, one or the other party must necessarily bear the burden of payment. The evidence supports Petitioner in this regard because it best followed normal business procedures. Had Respondent made its remittance checks payable to Petitioner (who had issued the invoices), Dowdle would not have been able to abscond with the money. Had Respondent obtained some affirmative proof that Dowdle was an agent of Petitioner, Respondent would have known better than to provide money to Dowdle. Had Respondent contacted Petitioner directly instead of relying on third parties (its foreman and Dowdle), the deception would have been uncovered. However, the facts of this case support the proposition that Petitioner made a valid sale of sod to Respondent, and Respondent did not pay Petitioner for the sod.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring Respondent to pay Petitioner the sum of $41,288.00 within 30 days of entry of a final order. DONE AND ENTERED this 31st day of October, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2008.
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Holmes Nursery & Gardens Associates, LTD., is a wholesale and retail nursery providing a variety of landscape agricultural products. The east coast regional office for Petitioner is located at 1600 SW 20th Street, Fort Lauderdale, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highways Delray Beach, Florida. Respondent, Garden of Eden is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about April 23, 1986, Garden of Eden ordered and received delivery of $1770.00 worth of agricultural products from Petitioner. This purchase consisted of four viburnum odo., five weeping podocarpus and one bottlebrush. On or about April 25, 1986, Garden of Eden ordered and received delivery of $420.00 worth of agricultural products from Petitioner. This purchase consisted of three live oaks. On or about April 28, 1986, Garden of Eden ordered and received delivery of $312.50 worth of agricultural products from Petitioner. This purchase consisted of twenty-five viburnum odo. On or about April 29, 1986, Garden of Eden ordered and received delivery of $520.00 worth of agricultural products from Petitioner. This purchase consisted of four laurel oaks. On or about May 5, 1986, Garden of Eden ordered and received delivery of $1,130.00 worth of agricultural products from Petitioner. This purchase consisted of forty-seven crinum lily and six hundred and twenty-two liriope muscari. On or about May 13, 1986, Garden of Eden ordered and received delivery of $2,943.00 worth of agricultural products from Petitioner. This purchase consisted of seven cattley grava, and six paurotes. On or about May 28, 1986, Garden of Eden ordered and received delivery of $315.00 worth of agricultural products from Petitioner. This purchase consisted of one roebelinii single and one roebelinii double. On or about June 19, 1986, Garden of Eden ordered and received delivery of $300.00 worth of agricultural products from Petitioner. This purchase consisted of one paurotis 5 stem. The total amount of the agricultural products purchased by Garden of Eden was $7,710.50. On August 8, 1986, Garden of Eden paid $1060.00 on the account. On September 24, 1986, another $2500.00 was remitted to Holmes Gardens on this account. The balance of indebtedness owed by Garden of Eden to Holmes Gardens for the purchases listed above is $4,150.00. Petitioner claims it is due an additional sum of $436.04 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry; however, no written agreement or acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
The Issue The issue in this case is whether Respondents owe Petitioner $13,512.09 for watermelons, as alleged in the Amended Complaint.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Cook Brown Farms is a melon farm in Punta Gorda, Florida. At all times pertinent to this proceeding, Cook Brown Farms was a "producer" as defined in Subsection 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Melons come within the definition of "agricultural products" as defined in Subsection 604.15(3), Florida Statutes. J.G.L. Produce is a Florida Corporation, owned by John W. Johnson, Jr., and located in Pompano Beach, Florida. At times pertinent to this proceeding, J.G.L. Produce was licensed as a "dealer in agricultural products" as defined in Subsection 604.15(1), Florida Statutes. Andrew J. Cook, a principal owner of Cook Brown Farms, and Mr. Johnson of J.G.L. Produce entered into an oral agreement regarding the sale of watermelons grown at Cook Brown Farms. The core of this case is a dispute concerning the nature of this agreement. Mr. Cook testified that, under the agreement, J.G.L. Produce would purchase the melons at the farm at their daily market price, plus 1/2 cent to cover Cook Brown Farms' cost of picking, sorting, and placing the melons in special bins and in special pallets required by the ultimate purchaser, Kroger Supermarkets. J.G.L. Produce would provide the bins and pallets and would provide the trucks to ship the melons. Mr. Johnson testified that the agreement was not for purchase but for brokerage of the melons. J.G.L. Produce would act as broker of Cook Brown Farms' watermelons, use its best efforts to sell the melons at the highest price available, and pay Cook Brown Farms the proceeds of the sale, minus expenses and a brokerage fee of one cent per pound. Mr. Johnson testified that J.G.L. Produce never took title to or purchased the melons, and that the risk of loss always remained on Cook Brown Farms. Mr. Johnson testified that he approached Mr. Cook about the melons because he had a ready buyer in another local dealer, Delk Produce, which had a longstanding arrangement to provide melons to Kroger. Mr. Johnson agreed with Mr. Cook that the arrangement included the provision of bins and pallets by J.G.L. Produce, though Mr. Johnson stated that the arrangement also called for J.G.L. Produce to retain $0.015 per pound from the amount paid to Cook Brown Farms to cover the cost of the bins and pallets. J.G.L. Produce took approximately 24 truck loads of watermelons from Cook Brown Farms. J.G.L. Produce deducted a one cent per pound brokerage fee from each load of melons it took, except for certain loads noted below, without contemporaneous objection from Cook Brown Farms. The Amended Complaint claims that J.G.L. Produce owes money to Cook Brown Farms for five of the loads taken by J.G.L. Produce. In sum, the Amended Complaint states that J.G.L. Produce owes Cook Brown Farms $19,991.74 for the five loads, less $6,479.65 already paid, for a total owing of $13,512.09. Item One of the Amended Complaint alleges that J.G.L. Produce owes $4,438.54 for a load of 38,596 pounds at a price of $0.115 per pound, sold on April 20, 2000. Item Two of the Amended Complaint alleges that J.G.L. Produce owes $4,625.30 for a load of 40,220 pounds at a price of $0.115 per pound, sold on April 21, 2000. The Amended Complaint alleges that the melons on these two loads were inspected and approved for shipment during loading by Delk Produce employee Freddie Ellis. The Amended Complaint states that Cook Brown Farms was paid in full for the loads on May 3, 2000, but that the contested amounts were deducted from subsequent settlements by J.G.L. Produce. The evidence established that the melons claimed under Item One were initially sold to Delk Produce for delivery to Kroger. On May 3, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $4,438.54, which constituted the price for 38,596 pounds of melons at $0.125 per pound, less $385.96 for the one cent per pound brokerage fee. Jay Delk, the principal of Delk Produce, testified that this load was rejected by Kroger's buyer in Virginia due to "freshness," meaning that the melons were unsuitably green. Mr. Delk stated that the melons were taken to North Carolina to ripen and eventually sold at $0.06 per pound. The final return on this load, less the brokerage fee, was $1,543.84. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $4,438.54 and the final payment of $1,543.84. The evidence established that the melons claimed under Item Two were initially sold to Delk Produce. On May 3, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $5,809.80, which constituted the price for 50,520 pounds of watermelons at $0.125 per pound, less $505.20 for the one cent per pound brokerage fee. Seminole Produce purchased 10,300 pounds of this load at $0.145 per pound, or $1,493.50. The remainder of the load was rejected by Kroger due to freshness and had to be resold at a lesser price of $0.0346 per pound, or $1,391.00. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $5,809.80 and the final payment (after deduction of the brokerage fee) of $2,576.11. The evidence established that the melons claimed under Item Three were sold to Delk Produce. On May 9, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $2,731.30, which constituted the price for 42,020 pounds of watermelons at $0.0675 per pound, less $105.05 for the brokerage fee, reduced to $0.0025 per pound. Mr. Johnson testified that he decided to forego the full brokerage fee to save money for Mr. Cook and his farm, because it was "hurting" due to the rapidly plummeting price for watermelons. Mr. Johnson discovered at this time that Delk Produce had not been retaining the agreed- upon $0.015 per pound to cover the cost of bins and pallets and decided not to lose any more money on that item. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $2,731.30 and $2,206.05, deducting $525.25 from the original payment to cover the cost of the bins and pallets. The evidence established that the melons claimed under Items Four and Five were originally shipped to Wal-Mart in Kentucky on April 29, 2000, and were rejected on the ground that the melons were not packed to specifications. The melons were trucked back to Florida at J.G.L. Produce's expense. The melons claimed under Item Four totaled 41,100 pounds. J.G.L. Produce divided the melons into four loads and sold them to four local dealers at an average price of $0.775 per pound, totaling $3,185.41. J.G.L. Produce deducted its $0.015 charge for bins and pallets, reducing the total to $2,671.51. J.G.L. Produce then deducted $1,750.00 from the total as reimbursement for the freight charge it paid to bring the melons back to Florida after their rejection by Wal-Mart. J.G.L. Produce did not include a brokerage fee. On May 26, 2000, J.G.L. Produce paid the remaining $921.51 to Cook Brown Farms as part of the final settlement. The melons claimed under Item Five totaled 45,600 pounds. J.G.L. Produce sold 2,426 pounds to Seminole Produce at $0.10 per pound, or $242.60. J.G.L. Produce sold the remaining 43,174 pounds to Belle Glade Produce at $0.065 per pound, or $2,800. From the total for Item Five, J.G.L. Produce deducted its $0.015 charge for bins and pallets and $1,950.00 for the freight charge it paid to bring the melons back to Florida after their rejection by Wal-Mart. J.G.L. Produce did not include a brokerage fee on this load of melons. On May 26, 2000, J.G.L. Produce paid the remaining $416.64 to Cook Brown Farms as part of the final settlement. The weight of the credible evidence, excluding the hearsay that was not supported by the direct testimony of Mr. Johnson, leads to the finding that there was a brokerage arrangement between the parties. J.G.L. Produce routinely deducted brokerage fees from its payments, without objection by Cook Brown Farms. This course of dealing strongly indicates a brokerage arrangement. Mr. Cook testified as to prior dealings with J.G.L. Produce, which also involved a brokerage arrangement. The evidence indicated that J.G.L. Produce fully accounted for the five loads of melons at issue, and paid Cook Brown Farms the full amounts due and owing for those loads.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order dismissing the Amended Complaint filed by Gin Brown Matthews, d/b/a Cook Brown Farms. DONE AND ENTERED this 21st day of March, 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2001. COPIES FURNISHED: Redland Insurance Company 222 South 15th Street, Suite 600, North Omaha, Nebraska 65102 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 John W. Johnson, President Post Office Box 1123 Pompano Beach, Florida 33061 Harold M. Stevens, Esquire Post Office Drawer 1440 Fort Myers, Florida 33902 Edward L. Myrick, Jr., Esquire Beighley & Myrick, P.A. 1255 West Atlantic Boulevard Suite F-2 Pompano Beach, Florida 33069 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether or not the Respondent failed to remit to Petitioner a payment for nursery products received.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings: Petitioner, Gramling Nursery, Inc. (Gramling), is a wholesale nursery (producer) which sells landscape plants and other nursery products from its facility located at 3402 South Redman Parkway, Plant City, Florida. Respondent, Landscape & Water Amenities, Inc. (LWA or Respondent), is a landscaper which maintains its principle office at 2453 South Third Street, Jacksonville Beach, Florida. During times material, LWA was the holder of agricultural bond number 06827 issued through American States Insurance Company in the amount of $10,000.00. Respondent, American States, is a surety company securing payments to producers of agricultural products supplied to LWA. On May 9, 1989, LWA submitted an application for credit to Petitioner. Petitioner approved LWA's credit application and issued a charge account with the following terms: All bills are due when the material is delivered and become past due the 10th of the month following the date of purchase. Delinquent accounts are subject to one and one-half percent per month (18% annually) service charge. Should any collection procedures become necessary, all costs, including reasonable attorney fees, are borne by the customer and venue will be in Hillsborough County. It is a condition of your account [that] you maintain an agricultural bond as required by state law and the bond amount will set your credit limit. On July 13 and July 28, 1989, Petitioner sold to LWA nursery plants on invoice numbers 24796 and 24834 in the respective amounts of $4,038.07 and $140.23, for the total sum of $4,178.30. Petitioner made at least six telephone calls in an effort to collect the payment for the nursery plants which it delivered to LWA and these efforts were all unsuccessful. By letter dated October 19, 1989, Petitioner forwarded, by certified mail, return receipt requested, a demand letter to Frank Timmons, president of LWA, for full payment of $4,397.81 to be received by October 27, 1989. Petitioner advised LWA that in the event that payment was not received, Petitioner would file against LWA's agricultural bond and take other necessary legal action to collect the debt. By letter dated November 21, 1989, Petitioner received a letter from Michael J. Marees, Esquire, which was addressed to all creditors of Landscape and Water Amenities, Inc., advising that his law firm had been retained to assist LWA "in winding up its affairs and conducting a voluntary liquidation of its remaining assets." In attempting to liquidate the remaining assets, to the extent that funds were reportedly available, attorney Marees made an across the board distribution of ten percent of the outstanding debt owed by LWA to all of its creditors. In this regard, Petitioner received a check in the amount of $439.78. By letter dated January 29, 1990, Petitioner advised LWA that the above-referred payment was applied to LWA's account in the form of interest ($401.82) and principal ($37.96) leaving a balance due on that date of $4,141.34. Petitioner received no further communiques from either LWA or American States.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Agriculture and Consumer Services, Bureau of License and Bond, issue a Final Order finding that Respondent, Landscape & Water Amenities, Inc., owes Petitioner the sum of $4,141.34, plus interest accruing at the rate of one and one-half percent per month from January 29, 1990. In the event Respondent LWA fails to pay this sum the Respondent surety shall be required to pay that amount from its agricultural bond pursuant to Section 604.21(8), Florida Statutes. DONE and ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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, 1990. Copies furnished: Hugh M. Gramling, President Gramling Nursery, Inc. 3402 South Redman Parkway Plant City, Florida 33566 Clinton H. Coulter, Jr., Esquire Senior Attorney Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Frank Timmons Landscape & Water Amenities, Inc. 10445 Atlantic Boulevard Jacksonville, Florida 32225-6723 American State Insurance Company 500 North Third Street Indianapolis, Indiana 46204 Mallory E. Horne, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Doyle E. Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810
The Issue Whether Respondents, Ag-Mart Produce, Inc. (Ag-Mart), and its employees' Justin Oelman (in DOAH Case No. 06-0729) and Warrick Birdwell (in DOAH Case No. 06-0730), committed some, any, or all of the violations alleged in the Administrative Complaints detailed herein and, if so, what penalty should be imposed.
Findings Of Fact Based upon the evidence presented at the final hearing, the following relevant findings of fact are made: The Department is the state agency charged with administration of the Florida Pesticide Law, Chapter 487, Part I, Florida Statutes. Among the duties of the Bureau of Compliance Monitoring within the Division of Agricultural Environmental Services are the designation and regulation of restricted-use pesticides, the testing and licensure of certified pesticide applicators, and the enforcement of federal worker protection standards regarding the exposure of farm workers to pesticides. §§ 487.011, 487.042, 487.044, and 487.051, Fla. Stat.; Fla. Admin. Code R. 5E-2.039. The Administrative Complaints allege two types of violation of the Florida Pesticide Law. First, they allege that Ag-Mart harvested tomatoes prior to the end of the pre-harvest interval, the period of time that must pass after a pesticide is applied to a tomato plant before that plant's fruit may be safely harvested. The pre-harvest interval is specified on the labels of restricted-use pesticides. Second, they allege that Ag-Mart allowed workers to enter sprayed fields prior to the end of the restricted entry interval, the period of time that must pass after a pesticide is applied before it is safe for a worker to enter or remain in the treated area. The restricted entry interval is also specified on the labels of restricted-use pesticides. In 2004, Ag-Mart operated farms in several locations in Florida and North Carolina. Ag-Mart operated packing houses in Plant City, Florida, and in New Jersey. Ag-Mart grows, packages, and distributes grape tomatoes under the "Santa Sweets" label, and a round-type tomato marketed as "Ugly Ripe." During all times relevant to this proceeding, Ag-Mart's principal administrative offices were located in Plant City, Florida, and Ag-Mart's operations were managed by its president, Donald Long. At the final hearing, several Ag-Mart employees, including Mr. Long, testified as to Ag-Mart's practices in establishing planting and pesticide spraying schedules, carrying out those schedules in the field, and ensuring that legal restrictions on pesticide use are observed. This testimony is credited as to Ag-Mart's general pattern and practice, but does not disprove the Department's evidence as to particular instances of pre-harvest interval or restricted entry interval violations. Among other duties, Mr. Long was responsible for scheduling Ag-Mart's cultivation of tomato plants at the company's farms, so that product is available year-round. Mr. Long prepared a 2004 planting schedule that spaced the planting of new crops a week to ten days apart to ensure a continuous flow of tomatoes once the plants matured. For the 2004 season, the South Florida farm began planting in September 2003, with harvesting commencing in December 2003 and continuing through May 2004. The North Florida farm started its spring season plantings in March and April 2004, with harvest beginning in early June 2004 and lasting until August 2004. Each "planting" at Ag-Mart consists of a specific amount of acreage that is cultivated for a specific period of time to produce an expected yield of tomatoes. Mr. Long determines the size of each planting based on past yields and projected needs. A single planting of grape tomatoes is harvested multiple times. Depending on conditions, a planting of grape tomatoes at the South Florida farm can be harvested between ten and 15 times in the fall, with fewer harvesting opportunities in the spring. A planting of grape tomatoes at the North Florida farm may be harvested between eight and ten times. Each planting takes up portions of acreage called "fields," which are divided by land features and irrigation systems. Fields are of varying sizes, depending on the nature of the terrain and the irrigation system. The fields are numbered, and a planting is usually done in a certain number of roughly contiguous fields. A field is further divided into separately numbered "blocks," each block consisting of six rows of tomato plants, three rows on each side of a "drive area" through which tractors and harvest trucks can maneuver to reach the plants. The blocks are numbered in sequence from the beginning to the end of the field. At the South Florida farm in 2004, Ag-Mart cultivated ten separate plantings of between 79 and 376 gross acres. Each planting contained as few as three and as many as ten separate fields. At the North Florida farm in 2004, Ag-Mart cultivated five separate plantings of between 92 and 158 gross acres. Each planting contained either two or three separate fields.2 The cycle of farming activities at the Ag-Mart farms included ground preparation, planting, staking, tying, harvesting, and post-harvest clean-up. Farm laborers were recruited and transported to the fields by crew leaders, who must be registered as farm labor contractors with the Department of Business and Professional Regulation pursuant to Chapter 450, Part III, Florida Statutes, and Florida Administrative Code Rule 61L-1.004. The crew leaders supervised the field laborers and prepared their weekly time cards. The crew leaders were directed by Ag-Mart's labor supervisors as to where the laborers were to work and which tasks were to be performed at any given time. Crew leaders providing services to Ag-Mart in 2004 included: Sergio Salinas, d/b/a Salinas & Son, Inc.; Pascual Sierra; and Juan Anzualda, d/b/a Juan Anzualda Harvesting, Inc. Mr. Salinas and Mr. Anzualda were crew leaders at the South Florida farm in the spring 2004 season. Mr. Sierra was a crew leader at the North Florida farm in 2004. At the South Florida farm, Mr. Salinas and three or four supervisors called "field walkers" oversaw the daily work of the 150 to 200 farm laborers who worked in Mr. Salinas' crew. Mr. Salinas owned and operated buses that transported the workers to and within the farm. Mr. Salinas also operated trucks to haul the harvested tomatoes from the fields to the shipping dock on the South Florida farm. A truck was also needed to move portable toilets to the fields for the use of the laborers. Because of the amount of equipment necessary to conduct a harvest, and the intense hand labor required to pick a row of tomatoes, Mr. Salinas always kept his crew together in one location while harvesting. During the period of January through May 2004, Mr. Salinas' crew typically harvested in one or two fields per day, and never more than four fields in one day. Mr. Anzualda and his 15 field walkers supervised a crew of 150 laborers at the South Florida farm during March and April 2004. Mr. Anzualda always kept his crew together when performing harvesting activities, due to the amount of equipment and the time necessary to set up near the work areas. Mr. Anzualda estimated that it took between 45 and 90 minutes to set up his equipment and line up his workers along the rows before harvesting could commence in a given field. Mr. Anzualda's crew typically harvested in one or two fields per day at the South Florida farm during the peak harvest period of March and April 2004, and never in more than four fields in one day. Ag-Mart paid the farm laborers the piece rate of $2.50 per tub of grape tomatoes. A "tub" weighs about 21 pounds. Different piece rates applied to different forms of work. For tying activities, the laborers under Mr. Salinas were paid $0.75 per 100 linear feet of work, while those under Mr. Anzualda were paid $0.50 per 100 linear feet. The laborers were paid the minimum wage of $5.15 per hour for some work, such as weeding and the harvest of Ugly Ripe tomatoes. In any event, the laborers were guaranteed the minimum wage, and were paid $5.15 per hour if that amount was greater than their pay would have been under piece work rates. Planting activities are performed by hand. Tomato plants are started in greenhouses, and then transplanted to the field when they are six weeks old and about six inches high. Staking is performed manually and by machine, as stakes are placed between the tomato plants to support the plants as they mature. Tying is performed manually, from about the second week after planting until the eighth or ninth week. "Tying" involves tying the tomato plants with string to the stakes to allow them to grow up the stakes as they mature. The tomato plants are six to seven feet tall at maturity. After the tomatoes were planted in 2004, Ag-Mart's farms began the application of pesticides according to a company-wide spray program devised by Mr. Long prior to the season. The spray program outlined the type and volume of pesticide products to be applied to the maturing tomato plants from the first week of planting through the end of the harvest. Once tying and harvesting activities began, Ag-Mart's spray program called for the application of pesticides "behind the tying" or "behind the harvest," meaning that spraying was done immediately after tying or harvesting was completed in a field. The spraying was done behind the workers because picking and tying opens up the plants, which enables the pesticide to better penetrate the plant. The timing of the spraying also allows fungicide to cover wounds from broken leaves caused by picking, thus preventing infection. Harvesting is performed manually by the farm laborers, who pick the ripe fruit from the tomato plants and place it into containers. The crew leader lines up the laborers with one person on each side of a row of tomatoes, meaning that a crew of 150 laborers can pick 75 rows of tomatoes at a time. The farm workers pick all of the visible fruit that is ripe or close to ripe on the blocks that are being harvested. Once the picking is complete on a block, it takes seven to ten days for enough new fruit to ripen on that block to warrant additional harvesting. Justin Oelman was Ag-Mart's crop protection manager at the South Florida farm in 2004. Mr. Oelman worked for Ag-Mart for eight years as a farm manager and crop protection manager before leaving in 2005 and had three years prior experience as a crop protection manager for another tomato grower. As crop protection manager in 2004, Mr. Oelman was the licensed pesticide applicator responsible for ordering chemicals and directing the application of pesticides. His job included writing up the "tomato spray ticket" for each pesticide application. The spray ticket is a document that, on its face, indicates the date and time of a pesticide application and its location according to planting, field, and block numbers. The spray ticket also states the name of the tractor driver who physically applies the pesticide, the type and amount of the pesticide applied, and the number of acres treated. Licensed pesticide applicators are required by Department rule to record the information included on the spray ticket. Fla. Admin. Code R. 5E-9.032. In applying pesticides to the South Florida farm's grape tomato crop in 2004, Mr. Oelman followed the spraying program designed by Mr. Long before the season. Because the pesticides were applied behind the farm workers' field activity, Mr. Oelman maintained close communications with Josh Cantu, the Ag-Mart labor supervisor in charge of tying activities on the South Florida farm, and with Eduardo Bravo, the labor supervisor in charge of grape tomato harvesting. Mr. Bravo in turn directed crew leaders such as Mr. Salinas and Mr. Anzualda on where to take their crews to conduct harvesting work. These communications kept Mr. Oelman apprised of where the crews were working and how much progress the tying or harvesting activities were expected to make by the end of the day. Mr. Oelman was then able to plan the next day's pesticide applications so that his tractor drivers would be ready to enter the field and apply the pesticides soon after the tying or harvesting activities were completed. Mr. Oelman typically wrote the spray tickets on the day before the actual pesticide application, based on the information gathered from Mr. Bravo and Mr. Cantu. Thus, the starting times shown on the tickets are times that were projected by Mr. Oelman on the previous afternoon, not necessarily the time that spraying actually commenced. Spraying could be delayed for a number of reasons. At times, the work in the fields would not progress as quickly as Mr. Cantu or Mr. Bravo had anticipated, due to the heaviness of the harvest. Pesticides are not applied to wet plants; therefore, rain could delay a planned spray application. Mr. Oelman's practice was to write a new spray ticket if a day's planned application was completely cancelled. However, if the planned spray application was merely delayed for a time, Mr. Oelman did not create a new spray ticket or update the original ticket to reflect the actual starting time. Mr. Oelman failed to explain why he did not always create a new ticket when the information on the existing ticket ceased to be accurate. Mr. Oelman directly supervised the Ag-Mart employees who drove the tractors and operated the spray rigs from which pesticides were applied to the tomato plants. Mr. Oelman trained the tractor drivers not to spray where people were working, but to wait until the tying or harvesting activities in designated fields had been completed. Once the fields had been sprayed, Mr. Oelman would orally notify Mr. Bravo and Mr. Cantu of the location of the pesticide applications. Mr. Oelman would also post copies of the spray tickets at the farm's central posting board, on which was posted relevant information regarding the pesticides being used at the farm, the restricted entry intervals and pre-harvest intervals for the pesticides, and other safety information.3 When restricted-use pesticides4 were to be applied, Mr. Oelman posted the entrances to the field with warning signs before the application began. The signs, which stated "Danger/Pesticides/Keep Out" in English and Spanish, were left in place until twelve hours after the expiration of the restricted entry interval for the applied pesticide. Mr. Oelman attested that he always made these postings when restricted-use pesticides such as Monitor and Danitol were applied at the South Florida farm. Mr. Salinas and Mr. Anzualda testified that they never harvested tomatoes from fields posted with pesticide warning signs. Mr. Anzualda checked for warning signs every day to ensure that his crew was not being sent into fields where pesticides had recently been applied. The restricted entry interval (REI) and the pre- harvest interval (PHI) are set forth on the manufacturer's label of each restricted-use pesticide, in accordance with 40 C.F.R. Parts 156 (labeling requirements for pesticides and devices) and 170 (worker protection standard). The REI, a worker safety standard, is the time period after application of a restricted- use pesticide that must elapse before workers are allowed to enter the treated area. The PHI, a food safety standard, is the time period that must elapse after a spray application before harvesting can begin. The REI and PHI vary according to individual pesticides. In 2004, Warrick Birdwell was the farm manager at Ag- Mart's North Florida farm in Jennings. Prior to 2004, Mr. Birdwell had worked ten years for other tomato growers in Virginia and Florida. As farm manager, Mr. Birdwell was responsible for all operations from ground preparation through post-harvest clean-up at the North Florida farm. Mr. Birdwell was also a licensed restricted-use pesticide applicator and was responsible for the application of pesticides at the North Florida farm. In 2004, Mr. Birdwell was assisted in carrying out the spray program by Dale Waters, who supervised the tractor drivers and equipment.5 During 2004, grape tomatoes were harvested at the North Florida farm on a rotation of at least seven days per block, meaning that it would take at least seven days after a harvest, in a given field, to grow enough vine ripe fruit to warrant another harvest. Mr. Birdwell prepared the spray tickets for the planned application of pesticides. He created his spray tickets a day or two before the actual date that the application was scheduled to take place. At times, delays occurred due to weather, equipment failures, or slower than anticipated progress in the harvest. Mr. Birdwell's practice was to create a new ticket and destroy the old one if the delay prevented a scheduled application from occurring on the scheduled date. However, if the spraying was commenced on the scheduled date, but had to be completed on the next day, Mr. Birdwell kept the original spray ticket without amendment. Mr. Birdwell failed to give a reason why a new ticket was not created each time the information, included in the original ticket, ceased to be accurate. Mr. Birdwell communicated throughout the day with Charles Lambert, the North Florida farm's labor supervisor, to monitor the progress of the harvesting activities and ensure that workers did not enter fields where REIs or PHIs were in effect. Mr. Birdwell also directed that warning postings be placed at the entrances to fields where restricted-use pesticides had been applied. Farm labor crews were allowed to move on the farm property only at the specific direction of Mr. Lambert, whose constant communication with Mr. Birdwell helped ensure that labor crews stayed out of treated fields until it was safe to enter them. Harvested product received at Ag-Mart's packing houses is tracked by foreman receiving reports, which identify the product and its quantity, the name of the crew leader responsible for harvesting the product, the farm from which the product was shipped, and the planting number from which the product was harvested. The receiving reports are used to calculate the commission payments due to the Ag-Mart crew leaders, who are paid based on the amount of fruit their crews harvest, and to analyze the yields of specific plantings. The "date received" column on the receiving reports showed the date the product was shipped from the farm to the packinghouse. In March 2005, the Palm Beach Post published an article stating that three women, who harvested tomatoes for Ag- Mart in 2004, bore children who suffered from birth defects. The article questioned whether the birth defects were connected to the pesticides used by Ag-Mart on its tomatoes. The women had worked at both the South Florida and North Florida farms, and at an Ag-Mart farm in North Carolina. In response to the article, the Collier County Health Department began an inquiry to determine the cause of the birth defects and asked for the Department's help in performing a pesticide use inspection at the South Florida farm, where the three women, identified as Francisca Herrera, Sostenes Salazar, and Maria de la Mesa (also called Maria de la Mesa Cruz), worked from February through July 2004. The Department's investigation commenced with a work request sent from Tallahassee to Environmental Specialist Neil Richmond in Immokalee on March 7, 2005.6 Mr. Richmond regularly conducts inspections at golf courses, farms, chemical dealers, and fertilizer plants throughout Collier County. The work request directed Mr. Richmond to obtain pesticide use records for Ag-Mart covering the period of February through July 2004 and employee records showing the names of the three employees and the dates they worked in 2004. The work request further directed Mr. Richmond to conduct a pesticide use inspection at the South Florida farm to document the pesticide products used in the field. Finally, the work request directed Mr. Richmond to conduct a full worker protection standard inspection to document the posting of fields, central posting information, and REIs at the South Florida farm. Mr. Richmond initially visited Ag-Mart's South Florida farm on March 28, 2005, accompanied by two persons from the Collier County Health Department. During the course of the inspection, Ag-Mart's farm manager, Doug Perkins, produced spray tickets for both the South Florida and North Florida farms for the period February through July 2004. Mr. Perkins also produced a spreadsheet identifying the dates worked and the farm locations for each of the three women named in the newspaper article. This spreadsheet was prepared at the direction of Ag- Mart's human resources manager, Angelia Cassell, and was derived from the three workers' timesheets for 2004. On March 30, 2005, Mr. Richmond filed a written report with the documents he received from Ag-Mart. The Department's Bureau of Compliance Monitoring then assigned the matter to Case Reviewer Jessica Fernandez in Tallahassee. Ms. Fernandez was given the task of reviewing all the information gathered by the Department's inspectors to determine whether Ag-Mart had violated the Florida Pesticide Law or any of the Department's implementing rules. On April 12, 2005, Ms. Fernandez sent a request for additional information to Mr. Richmond, which stated in relevant part: According to the work log included in this file, Ms. Fransisca [sic] Herrera, Ms. Maria de la Mesa Cruz and Ms. Sostenes Salazar worked at the Ag-Mart farm located in Immokalee between January 2004 and October 2004. Please obtain as much information as possible regarding the specific Planting, Field and Block numbers in which these workers worked during the period of February 2004 through June 2004. Mr. Richmond went to the South Florida farm on March 13, 2005, and communicated this request for additional information to Mr. Oelman, who responded that it would take several days to gather the requested information. Mr. Richmond returned to the farm on April 15, 2005. On that date, Mr. Oelman explained to Mr. Richmond the sequencing of harvesting and spray activities at the South Florida farm. Mr. Oelman told Mr. Richmond that Ag-Mart's harvest records indicate, only, which planting the laborers were working in on a given day and that a planting includes more than one field. Mr. Oelman also told Mr. Richmond that Ag-Mart's spray records are kept according to field and block numbers and that his practice was to spray behind the picking. On April 22, 2005, Ms. Cassell faxed to Mr. Richmond a spreadsheet entitled "Field Locations for SFL 2/04 thru 6/04." All involved understood that "SFL" referred to the South Florida farm.7 With the assistance of subordinates in her office, Ms. Cassell produced this document to show, in her words, "the total of what field locations the [three] women might have worked in." Ms. Cassell started with time cards, which indicated the dates and hours the three women worked. Then she obtained foreman receiving reports, which she understood to tell her which plantings were harvested on which dates. Finally, she obtained, from the farm, a handwritten document showing which fields were included in each planting. From this information, Ms. Cassell was able to fashion a spreadsheet indicating the range of fields each woman could have worked in from February through June 2004. Mr. Richmond testified that he read the spreadsheet's title and understood the document to show where the women actually worked each day. The document appeared self- explanatory. No one from Ag-Mart told Mr. Richmond that the spreadsheet showed only where the women could have worked, or "possible" locations. Mr. Richmond passed the spreadsheet on to Ms. Fernandez, with a report stating that it showed "the field locations for Ms. Herrera, Ms. Salazar, and Ms. de la Mesa where they worked on respective dates." Ms. Fernandez also operated on the assumption that the spreadsheet showed what its title indicated, the actual field locations of the three women on any given day from February through June 2004. Ms. Cassell testified that she put the title on the spreadsheet without much thought, simply as an identifier for the file on her computer's hard drive. Ms. Cassell understood that she was creating a spreadsheet of all the fields the women could possibly have worked in on a given day. She could be no more precise, because Ag-Mart did not keep records that would show the specific fields where an individual worked on a given day. The president of Ag-Mart, Mr. Long, confirmed that Ag- Mart does not keep records on which fields a worker is in on a given day. At the time the Department made its request, Mr. Long told Ms. Cassell that there was no way Ag-Mart could provide such precise worker location data. The closest they could come would be to correlate harvest or receiving data, which showed what plantings a crew had harvested from, with the workers' time cards. Ag-Mart knew whose crew each woman had worked in; so the spreadsheet listed all the fields in the planting worked by the crew, as a way of showing which fields the women might have worked in. On May 4, 2005, Ms. Fernandez sent Compliance Monitoring Bureau Chief Dale Dubberly a request for additional information, which Mr. Dubberly forwarded to Mr. Richmond the next day. Ms. Fernandez first requested the time work started and ended for each worker in each field on every date listed in the spreadsheet provided on April 22, 2005. Ms. Fernandez next asked for the field location for each worker from July 2004 to November 2004. She asked for the block numbers corresponding to each of the fields in North Florida, South Florida, and North Carolina during the 2004 season and a map showing the distribution of blocks, fields and plantings for those farms during the 2004 season. She asked for spray records for South Florida for October and November 2004. Finally, Ms. Fernandez requested a more legible copy of the spreadsheet, which she stated "shows each worker's field location." Upon receiving this request through Mr. Richmond, Ms. Cassell, her staff, and Ag-Mart farm compliance manager, Amanda Collins created a new spreadsheet, which Ms. Cassell titled "Field Locations for 3 Employees for 2004." This spreadsheet was identical in format to the earlier document, but was expanded to include the dates the three women worked for all of 2004. For each worker, the spreadsheet provided a cell for each day worked, and within that cell a list of field numbers. Again, the Department took these field numbers to represent fields in which the women actually worked, when Ag-Mart actually intended them to represent fields in which the women possibly worked. Some of the cells listed as many as 23 field numbers for one day. The method of developing this spreadsheet was similar to that employed for the first one. The weekly time cards of the three women were used to provide the days they worked. Ag-Mart's weekly time cards show the name of the employee, the rounded hours worked each week, the number of piece units worked, the hours worked for minimum wage, and the initials of the crew leader for whom the employee worked that week. For their South Florida farm work in 2004, Ms. Herrera and Ms. Salazar worked exclusively for crew leader Sergio Salinas. Ms. de la Mesa worked at South Florida for crew leader Juan Anzualda and at North Florida for crew leader Pascual Sierra.8 To identify the fields where the three women might have worked on a given day, Ms. Cassell and her staff again used foreman receiving reports and planting schedules. The receiving reports were understood to provide the dates of shipping for harvested product, and these were correlated to the dates on which the three women worked. Again, Ms. Cassell listed every field within a planting as a possible work location, because Ag-Mart kept no data that identified the fields in which the women actually worked on a given date. On May 6, 2005, Mr. Richmond met with Ms. Cassell and Ms. Collins at Ag-Mart's Plant City administrative offices. The meeting lasted no more than 15 minutes and consisted of Ag-Mart employees turning over various documents to Mr. Richmond, along with some explanatory conversation. Ms. Cassell specifically recalled explaining to Mr. Richmond that the field location spreadsheet indicated the "total possible fields that the three employees could have worked in." Mr. Richmond denied that Ms. Cassell gave him any such explanation. Ms. Collins recalled that Mr. Richmond and Ms. Cassell had some discussion about the spreadsheet, but could recall no particulars.9 Mr. Richmond forwarded the documents received at the May 6, 2005, meeting to Ms. Fernandez in Tallahassee. His written summary, also dated May 6, 2005, represents Mr. Richmond's contemporaneous understanding of the meaning of the documents he was given at the Plant City meeting. The summary stated, in relevant part: Ms. Collins provided the times which the three ladies worked at the various locations which came from the three ladies time cards (See Exhibits V-1 through V-3, copies of time worked information). Ms. Collins stated that this has the start and finished [sic] times, but does not have which fields they worked at a particular time as they may pick in several fields throughout the day. Ms. Collins provided another copy of the field locations for each of the three ladies (See Exhibits W-1 and W-2, copies of field locations of workers). Ms. Collins also provided maps with field locations depicting blocks and plantings (See Exhibits X-1 through X-13, maps depicting field locations with blocks and plantings). The field no. is the main number in each block, the first two numbers are the numbers of the planting, while the remaining number in the set is the block number. . . . At the hearing, Mr. Richmond testified that he "absolutely" would have communicated to Ms. Fernandez any conversation he had with, either, Ms. Cassell or Ms. Collins indicating that the field location spreadsheet was anything other than a document showing where the women worked on a given day. This testimony is credible and, coupled with Mr. Richmond's contemporaneous written statement, leads to the finding that Mr. Richmond's testimony regarding the May 6, 2005, meeting in Plant City should be credited. On May 12, 2005, Ms. Cassell sent Mr. Dubberly an e- mail with an attachment correcting some aspects of the spreadsheet. Ms. Cassell's e-mail message stated: I have attached the the [sic] revision to the original sheet given on the 3 woman's [sic] field locations. I included which field location for NC. There was one revision I made for Francisca on week ending 4/24/05 [Ms. Cassell clearly means 2004]. She was in NC that week and on the last two days of that week I had SFL field numbers and it should of [sic] been NC [sic] please discard old report and replace with revised one. The Department cites this e-mail as further indication that Ag-Mart represented the spreadsheet as indicating actual field locations for the three women, or at least that Ag-Mart said nothing to clarify that the spreadsheet showed something other than the fields where the women actually worked. Ms. Fernandez, the case reviewer whose analysis led to the filing of the Administrative Complaints against Ag-Mart, believed that the field location spreadsheets prepared by Ms. Cassell and her staff reflected the actual work locations for Ms. Herrera, Ms. Salazar, and Ms. de la Mesa. As a case reviewer, Ms. Fernandez receives files compiled by the field staff and reviews the files to determine whether a violation of the Florida Pesticide Law has occurred. The procedure of the Bureau of Compliance Monitoring appears designed to ensure that the case reviewers have no contact with the subjects of their investigation and, instead, rely on field inspectors to act as conduits in obtaining information from companies such as Ag-Mart. As a result, Ms. Fernandez had no direct contact with anyone from Ag-Mart and, thus, had no direct opportunity to be disabused of her assumptions regarding the field location spreadsheet. Ms. Fernandez conceded that she had never been on a tomato farm at the time she conducted her review of the Ag-Mart case. She did not take into consideration the acreage of the fields or the size of the work crews and their manner of operation. She made no attempt to visualize the effort it would take for one worker to harvest in ten or 20 fields in one day. She assumed that each woman worked in at least part of each field listed on the spreadsheet for each day listed. Ms. Fernandez believed that the spreadsheet was clear on its face and saw no need to make further inquiries as to the plausibility of the assumption that it reflected actual, not possible, field locations. As found above, Ag-Mart made no statement to any Department employee to qualify that the spreadsheet meant only possible field locations. Nonetheless, common sense should have caused someone in the Department to question whether this spreadsheet really conveyed the information that its title appeared to promise. On some days, the spreadsheet places a single field worker in 23 fields. Ag-Mart's crew leaders credibly testified that their crews never worked in more than four fields in one day and more often worked in only one or two. Even granting Ms. Fernandez' ignorance, Mr. Dubberly or some other superior in the Department should have had enough knowledge of farm operations to question the plausibility of Ms. Fernandez' assumptions. While Ag-Mart is at fault for not explaining itself clearly, the Department is also at fault for insisting that the spreadsheet be taken at face value, no matter how implausible the result.10 At the hearing, Ms. Fernandez explained how she used the documents provided by Ag-Mart to draft the Administrative Complaints. As an example, Counts I and II of the North Florida Complaint provide: Count I On June 6, 2004, Mr. Cesar Juarez and Mr. Alexis Barrios treated approximately 157.6 acres of grape tomatoes, planted in fields 7-8, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The Monitor 4 Spray supplemental label states: "REMARKS . . . Do not apply more than a total of 10 pints per acre per crop season, nor within 7 days of harvest." Worker field location records show that tomatoes were harvested from fields 7 and 8 on June 7, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre- harvest interval stated on the Monitor 4 Spray label. Count II The Danitol 2.4 EC Spray label states: "TOMATO . . . Do not apply the DANITOL + MONITOR 4 Spray tank mix within 7 days of harvest." As noted in the previous paragraph, fields 7-8 were treated with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray on June 6, 2004. Tomatoes were harvested from these same fields on June 7, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Danitol 2.4 EC Spray label. Ms. Fernandez obtained the information regarding the date, time, and manner of pesticide application from the spray tickets described above. She obtained the Monitor and Danitol PHI information from the product label. She obtained the harvest information from the spreadsheet, which indicated that Ms. de la Mesa worked in fields 7 and 8 on June 7, 2004. Counts I and II alleging violations of the PHIs for Monitor and Danitol had an accompanying Count XIX, alleging a violation of the REI for Monitor arising from the same set of facts: Count XIX The Monitor 4 Spray and the Danitol 2.4 EC Spray labels contain the following language: "AGRICULTURAL USE REQUIREMENTS. Use this product only in accordance with its labeling and with the Worker Protection Standard, 40 CFR part 170. This Standard contains requirements for the protection of agricultural workers on farms, forests, nurseries, and greenhouses, and handlers of agricultural pesticides. It contains requirements for training, decontamination, notification, and emergency assistance. It also contains specific instructions and exceptions pertaining to the statements on this label about personal protective equipment (PPE) and restricted entry interval. The requirements in this box only apply to users of this product that are covered by the Worker Protection Standard." On June 6, 2004, Mr. Cesar Juarez and Mr. Alexis Barrios treated approximately 157.6 acres of grape tomatoes, planted in fields 7-8, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The application started at 11:30 am and ended at 5:30 pm on June 6, 2004. The Monitor 4 Spray label states: "Do not enter or allow worker entry into treated areas during the restricted entry interval (REI) of 48 hours." Work records show that Ms. de la Mesa, directed by licensed applicators Mr. Charles Lambert (PV38793)11 and Mr. Warrick Birdwell (PV36679), worked in fields 7 and 8 on June 7, 2004, and that her working hours for June 7, 2004, were 8:00 am to 6:30 pm. Therefore, Ms. de la Mesa and other workers were instructed, directed, permitted or not prevented by the agricultural employer, Ag-Mart Produce, Inc. from entering treated fields before the expiration of the REI stated on the Monitor 4 Spray label. Throughout the hearing, Ag-Mart contended (and the Department did not dispute) that no statute or rule requires Ag-Mart to keep a daily log of the fields where its employees work. The Department also conceded that Ag-Mart was cooperative throughout its investigation.12 Ag-Mart contends that all counts should be dismissed because of the Department's reliance on the field location spreadsheet, which shows only the possible field locations of the workers. This contention goes to far. For example, the counts set forth above are well taken, because the spray tickets indicate that fields 7 and 8 were sprayed on June 6, 2004, and the field location spreadsheet indicates that Ms. de la Mesa worked only in fields 7 and 8 on June 7, 2004. Ag-Mart further attacked the spreadsheet by suggesting the unreliability of the dates on the foreman receiving reports. As found above, the receiving reports generally showed the date the product was shipped from the farm to the packinghouse, as well as the crew leader who provided the tomatoes and the planting from which the tomatoes were harvested. At the hearing, Ag-Mart contended that the date the product was shipped was not always the same date it was harvested. Further, Ag-Mart demonstrated that one of the receiving reports relevant to this proceeding showed the date the product was received at the packing house, rather than the date the product was shipped from the farm, due to a clerical error. Ag-Mart argued that this example showed that the receiving reports were not a reliable source for determining the precise dates of harvest in a given field on the North Florida farm. Ag-Mart's evidence is insufficient to demonstrate the unreliability of the receiving reports, where Ag-Mart itself relied on the reports to provide the Department with the spreadsheet showing possible field locations of the three workers. Ag-Mart had ample opportunity to make a thorough demonstration of the reports' alleged unreliability and failed to do so. Ag-Mart also attempted to cast doubt on the accuracy of the spray tickets through the testimony of Mr. Oelman and Mr. Birdwell, both of whom stated that the spray tickets are written well in advance of the pesticide applications and are not invariably rewritten or corrected when the spraying schedule is pushed back due to rain or slow harvest. However, the pesticide applicator is required by law to maintain accurate records relating to the application of all restricted-use pesticides, including the date, start time and end time of the treatment, and the location of the treatment site. Fla. Admin. Code R. 5E-9.032(1). The Department is entitled to inspect these records. Fla. Admin. Code R. 5E-9.032(6). Ag-Mart may not attack records that its own employee/applicators were legally required to keep in an accurate fashion. The Department is entitled to rely on the spray tickets as accurate indicators of when and where pesticide applications occurred. Thus, the undersigned has accepted the accuracy of the spray records and the receiving reports, but not of the field location spreadsheet. However, there are some dates on which the fields shown on the spreadsheet perfectly match the fields shown on the spray tickets, as in Counts I, II, and XIX of the North Florida Complaint set forth above. It is found that the Department has proven these counts by clear and convincing evidence. In addition to Counts I, II, and XIX of the North Florida Complaint, the Department has proven the following counts of the North Florida Complaint by clear and convincing evidence: Counts XI, XII, and XXII (spraying in fields 7 and 8 on June 17, 2004; Ms. de la Mesa worked only in fields 7 and 8 on June 19, 2004); and Count XIII (spraying Agrimek 0.15 EC Miticide/Insecticide, with PHI of seven days, in fields 7 and 8 on June 3, 2005; Ms. de la Mesa worked only in fields 7 and 8 on June 7, 2004). The Department has proven none of the counts in the South Florida Complaint by clear and convincing evidence. Some explanation must be made for the finding that Counts XXXI and XXXII were not proven by clear and convincing evidence. Those counts allege as follows: Count XXXI On April 17, 2004, Mr. Lorenzo Reyes, Mr. Demetrio Acevedo and Mr. Francisco Vega treated approximately 212.5 acres of grape tomatoes, planted in fields 11, 6 and 4, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The Monitor 4 Spray supplemental label states: "REMARKS . . . Do not apply more than a total of 10 pints per acre per crop season, nor within 7 days of harvest." Worker field location records show that tomatoes were harvested from fields 11, 6 and 4 on April 21, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Monitor 4 Spray label. Count XXXII The Danitol 2.4 EC Spray label states: "TOMATO . . . Do not apply the DANITOL + MONITOR 4 Spray tank mix within 7 days of harvest." As noted in the previous paragraph, fields 11, 6 and 4 were treated with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray on April 17, 2004. Tomatoes were harvested from these same fields on April 21, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Danitol 2.4 EC Spray label. These counts base their allegation that tomatoes were harvested from fields 11, 6, and 4 on April 21, 2004, on the field location spreadsheet, which indicates that Ms. Salazar possibly worked in fields 4, 6, 9, 10, and/or 11 on April 21, 2004. Thus, the spreadsheet does not definitely prove that Ms. Salazar harvested tomatoes in the three sprayed fields within the PHI. At the final hearing, the Department introduced a spray ticket showing that Monitor and Danitol were also applied to fields 9 and 10 on April 15, 2004. This additional spray ticket completed the Department's demonstration that every field in which Ms. Salazar harvested tomatoes on April 21, 2004, had been sprayed with Monitor and Danitol within the seven-day PHI. However, the Department did not amend the South Florida Complaint to allege the fact of the second spray ticket, and, so, must be held to the allegations actually made in the complaint. Ag-Mart may not be found guilty of facts or violations not specifically alleged in the South Florida Complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (facts not alleged in the Administrative Complaint). See also B.D.M. Financial Corporation v. Department of Business and Professional Regulation, 698 So. 2d 1359, 1362 (Fla. 1st DCA 1997) (violations not alleged in the Administrative Complaint). In similar fashion, Counts XLI and XLII of the South Florida Complaint allege that fields 21, 22, 18, and 19 were sprayed with Monitor and Danitol on May 15, 2004, and allege PHI violations in fields 21, 22, 18, and 19 on May 20, 2004, based on the field location spreadsheet's indication that Ms. Salazar possibly worked in one or more of fields 18 through 25 on that date. Thus, the spreadsheet does not definitely prove that Ms. Salazar harvested tomatoes in the four sprayed fields within the PHI. At the final hearing, the Department introduced a spray ticket showing that Monitor and Danitol were, also, applied to fields 20, 23, 24, and 25 on May 14, 2004. This additional spray ticket completed the Department's demonstration that every field in which Ms. Salazar harvested tomatoes on May 20, 2004, had been sprayed with Monitor and Danitol within the seven-day PHI. Again, however, the Department failed to amend the South Florida Complaint to reflect its subsequently developed evidence. Subsection 487.175(1)(e), Florida Statutes, provides that the Department may enter an order imposing an administrative fine not to exceed $10,000 for each violation. The statute further provides as follows: When imposing any fine under this paragraph, the department shall consider the degree and extent of harm caused by the violation, the cost of rectifying the damage, the amount of money the violator benefited from by noncompliance, whether the violation was committed willfully, and the compliance record of the violator. Mr. Dubberly testified that the Department does not have a rule for determining the amount of fines, but uses a matrix, attaching a rating of 0 to 5 for each of the criteria named in the quoted portion of the statute, with 5 representing the most egregious violation. The extent of harm caused by the violation is divided into two classifications: (A) the degree and extent of harm related to human and environmental hazards and (B) the degree and extent of harm related to the toxicity of the pesticide(s). The remaining criteria considered in the matrix are: (C) the estimated cost of rectifying the damage, (D) the estimated amount of money the violator benefited by noncompliance, whether the violation was committed willfully, and (F) the compliance record of the violator. Each factor is given its numerical value. The values for factors (B) through (F) are added, then the total is multiplied by the value for factor (A). The resulting number is then multiplied by $100.00 to determine the amount of the fine. The PHI violations were primarily food safety violations, the concern being that there might be an unacceptable pesticide residue on the tomatoes if they were harvested within the PHI. The REI violations were based on concerns for worker safety from pesticide exposure. In determining the fines for PHI violations, the Department assigned a numerical value of 2 for factor (A). In determining the fines for REI violations, the Department assigned a numerical value of 3 for factor (A), based on a reasonable probability of human or animal death or injury, or a reasonable probability of serious environmental harm. For purposes of this proceeding, all the pesticides used by Ag-Mart were restricted-use pesticides. In considering the value to be assigned to factor (B), the Department relied on the pesticide labels, which contain signal words for the category of potential hazard to human or animal life posed by that pesticide. Monitor contained the signal word "Danger," which represents the highest level of potential hazard. A value of 5 was assigned for factor (B) in the alleged violations involving the use of Monitor. Danitol and Agrimek contained the signal word "Warning," which indicated a lesser potential hazard. A value of 3 was assigned for factor (B) in the alleged violations involving Danitol or Agrimek. Because the estimated cost of rectifying the damage and the estimated amount of money the violator benefited by noncompliance was unknown, the Department assigned a value of 0 to factors (C) and (D). As to factor (E), dealing with the willfulness of the violation, the Department assigns a value of 0 if there is no evidence of willfulness, a value of 1 if there is apparent evidence of willfulness, and a value of 5 if it determines the violation was intentional. Because of the large number of alleged PHI and REI violations, the Department assigned a value of 1 for factor (E), finding apparent evidence of willful intent for each alleged violation. As to factor (F), dealing with the violator's compliance history, the Department considers the three years immediately preceding the current violation. The Department assigns a value of 0 if there are no prior violations, a value of 1 for a prior dissimilar violation, a value of 2 for multiple prior dissimilar violations, a value of 3 for a prior similar violation, and a value of 4 for multiple prior similar violations. Because Ag-Mart had one prior dissimilar violation within the preceding three years, the Department assigned a value of 1 for factor (F) for each alleged violation. Because the sole basis for finding apparent evidence of willful intent was the number of alleged violations, the Department calculated its recommended fines in two ways: by assigning a value of 0 based on no evidence of willful intent and by assigning a value of 1 based on apparent evidence of willful intent. In DOAH Case No. 06-0730, the North Florida Complaint, the Department recommended a fine of either $1,200 (no evidence of willful intent) or $1,400 (apparent evidence of willful intent) for each of the PHI violations alleged in Counts I, III, V, VII, IX, and XI, which involved the use of Monitor. The Department recommended a fine of either $800 (no evidence) or $1,000 (apparent evidence) for Counts II, IV, VI, VIII, X, and XII, involving the use of Danitol, and for Counts XIV, XV, and XVI, involving the use of Agrimek. For each of the REI violations alleged in Counts XIX through XXII, the Department recommended a fine of either $1,800 (no evidence) or $2,100 (apparent evidence). The Department established by clear and convincing evidence seven of the 20 counts of the North Florida Complaint that remained at issue at the time of the hearing, and none of the 58 counts of the South Florida Complaint that remained at issue at the time of the hearing. The undersigned accepts the Department's calculation of the recommended fines for these violations and recommends that the Department apply the lower calculation for each of the violations. Thus, the recommended fines are as follows: Count I, PHI violation involving the use of Monitor, $1,200; Count II, PHI violation involving the use of Danitol, $800; Count XI, PHI violation involving the use of Monitor, $1,200; Count XII, PHI violation involving the use of Danitol, $800; Count XIII, PHI violation involving the use of Agrimek, $800; Count XIX, REI violation, $1,800; and Count XXII, REI violation, $1,800. Thus, the total recommended fine for the seven proven violations is $8,400. In conclusion, it is observed that these cases demonstrate a gap in the enforcement mechanism of the Florida Pesticide Law, at least as it is currently understood and practiced by the Department. The law requires licensed applicators to comply with the PHI and REI restrictions on the labels of the restricted-use pesticides they apply to these crops. The law requires the applicators to keep accurate records of when and where they apply pesticides and of the kind and quantity of pesticides applied in each instance. Yet all parties to this proceeding agreed that the law does not require either the applicators or the growers to keep accurate records of when and where farm workers enter the fields and conduct the harvest. This failure to complete the record- keeping circle makes it extremely difficult for the Department to prove by clear and convincing evidence that a PHI or REI violation has taken place. The PHI and REI restrictions appear virtually unenforceable through company records, except when some fluke of record keeping allows the Department to establish that a given worker could only have been in a recently sprayed field on a given day. It does little good to know when the pesticides were applied to a field if there is no way of knowing when workers first entered the field or harvested tomatoes after the spraying. Ag-Mart credibly demonstrated that its general practices are designed to minimize worker exposure and guarantee safe harvest, but the company keeps no records to demonstrate to its customers that it observes these practices in particular instances and is under no legal obligation to keep such records. This state of regulatory affairs should be as disturbing to Ag-Mart as to the Department, because purchasers of tomatoes in Florida's grocery stores do not require clear and convincing evidence in order to switch brands.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department enter a final order that provides as follows: That Ag-Mart committed the violations alleged in Counts I, II, XI, XII, and XIII of the North Florida Complaint, for which violations Ag-Mart should be assessed an administrative fine totaling $8,400; That Ag-Mart pay to the Department $3,000 to resolve Counts L through LIV of the South Florida Complaint and Counts XVII and XVIII of the North Florida Complaint; and That all other counts of the North Florida Complaint and the South Florida Complaint be dismissed. DONE AND ENTERED this 16th day of March, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2007.
The Issue Whether or not Petitioner is owed $7,097.15 by Respondent Green Acres for various nursery products.
Findings Of Fact Petitioner is a wholesaler engaged in the business of producing agricultural products, primarily nursery plants, since approximately 1953. Green Acres is a retail nursery engaged in the business of selling sod, nursery products, and provision of other related landscaping services. Green Acres is a newly-formed business which commenced operations during the summer of 1992. On August 10, 1992, Green Acres purchased from Petitioner various quantities of flowers and nursery products which are reflected by Petitioner's invoice nos. 5074, 5076, 5077 and 5080 in the respective amounts of $625.25, $1,097.00, $2,927.50, and $383.20. On August 14, 1992, Green Acres purchased another order of nursery products from Petitioner which is reflected by Petitioner's invoice no. 5085 in the total amount of $1,063.75. On August 18, 1992, again Petitioner delivered products to Green Acres based on an order (Petitioner's invoice no. 5060) for the total sum of $599.20. Finally, on September 17, 1992, Green Acres ordered various nursery products from Petitioner (Petitioner's invoice no. 5097), which were delivered to Green Acres for the total sum of $401.25. Petitioner has made numerous attempts to collect for the nursery products that it supplied to Green Acres without success. These efforts to collect included personal trips to the Green Acres nursery by Roy Amerson. When disputes arose as to the pricing of plants, Green Acres unilaterally adjusted the price to the amount that it desired to pay which amount Petitioner accepted without protest based upon the fact that Petitioner's owners were aware that Green Acres was a new nursery and Petitioner was desirous of building a good client over a long period of time. For this reason, Petitioner also extended credit to Green Acres on an open-account basis for a long time without attempting to collect. Petitioner extended credit to Green acres based upon Petitioner's knowledge and understanding of the difficulty that new retail nursery owners undergo in starting a new nursery business. Green Acres suffered fire damage at one of its office buildings on the Friday prior to the Labor Day weekend during 1992. As a result of that fire, Green Acres contends that it paid Petitioner in cash for products and was not properly receipted for those payments. Green Acres maintains that its receipts were destroyed in the fire. Green Acres's contention in this regard was considered; however, it is more likely than not that Green Acres did not pay Petitioner for any nursery products which they have not been granted credit for. In this regard, Petitioner introduced invoices and credit notations for each purchase of products that Green Acres ordered. Those invoices appear to properly reflect the entire series of transactions of the purchase of products from Petitioner with the appropriate credits and adjustments noted. Respondent, State Farm Fire and Casualty Company (State Farm), issued a surety bond to Green Acres for the period during which Petitioner provided nursery products to Green Acres in 1992.
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 ordering Green Acres to pay to Petitioner the sum of $7,097.15 within fifteen (15) days after the issuance of its Final Order. Upon the failure of Green Acres to tender the referenced amount to Petitioner, it is FURTHER RECOMMENDED that the Department of Agriculture and Consumer Services direct that the surety company pay over to the Department out of the surety bond posted for such dealer, the amount necessary to cover the indebtedness noted herein of $7,097.15. DONE AND ENTERED this 2nd day of September, 1993, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1993. COPIES FURNISHED: Roy and Barbara Amerson Post Office Box 202 Terra Ceia, Florida 34250 Shelly K. Thomas 9330 Ulmerton Road Largo, Florida 34641 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esq. General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Ms. Becky L. Herald State Farm Fire & Casualty Company 112 East Washington Street Bloomington, Illinois 61710-1001
The Issue Whether Respondent, Landtech Services, Inc., is indebted to Petitioner in the amount of $1,347.07 for the purchase of agricultural products.
Findings Of Fact Petitioner, Holmberg Farms, Inc., is a producer of agricultural products located in Lithia, Florida. Respondent, Landtech Services, Inc. (Landtech), is an agricultural dealer located in Largo, Florida. Respondent, Western Surety Company, is a surety and issued to Respondent, Landtech, a surety bond for the purchase of agricultural products in Florida. On or about April 9, 1993, Respondent, Landtech, purchased from Petitioner, on invoice number T7284, eleven hundred and ten (1,110) six inch honeysuckle ornamental plants for the price of $1,950.55. The terms of the sale between Petitioner and Respondent, Landtech, were C.O.D. at the time of delivery. However, Petitioner's truck driver was unaware of the terms of the sale and therefore, did not collect full payment at the time he delivered the plants to Landtech. Respondent, Landtech, paid Petitioner's driver the sum of $400.00 toward the purchase of the honeysuckle plants leaving a balance due of $1,550.55. On August 20, 1993, Respondent, Landtech, paid to Petitioner the payment of $250.00 of which $203.48 was applied to the balance and $46.50 was applied to interest owed. Petitioner, now claims the balance of $1,347.07. Respondent, Landtech, is indebted to Petitioner in the amount of $1,347.07 as claimed in its complaint. As noted, Respondents, Landtech and Western Surety, did not appear at the hearing to contest or otherwise refute the allegations in the statement of claim.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Agriculture issue its final order requiring that Respondent, Landtech Services, Inc., pay to Petitioner, Holmberg Farms, Inc., the amount of $1347,07, within fifteen (15) days of its Final Order. It is further RECOMMENDED that if Respondent, Landtech, fail to timely remit payment to Petitioner, the Department shall call upon the surety to pay over to the Department, from funds out of the surety certificate, the amount called for in this order. 2/ RECOMMENDED this 3rd day of March, 1995, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 3rd day of March, 1995.
The Issue Does Respondent Horizon Produce Sales, Inc. (Horizon) owe Petitioner Richard Sapp, d/b/a Sapp Farms (Sapp Farms) $5,484.50 as alleged in the Amended Complaint filed herein by Sapp Farms?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At times pertinent to this proceeding, Sapp Farms was a "producer" as defined in Section 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Tomatoes come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. Horizon is a Florida Corporation, owned entirely by Donald E. Hinton, and located in Sydney, Florida. At times pertinent to this proceeding, Horizon was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Horizon was issued License Number 10584, supported by Bond Number 58 84 19 in the amount of $16,000 written by Gulf Life Insurance Company, as Surety, with an inception date of September 26, 1998, and an expiration date of September 25, 1999. By Invoice numbered 1262, Sapp Farms’ Exhibit numbered 6, dated June 18, 1999, with a shipping date of June 16, 1999, Sapp Farms sold and delivered to Horizon several varieties and sizes of tomatoes in 25-pound cartons at an agreed-upon price of $9.00 per 25-pound carton for 267 cartons and $8.00 per 25-pound carton for 104 cartons for a total amount of $3,235.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. By check dated July 3, 1999, Horizon paid Sapp Farms $1,415.00 on these tomatoes leaving a balance owing of $1,820.00. By Invoice numbered 1263, Sapp Farms’ Exhibit numbered 10, dated June 22, 1999, with a shipping date of June 22, 1999, Sapp Farms sold and delivered to Horizon 122 25-pound cartons of extra large pink tomatoes at $8.00 per 25-pound carton, 51 25- pound cartons of large pink tomatoes at $8.00 per 25-pound carton, and 296 25-pound cartons of 125-150 count Roma tomatoes at $8.00 per 25-pound carton for a total invoiced price of $3,752.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for these tomatoes. By Invoice numbered 1272, Sapp Farms’ Exhibit numbered 15, dated June 24, 1999, with a shipping date of June 23, 1999, Sapp Farms sold and delivered to Horizon 70 25-pound cartons of extra large tomatoes at an agreed upon price of $8.50 per 25- pound carton for a total price of $595.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for those tomatoes. Sapp Farms agrees that it owes Horizon $682.50 in freight charges. See Sapp Farms’ Exhibit numbered 12 and the Amended Complaint filed by Sapp Farms. Horizon contends that it did not agree to purchase the tomatoes at an agreed upon price per 25-pound carton but agreed to "work" the tomatoes with Horizon’s customers and to pay Sapp Farms based on the price received for the tomatoes from its customers less any freight charges, etc. Additionally, Horizon contends that it made contact or attempted to make contact with Sapp Farms regarding each of the loads and was advised, except possibly on one load, by either Mark Davis or Richard Sapp that a federal inspection was not necessary and to "work" the tomatoes as best Horizon could. The more credible evidence is that neither Mark Davis nor Richard Sapp was timely advised concerning the alleged condition of the tomatoes. Furthermore, there is insufficient evidence to show that the condition of the tomatoes when delivered to Horizon’s customers had deteriorated to a point that resulted in rejection by Horizon’s customers. The more credible evidence shows that neither Mark Davis nor Richard Sapp advised Horizon that there was no need for a federal inspection or that Horizon could "work" the tomatoes with Horizon’s customers. The more credible evidence is that Horizon agreed to purchase Sapp Farms’ tomatoes at an agreed-upon price and that upon those tomatoes being loaded on Horizon’s truck, Horizon was responsible to Sapp Farms for the agreed-upon price. Sapp Farms timely filed its Amended Complaint in accordance with Section 604.21(1), Florida Statutes, and Horizon owes Sapp Farms for tomatoes purchased from Sapp Farms on Invoice numbered 1262, 1263, and 1272 less the partial payment on Invoice numbered 1262 of $1,415 and freight charges of $682.50 for total amount due of $5,484.50.
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 granting Sapp Farms relief by ordering Horizon Produce Sales, Inc. to pay Sapp Farms the sum of $5,484.50. DONE AND ENTERED this 24th day of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2000. COPIES FURNISHED: Honorable Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Sapp Sapp Farms 4720 Gallagher Road Plant City, Florida 33565 Donald E. Hinton, Qualified Representative President, Horizon Produce Sales, Inc. 1839 Dover Road, North Post Office Box 70 Sydney, Florida 33587 Michael E. Riley, Esquire Rumberger, Kirk and Caldwell A Professional Association Post Office Box 1050 Tallahassee, Florida 32302 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
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 that Petitioner, J & L Farms, Inc., take nothing on its complaint and that the respondents, Bloomingdale Landscape Nursery, Inc., and Southeastern Casualty & Indemnity Insurance Company, go hence without day. DONE and ENTERED this 2nd day of March, 1989, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 March, 1989.
