The Issue The issue is whether Petitioner is entitled to additional compensation for tomatoes that it sold Respondent.
Findings Of Fact On April 4, 1996, Frank Basso of Petitioner talked to H. D. Budd of Respondent H. D. Budd Farms, Inc. (Respondent). Petitioner represents 31 food brokers in South Florida, of which eight handle tomatoes. Respondent purchases tomatoes for Publix and other chain supermarkets. Respondent and Petitioner have done business in the past, and Mr. Basso knew that Mr. Budd would require tomatoes of the highest quality. In the past, Mr. Basso would ship tomatoes to Mr. Budd, who would take only those tomatoes that met his high standards. During their telephone conversation on April 4, Mr. Budd asked Mr. Basso how many of the tomatoes would make U. S. Grade Number 1. Mr. Basso told him that 85 percent of them would. They agreed on a price of $17 per box, but Mr. Budd warned Mr. Basso that he would only pay $17 per box if the tomatoes graded out at 85 percent U. S. Grade Number 1; if they did not, Mr. Budd stated that he would pay Mr. Basso an unspecified lesser amount. In the past, Mr. Basso has allowed Mr. Budd to retain nonconforming tomatoes and try to sell them for whatever he could. In those cases, the parties' agreement was that Mr. Budd would not pay the asking price for the tomatoes, but the amount he owed Mr. Basso would be based on what he could sell the tomatoes for. The two parties agreed that Petitioner would ship 810 25-pound boxes of tomatoes to Respondent. Petitioner shipped the tomatoes on the evening of April 4 for the six-hour trip to Plant City. The only documentation accompanying the shipment, or in existence at the time, was a shipping manifest. The document contains few conditions of the sale. It describes the tomatoes as vine ripe, extra large. It states that the shipment, which is free on board at the shipper's warehouse, consists of 810 25- pound boxes. The shipping manifest does not refer to any conditions of sale, such as warranties or procedures if the tomatoes are unsatisfactory to Respondent. The tomatoes arrived at Respondent's plant during the early-morning hours of April 5. As soon as the plant opened, Respondent's employees began unloading the tomatoes. Mr. Basso telephoned Mr. Budd first thing in the morning, and Mr. Budd said that he would call back Mr. Basso as soon as they had finished grading the shipment. Later in the day, Mr. Budd and Mr. Basso spoke again on the phone. Mr. Budd informed Mr. Basso that the tomatoes had not graded out as promised. Instead, they were only 70 percent U. S. Grade Number 1. Two days later, Mr. Basso sent Mr. Budd a fax of an invoice showing the shipment of April 4 of 810 25-pound boxes. Unlike the shipping manifest, this invoice showed a price of $18 per box and total price of $14,580. This invoice also contained disclaimers requiring inspections prior to claims and imposing a federal trust interest in the tomatoes pending full payment. These were not conditions of the agreement between Mr. Budd and Mr. Basso. Petitioner has failed to prove that Respondent mishandled the tomatoes under their agreement. Consistent with their past practice, Respondent sold the nonconforming tomatoes for the best prices that it could get. Mr. Budd accurately calculated that Respondent owed Petitioner $12,150, and Respondent sent Petitioner a check in that amount on April 19, 1996.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the Complaint. ENTERED on October 9, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this October 9, 1996. COPIES FURNISHED: Frank Basso Iori Farms Post Office Box 3271 Key Largo, Florida 33037 H. D. Budd 3701 East Trapnell Road Plant City, Florida 33567 Ohio Farmers Insurance Company Legal Department One Park Circle Westfield Center, Ohio 44251-5001 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should revoke the Petitioner's exemption from the requirement to obtain a General Permit for Disposal of Tomato Wash Water under Florida Administrative Code Rule 62-660.805.
Findings Of Fact The Petitioner, Harllee Packing, Inc., formerly known as Harllee-Gargiulo, Inc., is a grower and shipper of Florida vegetables that generates wastewater from its tomato-washing operation. On January 8, 1992, the Department of Environmental Regulation (DER), the predecessor to the Respondent, the Department of Environmental Protection (DEP), adopted Florida Administrative Code Rule 17-660.805, which not only provided for a General Permit for Disposal of Tomato Wash Water but also provided for an exemption from the requirement to obtain a permit under certain circumstances and conditions. (The rule was renumbered in 1996 and is now Rule 62-660.805.) In 1992, the Petitioner requested an exemption for its tomato-washing operation and entered into discussions with DER regarding the tomato-washing operation. On October 6, 1992, the Petitioner submitted information in support of its request for an exemption. DER issued the Petitioner a Notice of Permit Exemption on November 13, 1992. The Notice of Permit Exemption stated that the information submitted on October 6, 1992, provided "reasonable assurance that proper operation will occur to prevent violations of the Department's rules and regulations." There was no other evidence as to why the exemption was issued. At the time of and since issuance of the Notice of Permit Exemption, the Petitioner's tomato-washing operation has used approximately 16,500 gallons of wash-water a day. After use in the tomato-washing operation, the tomato wash-water is loaded from a storage tank into dedicated tankers for transportation and uniform distribution on uncultivated agricultural fields in accordance with the Notice of Permit Exemption. The Notice of Permit Exemption prohibits distribution during or within 24 hours after a rainfall event greater than a 10-year, 1-hour storm and requires a minimum 5-day resting period between distributions to any one distribution site. Runoff outside the prescribed distribution sites also is prohibited. Although no witness testified, it can be inferred from these provisions themselves that their purpose was to control entry of the tomato wash-water into the groundwater and to prevent surface water runoff. The Notice of Permit Exemption warned that it could be revoked if the tomato-washing operation was substantially modified, if the basis for the exemption was determined to be materially incorrect, or if the Petitioner failed to comply with the specific conditions in the Notice of Permit Exemption. On January 28, 1998, DEP issued a Notice of Exemption Revocation. There was no evidence that the tomato-washing operation has been modified or that the Petitioner failed to comply with the specific conditions in the Notice of Permit Exemption. The exemption was revoked because "tomato washing operations discharging between 5000 and 50,000 gallons per day are required to obtain industrial wastewater general permits from the Department."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order revoking the Petitioner's exemption. DONE AND ENTERED this 16th day of October, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Terry Cole, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 Tallahassee, Florida 32301 J. LAWRENCE JOHNSTON 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 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1998. Ricardo Muratti, Assistant General Counsel Jennifer Fitzwater, Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 Kathy Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue presented is whether Respondents Harbor Island Citrus, Inc., and Fidelity & Deposit Company of Maryland are indebted to Petitioner Rio Indio Fruit Company in the amount of $80,684.
Findings Of Fact Petitioner Rio Indio Fruit Company operates a citrus packinghouse located in St. Lucie County, Florida. Respondent Harbor Island Citrus, Inc., operates a citrus packinghouse in Indian River County, Florida. On approximately November 20, 1999, Albert Valdes from Harbor Island contacted Ralph Viamontes from Rio Indio to ascertain if Rio Indio might have a source that Harbor Island could use to obtain colored grapefruit for Harbor Island's annual fund-raising program. It was the industry practice, and Harbor Island's practice, for the fund-raising program to run from late-November through mid-December. During that time period, students in the north sell the fruit to raise money for their projects. The fruit used in such a fund-raising program can be a quality inferior to the quality demanded by the Japanese market, the primary market for Harbor's Island's citrus. Viamontes told Valdes he would see if he could find a grower with colored grapefruit suitable for Harbor Island's fund-raising program. Viamontes telephoned Valdes the following day and said he had located a grower. On that day or possibly the following day Valdes and two other Harbor Island employees, Dennis Downs and James Morris, met Viamontes at the Rio Indio facility. The four men drove in Viamontes' vehicle to the Sorge VII grove in Martin County to look at the grove's colored grapefruit. The amount of fruit in the grove was much larger than Harbor Island needed to fulfill its fund-raising program commitment. Viamontes estimated that the grove contained the equivalent of 30,000 boxes of colored grapefruit. Valdes told Viamontes that Harbor Island might need 18,000 to 20,000 boxes of the grapefruit for its fund-raising program. Viamontes told the Harbor Island employees that they could still make a deal for the grapefruit in the grove because since he had his own packing house, he would take the fruit that Harbor Island did not need. The men discussed that Harbor Island could take 2/3 of the colored grapefruit in the grove, and Rio Indio could take 1/3. They further discussed that the manager of Sorge VII wanted $5.50 a box for the fruit, that Viamontes would contract to take all the fruit in the grove, that Harbor Island would pay Viamontes $5.50 a box for the fruit Harbor Island took, and that Viamontes would pay the grower. James Morris from Harbor Island specifically asked Viamontes what would happen if Harbor Island wanted less than 18,000 to 20,000 boxes. Viamontes told the Harbor Island employees that there would be no problem if Harbor Island took less fruit because Viamontes would take whatever was left after Harbor Island took what it wanted. Valdes consulted with Donald Groves, Jr., the owner of Harbor Island to verify that Harbor Island would make the arrangement suggested by Viamontes, and Groves approved the arrangement. Thereafter, Viamontes entered into a written contact with the manager of Sorge VII to purchase all of the fruit for $5.50 a box, and that written contract included deadlines for 20,000 boxes of fruit to be picked by December 31, 1999, and the remainder to be picked by the end of February 2000. Rather than the 30,000 field boxes that Viamontes had estimated the grove contained, the grove contained substantially more grapefruit than Viamontes estimated. The record in this cause suggests that the grove may have contained as many as 43,762 boxes of colored grapefruit. In accordance with its understanding of the arrangement with Viamontes, Harbor Island began harvesting colored grapefruit from the Sorge VII grove on November 26, 1999, and completed all picking at the grove on December 8, 1999. During that time Harbor Island picked 9,000 boxes of colored grapefruit for which it was obligated to pay Viamontes $5.50 per box. Harbor Island paid Viamontes in full for the fruit it took. During the time Harbor Island was at the Sorge VII grove picking colored grapefruit, Rio Indio's crews were there picking grapefruit. Rio Indio's crews also picked fruit at the grove during the months after Harbor Island completed its picking. In addition to Rio Indio's crews knowing that Harbor Island had completed its picking, James Morris specifically told Viamontes that Harbor Island had taken all the fruit it wanted from the Sorge VII grove as of December 8, 1999. During the months of December 1999, January 2000, February 2000, and the first half of March 2000, Viamontes spoke with Valdes of Harbor Island several times a day to check on the status of other unrelated fruit being packed and sold by Harbor Island for Viamontes. In addition, Viamontes was present at the Harbor Island packinghouse on a weekly basis to pick up checks due to him or Rio Indio for the unrelated fruit being sold by Harbor Island for Viamontes. Yet, at no time between December 8, 1999, and the middle of March 2000 did Viamontes tell anyone that he believed Harbor Island had an obligation to harvest additional fruit from the Sorge VII grove. Rather, in late January 2000 Viamontes asked Valdes if Harbor Island were going to take any more fruit from Sorge VII. When Valdes said the fund-raising program was over, Viamontes told Valdes not to worry because Rio Indio would take the rest. Further, on or about March 1, 2000, during one of Viamontes' visits to the Harbor Island packinghouse, Dennis Downs of Harbor Island asked Viamontes how the harvesting in Sorge VII was proceeding. Viamontes responded that Rio Indio was harvesting the remaining colored grapefruit and that Harbor Island need not be concerned about any further harvesting at the Sorge VII grove. On or about March 15, 2000, the price and demand for colored grapefruit suddenly and dramatically dropped due to an oversupply of fruit for which the industry was not prepared. After the dramatic decline, Viamontes contacted Valdes from Harbor Island and inquired whether Harbor Island was going to pick any additional fruit at the Sorge VII grove. Valdes responded that Harbor Island had no obligation to pick any additional colored grapefruit from the Sorge VII grove based upon the agreements between Harbor Island and Rio Indio, specifically, Viamontes' continued representations that Harbor Island should not be concerned about picking any additional colored grapefruit from the grove because Rio Indio would take the remainder. In July 2000 Viamontes appeared at Harbor Island and advised Donald Groves, for the first time, that Harbor Island owed Rio Indio the amount of $80,684 for an additional 20,171 boxes of colored grapefruit from the Sorge VII grove, which Viamontes now contends Harbor Island should have harvested. Rio Indio claims that it suffered a loss of $4 per box for that additional fruit. The documentation presented by Rio Indio to support its demand is questionable and does not substantiate Rio Indio's claimed damages. First, the majority of the documents submitted by Rio Indio indicate that the fruit described therein was from a grove in St. Lucie County, and Sorge VII is in Martin County. Second, the majority of the documents indicate that the fruit described therein was from packinghouse eliminations although Viamontes alleges that the fruit went directly from the field to the cannery without going through a packinghouse. Third, the cannery records reflect that the "pound solids per box" are significantly less than what would be expected from fruit coming from the Sorge VII grove based upon the grove's historical production.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Harbor Island Citrus, Inc., is not indebted to Rio Indio Fruit Company and dismissing the Complaint filed by Rio Indio Fruit Company in this cause. DONE AND ENTERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2001. COPIES FURNISHED: Theodore W. Herzog, Esquire 1101 Simonton Street Key West, Florida 33040 Fred L. Kretschmer, Jr., Esquire Moss, Henderson, Blanton, Lanier, Kretschmer & Murphy, P.A. 817 Beachland Boulevard Post Office Box 3406 Vero Beach, Florida 32964-3406 Kathy Elves The Fidelity and Deposit Companies 300 Saint Paul Place Post Office Box 87 Baltimore, Maryland 21203 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services 500 Third Street, Northwest Post Office Box 1072 Winter Haven, Florida 33882-1072 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services 541 East Tennessee Street India Building Tallahassee, Florida 32308 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue 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 Sunny Fresh Citrus Export and Sales, Co., LLC, is liable to Petitioner in the amount of $44,032.00 for delivery of fruit which remains unpaid.
Findings Of Fact Petitioner, DP Partners, Ltd. (Partners), is a Florida Limited Partnership located in Lake Placid, Florida, engaged in the business of citrus production. Daniel H. Phypers and Danielle Phypers Daum, brother and sister, and their father Drew Phypers, are limited partners in the business. Respondent, Sunny Fresh Citrus Export and Sales Co., LLC, (the LLC) is a Florida Limited Liability Company headquartered in Vero Beach, Florida, engaged in the business of exporting citrus for retail sale. The LLC was organized and registered with the State of Florida Division of Corporations on November 3, 2011. The members of the LLC are Kelly Marinaro and Jean Marinaro, husband and wife. Kelly Marinaro (Marinaro) formerly conducted business in the name of Sunny Fresh Citrus Export and Sales Co. (the DBA), a fictitious-name entity registered with the Florida Department of State, Division of Corporations, on October 23, 2007. The fictitious-name entity registration expired on December 31, 2012. Marinaro suffered a massive heart attack in November 2011 and was incapacitated. He did not return to work until the Spring of 2013. On November 4, 2011, after suffering the heart attack, and one day after organizing and registering the LLC, Marinaro conveyed durable power of attorney to Joseph Paladin (Paladin) as his Agent. Among the authority granted to Paladin, was the following: 2. To enter into binding contracts on my behalf and to sign, endorse and execute any written agreement and document necessary to enter into such contract and/or agreement, including but not limited to . . . contracts, covenants . . . and other debts and obligations and such other instruments in writing of whatever kind and nature as may be. * * * 9. To open, maintain and/or close bank accounts, including, but not limited to, checking accounts . . . to conduct business with any banking or financial institution with respect to any of my accounts, including, but not limited to, making deposits and withdrawals, negotiating or endorsing any checks . . . payable to me by any person, firm, corporation or political entity[.] * * * 12. To maintain and operate any business that I currently own or have an interest in or may own or have an interest in, in the future. In Marinaro’s absence, Paladin conducted the usual affairs of the business, including entering into contracts to purchase citrus from several growers. On October 19, 2012, Paladin entered into contract number 2033 with Partners to purchase approximately 6000 boxes of Murcots (a tangerine variety) at $12.00 per box.2/ The contract is signed by Paladin as the Agent of “Sunny Fresh Citrus Export & Sales Company, Licensed Citrus Fruit Dealer (Buyer).” On December 13, 2012, Sunny Fresh entered into contract number 2051 with Partners to purchase Hamlins (a different fruit variety) at $6.50 per box.3/ The contract price was for citrus “on the tree,” meaning it was the buyer’s responsibility to harvest the citrus. The contract is signed by Paladin as the Agent of “Sunny Fresh Citrus Export & Sales Company, Licensed Citrus Fruit Dealer (Buyer).” (Contract 2033 and 2051 are hereinafter referred to collectively as “the contracts”.) The contracts were prepared on pre-printed forms used by Marinaro’s businesses pre-dating Paladin’s involvement. The contract form is titled as follows: Citrus Purchase Contract & Agreement Sunny Fresh Citrus Export & Sales Company Cash Fruit Crop Buyer 2101 15th Avenue Vero Beach, Florida 32960 Paladin testified that he was not aware of more than one company for Marinaro’s fruit-dealing business. He testified that he was not aware of any difference between Sunny Fresh Citrus Export and Sales Company and Sunny Fresh Citrus Export and Sales Co., LLC. Paladin was not aware of when the LLC was created. Paladin’s testimony is accepted as credible and reliable. Paladin testified that his intent was to enter into the contracts for the benefit of “Sunny Fresh.” “Sunny Fresh,” written in twelve-point bold red letters over an image of the sun in yellow outlined in red, is a trademark registered with the Florida Division of Corporations. Marinaro first registered the trademark in February 1998. In his trademark application, Marinaro entered the applicant’s name as “Kelly Marinaro D/B/A Sunny Fresh Citrus.” Marinaro renewed the trademark registration in 2007. Marinaro testified that the “Sunny Fresh” trademark is “owned by the LLC.” On February 20, 2012, Paladin, Marinaro and a third partner, Gary Parris, formed another company, Sunny Fresh Packing, LLC, the purpose of which was to run a fruit-packing house in Okeechobee, Florida. Equipment for the packing house was obtained from a packing house in Ft. Pierce, Florida, which was indebted to Marinaro, in some capacity, and went “belly up.” In March 2013, the Okeechobee packing house was struck by lightning. Shortly after the lightning strike, Marinaro, Paladin, and Mr. Parris, signed a letter addressed “To our valued Growers.” The letter explained that, due to both the lightning strike, which shorted out all computers and electrical components at the packing house, and reduced demand for product due to severe weather in the northeastern United States, they had made a “business decision to end the year now and prepare for next year.” The letter further explained that, “rather than spending thousands of dollars all at once, we feel, it makes better sense to use our cash flow to pay our growers first . . . . We will be sending out checks every week or every other week until everyone is paid or until we receive supplemental cash infusions that we are working on. In that case we would just pay everyone in full, from that.” The letter was prepared on letterhead bearing the “Sunny Fresh” trademark logo. Paladin made a number of payments to Partners on the contracts during 2012 and 2013. Each check shows payor name as “Sunny Fresh” with an address of 2101 15th Avenue, Vero Beach, Florida 32960. Mr. Phypers met with Paladin a number of times to collect checks and understood that Paladin was making concerted efforts to pay all the growers. However, Partners did not receive full payment on the contracts. Paladin drafted a Release of Invoices Agreement (Agreement) by which creditor growers could receive partial payment on their outstanding contracts in exchange for a full release of liability from the buyer. The Agreement lists the following entities and persons as being released from liability: “Sunny Fresh Packing, LLC”; “Sunny Fresh Citrus Export and Sales Co., LLC”; and Kelly Marinaro. Paladin presented the Agreement to Partners with an offer to pay $36,449.45 in consideration for signing the Agreement. Partners did not sign the Agreement. The parties stipulated that the amount owed Partners under both contracts is $44,032.00. Respondent contends that Petitioner’s claim is filed against the wrong business entity. Respondent argues that Petitioner’s contracts were with the DBA, and that Petitioner’s claim is incorrectly brought against the LLC. Thus, Respondent reasons, the LLC is not liable to Petitioner for the monies owed. The DBA was registered with the State of Florida in 2007 and held an active fruit dealer’s license through July 31, 2012. Marinaro owned and operated the DBA at 2101 15th Avenue, Vero Beach, Florida 32960. The DBA filed a citrus fruit dealer’s bond with the Department of Agriculture for the 2008-2009 shipping season. Marinaro registered the trademark “Sunny Fresh” logo in the name of the DBA in 2007, and was still using the logo on his business letterhead in 2013. Marinaro formed the LLC in 2011, which holds an active citrus fruit dealer’s license. Marinaro and his wife, Jean, are the only members of the LLC. The principal address is 2101 15th Avenue, Vero Beach, Florida 32960. The LLC filed citrus fruit dealer’s bonds with the Department of Agriculture on June 28, 2012, for the shipping season ending July 31, 2013, and on May 2, 2013, for the shipping season ending July 31, 2014. Marinaro did not refile a bond for the DBA after forming the LLC. At all times relevant hereto, Marinaro’s fruit dealer’s business has been physically located at 2101 15th Avenue, Vero Beach, Florida 32960. The building at that address bears the name “Sunny Fresh.” Marinaro testified that he formed the LLC shortly after his heart attack to “protect his personal assets.” Marinaro explained that he had little revenue in the LLC “for the next two years,” and he planned for the LLC to conduct sales for the packing company. He expected the LLC would be purchasing fruit from other packing houses. In fact, he testified that, during his absence, he was not aware that either the DBA or the LLC were purchasing fruit. Marinaro was clearly upset about the financial state of his business when he resumed control in the Spring of 2013. He testified that, prior to his heart attack, he was running a business with a typical $10 to $12 million yearly revenue, but that he returned to a business in debt to the tune of roughly $790,000.00. Marinaro lamented that Paladin entered into contracts to buy citrus when that was not the plan for the LLC. Alternately, he blamed Paladin for taking too much money out of the LLC to set up the packing house. Marinaro’s testimony was inconsistent and unreliable. He first testified that Paladin had full authority to purchase fruit in his absence, but later professed to be “dismayed” that his company was purchasing fruit in his absence. The evidence does not support a finding that the LLC was formed for any reason other than to continue his fruit dealings in a legal structure that would protect his personal assets. Marinaro’s explanation that the purpose of the LLC was to conduct sales for the packing company also lacks credibility. The LLC was organized in November 2011, but the packing house in Ft. Pierce from which he acquired the equipment to set up a packing house in Okeechobee did not go “belly up” until February 2012. Marinaro would have had to be clairvoyant to set up an LLC for the sole purpose of sales to a packing house about which he was not aware until four months later. Marinaro’s testimony that he was in the dark about the running of his business and that he was somehow duped by Paladin is likewise unreliable. Marinaro testified that, during his absence, he was “concerned that Paladin was entering into contracts where a bond was required, but not secured.”4/ He could not have been concerned about contracts to buy fruit without posting the required bond if he was not even aware that his company was purchasing fruit. Further, Marinaro neither questioned Paladin about entering into the citrus contracts, nor suggested Paladin use a different contract form for the LLC. The evidence establishes that Marinaro knew Paladin was purchasing fruit during Marinaro’s absence to continue the regular fruit-dealer’s business, and further, that Marinaro knew Paladin was entering into contracts on behalf of the LLC, the company formed just one day prior to Marinaro granting Paladin full power of attorney to run his business. Finally, Marinaro knowingly participated in the formation of Sunny Fresh Packing, LLC, in February 2012, four months after he became incapacitated. This required his involvement in a complicated business scheme in which his company collected on a debt owed by a packing house in Ft. Pierce, and acquired the equipment to run the new packing house, with two partners, Parris and Paladin, located in Okeechobee on property owned by a third party, Mr. Smith, who is not a member of Sunny Fresh Packing, LLC. It is unlikely Marinaro was clueless as to the fruit dealings of the LLC in his absence. Further, it is disingenuous, at best, for Marinaro to suggest that the contracts entered into in 2012 are not with the LLC, the corporation he formed in 2011 to protect his personal assets from his business obligations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of DP Partners, Ltd., against Sunny Fresh Citrus Export and Sales Co., LLC, in the amount of $44,032.00. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2014.
The Issue The issue presented for decision herein is whether or not the Petitioner is entitled to an award of $11,952 for payment of a shipment of tomatoes made to Respondent, Georgia Tomato Company, Inc.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, including the proposed ore tenus requests by Petitioner's counsel, I hereby make the following relevant factual findings. Petitioner, Corky Foods Corporation, is a diversified agri-business company engaged in, among other things, the sale of produce from one of its warehouses in Boynton Beach, Florida. On January 21, 1985, Pat Adams, a broker for Adams brokerage company in Bonita Springs, Florida, placed an order with Petitioner's salesman, Daniel Garcia, for a load of tomatoes from Georgia Tomato Company. The tomatoes were sold to Respondent, Georgia Tomato Company, on January 21, 1985. The invoice of these products (No. 18917) was dated January 23, 1985 and contained a total of 1,440 boxes. Respondent was allowed a $1 credit under the market price which amount reflects the amount of the initial claim by Petitioner against Respondent, Georgia Tomato Company; i.e., $25,560 less the credit of $1,440 for a total claim of $24,120. During this period of time, there was a freeze in South Florida which occurred on January 20, 1985 and the price of produce dropped substantially for products picked after January 20, 1985. The market value for tomatoes picked on January 19, 1985 was as follows: 5 x 6 #1 @ $18.00 6 x 6 #1 @ $16.00 6 x 7 #1 @ $14.00 This amount, less the $1 credit given to Respondent, Georgia Tomato Company, by Petitioner represents the amount initially claimed by Petitioner; i.e., $24,120. Respondent, Georgia Tomato Company, failed to pay Petitioner's invoiced amount which resulted in a complaint being filed by Petitioner against Respondent, Georgia Tomato Company, on March 4, 1985. Once that complaint was filed, Respondent, Georgia Tomato Company, tendered to Petitioner an amount of $12,168 which reduced the complaint by that amount leaving a balance now due and owing Petitioner of $11,952 based on its amended claim filed herein dated April 24, 1985. Respondent, Georgia Tomato Company, contends that it was overcharged on the amount of this shipment of tomatoes and attempted to substantiate its position by showing several invoices for tomatoes that it purchased subsequent to January 21, 1985. Daniel Garcia, Petitioner's vice-president in charge of marketing, determined the market price for the tomatoes shipped to Respondent, Georgia Tomato Company, on January 21, 1985. In doing so, he called brokerage houses in Homestead, Bonita Springs, and other brokers, including Pat Adams, the broker who purchased the tomatoes here in question on behalf of Adams Brokerage House, and established the market price as per the invoice sent to Respondent, Georgia Tomato Company. In addition, Mr. Garcia referred to the Southeastern Fruit and Vegetable Report, Volume 30, No. 17, which is a guide to the pricing information for fruit and vegetables in the southeast and which is relied upon to ascertain fruit and vegetable prices in this area. (Petitioner's Exhibit 1) This data supports Petitioner's claim for the amount invoiced to Respondent, Georgia Tomato Company. Respondent, Georgia Tomato Company, did not dispute the quality of the tomatoes shipped by the Petitioner. Respondent offered no other defenses against the amount claimed by Petitioner. Based thereon, it is herein concluded that the Petitioner is entitled to an award of the amount in its amended claim of $11,952.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Georgia Tomato Company, Inc., be ordered to pay Petitioner, Corky Foods Corporation, the amount of $11,952 as set forth in its amended complaint filed herein dated April 24, 1985, within fifteen (15) days of the date of entry of the Final Order by the Department of Agriculture and Consumer Services, Bureau of License and Bond. DONE and ORDERED this 9th day of October, 1985, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1985. COPIES FURNISHED: Roger C. Lambert, Esquire 250 South County Road, Suite 201 West Palm Beach, Florida 33480 Glenn Vaughn, General Manager Georgia Tomato Company, Inc. Building F State Farmers Market Forest Park, Georgia 30050 Joe Kight, Chief Bureau of License & Bond Department of Agriculture and Consumer Services Mayo Building, Room 418 Tallahassee, Florida 32301 Continental Insurance Company Legal Section (License & Bond) 80 Maiden Lane New York, New York Robert Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Doyle Conner Commissioner Department of Agriculture The Capitol Tallahassee, Florida 32301
The Issue Whether Respondents Veg Service, Inc., and Western Surety Company are justly indebted to Dixie Growers, Inc., for Florida- grown agricultural products which Dixie Growers, as the agent for the producers of the products; sold to Veg Service?
Findings Of Fact The Parties Dixie Growers, located in Plant City, Florida, is a producer, packer, and seller of Florida-grown agricultural products. It also acts as a sales agent for growers of Florida agricultural products, and in that capacity is a producer of agricultural products. Ms. Linda T. Lawton is the Vice President/Secretary for Dixie Growers, Inc. Mr. George Locklear is a salesman for the company. It is the practice of Dixie Growers, Inc., to pay the growers who provide it with agricultural products to be sold on the open market within 10 to 14 days of shipment unless the broker or purchaser to whom the products are sold notifies Dixie of a problem. This practice was made known to Veg Service before the incidents which led to these proceedings. Whenever Dixie receives notice of a problem with the shipment prior to payment of the grower, Dixie places a "trouble" memorandum on the top of the file. In such a case, Dixie does not usually pay the grower until the problem has been resolved with the broker and then only in an amount that does not exceed what Dixie receives from the broker or purchaser. Veg Services, Inc., is a negotiating broker of Florida agricultural products, some of which it has purchased from Dixie Growers. In this capacity Veg Services is a dealer in agricultural products. The company is located in Pompano Beach, Florida. Western Surety Company is the issuer of bonds to Veg Services, Inc., in amounts sufficient to cover the disputes involved in this proceeding. Case No. 96-3995A On June 1, 1996, Dixie Growers sold 260 boxes, (1 and 1/9th bushels each), of fancy eggplant to Veg Services. The price was $8.00 per box for a price of $2,080 for the entire shipment. On June 5, 1996, the U. S. Department of Agriculture, at a cost of $278, conducted an inspection of the 260 boxes of eggplant in Providence, Rhode Island at the premises of Tourtellot and Company, Inc. Under the section marked "Grade" in the inspection certificate, the eggplant was found to fail "to grade U.S. No. 1." On the same day as the inspection, Dixie Growers received by fax a copy of the inspection, Inspection Certificate K-195345-4. In accord with its customary practice, Dixie Growers placed a "trouble" memorandum in its file so that it would not pay the grower of the eggplant until the trouble was resolved. On June 17, 1996, Dixie Growers received a fax of the invoice from Veg Services marked, "OK." Interpreting the "OK," to mean that payment would be in full, George Locklear called Veg Service to double-check. He talked with Martin Shield and Marcie, a member of the office staff. First Marcie and then Mr. Shield stated that the invoice would be paid in full. Before the growers were paid on the strength of the representations of the two Veg Service employees made June 17, however, Deborah Lawton, Dixie's bookkeeper asked Mr. Locklear to inquire as to whether the cost of the inspection ($278,) would be deducted from the payment. Marcie told Mr. Locklear that payment would be in full with nothing deducted for the inspection. With the understanding that payment would be made in full with nothing deducted for the cost of the inspection, Dixie Growers paid the growers of the eggplant in full. On July 1, 1996, after payment had been made by Dixie Growers to the growers of the eggplant, it received a fax from Veg Services that it would be paid only $1.60 per box instead of the full $8.00 per box. When Mr. Locklear called to inquire about the fax, Marcie told him that Veg Services had made a mistake when it said that payment would be in full. Dixie Growers received payment in the amount of $416.00 leaving $1,664.00 still due. Case No. 96-3996A On April 27, 1996, Dixie Growers sold 65 boxes of medium squash, 200 boxes of select cucumber and 60 boxes of cabbages to Veg Service. No trouble with the produce was ever reported by Veg Service to Dixie Growers. Nor was there ever made a federal inspection of the produce. The total bill for the sale was $2610.00. On May 9, 1996, another sale was made by Dixie Growers to Veg Service: 154 boxes of medium zucchini, 72 boxes of small squash, 72 boxes of medium squash, 50 boxes of choice cucanelle and 120 boxes of large cucumbers. No trouble with any of the produce was ever reported by Veg Service to Dixie Growers. Nor was there a federal inspection conducted. The bill for the sale was $4,360.00. On June 12, 1996, payment was received for the April 27 sale in the amount of $1,280 leaving a balance of $1,330. The same day payment was received for the May 9 sale in the amount of $2,259.50 leaving a balance due of $2,100.50. Invoices showing the balances due for the two sales were mailed by certified mail to Veg Service. Following phone calls by Dixie Growers, at the request of Veg Service staff, the invoices were later faxed twice to Veg Service. The two balances, totalling $3,430.50, had not been paid as of final hearing. Had any trouble with either sale been communicated to Dixie Growers prior to the payment it made to the growers of the produce, then Dixie Growers would not have paid the growers until the problem was resolved. Since Veg Service did not communicate any problem with either sale in any way, Dixie Growers paid the growers. Case No. 4727A On June 6, 1996, Dixie Growers sold Veg Service 500 boxes of fancy eggplant, 200 boxes of choice eggplant, 600 boxes of large bell peppers, 200 boxes of extra large bell peppers and 50 boxes of long hot peppers. The invoice for the sale shows $14,200 due for the produce and a charge of $23.50 listed for "Temp.Recrd," for a total invoiced amount of $14,223.50. On July 17, 1996, Dixie Growers received a check from Veg Services for $10,262.50 for the June 6 sale leaving a balance of $3,961.00. When George Locklear of Dixie Growers inquired of Veg Service as to why the invoiced amount had not been fully paid, he was told that a federal inspection had shown that the peppers were smaller than as represented by Dixie Growers. This was the first time that Dixie Growers had received any notice from Veg Service that there was any trouble with the June 6 sale. The inspection was faxed to Dixie Growers on July 31, 1996, long after Dixie Growers had paid the growers of the produce. The fee for the inspection by the U.S. Department of Agriculture was $111.00. That fee had been deducted by Veg Service when it paid the invoice amount so that the amount claimed due by Dixie Growers in this case ($3,961) is the sum of the inspection fee ($111) and a balance not paid on the produce sold, ($3,850).
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Agriculture and Consumer Services enter a final order adjudicating Veg Service, Inc., to be indebted to Dixie Growers, Inc., in the amount of $9,055.50. DONE AND ENTERED this 31st day of December, 1996, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1996. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0350 Richard Tritschler General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Charles E. Lawton, President Dixie Growers, Inc. Post Office Box 1686 Plant City, Florida 33564-1686 Herbert Shield, President Veg Service, Inc. 150 SW 12th Avenue, Suite 370 Pompano Beach, Florida 33069 Western Surety Company Legal Department 101 South Phillips Avenue Sioux Falls, South Dakota 57102
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
The Issue The issue in this case is whether Respondent citrus dealer owes Petitioner citrus producer a sum of money for grapefruits that Respondent harvested from Petitioner’s grove.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Sunrise Citrus Groves, Inc. (“Sunrise”) is a producer of citrus, meaning that it grows citrus in this state for market. It is also a Florida-licensed citrus fruit dealer operating within the Department’s regulatory jurisdiction. Tuxedo Fruit Company (“Tuxedo”) is a Florida-licensed citrus fruit dealer. On or about October 18, 2000, Sunrise and Tuxedo entered into a contract under which Tuxedo agreed to harvest “flame” grapefruits from Sunrise’s grove known as “Gulfstream.” are a variety of grapefruit; the varieties are distinguished by the color of the fruit’s meat, e.g. red, ruby, pink.) Tuxedo agreed to pay $4.00 per box of fruit harvested at the Gulfstream grove. Between October 16, 2000 and March 14, 2001, Tuxedo harvested 5,808 boxes of flame grapefruits pursuant to its contract with Sunrise. Accordingly, Tuxedo was obligated to pay Sunrise $23,232 for the fruit. Tuxedo did not pay for the grapefruits harvested from the Gulfstream grove. On October 11, 2001, Sunrise sent Tuxedo an invoice for the past due amount of $23,232. Tuxedo did not object to this statement of account. At hearing, Tuxedo admitted the above facts. Tuxedo’s position was that Sunrise had breached a separate contract relating to red grapefruits which Tuxedo had agreed to harvest from a grove called “Sun Rock.” As a result of this alleged breach, Tuxedo claimed to have suffered damages exceeding the amount sought by Sunrise. It is not necessary to make detailed findings of fact concerning the Sun Rock transaction, however, because the undersigned has concluded that the alleged breach of contract action that Tuxedo attempted to prove is not properly before the Division of Administrative Hearings (“DOAH”). Ultimate Factual Determination Tuxedo failed to pay for the citrus fruit harvested from the Gulfstream grove that was the subject of a contract between Sunrise and Tuxedo. Sunrise performed all of its duties under that contract and is not in breach thereof. Tuxedo, therefore, is indebted to Sunrise in the amount of $23,232. CONSLUSIONS OF LAW The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes. Chapter 601, Florida Statutes, is known as "The Florida Citrus Code of 1949." Section 601.01, Florida Statutes. "Citrus fruit" is defined in Section 601.03(7), Florida Statutes, as all varieties and regulated hybrids of citrus fruit and also means processed citrus products containing 20 percent or more citrus fruit or citrus fruit juice, but, for the purposes of this chapter, shall not mean limes, lemons, marmalade, jellies, preserves, candies, or citrus hybrids for which no specific standards have been established by the Department of Citrus. Additionally, the term “grapefruit” is defined to mean “the fruit Citrus paradisi Macf., commonly called grapefruit and shall include white, red, and pink meated varieties[.]” Section 601.03(22), Florida Statutes. A "citrus fruit dealer" is defined in Section 601.03(8), Florida Statutes, as any consignor, commission merchant, consignment shipper, cash buyer, broker, association, cooperative association, express or gift fruit shipper, or person who in any manner makes or attempts to make money or other thing of value on citrus fruit in any manner whatsoever, other than of growing or producing citrus fruit, but the term shall not include retail establishments whose sales are direct to consumers and not for resale or persons or firms trading solely in citrus futures contracts on a regulated commodity exchange. Both Sunrise and Tuxedo are citrus fruit dealers under this definition. Sunrise also falls within the definition of “producer.” See Section 601.03(29), Florida Statutes (defining the term as “any person growing or producing citrus in this state for market”). Citrus fruit dealers are required to be licensed by the Department in order to transact business in Florida. Section 601.55(1), Florida Statutes. As a condition of obtaining a license, such dealers are required to provide a cash bond or a certificate of deposit or a surety bond in an amount to be determined by the Department "for the use and benefit of every producer and of every citrus fruit dealer with whom the dealer deals in the purchase, handling, sale, and accounting of purchases and sales of citrus fruit." Section 601.61(3), Florida Statutes. Section 601.65, Florida Statutes, provides that "[i]f any licensed citrus fruit dealer violates any provision of this chapter, such dealer shall be liable to the person allegedly injured thereby for the full amount of damages sustained in consequence of such violation." This liability may be adjudicated in an administrative action brought before the Department or in a "judicial suit at law in a court of competent jurisdiction." Id. Section 601.64(4), Florida Statutes, defines as an "unlawful act" by a citrus fruit dealer the failure to pay promptly and fully, as promised, for any citrus fruit which is the subject of a transaction relating to the purchase and sale of such goods. Any person may file a complaint with the Department alleging a violation of the provisions of Chapter 601, Florida Statutes, by a citrus fruit dealer. Section 601.66(1), Florida Statutes. The Department is charged with the responsibilities of determining whether the allegations of the complaint have been established and adjudicating the amount of indebtedness or damages owed by the citrus fruit dealer. Section 601.66(5), Florida Statutes. If the complaining party proves its case, the Department shall "fix a reasonable time within which said indebtedness shall be paid by the [citrus fruit] dealer." Thereafter, if the dealer does not pay within the time specified by the Department, the Department shall obtain payment of the damages from the dealer's surety company, up to the amount of the bond. Section 601.66(5) and (6), Florida Statutes. Sunrise bore the burden of proving the allegations in its Complaint against Tuxedo by a preponderance of the evidence. See Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 415 (Fla. 4th DCA 1974); Section 120.57(1)(j), Florida Statutes. Sunrise carried its burden of proving that Tuxedo has failed and refused to pay, as agreed, for citrus fruit that Tuxedo harvested from Sunrise’s Gulfstream grove. Tuxedo’s allegation that Sunrise breached a contract unrelated to the one upon which Sunrise has based its demand for payment constitutes an independent cause of action and claim for relief. See Storchwerke, GMBH v. Mr. Thiessen’s Wallpapering Supplies, Inc., 538 So. 2d 1382, 1383 (Fla. 5th DCA 1989). In the parlance of civil litigation, Tuxedo’s contentions would be called a counterclaim. See Haven Federal Savings & Loan Ass’n v. Kirian, 579 So. 2d 730, 733 (Fla. 1991)(“A counterclaim is a cause of action that seeks affirmative relief[.]”). Had Sunrise elected to pursue its claim in circuit court pursuant to Section 601.65, Florida Statutes, rather than before the Department, then Tuxedo properly might have sought leave to bring its claim relating to the Sun Rock transaction as a permissive counterclaim. See Rule 1.170(b), Florida Rules of Civil Procedure. But this is an administrative proceeding, and there exists no procedural vehicle through which Tuxedo may assert a permissive counterclaim for breach of contract. The question whether Tuxedo’s claim of breach is properly before DOAH is not merely procedural, but touches the fundamental consideration of subject matter jurisdiction. To be entitled to administrative remedies for Sunrise’s alleged breach of contract, Tuxedo must file a complaint with the agency having jurisdiction in the matter; it cannot directly initiate proceedings before DOAH. See Section 601.66, Florida Statutes. DOAH’s jurisdiction does not attach until the agency refers the dispute to this tribunal for adjudication. Tuxedo has not filed a complaint against Sunrise with the Department, and thus (obviously) the Department has not referred the matter to DOAH. Therefore, DOAH does not have jurisdiction to entertain Tuxedo’s claim for relief based on the alleged Sun Rock transaction. In the alternative, Tuxedo’s allegations arguably might be regarded——and reached——as an affirmative defense. See Kirian, 579 So. 2d at 733 (“[A]n affirmative defense defeats the plaintiff’s cause of action by a denial or confession and avoidance.”). Specifically, Tuxedo’s allegations, if established, might provide the basis for a set off, which is a recognized affirmative defense. See Kellogg v. Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., 807 So. 2d 669, 26 Fla. L. Weekly D2811, 2001 WL 1504231, *4 n.2 (Fla. 4th DCA Nov. 28, 2001)(“A set-off is an affirmative defense arising out of a transaction extrinsic to a plaintiff’s cause of action.”). It is concluded, however, that because DOAH does not have subject matter jurisdiction over Tuxedo’s allegations as a counterclaim for breach of contract, the same allegations cannot simply be treated as an affirmative defense and adjudicated on that basis. To be heard, the defense of set off must be within the tribunal’s jurisdiction. See Metropolitan Cas. Ins. Co. of New York v. Walker, 9 So. 2d 361, 363 (Fla. 1942). A contrary ruling would permit Tuxedo to bring in through the back door a claim that was turned away at the front. Even if Tuxedo’s claim were cognizable as an affirmative defense, notwithstanding Tuxedo’s failure properly to initiate such claim pursuant to Section 601.66, Florida Statutes, the issue could not be reached for an independent reason: implied waiver. In the context of a civil suit, a party’s failure to allege an affirmative defense in its responsive pleading effects a waiver thereof. See Gause v. First Bank of Marianna, 457 So. 2d 582, 585 (Fla. 1st DCA 1984)(“Affirmative defenses must be raised in the pleadings or they are waived.”). Since a dealer who disputes the allegations of a complaint filed with the Department under Section 601.66 is required by that statute to submit an answer in writing, it is concluded that a dealer-respondent, like a defendant in a civil lawsuit, waives any affirmative defenses not raised in his responsive pleading. Otherwise, a dealer-respondent could sandbag the claimant at final hearing. Having failed to plead the Sun Rock matter in its response to Sunrise’s complaint, Tuxedo waived the affirmative defense of set off.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order awarding Sunrise the sum of $23,232. DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 1st day of April, 2002. COPIES FURNISHED: John Scarborough, General Manager Sunrise Citrus Groves, Inc. 2410 Southeast Bridge Road Hobe Sound, Florida 33455 John A. Scotto, President Tuxedo Fruit Company 1110 North 2nd Street Fort Pierce, Florida 34950 Sharon Sergeant Continental Casualty Company CNA Plaza Floor 13-South Chicago, Illinois 60685 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services 500 Third Street Northwest Post Office Box 1072 Winter Haven, Florida 33882-1072
