The Issue Whether Respondent, a citrus dealer, owes Petitioner, a citrus producer/grower, compensation for breach of a contract to buy, pick, haul, and sell fruit from Petitioner’s grove. If so, what is the reasonable amount of compensation.
Findings Of Fact Mecca includes a thirty-six acre Murcott tangerine grove in Lakeworth, Florida, purchased by Leonard Mecca in 2003. Murcott tangerines are primarily sold as fresh fruit. Through its owner, Mr. Mecca, Petitioner entered into a contract, on January 3, 2006, Emerald to pick fruit from the grove by April 10, 2006. Old Republic Surety Company is surety on the contract performance bond for $59,000.00, the maximum amount of compensation that can be recovered, if any. On behalf of Emerald, Keith Emmett, a fruit buyer with 25 years of experience, personally visited the Mecca grove and, on January 3, 2006, estimated the number of boxes of fruit at 5,000 boxes and sales price at $14.00 a box. Mr. Emmett’s estimate was the basis for the terms of the contract that was accepted by Mr. Mecca. Mr. Mecca also testified that he contracted with another organization, River Citrus, to be the caretaker of the grove. Mr. Mecca’s contract with Emerald included the statement that “[g]rower agrees to keep said fruit clean and to protect said fruit against fire, and to dust, spray and fertilize the same in such a manner that will not cause injury to said fruit or groves.” Emerald was, under the terms of the contract, required to pay for all “merchantable” fruit at picking time. At sometime in February or March, Mr. Mecca (not his caretaker) discovered that the irrigation system at the grove was not working. Mr. Mecca testified that he had the system repaired within two days. Weed control at the grove was to be done by the use of herbicides and mowing. Mr. Mecca testified that he had a conversation about the condition of the grove with Mr. Emmett, but only about water. Mr. Emmett visited the Mecca grove in late February or early March to see if the fruit was ready to pick to fill pending orders. He described the condition of the grove as having a “hard wilt,” meaning leaves curled, with soft, spongy green fruit. The weeds indicated to him an absence of mowing and herbicides. Mr. Emmett returned to the grove in April and described the fruit as still soft to the touch with a green cast. He also testified that he notified Mr. Mecca, in conversations through the month of March, that the grove needed watering and that the fruit was soft and needed more time. Mr. Mecca testified that he contacted Mr. Emmett several times in March and April to find out when the fruit would be picked because he believed it was getting overripe. Mr. Mecca testified that Mr. Emmett was waiting to pick the fruit late in the season when market prices rose enough to justify the $14.00 a box contract price. Mr. Mecca also testified regarding when he decided to stop negotiating with Emerald and to use another packing house, as follows: It had to be the day that Keith Emmett had his man, Bill Turner, call me to tell me that he was not going to be able to use the fruit unless I wanted -- to wait another two weeks. So -- which would have been around the 20th of April. Q. So that would have been the -- on or about the time that the -- you were informed that the fruit couldn’t be used as fresh fruit; is that correct? By Emerald? A. I was informed -- I was informed by Emerald that they didn’t want to pick any more fruit unless I wanted to wait two more weeks and try again, which was the story I heard every two weeks. Bill Turner, who was in charge of harvesting the fruit for Ridge Harvesting, previously had visited and inspected the Mecca grove in February, after Emerald received a report that the well was broken. He testified that he found wilted trees and lots of weeds. By the time he talked to Mr. Mecca about the condition of the grove, he recalled that the well had already been fixed. One load of 500 boxes of Mecca fruit was picked by Ridge Harvesting for Emerald on April 19, 2006, but failed to pass state inspection. Emerald, nevertheless, paid Mecca $14.00 a box for the 500 boxes, or $7,000.00, and on April 20, 2006, sent a letter to Mecca releasing the fruit back to Mecca and, in effect, terminating the January contract based on the poor condition of the fruit. The letter specified that the fruit was “. . . spongy, soft and indented from the weight of the fruit in the box.” Mr. Emmett testified that he suggested that Mr. Mecca agree to sell the fruit at lower prices for juice, rather than as fresh fruit. He testified that Mr. Mecca declined the offer and notified Mr. Emmett that he was going to use a different packing house. Donald Owens, a field buyer for Rio Citrus (Rio) had driven by the Mecca grove some time in April, and noticed that the fruit had not been picked. He was familiar with the grove, having picked it in prior years before it changed ownership. Mr. Owens searched out the new grower and called Mr. Mecca about picking the fruit, but was told that the fruit was under contract with another picker. On or about April 20, 2006, after Emerald’s representative notified him that they were not going to use the fruit, Mr. Mecca called Donald Owens back, met him at the grove and entered into a verbal contract for Rio to pick the fruit in what Mr. Mecca and Mr. Owens described as a “salvage operation.” When Donald Owens saw the grove, on or about April 20, 2006, he testified that the grass was high, the fruit was small but, he believed, within the criteria that you can pack as fresh fruit and otherwise merchantable. He testified that he told Mr. Mecca that, before he did anything, the grass had to be mowed. Mr. Owen’s company picked a total of 2,106 boxes of tangerines on April 24, April 25, May 1, and May 4, 2006, based on the dates on the trip tickets. Of those, according to Donald Owens and his settlement statements, 69 percent passed inspection and were packed to sell as fresh fruit, but 31 percent were so-called “eliminations” and had to be taken to a canning processing plant to be juiced. Mr. Owens testified that his company, Rio, stopped picking fruit because the canning processing plant stopped taking Murcotts. If Rio had continued, then he estimated that from 25 to 30 percent of the fruit would have ended up in cow pastures at a significant financial loss, considering the expense of picking, loading, hauling, separating, and hauling fruit by grade to a cow pasture. Rio paid Mecca approximately $12,000 for the fruit it picked and sold. The remaining fruit in the grove fell to the ground. In 2004, Emerald picked 9,000 boxes of fruit from the Mecca grove. Donald Owens, whose Rio company picked 2,106 boxes from a part of one of the three divisions of the grove, estimates that each of the three sections could have provided about 3,000 boxes each, or an approximate total of 9,000 boxes of fruit from the Mecca grove, of which approximately 6,000 remained after Rio stopped picking the fruit. In 2005, Mecca produced only 600 boxes of fruit due to hurricane damage and also because Murcott tangerines produce in large volumes every other year. In the Mecca contract with Emerald in 2006, Mr. Emmett estimated the number of boxes at 5,000 merchantable boxes for the 2006 growing season. Although Emerald picked 9,000 boxes in 2004, it is reasonable to believe that the yield would be lower after some trees were damaged during the hurricanes of 2005. The estimate and agreement made prior to this contractual dispute, 5,000 boxes, is accepted as the most reasonable estimate for the 2006 growing season. Stuart Arost, the owner of Emerald, testified that he had contracts to sell elimination Murcott tangerines through April and into the first part of May to canning plants in Umatilla and Haines City. One of those plants, he testified, is cooperative-owned and will take Murcotts as long as the owners are still harvesting the fruit, even into June. Emerald, more likely than not, could have sold the fruit for juice for $10.00 a box with net proceeds to Mecca of $8.00 a box if allowed to further revise the contract or mitigate damages. Mr. Arost testified that further damages could have been mitigated if Don Owens and Rio had continued to pick fruit and used the available processors for the elimination, but there is no evidence that Mr. Owens was aware of the alternative. The evidence, based on the testimony of all of the witnesses who entered the grove, supports a conclusion that some of the fruit in the grove was damaged due to lack of proper care, and that, more likely than not, resulted in the initial failure to pass inspection and the subsequent rate of eliminations. Although 500 boxes taken by Emerald failed USDA inspection, the fact that 2,106 boxes subsequently passed inspection indicates that Emerald correctly advised Mr. Mecca to wait another two weeks until about the time that Rio harvested the fruit rather than insisting that Emerald resume harvesting before the fruit was firm. While Mr. Mecca had agreed to the two-week extensions in the past, his refusal to agree on or about April 20, 2006, resulted in Emerald’s termination of the contract and his decision to use a different packing house.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that a final order be entered denying any recovery by Petitioner Mecca Farms from Respondents Emerald Packing Company, Inc. and Old Republic Surety Company, as Surety. DONE AND ENTERED this 23rd day of January, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 23rd day of January, 2007. COPIES FURNISHED: Christopher E. Green Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Franklin T. Walden, Esquire Law Offices of Franklin T. Walden 1936 Lee Road, Suite 100 Winter Park, Florida 32789 Eric Severson, Esquire Alley, Maass, Rogers & Lindsay, P.A. 340 Royal Poinciana Way, Suite 321 Palm Beach, Florida 33480-0431 Old Republic Surety Company Post Office Box 1635 Milwaukee, Wisconsin 53201 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The primary issue in this hearing was the existence of a contract between M. Stembridge and Jack's Fruit Company under which monies were owed Stembridge.
Findings Of Fact Prior to August 5, 1974, Mrs. Barbara Stembridge, who was in the grove caretaking business, called Mr. Jack Goldtrap by telephone relative to the sale of citrus fruit on properties managed by her for her mother-in-law and herself. Their discussion regarding the sale of the fruit and the terms was incorporated with the contract, Exhibit 1, which Mr. Goldtrap sent to Mrs. Stembridge together with a check for $7500. Mrs. Stembridge executed the contract, accepted the check, and returned the executed contract to Mr. Goldtrap. This contract recites that Mr. Goldtrap had purchased " all fruit on the following groves at market price at time of picking less 50 cents plus picking cost". Thereafter the contract lists the groves subject to the contract: "Home Bloc, Poor Prospect and R. F. Stembridge grove." The testimony was uncontroverted that the fruit which is the subject of the instant controversy was located within the groves enumerated in the contract, however, Mrs. Barbara Stembridge stated that it had not been her intent to sell the fruit in controversy, but she was uncertain whether this was communicated to Mr. Goldtrap prior to the execution of the contract. Mr. Goldtrap testified that he felt he had purchased all the fruit on the groves as stated in the contract. The Hearing Officer finds that the contract, Exhibit 1, takes precedent over any prior verbal agreement between the parties to the contract and that Mr. Goldtrap purchased all fruit in the grove identified therein. Mrs. Barbara Stembridge and R. M. Stembridge testified that subsequent to the written contract with Mr. Goldtrap that R. M. Stembridge entered into an oral agreement to purchase the fruit in controversy from Mrs. Stembridge (the mother of R. M. Stembridge and mother-in-law of Mrs. Barbara Stembridge, who is the sister-in-law of R. M. Stembridge). R. M. Stembridge desired the fruit for sale in his roadside stand at his service station, and planned to pick the fruit in controversy himself on a piecemeal basis over several months. Pursuant to her mother-in-law's Instructions, Mrs. Barbara Stembridge contacted T. G. Mixon, a field superintendent with 31 years experience to estimate the value of the fruit in controversy. T. G. Mixon looked at the trees and crop in controversy late in 1974 and estimated in value to R. M. Stembridge as $3/box; however, he qualified his estimate stating that this was only a valid estimate of its value to R. M. Stembridge based on his particular intended use and that its market value was no where near that figure. R. M. Stembridge paid the agreed upon price of $900 to his mother-in-law for the fruit in controversy. Prior to picking the fruit he had purchased, Mr. Goldtrap visited the groves and was shown the groves, their boundaries, and the fruit in controversy by Mrs. Barbara Stembridge's foreman. This fruit was red grapefruit which is generally unsuitable for juice production. Such fruit cannot be economically picked for juice because there is no market for the unacceptable fruit. Mr. Goldtrap was advised by Mrs. Stembridge's foreman that Mr. Stembridge was interested in the fruit. Mrs. Barbara Stembridge testified that she thought that her foreman had told an unknown person that the red grapefruit had been promised to her brother-in-law. Mr. Goldtrap decided not to pick the red grapefruit, but to leave the fruit on the trees, and instructed his picking crew supervisors to check with R. M. Stembridge to determine which of the fruit be desired. In addition to the red grapefruit in controversy, R. M. Stembridge also had agreed to purchase white grapefruit from approximately 10 trees adjoining his service station, a fact unknown to Mr. Goldtrap or his supervisors. When the supervisors called on Mr. Stembridge to find out which trees should be spared, Stembridge thinking that they were referring to the white grapefruit trees near his station and that they had been shown the red grapefruit trees by his sister-in-law's foreman told them to begin their picking and when they got down to the station he would show them the trees to spare. Mrs. Barbara Stembridge's foreman did not instruct the picking supervisors and the picking crew picked the red grapefruit in controversy. When Mr. Stembridge became aware of the reds having been picked, he contacted Mr. Goldtrap. Mr. Stembridge was very irate and Mr. Goldtrap was very apologetic not fully realizing how the fruit had been picked when it had been his intent to spare the fruit. At this point, Stembridge demanded $3/box for the fruit, and Mr. Goldtrap stated that was a high price. Thereafter, in either this conversation or a subsequent one, Stembridge stated perhaps he knew a man who would buy them, however, when contacted this individual was not interested. When Goldtrap was advised of this, Goldtrap said he would send another truck and collect the red grapefruit. The issue presented in this controversy, therefore, becomes a question of whether there was a transaction between Mr. Goldtrap and Mr. R. M. Stembridge. It is clear from the contract, Exhibit 1, that Mr. Goldtrap owned the fruit in question at the time Mr. Stembridge "purchased" the fruit from his mother. Goldtrap intended to leave the fruit because of it low value and instructed his supervisors to contact Stembridge so that Stembridge could identify the trees in which be was interested. However, these trees were not identified by Stembridge because Stembridge thinking the supervisors were referring to the white grapefruit trees, did not indicate the trees he desired. Therefore, Goldtrap's intent to relinquish his right to the fruit was never effectively communicated to Mrs. Barbara Stembridge or to R. M. Stembridge. Mr. Stembridge's demand for $3/box for the grapefruit was in essence a demand for damages and not an offer for sale. Even if it were viewed as an offer (overlooking Stembridge's lack of ownership), there is no evidence that Goldtrap accepted the offer. His response was to advise Stembridge that he would send another truck to pick up the fruit. This action was consistent with his prior contract with Barbara Stembridge to purchase all the fruit in the groves and his legal obligation. See Section 601.64(3), Florida Statutes. The testimony was clear that Mr. Goldtrap had not paid out the moneys received from the sale of the red grapefruit because of the questions raised by R. M. Stembridge. However, Barbara Stembridge has filed no complaint in this matter, and based upon the foregoing findings that there is no transaction or contract between R. M. Stembridge and Goldtrap, R. M. Stembridge is not entitled to an accounting or to payment for the fruit in controversy.
The Issue Whether Respondent is indebted to Petitioner for Florida- grown citrus products sold to Respondent.
Findings Of Fact Petitioner and Respondent are Florida-licensed citrus fruit dealers operating within the Department's regulatory jurisdiction. Great American was the surety for J and G Citrus' fruit dealer's license for the 2006-2007 citrus shipping season. J and G Citrus is Petitioner's customer. Petitioner ships fruit on behalf of J and G Citrus under their name for a service charge and fee for fruit, the cost of packing, and shipping. Petitioner and Respondent entered a written contract on November 12, 2004, for such services. Cushman's replacements policy provides that a customer should notify Cushman of any problem and the company will refund the monies for the order or replace the package. Cushman guarantees to "honor all replacement requests in a timely manner at no cost to you." J and G Citrus utilized the policy during its contract with Cushman. Cushman delivered the following fruit orders for J and G Citrus from December 22, 2006, to February 16, 2007: 292 navel fruit trays at $3.35 a tray; 168 grapefruit trays at $3.35 a tray; 87 honeybells trays at $6.88 a tray; and 29 tangerine trays for $6.88 at tray. The costs for the fruit shipped totaled $2,339.00. J and G Citrus was invoiced this amount. Accordingly, Respondent was obligated to pay Petitioner the total sum for the fruit. After Cushman Fruit invoiced J and G Citrus for the outstanding balance, no payment was received. On March 28, 2007, Cushman informed J and G Citrus of its bill and told Respondent that "You need to get current." J and G Citrus responded on the same day that it would provide a payment schedule by Monday. On April 23, 2007, J and G Citrus confirmed by email that they were going to start paying and would provide a payment. On May 7, 2007, Cushman requested the payment schedule from J and G Citrus again and informed the company, "I need a response from you today." Cushman never heard further from Respondent regarding payment. To date, the invoices are unpaid and the monies are owed to Cushman. Petitioner performed all of its duties under the contract with J and G Citrus and Respondent failed to pay for the services. J and G Citrus is, therefore, indebted to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered requiring Respondent pay to Petitioner the sum of $2,339.00 DONE AND ENTERED this 11th day of February, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2009. COPIES FURNISHED: Elizabeth Alvarez Cushman Fruit Company, Inc. 3325 Forest Hill Boulevard West Palm Beach, Florida 33406 Rob Brehm Great American Insurance Company Post Office Box 2119 Cincinnati, Ohio 45201 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Brian D. Jerome Carla Dupleich J & G Citrus Groves 5781 Seminole Way Fort Lauderdale, Florida 33314 Honorable Charles 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 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
Findings Of Fact Based on the factual stipulations and the deposition testimony of Mr. Alfred Poucher, I hereby make the following findings of fact: During the 1982-1983 citrus fruit season Congen delivered various varieties of citrus fruit to Blue Prize. Congen is a grower as well as a processor, and the fruit which was delivered to Blue Prize was owned by Congen. During the 1982-1983 citrus season Blue Prize operated a fresh fruit packing house. The citrus fruit referred to in the preceding paragraph was delivered pursuant to an oral contract negotiated between Jack Neitzke on behalf of Congen and Alfred Poucher on behalf of Blue Prize. Neitzke served as general manager of Congen. Poucher served as president of Blue Prize. The contract provided that Congen would deliver citrus fruit to Blue Prize on an account sales basis and that Blue Prize would pay for the fruit in the following manner: For Novas delivered to Blue Prize by Congen and Packed by Blue Prize, Blue Prize agreed to pay an amount at least equal to the net return to Congen from its sale of Novas to A. S. Herlong during the same citrus season. Congen's sales to Herlong netted Congen $8.026 per packed box. For White Grapefruit delivered to Blue Prize by Congen, Blue Prize agreed to pay Congen the average net per box return Congen received during the same citrus season for White Grapefruit Congen sold for processing, inclusive of any applicable picking, roadside, and hauling charges incurred by Congen, for all field boxes delivered. The average return per box was $1.5475. For Temples, Hamlins, and Valencias delivered to Blue Prize by Congen, Blue Prize agreed to pay Congen for all field boxes delivered an amount at least equal to the average amount returned per box on the Citrus Belle processing plant seasonal pool. The Citrus Belle pool returned $.96 per pound of solids for early and mid-season fruit which includes Temples and Hamlins. The average pounds of solids per box for Temples was 6.1052, and the average pounds of solids per box for Hamlins was 5.4. The pool returned $1.10 per pound of solids for Valencias, and the average pounds of solids per box for Valencias was 6.0137. Congen agreed to give Blue Prize credit for all eliminations (fruit which could not be packed by Blue Prize as fresh fruit) which were either returned to Congen or which were sent to a processing plant and for which the proceeds from the processing plant were ultimately paid to Congen. The elimination credit was to be calculated according to the same formulae used by Congen to charge Blue Prize for the fruit. The Valencia eliminations totaled 4,038.63 pounds of solids. The Temple and Hamlin eliminations totaled 1,119.52 pounds of solids. The total elimination credit due Blue Prize was $5,517.23. During the 1982-1983 citrus season Congen delivered 5,920 field boxes of Novas, 920 field boxes of Temples, 1,380 field boxes of white Grapefruit, 120 field boxes of Hamlins, and 1,748 field boxes of Valencias to Blue Prize. 5,589 boxes of Novas, 682 boxes of Temples, 101 boxes of Hanlins, and 1,330 boxes of Valencias were packed. According to these figures and the agreed upon prices to be paid, Blue Prize owed Congen $44,857.31 for Novas which were packed, $5,462.769 for Temples which were delivered, $2,135.55 for white Grapefruit which were delivered, $622.080 for Hamlins which were delivered, and $11,597.753 for Valencias which were delivered. These amounts total $64,675.45. Blue Prize paid Congen $30,000 for the fruit delivered by Congen during the 1982-1983 citrus fruit season, and after giving Blue Prize credit for this amount and also giving Blue Prize credit for the eliminations and harvesting and trucking charges, the amount Blue Prize owes Congen is $25,278,86.
Recommendation Based on all of the foregoing, it is recommended that the Department of Agriculture and Consumer Services enter a Final Order concluding the Blue Prize Packers, Inc., is indebted to Congen Properties, Inc., in the total amount of $25,278.86, and ordering that the full amount of the debt be paid within 30 days from the date of the Final Order. DONE and ORDERED this 15th day of March, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 15th day of March, 1985. COPIES FURNISHED: H. Richard Bates, Esquire Anderson & Rush 322 East Central Blvd. P.O. Box 2288 Orlando, Florida 32802 M. David Alexander, III, Esquire Post Office Box 2376 Bartow, Florida 33830 Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 McDonald Insurance Agency, Inc. Post Office Box 940 Winter Haven, Florida 33880 Blue Prize Packers, Inc. 1200 Highway 27, North Winter Haven, Florida 33880 Congen Properties, Inc. Post Office Box 847 Labelle, Florida 33935 Honorable Doyle A. Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
The Issue Whether Respondent, Citrus Direct, LLC, owes Petitioner, Marvin Hajos, the sum of $5,397.00 for citrus that was purchased, but not harvested.
Findings Of Fact At all times material to the instant case, Petitioner and Citrus Direct were involved in the growing and marketing of citrus fruit in the State of Florida. On June 12, 2008, Citrus Direct agreed to purchase fruit from Petitioner. The terms of their agreement were reduced to writing. The "Fresh Fruit Contract" provided that Citrus Direct would purchase from Petitioner all of the varieties of citrus fruits of merchantable quality as delineated in the contract. More specifically, Citrus Direct was entitled to purchase "Valencia" oranges from Petitioner for "$3.00 on tree net" per box. The terms of the contract suggests that it is for "citrus fruit for the year 2005/2006 and merchantable at the time of picking. . . ." The contract does not identify a total amount of fruit expected from the grove. Prior to entering into the above-referenced contract, Petitioner had made arrangements with an unidentified third party to have the grove picked, but for some reason, that agreement fell through. Jason Cooper, known in the citrus business as a "bird dog," brought the parties together. Mr. Cooper is an independent contractor who finds grove owners who need to have their groves picked and refers them to buyers. The "Fresh Fruit Contract" was signed on June 12, 2008. The grove was picked on June 15, 17, 26 and 30, 2008. Two hundred and sixty-four boxes of fruit were picked from Petitioner's grove. Petitioner received payment of $603.00. Citrus Direct forwarded an additional check for $189.00 to Petitioner; however, Petitioner did not receive the check. No admissible evidence was received regarding the number of boxes of fruit that were anticipated from the grove. However, on June 30, 2008, all the fruit that was reasonably available to be picked in the grove had been picked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department Agriculture and Consumer Services enter a final order dismissing Petitioner, Marvin Hajos', Amended Complaint, but requiring Respondent, Citrus Direct, LLC, to pay Petitioner $189.00, if that amount has not already been paid. DONE AND ENTERED this 27th day of April, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 27th day of April, 2009. COPIES FURNISHED: 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 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, Mail Station 38 Tallahassee, Florida 32399-0800 Marvin Hajos 3510 Northwest 94th Avenue Hollywood, Florida 33024 State Farm Fire and Casualty Company One State Farm Plaza Bloomington, Illinois Hans Katros Citrus Direct, LLC 61710 1406 Palm Drive Winter Haven, Florida 33884
The Issue The issue presented is whether Respondents Harbor Island Citrus, Inc., and Fidelity & Deposit Company of Maryland are indebted to Petitioner Rio Indio Fruit Company in the amount of $80,684.
Findings Of Fact Petitioner Rio Indio Fruit Company operates a citrus packinghouse located in St. Lucie County, Florida. Respondent Harbor Island Citrus, Inc., operates a citrus packinghouse in Indian River County, Florida. On approximately November 20, 1999, Albert Valdes from Harbor Island contacted Ralph Viamontes from Rio Indio to ascertain if Rio Indio might have a source that Harbor Island could use to obtain colored grapefruit for Harbor Island's annual fund-raising program. It was the industry practice, and Harbor Island's practice, for the fund-raising program to run from late-November through mid-December. During that time period, students in the north sell the fruit to raise money for their projects. The fruit used in such a fund-raising program can be a quality inferior to the quality demanded by the Japanese market, the primary market for Harbor's Island's citrus. Viamontes told Valdes he would see if he could find a grower with colored grapefruit suitable for Harbor Island's fund-raising program. Viamontes telephoned Valdes the following day and said he had located a grower. On that day or possibly the following day Valdes and two other Harbor Island employees, Dennis Downs and James Morris, met Viamontes at the Rio Indio facility. The four men drove in Viamontes' vehicle to the Sorge VII grove in Martin County to look at the grove's colored grapefruit. The amount of fruit in the grove was much larger than Harbor Island needed to fulfill its fund-raising program commitment. Viamontes estimated that the grove contained the equivalent of 30,000 boxes of colored grapefruit. Valdes told Viamontes that Harbor Island might need 18,000 to 20,000 boxes of the grapefruit for its fund-raising program. Viamontes told the Harbor Island employees that they could still make a deal for the grapefruit in the grove because since he had his own packing house, he would take the fruit that Harbor Island did not need. The men discussed that Harbor Island could take 2/3 of the colored grapefruit in the grove, and Rio Indio could take 1/3. They further discussed that the manager of Sorge VII wanted $5.50 a box for the fruit, that Viamontes would contract to take all the fruit in the grove, that Harbor Island would pay Viamontes $5.50 a box for the fruit Harbor Island took, and that Viamontes would pay the grower. James Morris from Harbor Island specifically asked Viamontes what would happen if Harbor Island wanted less than 18,000 to 20,000 boxes. Viamontes told the Harbor Island employees that there would be no problem if Harbor Island took less fruit because Viamontes would take whatever was left after Harbor Island took what it wanted. Valdes consulted with Donald Groves, Jr., the owner of Harbor Island to verify that Harbor Island would make the arrangement suggested by Viamontes, and Groves approved the arrangement. Thereafter, Viamontes entered into a written contact with the manager of Sorge VII to purchase all of the fruit for $5.50 a box, and that written contract included deadlines for 20,000 boxes of fruit to be picked by December 31, 1999, and the remainder to be picked by the end of February 2000. Rather than the 30,000 field boxes that Viamontes had estimated the grove contained, the grove contained substantially more grapefruit than Viamontes estimated. The record in this cause suggests that the grove may have contained as many as 43,762 boxes of colored grapefruit. In accordance with its understanding of the arrangement with Viamontes, Harbor Island began harvesting colored grapefruit from the Sorge VII grove on November 26, 1999, and completed all picking at the grove on December 8, 1999. During that time Harbor Island picked 9,000 boxes of colored grapefruit for which it was obligated to pay Viamontes $5.50 per box. Harbor Island paid Viamontes in full for the fruit it took. During the time Harbor Island was at the Sorge VII grove picking colored grapefruit, Rio Indio's crews were there picking grapefruit. Rio Indio's crews also picked fruit at the grove during the months after Harbor Island completed its picking. In addition to Rio Indio's crews knowing that Harbor Island had completed its picking, James Morris specifically told Viamontes that Harbor Island had taken all the fruit it wanted from the Sorge VII grove as of December 8, 1999. During the months of December 1999, January 2000, February 2000, and the first half of March 2000, Viamontes spoke with Valdes of Harbor Island several times a day to check on the status of other unrelated fruit being packed and sold by Harbor Island for Viamontes. In addition, Viamontes was present at the Harbor Island packinghouse on a weekly basis to pick up checks due to him or Rio Indio for the unrelated fruit being sold by Harbor Island for Viamontes. Yet, at no time between December 8, 1999, and the middle of March 2000 did Viamontes tell anyone that he believed Harbor Island had an obligation to harvest additional fruit from the Sorge VII grove. Rather, in late January 2000 Viamontes asked Valdes if Harbor Island were going to take any more fruit from Sorge VII. When Valdes said the fund-raising program was over, Viamontes told Valdes not to worry because Rio Indio would take the rest. Further, on or about March 1, 2000, during one of Viamontes' visits to the Harbor Island packinghouse, Dennis Downs of Harbor Island asked Viamontes how the harvesting in Sorge VII was proceeding. Viamontes responded that Rio Indio was harvesting the remaining colored grapefruit and that Harbor Island need not be concerned about any further harvesting at the Sorge VII grove. On or about March 15, 2000, the price and demand for colored grapefruit suddenly and dramatically dropped due to an oversupply of fruit for which the industry was not prepared. After the dramatic decline, Viamontes contacted Valdes from Harbor Island and inquired whether Harbor Island was going to pick any additional fruit at the Sorge VII grove. Valdes responded that Harbor Island had no obligation to pick any additional colored grapefruit from the Sorge VII grove based upon the agreements between Harbor Island and Rio Indio, specifically, Viamontes' continued representations that Harbor Island should not be concerned about picking any additional colored grapefruit from the grove because Rio Indio would take the remainder. In July 2000 Viamontes appeared at Harbor Island and advised Donald Groves, for the first time, that Harbor Island owed Rio Indio the amount of $80,684 for an additional 20,171 boxes of colored grapefruit from the Sorge VII grove, which Viamontes now contends Harbor Island should have harvested. Rio Indio claims that it suffered a loss of $4 per box for that additional fruit. The documentation presented by Rio Indio to support its demand is questionable and does not substantiate Rio Indio's claimed damages. First, the majority of the documents submitted by Rio Indio indicate that the fruit described therein was from a grove in St. Lucie County, and Sorge VII is in Martin County. Second, the majority of the documents indicate that the fruit described therein was from packinghouse eliminations although Viamontes alleges that the fruit went directly from the field to the cannery without going through a packinghouse. Third, the cannery records reflect that the "pound solids per box" are significantly less than what would be expected from fruit coming from the Sorge VII grove based upon the grove's historical production.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Harbor Island Citrus, Inc., is not indebted to Rio Indio Fruit Company and dismissing the Complaint filed by Rio Indio Fruit Company in this cause. DONE AND ENTERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2001. COPIES FURNISHED: Theodore W. Herzog, Esquire 1101 Simonton Street Key West, Florida 33040 Fred L. Kretschmer, Jr., Esquire Moss, Henderson, Blanton, Lanier, Kretschmer & Murphy, P.A. 817 Beachland Boulevard Post Office Box 3406 Vero Beach, Florida 32964-3406 Kathy Elves The Fidelity and Deposit Companies 300 Saint Paul Place Post Office Box 87 Baltimore, Maryland 21203 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services 500 Third Street, Northwest Post Office Box 1072 Winter Haven, Florida 33882-1072 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services 541 East Tennessee Street India Building Tallahassee, Florida 32308 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue in this case is whether Respondent Clark's Country Farmers Market, Inc. owes Petitioner a sum of money for shipments of citrus fruit.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Parties and Their Problem Spyke's Grove and Clark's are "citrus fruit dealers" operating within the Department's regulatory jurisdiction. As a wholesale shipper, Spyke's Grove packages and arranges for delivery of citrus products pursuant to purchase orders that retail sellers such as Clark's submit. The packages typically are labeled with the retail seller's name, and thus the retail buyer (and the recipient, if the citrus is purchased as a gift) usually will not be aware of Spyke's Grove's involvement. The instant case involves a series of orders that Clark's placed with Spyke's Grove between October and December 1999 for packages of gift fruit. Under a number of informal, largely unwritten contracts, Spyke's Grove agreed, each time it received an order from Clark's, to ship a gift fruit box or basket to the donee designated by Clark's' retail customer, for which fruit shipment Clark's agreed to pay Spyke's Grove. Spyke's Grove alleges that Clark's failed to pay in full for all of the gift fruit packages that Clark's ordered and Spyke's Grove duly shipped. Clark's contends (though not precisely in these terms) that Spyke's Grove materially breached the contracts, thereby discharging Clark's from further performance thereunder. The Transactions From mid-October 1999 until around December 12, 1999, Clark's faxed or e-mailed to Spyke's Grove approximately 350 individual orders for gift fruit packages. Among other information, each order consisted of a shipping label that identified the product (e.g. the type of gift box or basket), the intended recipient, and the destination. Spyke's Grove manifested its intent to fill these orders by faxing statements of acknowledgment to Clark's, by telephoning Clark's, or both. Although the many contracts that arose from these transactions were thus documented, the writings left much unsaid. For example, the parties did not explicitly agree in writing that Spyke's Grove would deliver the subject gift baskets to the donees before Christmas, nor did they make any express oral agreements to this effect.1 Further, the parties did not specifically agree that Spyke's Grove would be obligated to deliver the gift fruit into the hands of the donees and bear the risk of loss until such tender of delivery. Rather, the contracts between Spyke's Grove and Clark's were ordinary shipment contracts that required Spyke's Grove to put the goods into the possession of carriers (such as the U.S. Postal Service or United Parcel Service) who in due course would deliver the packages to the donees. For many weeks, until early December 1999, Clark's placed orders, and Spyke's Grove filled them, under the arrangement just described. The relationship was not completely trouble-free, for the parties had some problems with duplicate orders. Most, if not all, of these difficulties stemmed from the implementation of a computerized ordering system which allowed Clark's to "export" orders directly to Spyke's Grove's electronic database. The parties recognized at the time that errors were occurring, and they attempted contemporaneously to identify and purge unintended duplicates. Pursuant to the course of dealing between these parties, Spyke's Grove filled orders that were not affirmatively identified as errors prior to the scheduled shipment date. The Fire On the night of Sunday, December 12, 1999, a devastating fire at Spyke's Grove's premises caused substantial damage, temporarily disrupting its citrus packing and shipping operations at the peak of the holiday season. Working through and around the loss, Spyke's Grove soon recovered sufficiently to reopen for business. By around noon on Tuesday, December 14, 1999, its telephone service had been restored, and activities relating to shipping resumed on Friday, December 17, 1999. The Aftermath Meantime, Clark's contends, customers had begun calling Clark's on December 10, 1999, to complain that gift fruit packages were not being received as promised. None of the customers testified at hearing, however, and therefore no competent, non-hearsay evidence establishes the contents of their alleged out-of-court statements. On December 14, 1999, following several unsuccessful attempts to communicate with Spyke's Grove shortly after the fire (about which Clark's remained unaware), Denise Clark, acting on behalf of Clark's, reached Robert Spiece, a representative of Spyke's Grove, on his cell phone. At hearing, Ms. Clark and Mr. Spiece gave conflicting accounts as to the substance of their December 14, 1999, telephone conversation. Neither disputed, however, that during this conversation Ms. Clark and Mr. Spiece agreed, at Ms. Clark's request, that all orders of Clark's not yet shipped by Spyke's Grove would be canceled, effective immediately, as a result of the fire. Although Ms. Clark claimed that Mr. Spiece further informed her that Spyke's Grove could not identify which orders had been shipped, the factfinder does not believe that Mr. Spiece made such a sweeping negative statement. Rather, as Mr. Spiece explained at hearing, Ms. Clark probably was told that information regarding the filled orders would not be available that day. Without waiting for further information from Spyke's Grove, Clark's began calling its retail customers to ascertain whether they had received packages that were supposed to have been shipped by Spyke's Grove. Employees of Clark's who had participated in this process——which took four to five days—— testified at hearing about conversations between themselves and various customers. As uncorroborated hearsay, however, the out- of-court statements attributed to these customers were not competent substantial evidence upon which a relevant finding of fact, e.g. that any particular customer or customers had not received their gift fruit, could be based. Moreover, this hearsay evidence, even if competent, would still have been too anecdotal to establish persuasively any widespread failure on the part of the carriers to deliver the packages shipped by Spyke's Grove. On December 15, 1999, Spyke's Grove prepared three draft invoices for the gift fruit packages that Clark's had ordered and which Spyke's Grove had shipped before December 12, 1999. Numbered 1999113001, 1999121101, and 1999121201, the invoices sought payment of $688.72, $2,415.48, and $298.66, respectively. On the first page of Invoice #1999121201, Barbara Spiece, the President of Spyke's Grove, wrote: Some of these were lost in the fire. "A" day left in the morning. "Springfield" was on the floor to go out that night. I realize there are many duplicates in these shipped reports. We tried to watch for them but with different order numbers it was very difficult. Just cross them out [and] you will not be charged for them. I apologize for all of the problems we have had this season [illegible] wish you luck. These bills were faxed to, and received by, Clark's on December 16, 1999. Clark's did not pay the invoices, or dispute them, or cross out the unintended duplicate orders (as it had been invited to do) to effect a reduction in the outstanding balance. Instead, Clark's ignored Spyke's Grove's requests for payment. Not only that, in disregard of its existing contractual obligations and with no advance notice to Spyke's Grove, Clark's proceeded on its own to fill all of the orders that it had placed with Spyke's Grove before December 12, 1999——including those orders that Spyke's Grove, through its draft invoices, claimed to have shipped. Even after the fact, Clark's failed to inform Spyke's Grove that it had, in effect, repudiated its contractual promises to pay Spyke's Grove for the gift fruit packages already shipped as of December 12, 1999 (i.e. the orders not canceled on December 14, 1999). The Inevitable Dispute Having heard nothing from Clark's in response to its December 16, 1999, fax, Spyke's Grove sent its invoices out again, in final form, on January 25, 2000.2 This time, Ms. Spiece did not inscribe any instructions to cross out duplicates for a discount. Numbered 11063001 ($688.72), 11063002 ($2,449.14), and 11063003 ($195.52), these bills totaled $3,333.38. Each of these invoices contained the following boilerplate "terms": Net 14 days prompt payment is expected and appreciated. A 1 ½% monthly service charge (A.P.R. 18% per annum) may be charged on all past due accounts. Customer agrees to pay all costs of collection, including attorneys [sic] fees and court costs, should collection efforts ever become necessary. Clark's did not remit payment or otherwise respond to Spyke's Grove's statements. Accordingly, on June 20, 2000, Spyke's Grove sent a letter to the Department requesting assistance. Clark's was provided a copy of this letter. Shortly thereafter, Spyke's Grove filed a Complaint with the Department, initiating the instant proceeding. Ultimate Factual Determinations Clark's refusal to pay for the goods ordered from and shipped by Spyke's Grove constituted a breach of the contracts between the parties. Spyke's Grove did not materially breach the agreements. Further, Clark's did not object, within a reasonable period of time, to the statements of account that Spyke's Grove rendered preliminarily on December 16, 1999, and finally on January 25, 2000. Accordingly, these invoices amount to an account stated concerning the transactions between the parties. Clark's failed to overcome the presumption of correctness that attaches to an account stated, either by proving fraud, mistake, or error. Spyke's Grove has suffered an injury as a result of Clark's' breach. Spyke's Grove's damages consist of the principal amount of the debt together with pre-award interest at the statutory rate. Accordingly, Spyke's Grove is entitled to recover the following amounts from Clark's: Principal Due Date Statutory Interest $3,333.38 2/08/99 $ 298.66 (2/08/00 - 12/31/00) $ 335.56 (1/01/01 - 11/30/01) $3,333.38 $ 634.22 Interest will continue to accrue on the outstanding balance of $3,333.38 in the amount of $1.00 per day from December 1, 2001, until the date of the final order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order awarding Spyke's Grove the sum of $3,333.38, together with pre- award interest in the amount of $634.22 (through November 30, 2001), plus additional interest from December 1, 2001, until the date of the final order, which will accrue in the amount of $1.00 per day. DONE AND ENTERED this 29th day of November, 2001, 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 29th day of November, 2001.
The Issue The issue in this case is whether Respondents John and Shelby Mahon (the "Mahons"), d/b/a John's Citrus Trees, committed any or all of the violations alleged in the Administrative Complaint dated March 12, 2010, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency statutorily charged with protecting the State of Florida from invasive and destructive plant pests and diseases. See § 581.031, Florida Statutes (2010).1/ John's Citrus Trees is a wholly owned business of the Mahons, and holds nursery registration number 47218720. Citrus canker Citrus canker (Xanthomonas axonopodis pv. citri) is a bacterial disease of citrus. It affects all types of citrus. The bacteria requires water to enter the plant tissue and is easily spread by wind driven rain, by movement of infected trees, and by contact with contaminated tools or people. Citrus canker in plants cannot be cured. The only treatment is the destruction of infected and exposed plants. If the infected plants were in the ground, then the ground must be dried out and treated with chemicals, because the bacteria can remain in the ground water after the plant has been removed. The scientific consensus is that 95 percent of new infections occur within 1900 feet of infected trees, when the trees are outdoors. Thus, trees within 1900 feet of an infected tree are considered to have been "exposed" to citrus canker. Within an enclosed structure, citrus canker infection can be spread by worker contact or by overhead irrigation systems. For many years, Florida has followed a program aimed at citrus canker eradication. Several hurricanes swept through the state in 2004 and 2005, resulting in widespread citrus canker. Since the most recent outbreak, the Department has tracked and sought to eradicate citrus canker through the Citrus Health Response Program ("CHRP") developed by the Department in coordination with the United States Department of Agriculture's Animal and Plant Health Inspection Service ("USDA/APHIS"). See Fla. Admin. Code R. 5B-63.001. In the two years preceding the hearing in this matter, the Department found citrus canker in three commercial nurseries, out of 56 commercial nurseries that grow citrus in Florida. One of the three nurseries, in Polk County, has been released from quarantine and is now free of citrus canker. In that case, the owners destroyed the entire bench on which the infected plants were found. Depending on the size of the propagation house, one bench may contain from 10,000 to 40,000 plants. When a follow-up inspection found canker, the nursery destroyed all infected and exposed plants. Subsequent inspections found no further infection. The second location, in Desoto County, was still under quarantine at the time of the hearing. Citrus canker remained in one of the three growing structures at the nursery even after the destruction of 1,200 trees. The Department intended to release the nursery from quarantine if the follow-up destruction entirely eliminated the infection. The process of inspection, quarantine, destruction and, if necessary, repeat, as followed in the cases of the Polk and Desoto County nurseries, is the standard industry practice for the control of citrus canker in nurseries. The third commercial nursery with a citrus canker infestation was John's Citrus Trees in Clermont. As of the date of the hearing, there was still a citrus canker infection in all parts of the nursery, and the quarantine remained in effect at both the Clermont and Fruitland Park locations of John's Citrus Trees. Movement of citrus trees from quarantined locations The Mahons operate a citrus nursery at 7401 Laws Road in Clermont and a retail operation in Fruitland Park at the front of the North Lake Flea Market on U.S. 441. At the Clermont location, the Mahons have a propagation house, a screened enclosure and an outdoor retail area. The nursery is classified as a propagation nursery because the operators grow citrus from budwood that is grafted onto rootstock and then matured for sale. A propagation house is an enclosed structure that is entered through a decontamination station to prevent the introduction of pests and diseases into the propagation area. Commercial citrus propagation houses are also required to have a double entryway with positive airflow, so that when inspectors or workers enter, air is pushing out against them, to blow away any pests. A screen house is an additional structure in which plants are stored prior to sale. The screening prevents insects from infecting the plants and provides some protection from windblown infection by bacterial diseases such as citrus canker. On June 1, 2009, inspectors from the Department's Division of Plant Industry ("DPI") conducted a routine inspection of the Clermont nursery. The inspectors found structural deficiencies in the propagation house itself, as well as plants outside the screen house that they suspected of having citrus canker. The inspectors collected samples and sent them to the DPI pathology laboratory in Gainesville. The pathology report confirmed citrus canker on the leaves of the plant samples taken from outside the Clermont nursery's screen house. On June 3, 2009, a total of 1281 screen house and outside plants at the Clermont nursery were quarantined until follow-up sampling showed no signs of citrus canker. The inspection report notes that 36 plants at the nursery showed positive signs of citrus canker. The Clermont nursery was re-inspected on June 29, 2009. Following the re-inspection, the quarantine was extended to the 27,400 plants in the propagation house due to the presence of citrus canker there. Re-inspections were conducted on July 31, September 3, October 12, November 12, and December 14, 2009, and on January 15, 2010. Samples were taken at each re-inspection, and pathology testing revealed a continuing infection of plants with citrus canker at the Clermont nursery. During each inspection, the inspectors made a count of the plants in each area of the nursery. On two of the dates, June 29, 2009 and July 31, 2009, the inspection report shows only a total for the outside and screen house areas combined. The other reports give a separate number for the outside and screen houseplants. The counts for the outside location were as follows: 2009 June 3 471 plants September 3 402 plants October 12 439 plants November 12 391 plants December 14 400 plants 2010 January 15 524 plants On July 1, 2009, DPI inspectors conducted an inspection at the Fruitland Park retail location of John's Citrus Trees. The inspectors took samples from plants that displayed the visual symptoms of citrus canker. The samples were sent to the DPI laboratory in Gainesville for analysis. The Fruitland Park location was placed under temporary quarantine pending the results of the laboratory analysis. A DPI pathology report dated July 2, 2009, confirmed that the plants were infected with citrus canker. On July 7, 2009, the quarantine was extended for an additional 30 days to allow time to confirm that the Fruitland Park location was free of citrus canker. On July 6, 2009, the Department's inspectors witnessed the destruction of 21 citrus trees at the Fruitland Park location. Four of these trees had been confirmed with citrus canker, and the other 17 were suspected of having citrus canker. On July 10, 2009, a Department representative witnessed the destruction of another nine trees at the Fruitland Park location. On August 26, 2009, DPI inspectors conducted a re- inspection at the Fruitland Park location, taking additional samples from plants showing signs of citrus canker. In a pathology report completed on the same date, the samples were confirmed to be infected with citrus canker. Subsequent inspections on October 19 and December 15, 2009, and on January 20, February 23, March 29, April 19, and May 24, 2010, each resulted in additional samples of suspected citrus canker being taken for analysis. Pathology reports dated October 21 and December 15, 2009, and January 27, February 25, April 1, April 23, and May 26, 2010, confirmed the continuing infection of the Fruitland Park location with citrus canker. At each of the inspections at the Fruitland Park location, the inspectors made a count of the plants at the nursery. On December 15, 2009, a DPI inspector discovered that the Mahons had between 50 and 100 citrus trees (later determined to be 76 plants) in a spot at the North Lake Flea Market, near a recreational vehicle approximately 200 feet behind the retail location at the front of the flea market. The inspector, James Holm, a supervisor in DPI's Tavares office, gave the Mahons notice that that these plants were under quarantine because of their proximity to the infected plants already under quarantine. The Mahons received written notice of the quarantine on December 18, 2009. The Department considered the additional plants to be at John's Citrus Trees' registered location at Fruitland Park. The alternative would have been to consider the additional trees to be placed at an unregistered location, which would have constituted a different violation than that alleged in the Administrative Complaint. The plant counts, based on the inspection reports and taking into account the plant destruction witnessed by Department inspectors, were as follows: 2009 July 1 470 plants July 6 449 plants, accounting for 21 destroyed July 10 440 plants, accounting for 9 destroyed August 26 449 plants September 10 444 plants, accounting for 5 destroyed October 19 437 plants December 15 452 plants in front area and 50-100 new plants in rear December 18 528 total plants (76 plants counted in rear plus 452 plants in front) 2010 January 20 529 total plants and 22 (424 plants in front area, 76 in rear and 29 plants farther to the rear) Even when the destroyed plants are accounted for, the plant counts appear to show movement of trees exposed to or infected with citrus canker into and out of the Fruitland Park location while it was under quarantine for citrus canker and the owners had knowledge of the continuing infection. The tree count rose from 440 plants on July 10, 2009 to 449 plants on August 26, 2009. The Mahons had no explanation for this change, which they attributed to counting error by the Department. The tree count dropped from 444 plants on September 10, 2009 to 437 plants on October 19, 2009. The Mahons had no evidentiary explanation for this change. They speculated that the seven trees in question were stolen, noting that they were kept in an unlocked, unprotected area of the flea market directly off U.S. 441. As to the additional trees discovered by the Department in the rear area of the flea market on December 15, 2009, the Mahons testified that their conversations with Mr. Holm led them to believe that the Department would approve of their bringing in plants from other locations and selling them in the rear area. The Mahons testified that the plants in the rear area actually belonged to their son, Danny Mahon. The Mahons produced invoices for trees purchased by Danny Mahon from Pokey's Lake Gem Citrus Nursery. (Gary "Pokey" Mahon is the brother of Respondent John Mahon.) The plants named on the invoices could not be definitely matched with the 76 trees in the rear area of the flea market, though the dates on the receipts leave open the possibility that the 76 trees were the property of Danny Mahon. See Findings of Fact 80 and 81, infra, for detailed findings as to the invoices. Even if the Mahons testimony as to the provenance and ownership of the trees is credited, Mr. Holm denied giving the Mahons permission to sell trees from the rear area of the flea market while maintaining a quarantine on the location at the front of the flea market. Mr. Holm acknowledged having a discussion with Mr. Mahon along those lines, but also stated that he told Mr. Mahon that DPI headquarters in Gainesville would have to approve such a plan. The Mahons would have had to register the rear area as a separate retail location. As noted above, on December 15, 2009, Mr. Holm gave the Mahons telephonic notice that the both the front and rear sites at the flea market were under quarantine. The new plants in the rear area were quarantined due to their proximity to the known infected plants in the front of the flea market. Mr. Holm provided the Mahons with written notice of the quarantine on December 18, 2009. Danny Mahon did not have a registered nursery at the Fruitland Park location. The Department therefore attributed ownership of all of the trees, in the front and the back areas of the flea market location, to the only registered location at the North Lake Flea Market on U.S. 441 in Fruitland Park: John's Citrus Trees. On January 22, 2010, inspectors found another 29 plants at a third site, behind the recreational vehicle near which the 76 plants were found on December 15, 2009. The Mahons did not clarify whether these were new plants or plants that had been moved from one of the other two flea market locations. It is noted that the number of plants in the front area was 452 on December 15, 2009, and 424 on January 20, 2010, a difference of 28 plants, very nearly the number of plants found at the third site. The total count of trees at the Fruitland Park location changed from 528 on December 18, 2009, to 529 on January 20, 2010. The Mahons plausibly attributed these small discrepancies to a counting error. The sale of trees to Fred Thomas In 2009, Fred Thomas contacted John's Citrus Trees regarding the availability of 720 Minneola tangelo, or "honeybell," citrus trees. Mr. Thomas, an experienced grove caretaker, had been hired by Victor Roye, the owner of an abandoned grove, to remove the existing trees and replant the grove with honeybell citrus. Mr. Thomas testified that honeybells are "packing house fruit," and that Mr. Roye's intention was to sell the honeybells as edible fruit. The value of such market fruit is much greater than the value of fruit sold for juice. Citrus infected with citrus canker can be sold for juice, but is not salable as market fruit. On the telephone, Mr. Mahon assured Mr. Thomas that he could supply the requested trees. On March 3, 2009, Mr. Mahon and Mr. Thomas met in a McDonald's parking lot and signed a contract for the purchase of 720 honeybell citrus trees. Mr. Thomas gave Mr. Mahon a 25 percent deposit of $1620.00 towards the purchase price of $6,480.00 (720 trees x $9.00 per tree). At the time the contract was entered, the Mahons' propagation location in Clermont was not under quarantine. Under the terms of the contract, the trees were to be delivered by June 10, 2009. When the appointed date passed and he had not received the trees, Mr. Thomas contacted Mr. Mahon, who stated that the trees hadn't grown as they should. Mr. Mahon asked for an additional 30 days to deliver the trees. Mr. Thomas agreed to the extension only because he already had a contract with Mr. Mahon. Mr. Thomas thought it would likely take longer to find a new seller and negotiate a contract than the 30 days requested by Mr. Mahon. Mr. Mahon knew that Mr. Thomas was upset, and asked him to come to the Clermont nursery and see what he had. Mr. Thomas and his wife subsequently met with Mr. Mahon at the Clermont location. Mr. Mahon took the Thomases into the propagation house and showed them some trees in the ground that he identified as their honeybells. Mr. Thomas agreed that the trees were too small and reiterated his agreement to the 30-day extension. Mr. Mahon stated that he might obtain half of the 720 trees from his brother Pokey, and promised full delivery in July. Mr. Thomas testified that when he visited another nursery's propagation house, there was a pan of disinfectant outside the first door, and he was required to step into the disinfectant before proceeding. When the first door was opened, he was hit with a gust of air from a fan. As Mr. Thomas stated, "You walk into the second door, you're clean." Mr. Thomas noted that the Mahons' propagation house had none of those protections from infection. Mr. Thomas further noted that the propagation house itself was in poor condition, with gaps and openings in the enclosure. On about July 10, 2009, Ms. Mahon and one of her sons delivered about half of the promised 720 trees, then delivered the remaining trees two or three days later. Mr. Thomas testified that the trees were delivered "bare root," not in pots. Mr. Thomas paid the remainder of the purchase price to Ms. Mahon as the trees were delivered. Mr. Thomas testified that the trees did not look good when he planted them. "I didn't like the looks of them from the word 'go,' 'cause they were so small, and I seen stuff on them." In August, Mr. Thomas went to Triangle Chemical Company in Mascotte to seek the advice of Richard Hoffman, a salesman who was familiar with citrus pests. Mr. Hoffman was not available, but another Triangle Chemical employee accompanied Mr. Thomas to the grove. This man told Mr. Thomas, "Your trees are eat up with citrus canker." Mr. Thomas was incredulous and chose not to believe the man, though Mr. Thomas acknowledged his expertise. Mr. Thomas simply could not believe that the trees he had just planted were infested with canker, and decided to "try to take care of them." Later, Mr. Hoffman came out to the grove, because it still did not look right. Mr. Hoffman agreed with the earlier Triangle Chemical employee's assessment that the trees were "eat up with canker," in Mr. Thomas' words. Justin Nipaver, a CHRP inspector, is charged with ensuring that all citrus groves can be tracked in the Department's database. During the summer, Mr. Nipaver had noted that an old grove on the Roye property had been pulled out and destroyed. On November 22, 2009, Mr. Nipaver stopped in to inspect the newly planted grove, in order to obtain the information necessary to add the grove to the Department's database. During this inspection, Mr. Nipaver noted visible symptoms of citrus canker on the plants. He collected samples for laboratory analysis. He spoke with Mrs. Thomas, who told him that she and her husband had planted the grove for Mr. Roye and were acting as caretakers. Mrs. Thomas told Mr. Nipaver that the plants had been purchased from John's Citrus Trees. Mr. Nipaver did not tell Mrs. Thomas that he suspected a citrus canker infestation, preferring to wait for laboratory confirmation. Mr. Nipaver returned to the grove on November 30, 2009, accompanied by Mr. Holm, Detective Daniel Shaw of OALE, and two other Department employees. The team surveyed part of the grove and determined that 65 to 70 percent of the trees were suspected of having citrus canker. Mr. Nipaver testified that there was no need to survey the entire grove because of the severity of the infestation in the sample portion. Detective Shaw attempted to contact the Thomases but was unable to reach them. In a report dated December 2, 2009, the DPI pathology laboratory confirmed that the samples taken from the grove on November 30 were infected with citrus canker. The grove was placed under quarantine. Mr. Thomas testified that he told Mr. Mahon about the situation and that Mr. Mahon assured him that he could sell the fruit for juice. Mr. Thomas found this an inadequate response because his entire purpose in planting honeybells was to produce packing house fruit. He asked Mr. Mahon for a refund, but Mr. Mahon claimed that the Department had him "broke and tied up." Mr. Thomas subsequently pulled all of the trees and burned them under the supervision of Department employees. Mr. Nipaver testified that there were no groves with citrus canker near the Roye grove. The Mahons Clermont nursery was released from quarantine on April 1, 2009. Mr. Mahon testified that he feared that the Department would impose another quarantine on his nursery, not necessarily for good reason but just because "they were gunning for me." He therefore potted the 720 honeybell trees promised to Mr. Thomas and moved them, along with many other trees, to his son Paul Mahon's nursery in Groveland. Mr. Mahon testified that the plants were kept in a screen house at Paul's nursery until they were delivered to Mr. Thomas in July. Mr. Mahon's testimony conflicts with Mr. Thomas' testimony regarding his visit to the Mahon's nursery in June. Mr. Mahon had shown him plants in the propagation house that Mr. Mahon stated were the plants to be delivered to Mr. Thomas. Mr. Mahon had also stated that, in the alternative, he might obtain half of the plants from his brother Pokey. This June meeting was well after the April time period during which Mr. Mahon claimed to have moved the plants to Paul's nursery. Mr. Mahon's testimony that the plants being held for Mr. Thomas at Paul's nursery were potted is contradicted by Mr. Thomas' testimony that the plants were delivered bare root. Mr. Holm testified that Paul Mahon's nursery in Groveland was a propagation nursery and as such was inspected every thirty days. Mr. Holm testified that between April 2009 and early July 2009, the period during which Mr. Mahon claimed to be holding Mr. Thomas' plants in pots at Paul Mahon's nursery, there were no such potted plants on the nursery grounds. Mr. Holm testified that in April 2009, Paul Mahon's screen house was overgrown with grass and had "an issue" with tropical spiderwort, an aggressive, difficult to control weed. Part of the screen house structure was collapsed and the entryways were open. Mr. Holm described it as in a "deteriorating condition," and testified that this condition remained unchanged through October 2009. Mr. Mahon testified that Paul Mahon was very ill and awaiting a liver transplant during the period in question. Paul Mahon's illness accounts for the abandoned appearance of his nursery but not for the absence of the 720 plants that Mr. Mahon testified were stored there. Mr. Thomas' testimony was consistent and credible, and was supported by the testimony of Mr. Holm as regards the provenance of the 720 honeybell plants. Based on all the evidence, it is found that the plants delivered to Mr. Thomas in July 2009 came directly from the Mahons' propagation house at the Clermont nursery, and that they had not been stored at Paul Mahon's nursery between April and July 2009. Mr. Mahon knew that these plants were under quarantine and had a substantial probability of being infected with citrus canker. Sale of infected plants to a homeowner On October 20, 2009, DPI fruitfly inspection trapper Wayne Nichols drove past the John's Citrus Trees location at Fruitland Park and noticed plants being unloaded from a Budget rental truck. Mr. Nichols, who had prior experience as a citrus canker inspector with the Department, knew that the Fruitland Park Flea Market location was under quarantine for citrus canker. He therefore phoned his supervisor, Mr. Holm, to inform him of the activity. Mr. Nichols parked his car at the north entrance of the flea market and watched the activity while waiting for instructions from Mr. Holm. He saw a hatchback car leaving the flea market with two citrus trees hanging out of the back window. Mr. Nichols recognized driver of the car as a man he had just seen in the canopy tent from which John's Citrus Trees conducted business at the flea market. Mr. Nichols followed the car until it reached a gated portion of The Villages community. He could not follow further. The next day, Mr. Nichols and Mr. Holm returned to the gated neighborhood in The Villages. They located recently planted citrus trees in a homeowner's yard. Further inspection revealed that at least one of the trees had a citrus nursery identification tag with the registration number of John's Citrus Trees. Trees are tagged in this fashion by the original producer to allow the regulatory authorities to trace the origin of diseased plants. Mr. Nichols and Mr. Holm called the OALE and were met at The Villages location by Detective Shaw, who took over the investigation and photographed the trees and their location. The photographs were entered into evidence at the hearing. Mr. Mahon testified that during the periods when the Fruitland Park location was under quarantine, he would nonetheless take "special orders." He would purchase trees from other certified nurseries to satisfy the customers making these special orders. Mr. Mahon testified that this particular sale was to have been performed "truck to truck," with the plants never touching the ground at the flea market before being loaded into the customer's car. Mr. Mahon stated that if one of the trees had a tag indicating that its place of origin was John's Citrus Trees, then one of his employees must have mistakenly tagged the tree. Mr. Mahon testified that these special order plants were purchased from Pokey's, and were brought to the flea market via pickup truck. The plants in the pickup were covered and kept away from the other plants at the flea market, and they never touched the ground. This testimony is inconsistent with Mr. Nichols' credible testimony that he saw plants being unloaded from a Budget rental truck at the flea market. Mr. Mahon's testimony as to the origin and handling of "special order" trees is not credible. If the plants were kept covered in the back of a pickup truck until the customer took them away, and they never touched the ground at the flea market, it is difficult to see when an employee would have had the opportunity to "mistakenly" affix a John's Citrus Trees identification tag to one of the plants. Even if Mr. Mahon's testimony were credited, the act of bringing the "special order" trees into a quarantined nursery and selling them from that location would itself violate the quarantine. Purchase by undercover officers On December 18, 2009, officers from OALE went to the Fruitland Park location of John's Citrus Trees to purchase citrus trees as part of an undercover investigation. The attendant, Charles Harris, identified himself as an employee of John's Citrus Trees. He told the officers that he could not sell trees from the front portion of the flea market, but that there were trees further back near a recreational vehicle that he could sell. Mr. Harris told the officers that the trees in the back belonged to John's Citrus Trees. The officers purchased four citrus trees from Mr. Harris at the location near the recreational vehicle. As described at Finding of Fact 31, supra, the rear location near the recreational vehicle was within 200 feet of the quarantined location that held trees known to have citrus canker. Trees within this range are considered to have been exposed to citrus canker. See Finding of Fact 5, supra. As set forth at Findings of Fact 37 through 41, the rear location was not separately registered either to the Mahons or to their son Danny. Therefore, the rear location was either a part of the quarantined John's Citrus Trees facility at Fruitland Park, or it was an unregistered location. In either event, sale of trees from that location was unlawful. As noted at Finding of Fact 40, supra, Mr. Holm had given the Mahons telephonic notice that the both the front and rear sites at the flea market were under quarantine, and then provided the Mahons with written notice of the quarantine on December 18, 2009. The Mahons claimed that the trees had been purchased from Pokey's nursery by their son Danny Mahon. They submitted into evidence several invoices ranging in date from April 27, 2009, to November 27, 2009. The Mahons contended that the invoices proved that the trees in the rear location on December 18, 2009, belonged to Danny Mahon, not to John's Citrus Trees. However, the six invoices merely show that on four occasions Danny Mahon purchased citrus trees from Pokey's Lake Gem Citrus Nursery, and on two occasions John's Citrus Trees purchased citrus trees from Pokey's. In total, the invoices show that 254 plants were purchased from Pokey's. John's Citrus Trees is listed as the customer for 110 of the plants, and Danny Mahon is listed as the customer for 114 of the plants. The Mahons offered no details as to the numbers in the invoices, the timing of the deliveries, or how or where the deliveries were made. The invoices establish no necessary connection between the trees purchased by Danny Mahon and the trees found in the rear location of the flea market in December 2009. As stated in Finding of Fact 41, supra, the Department reasonably attributed ownership of all of the trees at the flea market location to the only registered location at the North Lake Flea Market on U.S. 441 in Fruitland Park: John's Citrus Trees. The Budget rental truck On October 8, 2009, a Budget rental truck containing a large number of potted citrus trees was intercepted at the Department's interdiction station on U.S. 90 in White Springs. The driver and passenger of the truck were asked for the bills of lading. The driver of the truck was Bruce Turner, who told Detective Shaw that he was an employee of Danny Mahon. The passenger was Gary Mahon, the youngest son of John and Shelby Mahon. They produced invoices indicating that the trees were to be delivered to eight different nurseries in Madison, Perry, Tallahassee, Marianna, and Kinard. The inspectors found that the invoices lacked the nursery certification that is required to accompany citrus plants transported in the state for commercial purposes. The invoices purported to come from "Danny Mahon Citrus." The invoices carried no street address. They listed an address of P.O. Box 120399, Clermont, which is the mailing address of John's Citrus Trees. Gary Mahon told the interdiction officers that the Danny Mahon nursery was located at 12603 Phillips Road in Groveland. The officers checked the Department's database and found no registered nursery at that address. They also failed to find any registration under the name "Danny Mahon Citrus." They did find a registration for "Danny's Citrus Trees" at the same address as the Mahons' registered location at Laws Road in Clermont. Additional DPI personnel were summoned to the interdiction station. Upon inspection, some of the citrus plants in the truck showed visible symptoms of citrus canker infection. Samples of the plants were sent to the DPI pathology laboratory in Gainesville. Subsequent test results confirmed the presence of citrus canker. Because he suspected citrus canker, the interdiction officer issued a "refusal of transport" form, sealed the lock on the truck with a metal Department seal, and ordered the truck to return to its initial location. Gary Mahon indicated that the initial location was 12603 Phillips Road in Groveland. Mr. Holm and Detective Shaw arranged to meet the truck when it returned that day. Detective Shaw drove to the Phillips Road address and found an empty field and no Budget truck. Mr. Holm arrived a short time later with Mr. Nichols. Mr. Holm made a phone call to Shelby Mahon, who directed him to drive to the Mahons' registered location at 7401 Laws Road in Clermont. Mr. Holm, Mr. Nichols, and Detective Shaw drove to the Clermont location, where they found a Budget rental truck carrying the Department's metal seal on its lock, inside the gates of John's Citrus Trees. Shelby Mahon insisted that the truck be taken to the Phillips Road location, which she stated was the origination point of the plants. On the morning of October 9, 2009, the truck was driven to the Phillips Road location. Detective Shaw followed the truck from Clermont to Phillips Road. Also present at Phillips Road were Mr. Holm, DPI regional administrator Christine Zamora, and DPI canker inspector Mike Hatcher. The Phillips Road property gave the appearance of a derelict orange grove. There was no disturbance on the ground to indicate that the plants had been stored at that location prior to being loaded onto the truck, either in individual pots or on pallets. There was no nursery infrastructure such as sheds or equipment. There was no irrigation system, though Shelby Mahon told Ms. Zamora that there was a well and pump on the property. OALE officers broke the seal on the truck. Shelby Mahon supervised the unloading, which was done by Mr. Turner and other employees of the Mahons. The plants were set out in blocks of 50 to make it easier for the Department's personnel to count them. There were 517 potted citrus plants on the truck, ranging in size from three gallon to 30-gallon pots. The plants in the three and five-gallon pots looked very young. Ms. Zamora noted that the trees fell out of the pots easily. The plants' root systems were very undeveloped and did not conform to the circular shape of the pots, indicating that they had only recently been placed in the pots. The DPI personnel agreed it was unlikely that the plants had been in the pots for more than a week. Many of the trees bore handwritten tags with the registration number of Paul Mahon's nursery. Many of the plants were double-tagged, bearing tags from Pokey's nursery as well as those from Paul Mahon's. None of the plants bore tags from John's Citrus Trees. Many of the plants had visible symptoms of citrus canker. Samples were taken and sent to the DPI pathology laboratory, and subsequent results confirmed that the plants were infected with citrus canker. Shelby Mahon told the Department's inspectors and investigators that the smaller plants had been stored at the Phillips Road location since February 2009. She stated that the smaller plants belonged to Danny Mahon, who had purchased them from his brother Paul Mahon. At the hearing, Ms. Mahon testified that her son Danny was the source of her knowledge as to where the plants had been since February 2009. Ms. Mahon stated that the larger plants in the 15 and 30-gallon pots were from Pokey's nursery, and that her son Gary had brokered the sales to the nurseries named on the invoices on behalf of Pokey and Danny Mahon. At the hearing, Ms. Mahon admitted that she prepared the invoices. Detective Shaw testified that Ms. Mahon told him that she drew up the invoices because Danny Mahon had never sold citrus before. Ms. Mahon recalled at least one customer calling her after obtaining the number of John's Citrus Trees on the internet. Ms. Mahon testified that she took the order on behalf of her son Danny because her own nursery was still under quarantine. She stated that orders were taken for the exact number and type of plants that had been stored at Danny Mahon's nursery since February 2009. The invoices indicated that the trees in the shipment consisted of 449 three-gallon, 15 five-gallon, and 33 ten-gallon plants, for a total of 497 plants. On October 5, 2009, three days before the Budget truck was interdicted at the White Springs station, the Mahons refused access to DPI inspectors at their Clermont nursery. John Mahon claimed that this denial was based on the agreement of DPI's bureau chief, Tyson Emery, to give the Mahons a little more time to clean up the nursery after cutting down and trimming seedling trees. According to Mr. Mahon, the inspector who turned up at the nursery was unaware of Mr. Emery's agreement and demanded access to the nursery. An argument ensued and the Mahons refused to allow the inspector on their property. Mr. Emery was not called as a witness in this proceeding. The inspector named by Mr. Mahon, Bryan Benson, was called as a witness by both sides, and testified a third time in rebuttal. However, the Mahons failed to question him regarding the events of October 5, 2009. The Mahons had previously refused to allow DPI inspectors to conduct an inspection on September 28, 2009.2/ At the hearing, John Mahon stated that access was refused on this date because he had a previous commitment and because he believed that DPI was attempting to schedule the inspection too soon after the previous one. Evidence at the hearing established that the Budget rental truck had been parked at the Laws Road location in Clermont overnight on October 7, 2009, prior to embarking on its intended deliveries to the nurseries listed on the invoices early on the morning of October 8. The Budget rental truck agreement indicated that the truck was rented on October 7 by Rebecca Mahon, the wife of Danny Mahon. At the hearing, John Mahon stated that the truck was parked overnight at the Laws Road location because Danny Mahon feared leaving it unprotected at the Phillips Road location. The Laws Road property is fenced, whereas the Phillips Road property is unfenced. The Mahons steadfastly denied that the trees on the Budget truck came from their Clermont nursery. There was no evidence presented that directly tied the trees to the Mahons' nursery, though the circumstances clearly indicate that Shelby Mahon was involved in arranging the sale of the trees, that there was no indication the plants had been kept at Danny Mahon's Phillips Road property, and that the Budget truck was parked at the Mahons' nursery the night before it set out to deliver the plants. The nearly contemporaneous refusal to allow the Department to inspect their nursery also directs some suspicion at the Mahons. The Department contends that one further piece of circumstantial evidence makes its case convincing: the presence of citrus canker in the plants on the Budget truck. As noted at Findings of Fact 8 through 12, supra, John's Citrus Trees was the only nursery in the state under quarantine for citrus canker at the time of the hearing, with the exception of one in DeSoto County that had destroyed all infected and exposed plants. Because the Mahons asserted that the trees on the Budget truck came from either Pokey's nursery or Paul Mahon's nursery, DPI inspectors sampled citrus trees at both nurseries after the truck was unloaded. Neither nursery showed any sign of citrus canker. The location where Danny Mahon was said to have stored approximately 500 citrus trees between February and October 2009 showed no signs of potted plants having been stored at that location. Nowhere did the ground show matting from having been under pots or pallets. On October 9, 2009, Shelby Mahon pointed the inspectors to a large oak tree, freshly trimmed, on the Phillips Road property. She stated that all of the plants had been stored under that tree, and that she could prove it because Sumter Electric and its tree service had forced her to move the potted plants in order to trim the tree. Detective Shaw contacted Sumter Electric and its contractor, Nelson's Tree Service. Their employees recalled trimming the tree on the Phillips Road property, but had no recollection of potted plants under the tree or anywhere in the vicinity of the tree. Ralph Bowman, the Nelson's Tree Service employee who oversaw the Sumter Electric contract trimming work at Phillips Road, testified at the hearing. He stated that when his team worked on the property during the first two weeks of September 2009, there were no potted plants on the property. An equipment problem forced Mr. Bowman to stop work in September. When he returned during the second week of October, there were potted plants on the property. Mr. Bowman described them as dry, with spots on the leaves. Failure to produce records On June 3, 2009, Tyson Emery, chief of the Bureau of Plant Inspection, sent a letter to the Mahons requesting records of their inventory since January 1, 2009. As of the date of the hearing, the Mahons had not responded to this request. The Mahons contended that the Department already had all of their records. However, the records referenced by the Mahons in their response pertained to transactions that occurred in 2008, not 2009. Further, even if the Mahons contention were correct, such would not justify their complete failure to respond to Mr. Emery's letter. Failure to maintain quarantine tape During a routine inspection of the Fruitland Park location on January 20, 2010, the Department discovered that yellow agriculture hold tape with the statement "Do Not Move" that had been wrapped around citrus trees at the quarantined location at the Fruitland Park flea market location was missing. The Mahons testified that they did not know how the tape went missing. They noted that the flea market is on a highway, that the trees were not secured, and that the presence of quarantine tape was not popular with their fellow vendors at the flea market. I. Ultimate findings As to the allegations that the Mahons moved citrus trees infected with citrus canker from quarantined locations, the evidence was clear and convincing that they moved plants into and out of the quarantined nursery in Clermont. The wide variations in the plant count between June 2009 and January 2010 is otherwise inexplicable. With one exception, the evidence was clear and convincing that the Mahons moved citrus trees into and out of their Fruitland Park location on numerous occasions while it was under quarantine. Regardless of their source, trees offered for sale at that location were under quarantine and could not lawfully be sold. The exception was the change in the count from 528 plants on December 18, 2009, to 529 plants on January 20, 2010, which could reasonably be attributed to a counting error. As to the allegations regarding the sale of trees to Fred Thomas, the evidence was clear and convincing that the Mahons sold and delivered citrus trees to Mr. Thomas directly from the propagation house of their Clermont nursery, and that Mr. Mahon knew that the plants were under quarantine and had a substantial probability of being infected with citrus canker. As to the allegations regarding the sale of two citrus trees from the Fruitland Park location to a purchaser who subsequently planted the trees at his home in The Villages, the evidence was clear and convincing that the Mahons knowingly sold citrus plants to the homeowner while their location was under quarantine for citrus canker. Mr. Mahon's explanation regarding the treatment of "special orders" was not credible. As to the allegations regarding the undercover purchase of citrus trees from the Mahon's quarantined location at Fruitland Park, the evidence was clear and convincing that the Mahons sold trees from a quarantined location to OALE officers on December 18, 2009. As to the allegations regarding the interdiction of the Budget rental truck, the evidence was not clear and convincing that the trees on the truck were taken from the Mahons' registered location in Clermont. While the presence of citrus canker in the interdicted fruit strongly suggested that the plants came from the Mahons' nursery, and other circumstantial evidence pointed toward the Clermont nursery as the origination point of the plants, nothing directly tied the plants to John and Shelby Mahon. All of the tags on the plants were from either Paul or Pokey Mahon's nursery. Mr. Turner identified himself as an employee of Danny Mahon. Shelby Mahon's testimony that her son Gary was brokering the plants for Danny and Pokey Mahon was not implausible in light of all the evidence. Though a preponderance of the evidence indicates that the Mahons' Clermont nursery was the most likely origination point of the trees on the Budget rental truck, the undersigned cannot find that the Department's proof on this point met the standard of clear and convincing evidence. As to the allegation regarding the failure to produce records, the evidence was clear and convincing that the Mahons failed to comply with the Department's letter of June 3, 2009, requesting the production of their inventory records since January 1, 2009. As to the allegation regarding the removal of the quarantine tape, the evidence was not clear and convincing that the Mahons were responsible for the missing quarantine tape at the Fruitland Park location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order revoking the nursery registration of John L. and Shelby Mahon, d/b/a John's Citrus Trees, imposing an administrative fine of $18,500 on John L. and Shelby Mahon, and ordering the destruction of the citrus trees at both of the registered locations of John's Citrus Trees. DONE AND ENTERED this 15th day of February, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2011.
The Issue The issues for determination in this case are whether Respondent, as a licensed citrus fruit dealer, breached the terms of an oral contract for the purchase of citrus fruit during the 1992-1993 shipping season, whether Respondent misappropriated certain other citrus fruit owned by Petitioner during the 1992-1993 shipping season, and further, whether such actions by Respondent constitute violations of the Florida Citrus Code for which the proceeds of the citrus fruit dealer's bond executed by Co-Respondent should be paid to Petitioner in satisfaction of Petitioner's claim pursuant to Section 601.66, Florida Statutes.
Findings Of Fact Petitioner, Riverfront Groves, Inc., is a corporation with an office in Vero Beach, Florida. At all material times, Petitioner was in the business of selling and marketing citrus fruit. At all material times, Daniel R. Richey was vice-president of Petitioner, in charge of the fresh fruit packing operation. Respondent, Bagaley Groves, is a business with an office in Vero Beach, Florida. At all material times, Respondent operated a citrus fruit gift shipping packinghouse. At all material times, Robert G. Bagaley was the owner of Respondent. Co-Respondent, Nationwide Mutual Insurance Company, is an insurance company, which was authorized to write surety bonds during the 1992-1993 citrus fruit shipping season. On December 10, 1992, Co-Respondent executed, as surety, Citrus Fruit Dealer's Bond No. 77-LP-007-245-0002, in the principal sum of $10,000.00, binding Co-Respondent as surety, to the Florida Commissioner of Agriculture. The terms and conditions of the bond were that Respondent, as the principal executing such bond, would comply with the provisions of the Florida Citrus Code during the 1992-1993 citrus fruit shipping season, and with the terms and conditions of all contracts relating to the purchase, handling, sale, and accounting of citrus fruit. Respondent held a valid citrus fruit dealer's license issued by the Department of Citrus for the 1991-1992 shipping season. On July 16, 1992, Respondent, by and through its owner Robert Bagaley, filed with the Department of Citrus an application for license as a citrus fruit dealer for the 1992-1993 shipping season. As indicated above, Respondent's bond required for licensure was not executed until December 10, 1992, and it was not until January 25, 1993, that Respondent was issued citrus fruit dealer's license No. 0269 for the 1992-1993 shipping season. The license is not specifically retroactive, and merely states that Respondent is ". . . granted a license to engage in the business of Citrus Fruit Dealer through July 31, 1993." At all material times Respondent, by and through its owner Robert Bagaley, held itself out as a licensed citrus fruit dealer in the state of Florida. In the fall of 1992, Respondent learned from a mutual friend, Henry Schacht, that Petitioner had navel oranges located in a grove in Indian River County, Florida, suitable for use in Respondent's fresh fruit packinghouse. In mid-November 1992, Petitioner, through its authorized representative Daniel R. Richey, and Respondent, through its owner Robert Bagaley, agreed that Respondent would purchase approximately 2,400 boxes of navel oranges from Petitioner at $7.00 per box. Respondent did not hold a valid license as a citrus fruit dealer in the state of Florida at the time this oral contract was entered into with Petitioner. Respondent harvested a total of 150 boxes of these navel oranges during the period of November 13 - 17, 1992, for which Respondent paid Petitioner the agreed upon price of $7.00 per box. This payment in the amount of $1,050.00 was made by check dated November 18, 1992. On December 3, 1992, Petitioner delivered a written contract to Respondent setting forth Petitioner's understanding of the terms of their agreement. The contract was executed by Petitioner. Respondent declined to sign the written contract, and the contract was returned to Petitioner on December 10, 1992. In early December 1992, Respondent learned from James Earl Brantley that some of the navel oranges in Petitioner's grove had green mold, a condition that would make the fruit unsuitable for fresh fruit packing. On December 10, 1992, Respondent repudiated the oral contract and notified Petitioner that Respondent could not use, and did not need, any more of Petitioner's navel oranges. Respondent did not inform Petitioner that some of the navel oranges had developed green mold, or that the navel oranges were otherwise not merchantable. At the time Respondent repudiated the oral contract, Respondent did not hold a valid license as a citrus fruit dealer in the state of Florida. By December 10, 1992, the marketing conditions for navel oranges were substantially deteriorating. From December 11 and 15, 1992, Petitioner harvested and processed the balance of the navel orange crop from the grove, some 2,785 boxes. Petitioner attempted to pack the oranges as fresh fruit. The packout ratio of these 2,785 boxes was approximately 18 percent, yielding Petitioner a net return of $78.01, ($129.38 return for 640 boxes picked December 11 and 12, 1992, and a loss of $51.37 on the remainder picked between December 12 and 15, 1992. Petitioner incurred a loss of $19,365.62, as result of Respondent's failure to pay the agreed upon contract price of $7.00 per box for the balance of the navel oranges. At the time Respondent (through Bagaley) notified Petitioner (through Richey) that Respondent did not intend to harvest the balance of the fruit, Petitioner informed Respondent that the remaining fruit would be harvested, that an accounting of the net proceeds for the remaining fruit would be made, and that the parties could then review the matter as to any outstanding indebtedness which might be due under the terms of the oral agreement. Respondent stated that a review after harvesting and accounting was acceptable. Within sixty days thereafter Petitioner (through Richey) received the accounting and met with Respondent (through Bagaley). At that time Respondent did not acknowledge the indebtedness, nor promise to pay the indebtedness to Petitioner. Subsequent to January 25, 1993, Respondent mistakenly picked red grapefruit from a grove owned by Petitioner, which was adjacent to a grapefruit block Respondent had purchased from a different owner. The parties agree that Respondent owes Petitioner $375.00 or $2.50 for 150 boxes of grapefruit picked from this grove. Respondent tendered a check to Petitioner in the amount of $375.00 for payment of the grapefruit; however, Petitioner declined to accept payment for the grapefruit pending resolution of Petitioner's claim for the navel oranges.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department enter a Final Order adjudicating the amount of indebtedness owed Petitioner by Respondent in accordance with Section 601.66, Florida Statutes, is $375.00 for 150 boxes of grapefruit mistakenly harvested. It is further recommended that Petitioner's claim for damages resulting from the contract for navel oranges entered into prior to Respondent's licensure as a citrus fruit dealer during the 1992-1993 shipping season be dismissed. RECOMMENDED in Tallahassee, Leon County, Florida, this 4th day of August, 1995. RICHARD HIXSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1995. APPENDIX As to Petitioner's Proposed Findings: 1-9. Adopted and incorporated. Adopted, except to the extent that Respondent's repudiation of the contract was solely related to market conditions. Adopted except as to Respondent's promise to pay subsequent to January 25, 1993. 12-14. These paragraphs constitute conclusions of law. COPIES FURNISHED: Douglas A. Lockwood III, Esquire PETERSON, MYERS, CRAIG, CREWS BRANDON & PUTERBAUGH, P.A. Post Office Drawer 7608 Winter Haven, Florida 33883-7608 Eugene J. O'Neill, Esquire GOULD, COOKSEY, FENNELL, BARKETT, O'NEILL & MARINE, P.A. 979 Beachland Boulevard Vero Beach, Florida 32963 Brenda Hyatt, Chief Bureau of License & Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, Florida 32399-0800 Mr. David Z. Cutright Nationwide Mutual Insurance Company 1324 16th Street Vero Beach, Florida 32960
Findings Of Fact Findings on general matters The Respondent was certified by the Criminal Justice Standards and Training Commission on June 15, 1982, and issued certificate number 02-31243. The Respondent was employed as a law enforcement officer by the Riviera Beach Police Department from March 29, 1982, to July 31, 1988. He was re-employed by that police department on March 11, 1991, and was so employed as of the date of the formal hearing. At the time of all of the events described in the findings of fact which follow, the Respondent was a certified law enforcement officer. Findings regarding the Mangonia Park incident During the evening hours of May 17, 1987, the Respondent, while off duty, unarmed, and dressed in civilian clothes, ventured into the town limits of the Town of Mangonia Park where he became involved in a fracas with a uniformed, armed, on-duty police officer of that town, Officer James C. Carr. The fracas had its inception shortly after the Respondent stopped his automobile in the outside lane of a city street that had three lanes in each direction in order to watch what Officer Carr and another Mangonia Park police officer (Officer Combs) were doing with a young black male civilian they had just stopped in the median strip of the same street. Officer Carr shouted to the Respondent that the latter should move his car. The Respondent took no action in response to that directive from Officer Carr. Annoyed by the lack of response, Officer Carr began to walk towards the Respondent's automobile as he repeated his directive to the Respondent using coarse, vulgar, confrontational words which included what are commonly referred to as "swear" words, as well as references to the Respondent's race, which is black. 2/ Officer Combs also walked towards the Respondent's automobile. The Respondent protested the manner in which Officer Carr was speaking to him and also offered the mistaken 3/ observation that his automobile was in the City of West Palm Beach, outside of Officer Carr's jurisdiction. Annoyed by the Respondent's comments and his continued failure to leave as directed, Officer Carr continued his invective. Annoyed by Officer Carr's abusive language, the Respondent addressed Officer Carr in a coarse and vulgar manner as he began to try to get out of his automobile. Officer Carr interrupted the Respondent's efforts to exit the automobile by pushing against the automobile door, thereby catching the Respondent's foot between the door and the side of the automobile. The Respondent continued to address Officer Carr in a coarse and vulgar manner and continued to struggle to get out of his automobile. Officer Carr continued to prevent his exit. Momentarily the Respondent was successful in exiting the automobile and he and Officer Carr stood face to face shouting at each other. Officer Carr made at least one verbal threat to do physical violence to the Respondent, threatened to throw the Respondent in jail, and also made threatening gestures with a baton towards the Respondent. The Respondent asked if he was under arrest and told Officer Carr not to touch him if he was not under arrest. In response to Officer Carr's further threatening gestures with the baton, the Respondent said to Officer Carr: "Don't hit me with that baton, okay? If you hit me with that baton and I'm not under arrest, I'm going to blow your brains out!" The Respondent did not take any aggressive physical action towards either Officer Carr or Officer Combs. At about this point, Officer Combs stepped in between Officer Carr and the Respondent in an attempt to keep things from getting worse. At about the same time, other off-duty police officers arrived on the scene and joined in Officer Combs' efforts. After Officer Carr and the Respondent had cooled down, it was agreed by all concerned that it was just an unfortunate misunderstanding and the participants apologized to each other. Findings regarding the Lt. Wiesen incident On November 20, 1987, the Respondent got into an argument with Lt. Steven Wiesen, one of his supervisors, regarding the latter's announced intention to recommend that the Respondent be given a suspension for abuse of sick time. The Respondent felt that he was being wrongly accused and continued to argue with Lt. Wiesen about the matter. The argument escalated to the point that Lt. Wiesen decided to go see a superior officer about the matter. As Lt. Wiesen and the Respondent were walking up the stairs to the Assistant Chief's office, the Respondent said to Lt. Wiesen words to the effect of: "This is the kind of shit that, like the post office, you know, makes somebody want to come to work and kill everybody." 4/ Lt. Wiesen's response to that comment was to ask if the Respondent was threatening him. The Respondent answered, "I don't make threats." At the time of these comments the Respondent was walking in front of Lt. Wiesen. The Respondent did not take any aggressive physical action towards Lt. Wiesen. The Respondent and Lt. Wiesen both told the Assistant Chief their respective versions of what they were arguing about and the Assistant Chief told them to both put it in writing. Findings regarding the Chief Walker incident During the evening hours of May 5, 1988, the Respondent, while off duty, unarmed, and dressed in civilian clothes, attended a meeting of the Civil Service Board at the Riviera Beach City Hall. The subject of the meeting was whether the decision of then Police Chief Frank Walker to demote the Respondent from Sergeant to Patrolman should be upheld or reversed. The Respondent's parents also attended the meeting. At the conclusion of the meeting the Civil Service Board voted to uphold the Respondent's demotion. The Respondent and his parents all felt that the Respondent had been treated unfairly by both the Civil Service Board and by Chief Walker. Shortly after the conclusion of the Civil Service Board meeting, the Respondent's mother approached Chief Walker and began telling him how she felt about the matter. She was very upset and was crying. The Respondent approached his mother and told her not to talk to the Chief any more and to come along home. He also said words to her to the effect of, "He's going to end up getting a bullet put in his head anyway." Chief Walker apparently heard part of what the Respondent had said to his mother and asked the Respondent what he had said. The Respondent replied: "I said, sir, it is my opinion that if you continue to treat people the way you do, somebody's going to put a bullet in your head." Immediately following that statement, the Chief walked away in one direction and the Respondent and his mother walked away in another. The Respondent did not take any aggressive physical action towards Chief Walker.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order in this case dismissing all charges in the Administrative Complaint. DONE AND ENTERED this 28th day of December, 1995, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1995.
