Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Pinellas County operates a water system which serves a population of approximately 400,000. This figure includes some 250,000 individual meter accounts and 150,000 wholesale customers, including the Pasco County Water Authority 1/ and the Cities of Tarpon Springs, Clearwater, Safety Harbor and Pinellas Park. At the time of the hearing, Pinellas County was conducting negotiations with the Cities of Oldsmar and Dunedin to supply them with water. Like other suppliers of water within the Southwest Florida Water Management District (SWFWMD, Pinellas County is required to obtain consumptive use permits (CUP) from SWFWMD. This petitioner currently operates two wellfields -- the Eldridge-Wilde Wellfield Containing 1,925 acres and the East Lake Road Wellfield Containing 5,861 acres. In addition, Pinellas County receives water supplies from the West Coast Regional Water Supply Authority (WCRWSA), which operates the Cypress Creek Wellfield Containing 4,895 acres and the Cross Bar Ranch Wellfield Containing 8,060 acres. On an average daily basis, the Pinellas County water system presently utilizes 45 million gallons of water per day (mgd), with a peak use of 65 mgd. Projections indicate that the estimated water demand for the Pinellas County water system will be an average of 54.3 mgd, and a peak use of 90.15 mgd by 1980. For the year 1982, the estimate is 60.06 mgd average and 98.71 mgd peak. For 1984, the estimate is 65.44 mgd average and 106.65 mgd peak. At the time of the hearing, the present permitted capacity available to Pinellas County was 73 mgd average and 100 mgd peak or maximum. Estimates of projected water demands for Pinellas County indicate a definite shortage of water during peak periods by the year 1984 and a cushion of only 1.29 million gallons during peak periods as early as 1982. Pinellas County has experienced water shortages in the recent past, resulting in emergency measures such as sprinkling bans during the daylight hours. Considering the possibilities of equipment breakdowns or extremely dry periods, a cushion of 1.29 mgd is not a sufficient surplus. The WCRWSA was formulated by an interlocal agreement under Chapter 373, Florida Statutes, and is authorized to acquire water and water rights, develop, store and transport water, and to provide, sell and deliver water for county or municipal purposes or uses. The members of the WCRWSA are Pasco County, the City of Tampa, Hillsborough County, the City of St. Petersburg and Pinellas County. As noted above, the WCRWSA operates two wellfields -- Cypress Creek and Cross Bar Ranch. Pinellas County actually owns the land at the Cross Bar Ranch. At the time of the hearing, the Cross Bar Ranch Wellfield was permitted for 15 mgd average and 20 mgd peak. In August of 1979, the WCRWSA and Pinellas County, as co-applicants, filed an application for a modification of their consumptive use permit at the Cross Bar Ranch Wellfield to authorize an annual average withdrawal of 30 mgd and a maximum withdrawal of 45 mgd. Under the rules of respondent SWFWMD, an application for an increased use is treated as a new application. Rule 16J- 2.04(5), Fla. Admin. Code. Pasco County moved to intervene in the petitioners' CUP application process concerning the Cross Bar Ranch Wellfield. Among the issues raised by Pasco County in their Petition to intervene was whether the proposed consumptive use would exceed the water crop of land owned, leased or otherwise controlled by the applicants. At the time of the evidentiary hearing in the present cause, SWFWMD had not yet held an administrative hearing on the application for a CUP modification for the Cross Bar Ranch Wellfield. The application was pending both at the time of the filing of the petitions with the Division and at the time that all parties rested at the conclusion of the evidentiary hearing. The petitions filed in the instant cause challenge the validity of SWFWMD'S Rule 16J-2.11(3), Florida Administrative Code. This rule is known as the water rule, and reads as follows: 16J-2.11 Conditions for a Consumptive Use Permit. (3) Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be assumed to be three hundred sixty-five thousand (365,000) gallons per year per acre.) Another subsection of Rule 16J-2.11 provides that the governing board of SWFWMD may grant an exception to the water crop rule. Subsection (5) of Rule 16J-2.11 provides that (5) The Board for good cause shown may grant exceptions to the provisions of paragraphs (2), (3), (4), and (10) of this rule when after consideration of all data presented, including economic information, it finds that it is consistent with the Public interest. The caveat of the water crop rule is that only 1,000 gallons per acre per day may be withdrawn under any permit. The Cross Bar Ranch consists of 8,060 acres. Under the challenged rule, only 8,060,000 gallons per day could be withdrawn. Therefore, the application pending before SWFWMD for a CUP for 30 mgd average and 45 mgd peak far exceeds the water crop rule. The existing permit also exceeds the limitations of the rule. The water crop concept had its genesis in a report on the amount of available water in a certain portion of the respondent's water management district. The rule is applied district-wide by SWFWMD. In spite of its seemingly mandatory language, the rule is not ultimately implemented or interpreted in a mandatory fashion by the respondent. Instead, it is applied as an initial or threshold level of inquiry, or "first cut," and, if the other criteria for a permit can be satisfied, SWFWMD will grant an exception under subsection (5) of Rule 16J-2.11. With one possible exception, the respondent has never denied a permit solely because the application exceeded the water crop concept. It would not be hydrologically sound to deny a CUP solely on the basis of the water crop rule. Consumptive use permits can be adequately regulated without such a rule. No other water management district in Florida has promulgated or requires compliance with a water crop rule. The water crop concept is hydrologically unsound and cannot be properly applied to any specific piece of property. A generalization of the amount of water which is available throughout the district (1,000 gallons per acre per day) cannot reasonably be applied in individual consumptive use proceedings. This is due to the fact that the amount of water which can be withdrawn from any specific parcel of lad is dependent upon the amount of rainfall the land receives, soil types, the water table, the existence of confining layers, vegetation types and other variable hydrological factors. These factors vary widely throughout the subject water management district. If the water crop rule were strictly applied by SWFWMD, the petitioners would be required to purchase or otherwise acquire an additional 80,000 acres of land to supply their customers with the water now permitted to be withdrawn. This would obviously result in excessive financial burdens to the petitioners and, ultimately, consumers. Without objection by the respondent or the intervenors, evidence was adduced by the petitioners regarding the action of the Florida Joint Administrative Procedures Committee in its review of Rule 16J-2.11(3) in 1976. The undersigned makes no finding of fact regarding this evidence inasmuch as it deemed irrelevant and immaterial to the ultimate determination in this cause. As noted above, the City of St. Petersburg is a member of the WCRWSA. Because of recent water shortages, St. Petersburg has loaned to Pinellas County apportion of its allotment from a wellfield operated by WCRSWA. It is projected that the City of St. Petersburg will need additional supplies of water between the years of 1983 and 1985. The remaining intervenors are all charged with the responsibility to obtain sufficient water supplies within the district of SWFWMD. They are subject to the consumptive use permitting rules of SWFWMD. Evidence was offered on the issue of whether the water crop rule was strictly applied to Pinellas County at its East Lake Road Wellfield, which comprises 5,861 acres. At present, the amount of water withdrawal permitted is less than the water crop for the amount of acreage of the wellfield. Though there was evidence that SWFWMD inquired as to the control or ownership of the land, the actual permit application was not introduced into evidence nor was there sufficient evidence adduced by petitioner to illustrate the reasons for a permit for an amount less than that which would be permitted under the challenged rule.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Harold F. Brown is a custom agricultural applicator, and has been in the business for approximately 27 years. He has applied the pesticide aldicarb, known under the brand name of Temik, which is manufactured and sold by Union Carbide, Inc. This pesticide is used in Florida to kill nematodes that attack the roots of plants and trees in the soil. Aldicarb (Temik) is an oxime carbamate which exhibits the neuro- transmitter enzyme cholinesterase, thereby inhibiting the transmission of neurological messages across synaptic junctions. Its effect on humans is to reduce the brain's control of body organs, resulting in neurological disorder which can ultimately cause death. Aldicarb is one of the most toxic substances made for public use. The United States Environmental Protection Agency (EPA) recommends as a guideline a tolerance level of aldicarb residue of 10 parts per billion (ppb). In connection with its pesticide monitoring program the DACS accepts and relies upon residue tolerance levels established by the EPA. HRS also follows the guidelines of the EPA as to residue tolerance levels. Aldicarb was registered for use in Florida in 1975, and has been an effective and desirable product for the growing of citrus and potatoes. It was originally anticipated that the product, when used in accordance with the label instructions, would degrade rapidly under Florida soil and temperature conditions, would be found only in the superficial layers of the soil and would not leach into ground water supplies. The label instructions for the use of Temik on citrus directs an application of 67 pounds of 15G formulation per acre once a year in the springtime. The DER has the duty and authority to protect the waters of this State, including ground water, from pollution. It has enacted rules which prohibit discharges to ground water of substances in concentrations which are carcinogenic, mutagenic, teratogenic or toxic to human beings or which pose a serious danger to the public health, safety or welfare. DER also regulates public drinking water supplies, while private drinking water supplies are regulated by HRS. Existing treatment facilities are not now required and are not equipped to remove aldicarb residues from drinking water. According to data from the United States Geological Survey, 87 percent of all public drinking water supplies in Florida comes from ground water. Ground water accounts for 94 percent of the rural water use. There are two primary sources of ground water for drinking water in Florida--the surficial aquifer, also called the water table or shallow aquifer, and the Floridan aquifer. Approximately 37 percent of the State's population obtains its water solely or primarily from the shallow or surficial aquifer. Ground water contamination occurs when rain falls on a source of pollution, such as chemicals. The rainwater dissolves the chemical and creates leachate which percolate into the water table. This leachate moves both vertically and in the direction of the ground water. Ground water generally moves in a downgradient direction, at lateral speeds varying from several inches to several feet per month. The presence of withdrawal points, such as water supply wells, creates a vacuum and accelerates the movement of leachate. Temik is highly soluble in water and would be expected to move along with the ground water. Chemicals in ground water remain much longer than in surface water because there is a smaller degree of dilution and no exposure to sunlight. On or about August 6, 1982, the Commissioner of Agriculture created a "Temik Task Force" for the purpose of testing food products, ground water and drinking water for Temik residues. This Task Force was placed under the direction of the State Chemist and included members representing the DACS, DER, HRS and the University of Florida's Institute of Food and Agricultural Sciences. The Temik Task Force met with the Pesticide Technical Council on various occasions and reported its findings to the Commissioner of Agriculture on a regular basis. The DACS conducted testing on 256 orange juice and grapefruit juice samples taken from retail stores. No traces of aldicarb residues were detected in these samples from the marketplace. Traces of aldicarb residue were detected in some noncommercial orange juice from fruit sampled at the Alcoma Grove near Lake Wales. This detection did not exceed the federal guideline of 10 ppb. Twenty potato samples were tested, and one of these samples showed aldicarb residues. DER instituted a testing program in various orange groves where Temik had been used to determine whether aldicarb was entering into the ground water. Trained DER personnel utilized monitoring wells and techniques designed to avoid contamination of the ground water samples from surface waters, soils or other causes. While many of the samples revealed no detectable traces of aldicarb or traces of less than 10 ppb, samples taken between August 18, 1982 and January 19, 1983 did reveal residues much greater than 10 ppb. These positive findings existed in shallow wells located in citrus groves in Martin County (Indiantown) and Polk County (Alcoma Groves near Lake Wales). Aldicarb residues in the amount of 129 ppb were found in the Indiantown well sample on August 18, 1982. This same well located at a site where the water table is about 4 to 5 feet below soil surface was retested on September 16, 1982, and found to contain aldicarb residues of 35 ppb. On September 29, 1982, aldicarb residues amounting to 81 ppb were discovered from samples from a surface pond in Volusia County. On or about December 8, 1982, aldicarb residues in amounts of 41, 93, 49 and 47 ppb were detected from four different monitoring wells located at the Alcoma Grove ground water testing site near Lake Wales. Testing conducted on or about January 19, 1983, at the Alcoma Grove site revealed aldicarb residue levels of 125, 100 and 65 from samples taken from three monitoring wells. All positive findings came from samples taken below the unsaturated zone or water table in the surficial or shallow aquifer. Although extensive testing has not been completed by DER, residue levels in excess of 10 ppb have not been detected in areas outside an actual area treated with Temik. No residues of Temik have been found in wells located outside a citrus grove. Based upon reports from the Temik Task Force indicating that the pesticide residues were being found in the ground water, the DACS promulgated Emergency Rule 5E-ER-83-1 on January 19, 1983. This rule (which is not the subject of challenge in this proceeding), placed all uses and formulations of aldicarb on the "restricted use pesticide" list and implemented a reporting procedure requiring advance notice of aldicarb use (with the exception of its use in potted plants) and other information regarding its use. HRS tested for traces of Temik residue from approximately 171 drinking water wells. On January 25, 1983, a sample from the Birdsong well in Winter Garden, Orange County revealed aldicarb residue at a level of 5 ppb. This well was located in the middle of a citrus grove and contained a broken casing. Based upon the above positive finding of Temik residue in the Birdsong drinking water well, the DACS promulgated Emergency Rule 5E-ER-83-2 on January 28, 1983. This rule (also not the subject of the instant challenge) temporarily suspended the use of the pesticide Temik statewide, with the exception of authorized experimental use and nursery use in containerized plants. Subsequent to January 28, 1983, 224 samples were taken from some 154 residential drinking water wells in the Hastings area. These wells were representative of approximately 96 percent of the total potato growing acreage in the three counties of Putnam, Flagler and St. Johns. No aldicarb residue was detected from these samples, and the DACS was so informed on February 3, 1983. Based upon the Hastings area sampling and results, coupled with the lower rate of application of Temik for potatoes (as opposed to citrus) and the localized area of intended use, the challenged Emergency Rule 5E-ER-83-3 was promulgated on February 4, 1983. This Rule replaced and superseded the two prior emergency rules concerning aldicarb. It basically provided for the classification of aldicarb as a restricted use pesticide, and temporarily suspended its use statewide with exemptions for nursery use in containerized plants, authorized experimental use and application to potato fields only in St. Johns, Putnam and Flagler Counties, with reports required for potato applications. Testing of food products, ground water and drinking water has continued since the promulgation of Emergency Rule 5E-ER-83-3 and is expected to continue on the part of DACS, DER, HRS, the IFAS, and the manufacturer, Union Carbide. While the DACS and HRS have not discovered any samples from food products or drinking water wells exceeding the EPA guideline of 10 ppb, further aldicarb residues have been discovered. One grapefruit sample taken from the Orange County Packing-house on February 8, 1983, was found to contain 10 ppb. Another private drinking water well, the Sharpe well in Orange County, revealed an aldicarb residue level of 6 ppb on February 8, 1983. This well, located within 10 feet of the Temik-treated area, was also defective in that it had been struck by a tractor and contained a broken casing. Samples from another defective drinking water well in Volusia County revealed an aldicarb residue level of 6 ppb on February 16, 1983. There are no existing statistics or other evidence concerning the number of defective private drinking water wells in Florida. Three non-drinking wells at the same site in Volusia County revealed aldicarb residue levels of 52, 15 and 130 ppb. Ground water samples taken on or about February 23, 1983, from four sandpoint wells in the Newberger Grove in Lutz, Hillsborough County, revealed aldicarb residues of 26, 30,126 and 315 ppb. These samples were taken from depths below the ground surface ranging from 6.9 to 13.2 feet. The EPA and Union Carbide had discovered similarly high levels of aldicarb residue at this Lutz site in 1979 and 1980. There was some evidence that Temik had not been applied to the Lutz grove site since 1981. There was also some indication, or at least inference, that in those areas where high levels of aldicarb residue were discovered in ground water, the application of Temik to the citrus grove had not been performed in accordance with the manufacturer's label directions. This inference was neither proven nor disproven at the hearing.
Findings Of Fact Stuart, the county seat of Martin Count , lies on a peninsula 3 to 4 miles wide, bounded on the east, north and west by forks of the St. Lucie River, shortly before the river flows into the Atlantic Ocean. Because of the proximity of the Ocean, there is salt water in the river and in the tidal creeks which drain the peninsula. East of Stuart another, smaller peninsula juts down from the mainland, bounded by water on the east, south, and west. On this peninsula is the town of Sewall's Point. Still further east, Hutchinson Island is the last land body between Stuart and the Atlantic Ocean. Stuart's municipally-owned water system furnishes water to residents of Stuart, and also furnishes water, under contract, to Southern Gulf Utilities, Inc., for distribution to consumers in Sewall's Point and on Hutchinson Island. One third to one half of Stuart's production goes to Southern Gulf Utilities, Inc.; eight years remain on the contract between Stuart and Southern Gulf Utilities, Inc., a copy of which was admitted in evidence as petitioner's exhibit No. 2. In the last eight years, the population of Stuart has grown from 3,200 to 8,400, and the population elsewhere in Martin County has increased at a similar rate. Two aquifers underlie Martin County. The deeper, called the Floridan aquifer, does not yield potable water, although water from the Floridan aquifer could be rendered potable by reverse osmosis. Reverse osmosis costs five or ten times as much as pumping potable water from the ground, however. The shallow aquifer, which is separated from the Floridan aquifer by relatively impermeable clays called the Hawthorne formation, is the source of Stuart's public water supply. Existing wells draw potable water from this shallow aquifer, the floor of which is 150 feet deep. Precipitation seeping down through the topsoil replaces some of the water pumped out of the shallow aquifer. Average annual precipitation is 13.5 inches, but more water is being taken out than is being replaced. In order to calculate the shallow aquifer's safe yield, the District multiplied rainfall by land area. This is an application of the water crop theory, which holds that the amount of water available, without "mining" the well field, is the product of land area and net recharge. The District's calculations gave 3.3 mgd as the estimated long-term sustained yield of the effective service area which includes Stuart's well field. Not included in the effective service area for purposes of the District's calculations are Hutchinson Island and Sewall's Point, because the ground water in those areas is separated from Stuart's well field by bodies of salt water and cannot help recharge Stuart's well field for that reason. The only two other specified users in the effective service area consume approximately .1 mgd, or 36.3 million gallons a year. Subtracting these other uses from the total leaves 3.2 mgd, the amount of water Stuart seeks to have a located. This 3.2 mgd figure does not take into account the existence of non-permitted wells, however, and does not take into account the fact that some rainwater drains off into the St. Lucie River, rather than seeping underground. Empirical data demonstrate, moreover, that even at present rates of pumping, Stuart's well field is being "mined," i.e., more water is being removed from the well field than is being replaced: At one point near the existing well field, the ground water table on July 6, 1955, was 12 feet above sea level. At the same point today, the ground water table is one foot below sea level. Over the same period, the ground water table in the western part of Martin County, where there has been no significant pumping of the ground water, has not fallen significantly. In short, Stuart is depleting the ground water reservoir in the shallow aquifer under its existing well field. Depletion of fresh groundwater creates the danger of salt water intrusion into the shallow aquifer, because the peninsula on which Stuart sits is surrounded by salt water on three sides. The three experts who addressed the matter agreed that the Ghyben-Herzberg principle or relation is applicable in Stuart and wherever salt water "acts on" fresh water. According to this principle, for every foot of fresh ground water above mean sea level, there should be forty feet of fresh ground water below sea level In theory, where there is fresh ground water in proximity to salt water, and the groundwater table is 10 feet above sea level, for example, fresh water should extend to a depth of 400 feet below sea level, underneath which any ground water would be saline. In fact, the groundwater table underneath Stuart's existing well field dips below mean sea level at points, yet no salt water has been detected in the well field at depths of 80 feet and more, oven though in September, October, and November of 1973, low tides in the area averaged from 0 to 1.5 feet above mean sea level. No expert could explain this divergence between observed reality and a theory to which they all subscribed, although it was suggested that some of the clay in the region might be sealing off the fresh water and retarding salt water intrusion. If the experts are correct, however, it is only a matter of time until Stuart's well field is contaminated by salt water, assuming pumping from the field continues at the present rate. Stuart's well field is completely free of contamination by salt water at this time. At present, Stuart pumps water from its well field at a rate of between 2.7 mgd and 2.8 mgd. Monitoring wells, which have been dug at various points between the well field and the salt water indicate that salt water intrusion has not begun.. Water drawn from these wells is regularly analyzed for chlorides. To date, the highest reading in any well has been 59 parts per million, well under the recommended limit of 250 parts per million. Stuart has three possibilities for alternative or supplemental well fields; across the St. Lucie River to the north, across the St. Lucie River to the west, and south of the existing well field. The southern option would require the least capital outlay, but would result in the least reliable source of fresh water. The western option would require the most capital outlay, but would result in sufficient fresh water for the foreseeable future. The northern option would require more capital outlay than the southern option, but less than the western option, and would afford a reliable source of fresh water, possibly for as long as two decades. Test wells need to be dug in order to obtain the specific data necessary intelligently to decide among these options.
Recommendation Upon consideration of the foregoing it is RECOMMENDED: That despondent issue to petitioner a permit for the consumptive use of 2.9 mgd of water from Stuart's existing well field for a period of two years; and That respondent issue permits for all test wells petitioner seeks to dig and for which petitioner makes appropriate application. DONE and ENTERED this 28th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1977. COPIES FURNISHED: Steve Walker, Esquire South Florida Management District Post Office Box V West Palm Beach, Florida 33402 Ed Glucker, Mayor Sewall's Point 1 South Sewall Point Road Jensen Beach Post Office, Florida William R. Scott, Esquire City Attorney City of Stuart Post Office Box 599 Stuart, Florida 33494 Walter R. Stokes, M.D. 1289 Fork Road, Northwest North River Shores Stuart, Florida 33494 Robert B. Cook, Esquire The Gentry - Suite 108 860 U.S. Highway One Post Office Box 14235 North Palm Beach, Florida 33408 Harold Eckes, Utility Consultant Martin County 101 East Beverly Road Jupiter, Florida 33458
The Issue The issues are whether (a) respondent, Medardo G. Soto, should have a $1,500 civil penalty imposed for allegedly violating Sections 450.33(5) and and 450.35, Florida Statutes (1989), and (b) whether respondent, Martin G. Soto, should have a $250 civil penalty imposed for allegedly violating Section 450.30, Florida Statutes (1989).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on the morning of January 29, 1990, when Larry Coker, a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made an inspection of a citrus harvesting crew working in an orange grove on the Black Bay Citrus and Cattle Company on County Road 763 in DeSoto County, Florida. The purpose of the inspection was to determine whether the crew and its supervising contractor were in compliance with state regulations. Upon entering the premises, Coker observed a crew of eighteen workers harvesting fruit in a citrus grove. Respondent, Martin G. Soto (Martin), was operating a high lift at the work site. Coker approached Martin and asked him who was the farm labor contractor for the crew. Martin responded that his brother, Medardo G. Soto (Medardo), who is also a respondent in this cause, was the licensed farm labor contractor but he (Medardo) was in Immokalee. Martin acknowledged that he (Martin) was supervising the crew for his bother and was being paid $50 per day to do so. Division records reflect that Martin is not licensed by the State to perform that activity. Accordingly, it has been established through Martin's admissions and Coker's observations that Martin was acting as a farm labor contractor without a license. Martin was issued a citation that day which he read and signed. At the bottom of the citation Martin acknowledged that the charges contained therein were true. By allowing his brother to supervise a crew without a proper license, Medardo used an unregistered farm labor contractor in contravention of the law. Martin further acknowledged that he had driven the workers to the field that day in Medardo's 1986 Ford van. A search of Division records revealed that the 1986 Ford van did not have the required vehicle inspection or proof of liability insurance on file with Division offices. Agency rules require that evidence of such inspection and insurance be filed with the Division. Accordingly, it is found that Medardo operated a vehicle used to transport workers without furnishing the Division proof of the necessary vehicle inspection and insurance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent Medardo G. Soto has violated Sections 450.33(5) and (9) and 450.35, Florida Statutes (1989) and that respondent Martin G. Soto has violated Subsection 450.30(1), Florida Statutes (1989). It is further recommended that Medardo and Martin Soto be fined $1,500 and $250, respectively, such fines to be paid within thirty days from date of the final order entered by the Division. DONE and ENTERED this 29th of October, 1990, in Tallahassee, Florida. DONALD ALEXANDER Hearing Officer Division of Administraive 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 29th day of October, 1990. COPIES FURNISHED: Francisco R. Rivera, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658 Mr. Medardo G. Soto 1013 North 19th Street Immokalee, FL 33934 Mr. Martin Soto 1013 North 19th Street Immokalee, FL 33934 Hugo Menendez, Secretary Dept. of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658 Stephen D. Barron, Esquire 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658
The Issue Whether respondents owe petitioner money on account of sales of potatoes?
Findings Of Fact In order to finance his 1991 crops, petitioner Daniel Methvin of Hastings, had to borrow money at the end of the year before. To do that, he was told, he needed to execute contracts for the sale of the potatoes he intended to grow. He had been glad to have future contracts for the 1990 season, when a glut of potatoes pushed the price below three dollars a hundredweight (cwt). Respondent J.P. Mach Agri-Marketing, Inc. (or the company of which it is a subsidiary) had honored those contracts and paid considerably more than the market price for potatoes then. On November 24, 1990, Mr. Methvin executed a contract entitled "Sales Confirmation" agreeing to sell 10,000 cwt of "REPACK REDS", Petitioner's Exhibit No. 1 ("92% US #1 INCH AND 1/2 MIN. AT LEAST 95% SKIN, Id.) to J.P. Mach, Inc. during the period April 28 to May 31, 1991, at $6.50 per cwt. Petitioner's Exhibit No. 1. Consolidating smaller, earlier agreements, Mr. Methvin executed another contract entitled "Sales Confirmation" agreeing to sell 45,000 cwt of Atlantics ("85% U.S. #1") to J.P. Mach, Inc. during the period April 28 to May 31, 1991, at $5.75 per cwt, guaranteeing the potatoes would be suitable for chips. Petitioner's Exhibit No. 2. With these contracts (or, as to the chipping potatoes, their predecessors) as collateral, Mr. Methvin raised the funds necessary to plant. Both contracts between Mr. Methvin and J.P. Mach, Inc. had "act of god clauses" excusing Mr. Methvin's nondelivery of potatoes he failed to harvest on account of, among other things, tornadoes or hail. As it happened, tornadoes and hail prevented Mr. Methvin's reaping all he had sown. Petitioner only harvested 6,300 cwt of red potatoes and approximately 43,000 cwt of Atlantic potatoes. Another result of the bad weather was extremely high market prices, at some times exceeding $20 per cwt. On April 27, 1991, J.P. Mach visited Mr. Methvin's farm and the two men discussed incentives to keep Mr. Methvin from "jumping his contract," i.e., selling his potatoes to others at the market price. In the course of their conversation, Mr. Methvin said he needed to realize $450,000 from that year's potatoes; and Mr. Mach replied, "I will help you out", and "I will keep you in business." There was general talk of incentives and bonuses. Eventually, Mr. Mach said he would pay a premium over the contract price if Mr. Methvin fulfilled the original contracts to the fullest extent possible, by delivering all the potatoes he had; and Mr. Mach began remitting premium prices, as promised. On June 1, 1991, however, Mr. Methvin advised Mr. Mach of his intention to sell what remained of his harvest, some 1100 cwt of Atlantics, on the open market. When he carried through on this, Mr. Methvin realized approximately $200,000. Even at that, he lost $40,000 that season. Meanwhile Mr. Mach and his companies were sued for $550,000 for failure to deliver potatoes; and were not paid another $172,000 for potatoes they shipped to chip plants and others to whom they had promised still more potatoes. (Mr. Methvin was not the only grower who defaulted on contracts to ship potatoes to J.P. Mach, Inc.) As of June 1, 1991, Mr. Mach, his companies or his agents had paid Mr. Methvin "about $200,000," which was more than the contract price of the potatoes Mr. Methvin had loaded. Neither Mr. Mach nor his companies paid Mr. Methvin anything after June 1, 1991. At hearing, Mr. Methvin calculated the value of the loads as to which nothing had been remitted as of June 1, 1991, as "a few hundred more than $36,000," assuming the contract price plus the premium. But Mr. Mach and his companies or employees recalculated the price of the loads he had paid for by eliminating the premium, since Mr. Methvin had not, as promised on his side, delivered all his potatoes. J.P. Mach, Inc. was duly licensed during the 1990 season. After its license lapsed, a new license was issued to J.P. Mach Agri-Marketing, Inc. on April 24, 1991. A $50,000 certificate of deposit was filed with First Performance Bank as a condition of licensure.
Recommendation It is, accordingly, RECOMMENDED: That petitioner's complaint be denied. DONE and ENTERED this 3rd day of April, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1992. COPIES FURNISHED: Daniel Methvin Route 1, Box 92 Palatka, Florida 32131 Jeffrey P. Mach, President J. P. Mach Agri-Marketing, Inc. P.O. Box 7 Plover, Wisconsin 54467 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agricutlure 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact On March 14, 1973, Wesnofske Farms, Inc., of Crescent City, Florida, entered into an agreement with Richard Weller of Warehouse Point, Connecticut, as receiver and Morgan Produce, Inc., of Lincoln, Delaware, as agent/Broker for the receiver. Wesnofske agreed to deliver 10,000 hundredweight of potatoes at an agreed price of $4.10 per hundredweight f.o.b. Wesnofske Farms in Crescent City, Florida. The contract provided, inter alia, that the deliveries were to be prorated over or about seven week harvest period which began at the time of digging or about April 15, 1978, subject, of course, to weather, digging conditions and crop maturity. The contract also provided that in the event of crop failure due to drought, etc., or any act of God, the contract was to be probated in accordance with acreage yield, etc. (See Exhibit A). William B. Morgan, President of Morgan Produce, Inc. served as the broker for the parties. Mr. Morgan testified that due to the extended cold weather season, digging commenced on or about May 3, 1978. On that date, May 3, 1978, Morgan telephoned Respondent, Richard Weller, and advised him that the first deliveries were ready and inquired of Weller when his first trucks would be arriving to accept delivery. Weller indicated that marketing conditions extant at the time forced him to decline delivery of potatoes and instructed Morgan to contact Mr. Jack Rubin and offer his deliveries to him. Morgan contacted Rubin and offered the potatoes for $6.80 per hundredweight, whereupon Rubin advised that he had at that time more contracts at lower price that he could handle. Weller was advised of Rubin's response and instructed Morgan to sell his deliveries to the best of his ability on the open market. Beginning on May 6, 1978, Morgan began selling potatoes from the Weller contract to various co-ops and distributors at a profit through approximately May 16, 1978, when there existed a glut in the potato market. Weller was advised by Morgan that he would not be able to continue showing him a profit on his contract if the then present market conditions continued. Weller was advised by Morgan that the potatoes were presently bringing approximately $3.75 per hundredweight to the open market, which, of course, would represent a loss to him of 35 cents per hundred pounds. At that time, it appeared that the depressed market conditions would continue throughout the digging season and, this being the first contract that Petitioner had entered with Respondent, Morgan contacted Petitioner's farm manager, Joseph Froehlich. Morgan and Froehlich discussed the matter and decided that it would be advantageous to release Respondent from his contractual obligations with no loss to him and to credit Respondent's account for all profits accrued as of that date. According to Morgan, Weller agreed and was pleased with this proposal of being rid of the contractual obligations due to the depressed market conditions. From the period May 6, 1978, through June 1, 1978, when Weller was released from his, contract, Weller had earned a net profit of approximately $1,900 (See Exhibit B). During the period of May 16 through May 26, 1978, Morgan sold approximately 921,960 hundredweights at $3.75 per hundredweight, which had been grown for Richard Weller and Orlowski Produce Company, another contracting entity (See Exhibit C). However, on or about May 18, 1978, the market conditions turned around due to low acreage yields of area farms which caused a potato shortage with a resultant rise in market prices. At that time, Weller contacted Morgan and demanded a load of potatoes allegedly due on his contract on May 18, 1978. Morgan discussed the matter with farm manager Froehlich, and it was agreed that Petitioner would provide deliveries to Respondent from purchases of other area farms although Petitioner was of the opinion that it was not obligated to do so, inasmuch as Respondent had been released when market conditions were depressed. Deliveries to Weller resumed on May 18, 1978, and continued through June 7, 1978. From the period June 6 through June 8, 1978, Petitioner was unable to provide shipments from its supplies and, therefore, purchased on the open market, three shipments for the Weller contract at a price of $7.85 per hundred pounds. Based on these bulk loads purchased on the open market, the difference between the contract price and the open market price resulted in a deficiency of approximately $4,865.25 which was charged to Richard Weller's account when an invoice was forwarded him pursuant to contract. On June 26, 1978, Weller was invoiced for $32,202.41, of which amount Weller paid $27,337.16 on July 15, 1978, pursuant to the $4.18 per hundredweight contracted price for all deliveries (See Exhibit E). Joseph Froehlich testified that due to the inclement weather conditions, the late acreage yields were down to approximately 40 hundred pounds per acre, which was substantially less than the other acreage had yielded. Froehlich testified that had Respondent accepted deliveries of potatoes when offered during the early digging season, his contractual allotment could have been fulfilled; however, he opted to be released at a time when market conditions were poor. Thus, Froehlich contends, that Petitioner was not obligated to purchase potatoes on the open market for Weller and sustain a loss when market conditions dictated higher prices. This was so Froehlich contends, first of all because Respondent failed to accept delivery of the potatoes when they were available to him pursuant to the terms of the contract and, secondly, inasmuch as Respondent was relieved from the terms and obligations of the contract when market conditions were poor. During the course of the hearing, Petitioner's representative, Morgan, indicated that the Wesnofskes were not negotiating the partial tender of payment by Respondent in the amount of $27,337.16 until the administrative hearing herein was completed. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, hereby, RECOMMENDED: That the State of Florida, Department of Agriculture and Consumer Services uphold the claim of the Petitioner, Wesnofske Farms, Inc., in the amount of $32,202.41, plus normal interest accruing from July 15, 1978, as provided in the contract, plus a reasonable amount for costs and fees for preparation of this administrative claim. Based upon the testimony offered during the course of the hearing, a reasonable amount appears to be approximately $1,000. RECOMMENDED this 12th day of June, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
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
The Issue The issue in this case is whether Petitioners' activities on their property in Sumter County, which impacted 38 acres of wetlands, are exempt under Section 373.406(2)-(3), Florida Statutes,1 from environmental resource permit (ERP) regulation.
Findings Of Fact Petitioners hold title to approximately 180 acres of agricultural land north of State Road 44 in Sumter County.3 Danny J. Suggs and his wife purchased the property in 1997 and 1998 to start to fulfill his "dream" to build multiple residences for himself and his wife and for members of his family on the property and to raise cattle and plant a pecan grove and retire from his construction and roofing contracting businesses. His concept was for the real estate to be held in a family trust. When Mr. Suggs began to implement his plans, he learned that Sumter County required that the building permit for each residence be on a separate parcel of at least five acres in size. For that reason, he gave his family members five-acre deeds for each residence he wanted to build. However, while they had deeds for their lots, none of the family paid more than nominal consideration, paid for costs of development or construction, or had any actual control of Mr. Suggs' plans for the property. Soon after buying the property, Mr. Suggs bought a few head of cattle that were allowed to roam and graze on the property. He then began to develop the property. He dug canals, ditches, and ponds, and constructed fill roads. As part of his surface water management system, Mr. Suggs constructed an earthen berm along part of the western perimeter of the property to keep water from flowing off his property and into Rutland Swamp and Creek, which are waters of the State. Some of Mr. Suggs' land alterations were in the 100-year floodplain, including an encroachment into land owned by a neighbor. Mr. Suggs testified that he has the neighbor's permission, but he has no written permission for the encroachment. Mr. Suggs' activities on the property impacted approximately 38 acres of wetlands. In December 2002, the District cited Petitioners for dredging and filling wetlands on the property without a permit. Extensive litigation ensued, during which Petitioners took the position that they were exempt under Section 373.406(2)-(3), Florida Statutes--the "agricultural" and the "agricultural closed system" exemptions, which are set out in Conclusion 18. Petitioners continued development and construction activities until enjoined by the circuit court in March 2004. By the time of the court's injunction, Mr. Suggs had completed about 80 percent of his planned surface water management system for the property. Mr. Suggs intended his design to retain all surface on the property in a 50-year, 24- hour storm event. However, it was not proven that Mr. Suggs' design would have accomplished his intended purpose. By the time of the court's injunction, Mr. Suggs also had built six large residences for family members and dug ditches around each residence for drainage. He says he has plans to build another eight identical residences for other family members. In May 2004, Petitioners retained Gary Bethune, an agricultural engineer, to attempt to design an agricultural closed system that would be exempt under Section 373.406(3), Florida Statutes, for presentation in a hearing before the state circuit court. Mr. Bethune completed his design in June 2004. Mr. Bethune's design includes an earthen berm to retain all surface on the property in a 100-year, 24-hour storm event. It also incorporates a spillway to discharge excess water into the Rutland Swamp and a covered conveyance structure to allow water from the eastern side of the property to pass through without commingling with surface water on the property and to discharge into Rutland Swamp on the western side of the property. Mr. Bethune's design will not retain surface water on the property in the event of a storm exceeding the 100-year, 24- hour design storm; it also will not necessarily retain all surface water on the property in the event of multiple storm events not exceeding the 100-year, 24-hour storm event. Mr. Bethune's design does not address groundwater. Groundwater will flow under the property towards Rutland Swamp and Creek. Surface water on the property, together with contaminants from cattle grazing on the property and fertilizer and pesticides used growing pecan trees, will percolate into the ground, mix with the groundwater, and flow into Rutland Swamp and Creek. Mr. Bethune's design is not appropriate or reasonable for either a cattle ranch or a pecan grove. It will cause the property to flood during the design 100-year, 24-hour storm and in various combinations of lesser storms. A bona fide cattle ranch is not designed to flood during the wet season. Similarly, a bona fide pecan grove is not designed to flood during the wet season. During and after Mr. Suggs' development and construction activities, his cattle have continued to roam freely around the property. However, besides the inappropriateness and unreasonableness of Mr. Bethune's design for a cattle ranch, Mr. Suggs' other activities also are inappropriate and unreasonable for a bona fide cattle ranch. The ponds, canals, and ditches he dug are much deeper and have banks much steeper than a bona fide cattle ranch would have. They are so deep and steep that cattle will have great difficulty using them for drinking water. In addition, fill from the extraordinarily deep ponds, canals, and ditches as well as fill Mr. Suggs had delivered from offsite has been spread on the property to a thickness that has reduced the amount of cattle forage on the property, instead of increasing and improving it, as would occur on a bona fide cattle ranch. Besides the inappropriateness and unreasonableness of Mr. Bethune's design for a pecan grove, there are no pecan growers anywhere near Petitioners' property. Even if feasible to grow pecans for profit on the property, there was no evidence that any alteration of the property would be appropriate or reasonable to plant a pecan grove. Although there is an area of upland where Mr. Suggs says he wants to plant pecan trees, not a single pecan tree has been planted yet (as of the time of the final hearing). In addition, there was no evidence that the land designated for a pecan grove would not be needed for the eight additional residences Mr. Suggs says he plans to build on the property. The primary purpose of Mr. Suggs' surface water management system is not for agricultural purposes, or incidental to agricultural purposes. Rather, the primary purpose is to impound and obstruct the flow of surface water to facilitate the construction of the residences on his property--the six already built and another eight he plans to build. Mr. Suggs refers to the residences he has built and plans to build as family residences to be owned by a family trust, the six residences already built are now for sale at an asking price of a million dollars each.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order that Petitioners' activities on their property are not exempt from ERP regulation. DONE AND ENTERED this 19th day of February, 2009, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 19th day of February, 2009.
The Issue Whether Robert A. Pace has violated Section 482.161(5) and (6), Florida Statutes, and Rules 10D-55.04(4) and 10D-55.35(2), Florida Administrative Code, and therefore should be denied a pest control identification card and the opportunity to take the examination to become a certified pest control operator.
Findings Of Fact Testimony and evidence was introduced by DHRS from various witnesses regarding Pace's activities as the holder in the past of a pest control identification card with both Suncoast and Bay Area Control Companies, and as an emergency certified pest control operator for Suncoast Pest Control Company. From that testimony only the following factual allegations were proven. All other allegations against Robert A. Pace as stated in the letters of denial clearly were not proven by substantial and competent evidence. On or about March 21, 1974, Pace was a holder of a pest control identification card as an employee of Suncoast Pest Control. At this time Pace was also a partner in this company. On that date, Robert Pace offered to conduct a free termite inspection of the residence of Melvin Redlin. The inspection was conducted and live termites were shown to Mrs. Redlin by Pace with the explanation that they had been found in the area of the tub trap or plumbing service access in the bathroom of the Redlin's home. On the same day, Pace solicited a termite treatment contract with the Redlins. Treatment for subterranean termites was begun by employees of Suncoast Pest Control, but while it was in progress, one of Redlin's neighbors stated that he had never seen termites. One of the Suncoast employees stated that he had some live termites in the truck and showed Redlin and others a log infested with live termites. At that point Redlin became irate, suspecting that the individual who had inspected his home had shown his wife termites taken from the truck and not from the plumbing access space. Redlin ordered all work by Suncoast to cease. At the time Redlin directed them to stop, chemicals were being introduced into the ground around the slab foundation of the Redlin home. Before leaving, a Suncoast employee poured a jar of chemicals into the tub trap. Three weeks later, in response to a complaint by the Redlins, William Bargren, who is qualified as an expert witness in entomology and who is employed as an investigator with DHRS, inspected the Redlin's residence. Bargren found no evidence of prior termite infestation. On or about July 1, 1974, a contract for the treatment of subterranean termites was solicited from John A. Johnson by Suncoast Pest Control Company. This contract bore the signature of Robert A. Pace as a representative of Suncoast; however, Johnson was unable to identify Robert A. Pace at the hearing and described the man with whom he had dealt as being taller and heavier than Pace. Pursuant to this contract, the Johnson's house was treated for subterranean termites and certain structural repairs were made in the attic by employees of Suncoast. William Bargren, identified above, testified that upon his subsequent inspection of the home, in his opinion, it was only partially treated. Bargren found evidence of previous subterranean termite infestation but concluded that the inner walls of the foundation of the house had not been treated. For the treatment of the subterranean termites and repairs to the house Johnson wrote checks payable to Suncoast in the amount of One Thousand Eight Hundred Twenty-Two Dollars and Forty-Five Cents ($1,822.45) and One Thousand One Hundred Fifty-Five Dollars ($1,155.00). Pace was not an emergency pest control operator until July 10, 1974. The deposition of Mrs. Annie Symons, admitted pursuant to stipulation of the parties, indicates that in October, 1974, an employee of Suncoast Pest Control known only as "Joe" to Mrs. Symons inspected her residence for termites. Mrs. Symons had recently purchased the house and obtained a termite inspection and certificate prior to purchase certifying there was no evidence of termite infestation. The Suncoast employee inspected Symons' residence and advised her that her house had an active termite infestation showing her a piece of wood with live termites. Mrs. Symons called Southern Labs, the pest control firm which had conducted the original inspection. Michael Spokes, an employee of Southern Labs, reinspected Symons' residence and found no evidence of termite infestation. Concerned at the conflicting reports, Mrs. Symons contacted the Division of Health and her house was inspected by David Jones, an etomologist qualified and accepted as an expert witness at hearing and employed by the Division of Health as an inspector. Jones inspected Symons' house and could find no evidence of termite infestation. In October, 1974, Pace was the emergency certified pest control operator for Suncoast. There was no evidence introduced that Suncoast was advised of the Symons matter and that Pace was on notice of the conduct of his employee. On or about July 23, 1975, Robert A. Pace, Philip Nicholson and Rick Draper went to the residence of Irene Shipley, 301 East Lake Fern, Lutz, Florida. Mrs. Shipley was offered a free inspection by Mr. Pace which she accepted. While Pace talked with her outside of her house, Rick Draper inspected her house and a mobile home belonging to her son located to the rear of her property. According to Mrs. Shipley, Draper went under both structures and produced insects which he identified as termites. Mrs. Shipley and Pace stood outside during the inspection and discussed and negotiated a price for treating both structures. Pace stated that he would spray under both homes, the woodwork and the attic for One Hundred Fifty Dollars ($150.00) for each home. Eventually a price of Two Hundred Fifty Dollars ($250.00) was negotiated to treat by spraying both homes. The area under and around both homes was sprayed, and an attempt to spray the attic was made but was thwarted by an inner roof. After completing the Work, Mrs. Shipley gave a check to Pace payable to him in the amount of Two Hundred Fifty Dollars ($250.00). Pace gave her a contract for pest control treatment. Subsequently, Mrs. Shipley became concerned and asked the assistance of the Division of Health. William Bargren, identified above, conducted an inspection of both houses. Under Mrs. Shipley's home he could find no evidence of subterranean termite infestation but did discover dry rot, and under the mobile home, Bargren found evidence of a prior subterranean termite infestation. Bargren stated that in his opinion the treatment given both homes was insufficient because there was no evidence trenching around the house supports or boring in the pilings which he discovered under the mobile home. In October, 1975, Frank Logan contacted Robert A. Pace, while Pace was treating a home for subterranean termite infestation. Logan stated that he was impressed with the work being done and asked for Pace's card. Logan stated that he knew that his home was infested with termites and later called Pace and asked for Pace to inspect his home. Pace conducted an inspection of Logan's home and advised Logan that he had a subterranean termite infestation. Pace testified that he also saw no evidence of what he took to be an inactive dry wood termite infestation in Logan's attic. Subterranean termite treatment was made of Logan's home; however, when Logan's problems were unabated for a year, he contacted the Division of Health. William Bargren, identified above, inspected Logan's residence and found evidence of subterranean termite infestation, a substandard treatment for subterranean termites, and an active dry wood termite infestation in Logan's attic. The subterranean termite treatment was substandard in that the voids in the concrete block foundation had not been drilled and treated. Bargren also testified that the signs of dry wood termites which Pace described as having seen would not indicate an inactive infestation but an active infestation. Bargren did not offer any opinion as to whether the dry wood infestation was over a year old. Bargren stated that dry wood termites are not effected by control treatment for subterranean termites because they do not require contact with the ground. Pace and his colleague, Nicholson, who had assisted Pace on the job, each thought that the other had treated the foundation. ULTIMATE CONCLUSIONS OF LAW Pace is charged with the violation of Section 482.161 (5) and (6) and Rule 10D-55.04(4), Florida Administrative Code, arising out of his conduct in providing pest control services to Melvin Redlin. Because Mr. Redlin demanded that the employees of Suncoast cease treatment of his home prior to their having completed the job, a charge of negligently treating the Redlin residence cannot be sustained. Because live termites were shown to Mrs. Redlin, strong evidence did exist of an active infestation if the termites were from the bathroom plumbing service access. If the termites were introduced by Pace into the Redlin home, clearly Pace would be guilty of fraud and misrepresentation in violation of Section 482.161(5) Florida Statutes. Based on Bargren's testimony that no evidence was found in the bath plumbing service access area of a prior subterranean termite infestation, together with the fact that treatment of that area was done rapidly without opportunity to substantially clean the area, the Hearing Officer finds that such a false representation was in fact made by Pace. Evidence introduced by DHRS clearly indicated that Pace was not an emergency certified pest control operator until July 10, 1974. The treatment of the Johnson residence occurred on July 1, 1974. Rule 10D-55.35, Florida Administrative Code, applies only to certified pest control operators; therefore, Pace cannot be held accountable under that rule for his own activities or the activities of Suncoast employees with regard to the termite control treatment of the residence of John A. Johnson. Bargren found evidence of a prior subterranean termite infestation at the Johnson residence; therefore, there could have been no misrepresentation of an infestation. Bargren did find that the foundation of the Johnson residence was not properly drilled and protected with pesticide. Therefore, Pace did not use methods suitable for the treatment of subterranean termites in violation of Section 482.161(5), Florida Statutes. Although the certified pest control operator for Suncoast on July 1, 1974, would have been responsible for Pace's failure, Pace himself cannot avoid responsibility for his failure to properly treat the Johnson residence by virtue of the provisions of Rule 10D-55.35, supra. There is clear evidence that an employee of Suncoast other than Pace misrepresented the facts of an infestation to Annie G. Symons contrary to Section 482.161(5), Florida Statutes, and Rule 10D-55.04(4), Florida Administrative Code, in October, 1974. At that time Pace was an emergency certified pest control operator. There was no evidence introduced that Pace was contacted by Symons or by DHRS regarding misrepresentation to Annie G. Symons by an employee of Suncoast. Pace cannot be vicariously liable under the provisions of Section 482.161(5) or Rule 10D-55.04(4), Florida Administrative Code, where knowledge of a misrepresentation is required. Although responsible for the pest control treatments as a certified operator, Pace cannot be considered liable for the misrepresentations of a Suncoast employee when Pace was not aware a contract had been made. Pace clearly violated Rule 10D-55.05(2), Florida Administrative Code, by failing to give Mrs. Shipley a copy of the contract before the work was done and payments made. It was clear that the nature of the treatment Pace was to perform was clearly explained to Mrs. Shipley prior to the commencement of the work. Bargren found prior evidence of subterranean termite infestation under one of the homes, and damage to the wood under the other as a result of dry rot. In any event, the inspection of the premises was by Rick Draper, and although Pace sold Mrs. Shipley the contract, it is clear that Mrs. Shipley knew that Pace did not conduct the inspection of the houses because she was talking with Pace outside while watching Draper inspect the house. Bargren's testimony was that the treatment was substandard, and he also testified that the prior infestation of subterranean termites under the mobile home had been stopped. The testimony indicated that bargaining went on between Pace and Shipley regarding the treatment that would be applied and the price for the treatment. Treatment in accordance with this agreement was performed or a good faith effort made. Considering the circumstances there is not substantial and competent evidence of a violation of Section 482.161(5) or (6), Florida Statutes, or of Rule 10D-55.04(4), Florida Administrative Code. Pace is charged with not providing adequate subterranean termite treatment and not treating an active dry wood termite infestation at the residence of Frank Logan. Bargren's inspection revealed evidence of a prior subterranean termite infestation which had been controlled and an active dry wood termite infestation in Logan's attic. Bargren's inspection took place over one year from the date of Pace's initial inspection and treatment. Pace stated that he saw evidence of what he took to be an inactive dry wood infestation when he initially inspected Logan's residence. No evidence was obtained concerning whether the infestation of dry wood termites was over one year old. Testimony was received that dry wood termites will not be affected by subterranean termite control measures; and, further, dry wood termites may fly into a building and start a colony if preventive measures have not been taken. Logan testified that the initial treatment by Pace did not control the termites because he kept seeing them. Pace was negligent in treating for subterranean termites in that he failed to assure that the foundation voids were treated contrary to Section 482.161(6), Florida Statutes. The length of time between Bargren's inspection and Pace's treatment together with the manner of infestation of dry wood termites creates sufficient doubt regarding the allegation of Pace's failure to properly identify the dry wood infestation to find the allegations not proven. The individual allegations proven above are not significant when taken singularly; however, the evidence taken as a whole presents a picture of high pressure salesmanship by Pace and those with whom he was associated, together with poor workmanship in application of treatments. In one instance the evidence is clear that Pace made a misrepresentation of a termite infestation where evidence was lacking. He did solicit contracts on occasions in which another employee made the inspections and he lacked specific knowledge of the conditions found. As part owner of Suncoast, Pace had the responsibility to oversee his employees which he failed to do. Pace should have taken greater care to insure his employees had properly inspected homes, and were dealing honestly and forthrightly with customers. As an employee, Pace did not treat homes in a workman like manner in accordance with accepted practices. The course of conduct engaged in by Suncoast and Pace's failure to control his employees cannot be overlooked.
Recommendation Considering the findings of fact generally and the conclusions of law, the Hearing Officer would recommend that the Department of Health and Rehabilitative Services deny Pace's application to take the examination to become a certified pest control operator on the basis that Pace has not actively worked in pest control for some months, that substantial and competent evidence exist which indicates that Pace's expertise in pest control is lacking, and that his prior conduct raises questions of his business reputation and his ability to supervise employees. The Hearing Officer would further reand that Lewis S. Hall's request for an identification card for Pace be disapproved on the specific basis that Pace misrepresented an infestation to Mrs. Marian Redlin, which reflects adversely on Pace's business reputation and good character. DONE and ORDERED this 29th day of April, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank Wollett, Esquire Nixon E. Farnell, Esquire 521 Oak Avenue Clearwater, Florida 33516 Barbara Dell McPherson, Esquire Post Office Box 2417 F Jacksonville, Florida 32231
