The Issue This matter began with the filing of a complaint by Homestead Tomato Packing Company, Inc., (Homestead Tomato) with the Florida Department of Agriculture asserting that it was due $9,502.50 for tomatoes sold January 21, 1985, to Seymour Cohen Brokerage Company (Cohen Brokerage). While Cohen Brokerage did not appear, due to the death of the owner, Seymour Cohen, the surety on its Agricultural Products Bond, Fidelity and Deposit Company of Maryland did appear. Because it represents the interest of Cohen Brokerage, in this order its position will be characterized as that of Cohen Brokerage. Cohen had already paid $16,360.00 for the tomatoes. The dispute centers upon the agreement between the parties as to the price of the tomatoes. The parties agree that the price was to be set after the tomatoes were shipped, due to an impending freeze which had caused volatility in the price for tomatoes. Homestead Tomato contends that other purchasers bought tomatoes at about the same time and agreed to the price which Homestead Tomato claims is due from Cohen Brokerage. Cohen Brokerage maintains that the price claimed is excessive, and that the payment made was full payment.
Findings Of Fact Homestead Tomato Packing Company, Inc., sells tomatoes as agent for Strano Farms of Florida City, Florida, which produces tomatoes. Cohen Brokerage is a licensed dealer in agricultural products holding license number 3047, which is supported by a bond written by the Fidelity and Deposit Company of Maryland, number 9634509. Seymour Cohen died, apparently before the complaint in this action was filed. See the Verified Suggestion of Death of Party and Motion to Dismiss filed on June 26, 1986. On Thursday, January 17, 1985, Rosario Strano, the President of Homestead Tomato, learned that a freeze would occur in South Florida on or about January 22, 1985. Strano notified Homestead Tomato's sales staff, including Thomas Banks, that beginning January 19, 1985, all sales were to be made at prices to be determined following the freeze. On January 21, 1985, Cohen Brokerage, acting through Rick Cohen (the son of Seymour Cohen, now deceased), purchased 1,600 boxes of Strano Pride #25, 6X7 (medium) tomatoes. Both parties testified that the price was not established on Monday, January 21, but that it would be established "sometime in the middle of the week" (Testimony of T. Banks, Transcript 177)) on or about Wednesday, January 23, 1985 (Testimony of R. Cohen, Transcript 225). This is consistent with the brokerage confirmation from Cohen Brokerage dated January 21, 1985, which was belatedly submitted to Homestead Tomato, stating that the tomatoes were "to be priced on or about Wednesday, 1/23/85, in line with Florida Tomato industry Market". The parties intended that the tomatoes would be priced by Wednesday, January 23, 1985, in accordance with the market price for U.S. number one tomatoes 85 percent or better. The freeze did occur on January 21 and 22, 1985, which caused a shortage of high quality unfrozen tomatoes. The expectation of the freeze had caused uncertainty in the market price for tomatoes during the period January 19 through January 25, 1985. From January 19 through January 22, 1985, Homestead Tomato sold 43 loads of tomatoes to buyers at prices to be determined later. On Wednesday, January 23, 1985, Rosario Strano set his price for 6x7 Strano Pride tomatoes at $16.00 a box and told sales staff to inform those who had purchased from Homestead Tomato before the $16.00 per box price had been set that they could return the tomatoes if they were dissatisfied with his price. According to Mr. Strano, he was unable to compare his prices the week after the freeze to what competitors were charging for like quality, unfrozen tomatoes because there were not enough others with tomatoes to make a price comparison. (Transcript 44-45). On January 23, Homestead Tomato's salesman Banks called Rick Cohen and gave him the price. The Florida Fruit and Vegetable Report is a market quotation service for agricultural commodities published by the United States Department of Agriculture, Agricultural Marketing Service, Fruit and Vegetable Division and the Florida Department of Agriculture and Consumer Services, Division of Marketing, Bureau of Market News. It is used and generally relied on by those in agriculture. It shows that tomatoes sold January 21, 1985, were sold with sales prices to be established later. The January 24th edition of the report shows that on January 23, 6x7 tomatoes sold for $16.00 per box. Homestead Tomato also introduced evidence that other buyers purchased 6 x 7 tomatoes which were shipped between January 19 and January 23, 1985, who were invoiced at $16.00 per box and paid that amount. This evidence of price is undercut, however, by the testimony of Rosario Strano with respect to disputes he had with other tomato purchasers, such as acme Pre-Pack over his price of $16.00 for medium tomatoes. Under cross-examination about whether he had reduced his billing or given a discount to protesting purchasers, Mr. Strano testified: The only -- Way back last -- latter part of February, I told them I would not give rebates. I told Mr. -- when they bought future tomatoes, when we got back in the tomatoes, we would work out an arrangement. I never quoted $2. I heard quoted $2, 4, 6, 8. I never quoted the price. I told them that I understood their plight but that I was not -- they had to take that then and there, settle and pay in full, or I was not going to do anything, and [there] was a reason for that, [which] was to expedite the collections of some very, very serious money, as you can see in this [case] right here. Transcript pages 165-166. Cohen Brokerage was invoiced $16.00 per box on January 25, 1986, for the tomatoes it had received on January 21, 1985. The total amount of the bill was $25,862.50. Cohen Brokerage made a payment on the invoice in the amount of $16,360.00 which then caused Homestead Tomato to file the instant complaint for the balance billed of $9,502.50.
Recommendation It is RECOMMENDED that the complaint filed by Homestead Tomato against Cohen Brokerage be dimissed. DONE AND ORDERED this 2nd day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3923A The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Covered in Finding of Fact 4. 4. Covered in Finding of Fact 5. 5. Covered in Finding of Fact 6. 6. Covered in Finding of Fact 6. 7. Covered in Finding of Fact 7. 8. Covered in Finding of Fact 7. 9. Covered in Finding of Fact 8. Covered in Finding of Fact 9. Covered in Finding of Fact 10. Covered in Findings of Fact 9 and 11. Covered in Finding of Fact 11. Rejected as argument. Covered in Finding of Fact 11. Covered in Finding of Fact 11. Rejected as inconsistent with the more significant testimony of Mr. Strano relied on in Finding of Fact 9. Rejected as unnecessary. Rejected as inconsistent with other evidence, see for example Petitioner's Exhibit #29. Covered in Finding of Fact 12. Covered in Finding of Fact 13. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 6. Rejected because the prices quoted were asking prices but not necessarily market prices. See Conclusion of Law 3. Rejected as a recitation of evidence. Rejected as a recitation of evidence. Rejected as a recitation of evidence. Rejected as unnecessary. Rulings on Proposed Findings of Fact Submitted by Respondent (Seymour Cohen Brokerage Company) Covered in Finding of Fact 1. Covered in Finding of Fact 3 and the statement of the issues. Covered in Finding of Fact 6. Covered in Finding of Fact 7. Covered in Finding of Fact 9. To the extent relevant, covered in Finding of Fact 11. Covered in Finding of Fact 12. Covered in Finding of Fact 13. Covered in Finding of Fact 6. Rejected as a conclusion of law. To the extent necessary, covered in Finding of Fact 11. Covered in Finding of Fact 11. Rejected because the testimony of Mr. Scherer was unpersuasive because the methodology implied to determine the price of $10.00 per box for 6x7 tomatoes was not adequately explained. Rejected as unnecessary. Sentence 1 rejected as unnecessary. Sentence 2 covered in Finding of Fact 9. Rejected as unnecessary. COPIES FURNISHED: Alexander J. Pires, Jr., Esquire 2501 M. Street, N.W., Suite 400 Washington, D.C. 20037 Murray H. Dubbin, Esquire 1000 Rivergate Plaza 444 Brickell Avenue Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact At all times pertinent hereto, Joey Collins Pest Control of America, Inc. (Collins Pest Control) was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner, as a business entity licensed by Petitioner to engage in pest control in the State of Florida. At all times pertinent hereto, Eric C. Van De Ven was employed by Collins Pest Control as a pest control operator and was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner. On May 15, 1990, Mr. Van De Ven performed a termite inspection at the residence located at 8411 S.W. 84th Terrace, Miami, Florida, at the request of J. Raul Cosio and Maria F. Trabanco, in connection with their intended purchase of that residence. This work was performed in his capacity as an employee of Collins Pest Control. Mr. Van De Ven prepared, signed, and caused to be delivered to Mr. Cosio and Ms. Trabanco, a written inspection report pursuant to Section 482.226, Florida Statutes. This report was prepared on behalf of his employer, Collins Pest Control, on Collins Pest Control's letterhead. This report, states that visible evidence of Formosan termites was observed on the main beam above the pool deck, that live Formosan termites were observed on the main beam above the pool deck, and that there was visible evidence of damage by Formosan termites. The report also estimates that treating the premises by "tent and soil poisoning" would cost $1,525.00. The report did not include observable damage that had been caused by drywood termites. Mr. Van De Ven had observed this damage, but he did not note this damage in his report because the owner of the premises had been aware of the damage, the damaged area had been treated, and the area had been patched. Mr. Van De Ven recommended to Mr. Cosio and Ms. Trabanco that the owners of the premises should contact Truly Nolen, the company that had treated the premises for drywood termites, to determine whether Truly Nolen would pay for any additional treatment that may be necessary. Mr. Van De Ven erroneously identified a drywood termite as being a Formosan termite. There were no Formosan termites on the premises, and there was no condition that would have warranted the treatment recommended by Mr. Van De Ven. All damage that had been observed by Mr. Van De Ven had been caused by drywood termites. Mr. Van De Ven should have been able to distinguish between evidence of Formosan termites and evidence of drywood termites because of the physical differences between the two types of termites and because of the differences between the damage each type does to an infested area. Mr. Van De Ven was negligent in failing to distinguish between the two types of termites and in recommending the unnecessary treatment. There was no evidence that Mr. Van De Ven deliberately misled his customers or that he was trying to sell unnecessary services. There was no evidence that Mr. Cosio or Ms. Trabanco suffered any damages as a result of their dealings with Respondents. There was no evidence that either Respondent had been previously disciplined by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which: finds that Respondents Eric C. Van De Ven and Joey Collins Pest Control of America, Inc. have violated the provisions of Section 482.226(1), Florida Statutes, by performing the subject inspection in a negligent manner; further finds that said Respondents have violated the provisions of Rule 10D-55.1046(6), Florida Administrative Code, by recommending treatment for Formosan termites where there was no evidence of such infestation; and imposes an administrative fine in the amount of $250 against each Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1991. APPENDIX TO RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 2, and 10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3-9 are rejected as being subordinate to the findings made. The only post-hearing submittal submitted by Respondents was in the form of a letter addressed to the Hearing Officer filed January 28, 1991. This letter contained no proposed findings of fact. COPIES FURNISHED: Karen Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Joseph A. Collins, III Owner Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent, Greenblades of Central Florida, Inc., and its surety, Western Surety Company, are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner operates a nursery supply company that produces trees, plants, and other landscaping supplies at a location in Bunnell, Florida. Respondent is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Respondent was a licensed dealer in agricultural products supported by a surety bond provided by Western Surety Company. This matter arose over a Producer Complaint filed by Petitioner on June 24, 2005, in which it alleged that Respondent owed $20,512.97, based upon five invoices for nursery goods delivered to various job sites where Respondent was providing landscaping services. The five invoices set forth in the original Producer Complaint are as follows: Date of Sale Invoice # Amount Dec. 28, 2004 64679 $2,884.72 Jan. 11, 2005 64828 3,878.75 Jan. 11, 2005 64829 1,926.00 Feb. 1, 2005 65229 2,086.50 Feb. 3, 2005 65127 9,737.00 Petitioner later amended its Complaint to withdraw its claims under Invoice Nos. 65229 and 65127, as untimely filed, resulting in an amended amount due of $8,689.47. Respondent filed a Response to the Producer Complaint on August 15, 2005, admitting the amounts due under Invoice Nos. 64679 and 64828, totaling $6,763.47, and denying the amount claimed in Invoice No. 64829, $1,926.00, as never having been filled, resulting in Respondent's using another vendor to fill the order. Respondent admitted the amounts due under Invoice Nos. 64679 and 64828; therefore, no further discussion is necessary for those items, except to note that Delivery Receipt No. 17751, relating to Invoice No. 64828 contains the note "Reject 1 Live Oak." Therefore, the amount of Invoice No. 64828 must be reduced by $214.00 ($200 for the tree and 7 percent Florida Sales Tax). With respect to Invoice No. 64829, however, Petitioner produced at hearing only an unsigned invoice without either a sales order or a receipt for delivery of goods, as was its custom concerning deliveries of nursery goods. Accordingly, Petitioner provided no proof that the order under Invoice No. 64829 was actually delivered to Respondent. Respondent and its surety, Western Surety Company, currently owe Petitioner $2,884.72 under Invoice No. 64679, and $3,664.75 under Invoice No. 64828, for a total amount owed of $6,549.47.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent, Greenblades of Central Florida, Inc., or its surety, Respondent, Western Surety Company, to pay Petitioner $6,549.47 for unpaid invoices. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of January, 2006. COPIES FURNISHED: Christopher E. Green, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Division of Marketing 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Joseph Robbins, Jr. Greenblades of Central Florida, Inc. 11025 Southeast Highway 42 Summerfield, Florida 34491 Tom Snyder Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Donald M. DuMond Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Tom Robinson Skinner Nurseries, Inc. 13000 State Road 11 Bunnell, Florida 32110 Honorable Charles H. Bronson Department of Agriculture and Consumer Services Commissioner of Agriculture 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
The Issue Whether the fertilizer registrations in Florida of the Respondent, Tri- State Plant Food, Inc., should be suspended for committing the acts set out in an Administrative Complaint issued by the Petitioner, the Florida Department of Agriculture and Consumer Affairs, on July 31, 1990?
Findings Of Fact Tri-State is an Alabama corporation engaging in the manufacture and sale of commercial fertilizer. Tri-State's commercial fertilizers are registered with the Department for sale in the State of Florida. Tri-State has a fertilizer manufacturing plant located in Dothan, Alabama. Commercial fertilizer manufactured at the Dothan plant is sold by Tri- State in Florida, Georgia and Alabama. The Department is charged with the responsibility of regulating the registration, labeling, inspection and analysis of commercial fertilizers distributed in Florida. All commercial fertilizer distributed in Florida is required to contain a label. The label must contain the manufacturer's "guaranteed analysis" (the minimum percentage of plant nutrients the manufacturer claims the fertilizer contains) of the fertilizer. In carrying out its responsibility to regulate the distribution of commercial fertilizer in Florida, Department personnel take samples of commercial fertilizer that will be distributed in Florida to determine whether the actual content of the fertilizer conforms with the guaranteed analysis contained on the label. During the period July 1, 1989, through September 30, 1989, the Department analyzed 10 samples of Tri-State's commercial fertilizer to be sold in Florida to determine whether Tri-State's guaranteed analysis was accurate. Of the 10 samples, 8 were determined to be deficient. The primary plant nutrient deficiency was 28.08%. The allowable primary plant nutrient deficiency level is 12.5%. Tri-State's fertilizer exceeded the tolerances for primary plant nutrients. Accordingly, Tri-State was notified that it would be on probation for the period January 1, 1990, through March 31, 1990. During the period October 1, 1989, through December 31, 1989, the Department analyzed 28 samples of Tri-State's commercial fertilizer to be sold in Florida to determine whether Tri-State's guaranteed analysis was accurate. Of the 28 samples, 14 were determined to be deficient. The primary plant nutrient deficiency was 23.7%. Tri-State's fertilizer exceeded the tolerances for primary plant nutrients. Accordingly, Tri-State was notified that it would be on probation for the period April 1, 1990, through June 30, 1990. During the period January 1, 1990, through March 31, 1990, the Department analyzed 51 samples of Tri-State's commercial fertilizer to be sold in Florida to determine whether Tri-State's guaranteed analysis was accurate. Of the 51 samples, 20 were determined to be deficient. The primary plant nutrient deficiency was 16.28%. Tri-State's fertilizer exceeded the tolerances for primary plant nutrients. Accordingly, Tri-State was notified that it would be on probation for the period July 1, 1990, through September 30, 1990. During the period April 1, 1990, through June 30, 1990, the Department analyzed 39 samples of Tri-State's commercial fertilizer to be sold in Florida to determine whether Tri-State's guaranteed analysis was accurate. Of the 39 samples, 18 were determined to be deficient. The primary plant nutrient deficiency was 13.45%. Tri-State's fertilizer exceeded the tolerances for primary plant nutrients. Accordingly, Tri-State was notified that it would be on probation for the period October 1, 1990, through December 31, 1990. On July 31, 1990, the Department issued an Administrative Complaint against Tri-State proposing to suspend Tri-State's fertilizer registrations in Florida for 90 days based upon the deficiencies described in findings of fact 6 through 9. Of the 39 official samples analyzed by the Department during the period April 1, 1990, through June 30, 1990, 24 or 61.5% were taken during the preceding calendar quarter, January 1, 1990, through March 31, 1990. All 39 official samples analyzed by the Department during the period April 1, 1990, through June 30, 1990, were "reported" during the period April 1, 1990, through June 30, 1990. The date "reported" of each sample is the date the sample was analyzed. All of the 39 samples were "reported" within approximately 30 days after the samples were taken. Official samples are taken by personnel of the Department's Division of Inspection. The official samples are then delivered to the Department's Division of Chemistry/Fertilizer Laboratory where they are analyzed or "reported." It is the Department's policy to analyze official samples in the order they are received. The weight of the evidence failed to prove that the Department has a policy of expediting the analysis of official samples upon request of a manufacturer on probation. Official samples are generally reported within approximately 30 days after they are taken. It is the policy of the Department to encourage persons on probation to report that a bulk shipment of commercial fertilizer is to be made into Florida so that the Department can attempt to take samples of the bulk fertilizer shipment. Because samples are weighted based upon the tonnage of a sample in determining efficiency, each bulk shipment of fertilizer for distribution in Florida can have a significant affect on whether a person on probation is determined to still be deficient. The Department makes every reasonable effort to sample a bulk shipment if given reasonable notice and if an inspector is reasonably available. The weight of the evidence failed to prove, however, that the Department's policy includes the analysis of official samples on an expedited basis at the request of a manufacturer. On June 8, 1990, an official sample was taken by Department personnel at the request of Tri-State. Tri-State presented evidence concerning efforts if made to get the Department to analyze the official sample taken on June 8, 1990, during the period April 1, 1990, through June 30, 1990. The Department did not honor this request. The June 8, 1990, official sample was analyzed after June 30, 1990. The weight of the evidence failed to prove that the Department's failure to report the June 8, 1990, sample during the period April 1, 1990, through June 30, 1990, was contrary to the Department's policy concerning the analysis of official samples in the order received by the Division of Chemistry/Fertilizer Laboratory, which means that normally a sample will be analyzed within approximately 30 days after it was taken. Tri-State began distributing fertilizer in Florida in 1985. Tri-State has had a consistent history of violations since that time. Since the end of 1987, Tri-State has paid penalties imposed by the Department of $24,519.17 and has been on probation at least 2 quarters of every calendar year. The Department has held a number of informal conferences with Tri- State in an effort to work with Tri-State to correct the problems it has been experiencing with the commercial fertilizer it has distributed in Florida. The weight of the evidence failed to prove that the problems have been resolved. Since January 1, 1990, Tri-State has endeavored to make corrections in its manufacturing methods to eliminate its primary plant nutrients deficiencies. Those efforts are described in Tri-State's proposed findings of fact 20 and 21 and are hereby accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued suspending Tri-State's fertilizer registrations in the State of Florida for a period of ninety (90) days and dismissing the Petition in this matter with prejudice. DONE and ENTERED this 28th day of November, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 November, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection Paragraph 1 1 and 3-4. Paragraph 2 6. Paragraph 3 7. Paragraph 4 8. Paragraph 5 9. Paragraph 6 17. Tri-State's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 4, 6 and hereby accepted. 3 6-10. 4 17. 5 11. Hereby accepted. This proposed finding of fact contains speculation. It is not relevant to this proceeding. 8-9 Not relevant to this proceeding. 10 Not supported by the weight of the evidence. See 13. 11-14 Not relevant to this proceeding. 15 2 and 14. 16 16. 17-18 See 16. 19 See 19. 20-21 19. 22-23 Not relevant to this proceeding. Copies Furnished To: James D. Farmer, Esquire Post Office Drawer 668 Dothan, Alabama 36302 Harold Lewis Michaels Senior Attorney Department of Agriculture and Consumer Affairs Room 515, Mayo Building Tallahassee, Florida 32399-0800 Honorable Doyle Conner Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810
Findings Of Fact Petitioner operates a cattle feeding lot near Bartow, Florida consisting of 6 sheds, 1600 feet long by approximately 25 feet wide. These sheds are two story structures with the cattle fed on the upper story. The upper floor is slotted to permit cattle droppings to fall to the lower level. From there the manure and urine is processed in the waste treatment facilities consisting of a concrete sump and anerobic ponds. These treatment facilities qualify as pollution control equipment for purposes of tax assessment. Petitioner installed metal roofs over these feeding sheds which Petitioner claims also constitute pollution control equipment. Shade for cattle is required and could be provided by a fibre screen which would cost some $37,000 as compared to the metal roof costs of approximately $171,000. The difference between the costs of the metal roof and a fabric sun screen is $133,882.06 which Petitioner desires to have reduced from its assessment for tax purposes. The Property Appraiser Polk County recommended to the DER that this amount be approved as a deduction for pollution control equipment. Petitioner contends that the primary purpose of the metal roof is to divert the rainwater from mixing with the cattle droppings. As constructed rainwater is presently collected from the roofs of the feeding lots and transported via viaduct to a runoff pond required by federal EPA regulations which acts as a settling pond. From this pond, which EPA regulations requires have a ten-year storm rainfall capacity, the water is pumped for irrigation purposes. If the rainwater is allowed to fall onto the upper platform on which the cattle are kept, it will go through the slots and mix with the fecal matter on the ground floor. If this were allowed to occur it would be necessary for Petitioner to greatly increase the size of its sump and anerobic ponds to treat this waste thus increasing the cost of this portion of its plant which is clearly pollution control equipment as defined by Section 193.621 F.S. As presently operated the solids are removed from the droppings in the sump before the remaining liquid is processed in the waste treatment facilities consisting of the anerobic ponds. The efficiency of the anerobic process is increased as the concentration of the waste material is increased. Adding rainwater to this waste material would therefore decrease the efficiency of the operation as well as require a larger capacity sump and anerobic ponds. In addition to keeping rainwater out of the cattle droppings, the roof provides needed shade to the cattle, provides better shelter for cattle in rainy or cold weather, and eliminates need for adding covers over the feeding troughs. Cattle fed in open lots are as healthy, or healthier, than those fed in covered feeding lots.
Findings Of Fact Petitioner, Rosario and Vito Strano d/b/a Strano Farms (Strano Farms), is a grower and shipper of fresh produce in Florida City, Florida (Dade County). Respondent, Mager Corporation d/b/a Gulf Provision Company (GPC), is an agricultural dealer in Jacksonville, Florida, subject to the licensing requirements of the Department of Agriculture and Consumer Services (agency). As such, GPC is obligated to obtain a dealer's license from the agency and to post a surety bond executed by a surety corporation to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this latter requirement, GPC has obtained a surety bond in an undisclosed amount from respondent, Aetna Casualty and Surety Company. This controversy involves a dispute over payment for a shipment of tomatoes purchased from Strano Farms by GPC for further sale to retail vendors. The origins of the dispute began on or about February 2, 1987, when a salesman for Strano Farms accepted a telephone order from Neil R. Sandler, president of GPC, for two lots of "Poppa's Famous" tomatoes. The order was later memorialized by petitioner in a memorandum dated February 7, 1987 reflecting the following: Quantity Description Pkq. Grade Size Price Amount 176 Tomatoes 20# Poppa's Famous 5x6 5.60 $985.00 176 Tomatoes 20# Poppa's Famous 6x6 3.80 528.00 Palletizing .15 52.80 352 Total Due: 1566.40 In addition, Strano Farms prepared a broker's memorandum on February 5, 1987 reflecting that GPC ordered two lots of "breakers," a specific grade of tomato. However, Strano Farms contended the reference to "breakers" was a typographical error by the clerical employee who prepared the document and that actually a different grade had been ordered. According to Rosario Strano, a partner and owner of petitioner, Sandler ordered 176 cartons each of light pink and pink tomatoes. This was corroborated by the fact that in early February, 1987 petitioner had no breaker tomatoes in stock. Sandler could not dispute this since more than fifteen months had passed since the order was placed, and he had no independent recollection of the transaction. The United States Department of Agriculture has established a color classification for tomatoes that sets forth the color of tomatoes by stage of maturity. In ascending order of maturity and color, they are green, breakers, turning, pink, light red and red. Homestead Tomato Packing Company, Inc. (Homestead) is the exclusive packer and shipper for Strano Farms. Homestead processed GPC's order and shipped the tomatoes to GPC on February 3, 1987. Prior to the shipment, sub-lot inspections of the produce from which GPC's shipment was drawn were made by an agency inspector on January 28 and February 2, 1987. The inspector's report indicates that the produce had a "mixed color", that there was no decay and the produce was within the tolerance limits for defects. It reflected further that the shipment met the pink and light pink standards. When the tomatoes arrived in Jacksonville on February 4 or 5, Sandler inspected the produce but was not satisfied with the condition of the tomatoes. He ordered a federal inspection the same day. The report reflected that the 6x6 lot of tomatoes was within federal standards while the 5x6 lot deviated slightly because of bruising and decay. However, the tomatoes conformed to pink and light pink standards. Sandler telephoned Strano Farms and requested that a price adjustment be made. When no agreement could be reached, GPC unilaterally adjusted the amount due to $894.80 and tendered Strano Farms a check in that amount. This amount was based upon a total price of $880.00 for both lots of tomatoes, $52.80 for pelletizing, less $38.00 spent by GPC for an inspection. The total payment was $618.80 less than originally agreed upon by the parties, or the amount being claimed by petitioner. Petitioner contends the adjustment made by respondent is "excessive" and not justified by the actual condition of the tomatoes. Strano Farms is willing to allow an adjustment of up to $1.15 per box for that percentage of boxes in the 5x6 lot that failed to meet standards. This adjustment is consistent with the quality of the tomatoes reflected in the federal inspection report. It is also consistent with the industry practice that any price adjustments should correspond with the condition of the produce as reflected on the federal inspection report. Because the adjustment proposed by petitioner is reasonable and consistent with the report, it should be made. Therefore, respondent should deduct $1.15 per box for those boxes in the 5x6 lot that failed to meet federal standards because of bruising and decay. It should also deduct the cost of the inspection report ($38) and pay petitioner all other amounts due.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent pay petitioner the additional amount due within thirty days from date of final order. In the event payment is not timely made, the surety company should be required to pay this amount. DONE AND ORDERED this 14th day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1988.
Findings Of Fact Petitioners consist of the Florida Agricultural Research Institute (FARI) and thirty firms engaged in the business of manufacturing or distributing various brands and grades of commercial fertilizer in Florida. FARI is a non- profit corporation that serves primarily as an agricultural industry representative, including producers and distributors of commercial fertilizers. One of its representatives currently serves on the State Fertilizer Technical Council. Each of the petitioning firms has registered commercial fertilizers with Respondent, either as a manufacturer or dealer. Respondent has assessed penalties against the firms in the past for deficiencies in the fertilizer plant nutrients pursuant to Rule 5E-1.11, F.A.C., as a result of sampling and analysis of fertilizer produced or distributed by the petitioning firms. (Hearing Officer's Exhibit 4) Respondent's Division of Inspection performs the function of sampling commercial fertilizer sold or offered for sale within Florida under the provisions of Chapter 576, Florida Statutes, and rules adopted by the Department. Fertilizer samples are taken either at an approved plant or in the "field" by Division Inspectors utilizing standard procedures set forth in Respondent's rules and fertilizer bulletins. The samples are then analyzed by Respondent's Division of Chemistry to determine if the fertilizer is deficient in percentages of plant nutrients specified in its registration below applicable tolerances. If so, penalties are assessed which are payable by the seller to the consumer. (Testimony of Giglio, Exhibit 1, 5, Hearing Officer's Exhibit 4) Prior to 1971, official samples of bulk mixed fertilizer manufactured in an approved plant could only be taken from the belt at the plant with tools authorized by then existing rules. Dissatisfaction with the accuracy of sampling methods using different sampling tools had led to the adoption in 1957 of procedures whereby sampling was conducted at fertilizer plants using what is known as a belt discharge cup which is passed through the stream of fertilizer coming off a conveyer belt a number of times to obtain a required amount of sample from the fertilizer lot being tested. If belt discharge sampling was not possible, the sample was drawn from the belt by cutting across the moving stream of fertilizer with a scoop or similar instrument. When neither of the foregoing types of sampling was possible, samples were drawn from trucks, in a sufficient number of "probes" to provide a representative sample. The probe was also used for sampling bagged goods. However, sampling in the "field" was restricted to bagged fertilizer. By 1965, the sampling methods had remained substantially the same. Samples of fertilizer manufactured by plants not suitably equipped for plant sampling and from out of state manufacturers were drawn in the "field" at various farms and groves of consumers. An "in-house" controversy between Respondent's Inspection and Chemistry Divisions as to the accuracy of sampling in dealers' bins led to the refusal of the state chemist to issue penalty assessments for products found to be deficient in nutrients after analysis. Also during this period, consumer groups were inquiring of Respondent as to the possibility of field sampling of bulk mixed fertilizer. (Testimony of Giglio, Exhibits 6-22, 49-50) In February 1971, the Pesticide and Fertilizer Technical Council, a statutory advisory group to Respondent, began consideration of the possibility of field sampling of bulk fertilizer, and appointed an ad hoc committee to study the question of whether greater tolerances for deficiencies in such lots of fertilizer should be adopted. Data obtained from prior studies on fertilizer segregation conducted by Respondent and the fertilizer industry showed that samples taken in the field were found deficient in 18 percent more cases than those samples of the same lots of fertilizer taken at the plant. The committee therefore recommended that existing tolerances be increased for nitrogen, available phosphoric acid, and potash, by factors of 1.4, 1.5 and 1.4 respectively to compensate for the additional error found in field sampling. The committee reasoned that if the kinds of fertilizer sampled were equivalent, the proposed widened tolerances should be sufficient to protect manufacturers from an increase in penalties from samples taken in the field. However, the committee noted that standard sampling error is influenced by the place of sampling, the tool used, the number of subsamples and the method by which the material is handled from the time it leaves the plant mixer to the point of sampling. (Testimony of Giglio, Wright, Exhibit 23, 25, 60) At a meeting on March 5, 1971, the Technical Council approved proposed amendments to Respondent's Rule 5E-1.09 to provide that official samples of bulk mixed fertilizer manufactured in a plant approved for belt or belt discharge sampling could be taken where found from the delivery vehicle or when requested by the consumer, providing an official sample had not previously been collected at the plant. It also approved a proposed amendment to Rule 5E-1.11 to provide the larger tolerances for bulk mixed fertilizer sampled in the field, as recommended by the ad hoc committee. During discussion leading to the Council's action, representatives of the fertilizer industry recommended that research be conducted on sampling methods prior to changing the regulations. (Testimony of Giglio, Perrin, Exhibit 24) In the spring of 1971, Respondent conducted studies to determine the most accurate tool to utilize for the purposes of field sampling of bulk- fertilizers. It was found that field samples collected with a tool called the "Missouri D Tube" more closely approached results of official samples taken by belt sampling than did those drawn with the currently used Indiana Probe. The study indicated that belt sampling was more reliable and that the proposed expanded tolerance table to be applied when bulk samples were drawn from the field would not compensate for the apparent increased bias in field sampling. Thereafter, the Division of Inspections recommended to the Commissioner of Agriculture that the Missouri D Probe be accepted as the most accurate sampling tool. That recommendation and the recommendation of the Technical Council were accepted by the Commissioner of Agriculture, and thereafter Rules 5E-1.09 and 5E-1.11 were amended accordingly on October 1, 1971. (Testimony of Giglio, Wright, Warren, Exhibits 1, 26, 29) Penalties assessed against fertilizer producers pursuant to Rule 5E- 1.11(2), F.A.C., from July 1, 1979 through March 31, 1980, were in the total amount of $556,482.22. In the prior three years of 1976, 1977, and 1978, penalties were assessed in amounts exceeding $415,000, $379,000, and $394,000 respectively. (Hearing Officer's Exhibit 3) In 1973, FARI informed the Commissioner of Agriculture that it had initiated an extensive research project on fertilizer sampling to be accomplished under the supervision of Arthur D. Little, Inc., and the cooperation and participation of Respondent in the study were solicited. After an extensive exchange of correspondence between FARI and Commissioner Doyle Conner, the latter agreed to cooperate in the study, and thereafter during 1974- 75, fertilizer samples were taken by state inspectors from several Florida plants in accordance with state sampling methods, and thereafter analyzed statistically to determine the accuracy and reliability of Respondent's sampling methods and tolerance allowances. The study addressed the present day applicability of Respondent's method of bulk discharge sampling and of sampling bulk fertilizer in the field, together with the effects of "coning" on field sampling, and the extent of any sampling variation due to "riffling." (Testimony of Giglio, Wood, Exhibits 30-45, 47, 52-53) The results of the FARI study were published in 1976. Statistical analysis of the samples produced the following reported major conclusions: Samples taken from belt discharge without riffling showed a small sampling variation whereas riffling of such samples produced significant sampling variations. Use of the Missouri D Probe in field sampling produced large variations in sampling error. It was found that approximately one-half of the samples of "on-grade" bulk mixed fertilizer would be found deficient under state tolerance tables. Bias between belt discharge and bulk field samples was significant for nitrogen and potash. "Unconing" (a method by which a flexible chute is used to evenly distribute bulk mixed fertilizer into bins or receiving vehicles to avoid a coned pile of fertilizer) reduces but does not eliminate absolute differences between the averages of plant and field samples. Florida official tolerances on official fertilizer guarantees need "some revision" to be consistent with current sampling practices and limitations, especially in regard to riffling. The statistical expert who designed the study whereby 300 samples were taken from 42 lots of fertilizer found that 90 percent of sampling variance from belt samples taken at the plants was due to riffling of the samples at the plant and again at the testing laboratory. Riffling is a procedure by which a number of samples are reduced in amount to smaller samples by pouring the samples through a "riffle" which is a device designed to divide or "split" samples into representative halves. The expert is of the opinion that by the use of good sampling methods, only 1 in 1,000 samples of an "on-grade" product should be found deficient under tolerance tables. "Deconing" of bulk fertilizer is not a common practice of the fertilizer industry. (Testimony of Thornton, Glocker, Crisp, Wright, Exhibits 47-48, 56) a. Respondent is required by statute to use the officially adopted methods and terminology of the Association of Official Analytical Chemists (AOAC) in drawing any official samples and, in cases not covered by such methods, Respondent is obliged to adopt and publish "appropriate" methods and terminology. The official methods of analysis of the AOAC (1975 Ed.) as to solid fertilizers in Section 2.001, provide for the use of the Missouri D Probe in the sampling of bulk fertilizer by drawing ten vertical cores distributed in a specific concentric sampling pattern. Respondent's Rule 5D-1.09(1)(c) also provides for use of the Missouri D Probe in taking official field samples of bulk mixed fertilizer, and sub-paragraph (2)(c)1 of the rule requires that such samples be collected in accordance with recommendations of the AOAC. The AOAC sampling pattern is not shown in the rule, but is set forth in Respondent's Fertilizer Bulletin No. 5-1. Paragraph 2.001 of the AOAC official methods of analysis also provides for sampling of bulk fertilizer at time of loading by passing a specified sampling cup through the stream of material as it drops from the belt or chute to assure ten equal time spaced passes during a continuous flow of fertilizer for three minutes. Respondent has adopted the use of such a cup in Rule 5E-1.09(2)(b), together with a varying number of core samples based on the lot size in tons. Fertilizer Bulletin No. S-1 specifies the manner of passing the cup through the stream as often as necessary to obtain the required number of cores for the tonnage to be represented by the sample. Seminars periodically conducted by Respondent for its inspectors amplify the procedures specified in rules and bulletins. Additionally, new inspectors receive field training in procedures to be utilized in taking samples. Section 2.001 of the AOAC official methods of analysis provides that bagged fertilizer shall be sampled by laying the bag horizontally and removing a core diagonally from end to end with a slotted single or double tube trier (probe) of about the approximate length of the filled bag which is being sampled. Respondent's Rule 5E-1.09(1)(d) provides for the use of the large Indiana Probe in taking official samples of bag mixed fertilizer. Information regarding the placement of the bag and manner of using the probe is contained in Fertilizer Bulletin S-1 and conforms to the AOAC methods. Section 2.001(c) of the AOAC official methods of analysis provides that a composite sample should be placed in an airtight container and the entire sample delivered to the laboratory where it is reduced by use of a riffle. Although Respondent's Rule 5E-1.09 does not provide for riffling of a sample taken at the plant or in the field, its Fertilizer Bulletin No. S-1 requires that samples consisting of more than one gallon will be divided by use of a riffle and procedures for riffling are explained. In the sampling of bulk fertilizer using the Missouri D Probe, Respondent's inspectors often are required to use a hammer or mallet to drive the probe into hardened fertilizer. This procedure is not mentioned in either the AOAC official methods or in Respondent's rules or bulletins. However, the recommended sampling procedures of The Fertilizer Institute, a trade organization of the fertilizer manufacturers, and of the Association of American Plant Food Control Officials (AAPFCO), an organization primarily composed of state regulators for the promotion of uniform regulations in the agricultural field, state that the Missouri D Tube is the best manual probe available for sampling a car of fertilizer because it can be driven into the settled mass of fertilizer. Use of the hammer is considered acceptable as long as the load is penetrated vertically and the fertilizer pattern is not disturbed. (Testimony of Giglio, Jackson, Rund, Perrin, Exhibits 1, 5, 27-28, 56) Respondent's Fertilizer Bulletin No. P-2, dated February 9, 1979, contains a list of Florida fertilizer mixing plants and the agricultural inspectors assigned thereto. Fertilizer Bulletin No. D-1, dated December 3, 1974, consists of a directive to inspectors regarding stop-sale procedure on deficient lots of fertilizer found in manufacturers' or dealers' warehouses. Respondent's Fertilizer Bulletin No. F-1, dated December 3, 1974, is a letter to fertilizer and pesticide inspectors stating standards for the construction and equipment of fertilizer sampling facilities at plants. Fertilizer bulletins are updated periodically and approved by the Respondent's Director, Division of Inspections. (Testimony of Crisp, Exhibits 2-4) It is acknowledged both in governmental circles and in the fertilizer industry that the Missouri D Probe is the most satisfactory tool for sampling bulk fertilizer other than from the belt in the plant. If fertilizer is not permitted to cone, the tool achieves acceptable results. Most of the fertilizer produced today is of a mixed type which is a combination of granular and non- granular material. Granular material is when all three of the primary nutrients are contained in a single particle or pellet. As a consequence of such a non- homogenous mixture, fertilizer "cones" when it is poured into a truck, bin, or other receiving vehicle. In such instances, the larger particles fall away to the sides and she smaller particles remain in the middle. Thus, it is difficult to obtain representative samples of the entire lot of fertilizer. Although Section 576.055, F.S., provides that Respondent may adopt rules requiring fertilizer manufacturers to incorporate specified procedures designed to avoid coning during the loading of bulk mix fertilizer into vehicles to reduce separation and segregation of components, such rules must be the official method and terminology of the AOAC or other "such nationally recognized testing authorities." Neither the AOAC nor any other nationally recognized testing authority has prescribed official methods for deconing, and therefore Respondent has not been able to adopt rules on the subject. The Fertilizer Institute recognizes the problem of coning and segregation of materials, and recommends in its Quality Control Manual that the industry utilize the anti-segregation devices such as spreading the material by use of a large grain shovel or allowing it to flow into a truck through a telescoping flexible spout, or large truck tire tube being manually moved about the truck. Receiving vehicles, such as compartmented "Killebrew" trailers are owned both by producers and Consumers. Even if unconed at the plant, segregation can recur during transport of fertilizer to the site of eventual use. (Testimony of Giglio, Wood, Perrin, Exhibit 56) Respondent's Rule 5E-1.11 contains two tolerance tables for nitrogen, available phosphoric acid, potash, and nitrogen breakdown. Tolerance Table II applies to bulk mixed fertilizer samples collected in the field, and Tolerance Table I applies to all other official samples. Penalties are assessed if any of the plant nutrients are found below the tolerances, unless compensable. The tolerances constitute an allowance for inherent variations in samples which are arrived at by determining standard sampling error. The enlarged tolerances for field samples recognize that error occurs more frequently in such instances than samples obtained at the plant. Although the AOAC does not specify tolerances, the AAPFCO has recommended tolerances which are termed "investigational allowances" and closely parallel Respondent's Tolerance Table II. Such tolerances normally would find only 1 out of 100 lots to be deficient when the lots actually meet the guaranteed analysis. However, the association's allowances do not change at "step" levels as do those in Respondent's Tolerance Table II. Thus, Table II can be inaccurate to a degree upward or downward, depending upon the nutrient percentage level guaranteed by the producer. As a result, statistical experts are of the opinion that both of Respondent's tolerance tables need revision to lessen the present discrepancies brought about by the "step" system. (Testimony of Rund, Zahn, Exhibits 1, 47, 51, 55, 57) Machinery and equipment used by fertilizer processors is basically the same as it was some twenty to thirty years ago. Although fertilizer firms generally have quality control programs as to accuracy of scales, timing of ingredient flow while mixing, and preventive maintenance procedures, they do not uniformly use devices such as flexible spouts or hoses to avoid coning and consequent segregation of fertilizer when loading receiving vehicles. Although use of granulated fertilizer with uniform particle size would eliminate the problem of segregation, it is more expensive to produce and results in customer resistance. Most fertilizers are mixed upon customer preference and, in some instances, as many as 2500 varieties of mixtures are available in Florida on request. These amounts are not significantly different from those of other states. (Testimony of Wood, Ray, Thornton, Crisp, Perrin) A representative of the Florida Farm Bureau Federation and several farmers who testified at the hearing are desirous of maintaining field sampling in order to ensure that purchasers receive the blend of fertilizer which they order from the producer. (Testimony of Cockrell, Lindsay, Ray)
Findings Of Fact The Department of Agriculture and Consumer Services (Department) is the state agency charged with responsibility for administration of the Florida Food Act, Chapter 500, Florida Statutes. Guy Ratcliff (Respondent) is the owner and operator of the Scratch & Dent Food Mart (Food Mart) located at 702 East Baker Street, Plant City, Florida. Inspections were conducted by a representative of the Department on July 12 and 26, September 20, October 21, and November 23, 1993. On all five inspections, the inspector assigned an overall evaluation rating of "poor" to the store. During the inspection performed on July 12, 1993, dust, bugs, spiders and rodent droppings were present on food shelves. Moths and beetle infestation were present in dry cereals and in dry cat and dog food. On orders of the Department, the Respondent removed the contaminated food from sale. During the inspection performed on July 26, 1993, various grain products were found to be infested with beetles and moths. Some canned foods were rusted or swollen. Beetles, moths, spiders, rodent droppings and "nesting materials" were found on food display shelving. On orders of the Department, the Respondent removed the contaminated food from sale. By letter dated August 19, 1993, the Department advised the Respondent that, "[y]our food establishment was inspected and found sanitarily "poor"." The letter states that the Department was reviewing the matter to determine if administrative action was warranted and notes that "[f]ailure to comply with sanitation provisions of Chapter 500, Florida Statutes, and Chapter 5E-6, Florida Administrative Code, can result in an administrative fine and/or suspension of your Food Permit." By letter of August 23, 1993, the Department advised the Respondent that, "[y]our food establishment received a "poor" sanitation rating on August 12, 1993." The evidence fails to establish that an inspection and sanitation rating were performed on August 12, 1993. The letter further states that the establishment would be reinspected "in the near future" and that "[f]ailure to correct the deficiencies may result in a continued poor rating "and possible action by the department to safeguard the public health." During the inspection performed on September 20, 1993, roach and rodent droppings and swollen and leaking canned tomato and fruit products were present on food display shelves. On orders of the Department, the Respondent removed the contaminated food from sale. During the inspection performed on October 21, 1993, swollen and leaking canned tomato products and roach and rodent droppings were present on food display shelves. On orders of the Department, the Respondent removed the contaminated food from sale. During the inspection performed on November 23, 1993, live beetles and moths were present in dry cat and dog food. Live beetles were present in dry sauce mixes. Roach and rodent droppings were present in the dry cereal, dry pet food, baby food and other sections of the store. On orders of the Department, the Respondent removed the contaminated food from sale. By letter dated November 30, 1993, the Department advised the Respondent that, "[y]our food establishment was inspected and found sanitarily "poor"." The letter states that the Department was reviewing the matter to determine if administrative action was warranted and notes that "[f]ailure to comply with sanitation provisions of Chapter 500, Florida Statutes, and Chapter 5E-6, Florida Administrative Code, can result in an administrative fine and/or suspension of your Food Permit." Based on the deficiencies noted herein as determined during the inspections, the Department filed the Administrative Complaint at issue in this proceeding. In response to the allegations of the complaint, the Respondent acknowledged that problems had been found by the inspector. He stated that a bad shipment of food had resulted in contamination of the warehouse and store by pests and rodents. The Respondent asserts that continuing efforts are made to clean the store and place it in more sanitary condition. According to the Department's inspector, on the March 30, 1994 evaluation of the facility, no violations were noted and a sanitation rating of fair was assigned.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order imposing a fine of $5,000 against the Respondent. DONE and RECOMMENDED this 20th day of July, 1994 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0695 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent did not file a proposed recommended order. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol , PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol , PL-10 Tallahassee, Florida 32399-0810 Linton B. Eason Qualified Representative Department of Agriculture and Consumer Services Mayo Building Room 515 Tallahassee, Florida 32399-0800 Guy Ratcliff, President Scratch & Dent Food Mart, Inc. 702 East Baker Street Plant City, Florida 33566
