The Issue The issues in this case are whether Raysbrook Sod, Inc. (Respondent), is indebted to Florida Sod, Inc. (Petitioner), related to the sale and purchase of sod, and, if so, in what amount.
Findings Of Fact Petitioner is a corporation engaged in the business of harvesting sod. Petitioner is located in LaBelle, Florida. Respondent is a corporation located in Riverview, Florida, and is also engaged in the sod business. In September 2007, Respondent was interested in purchasing some sod in order to satisfy a customer's needs. Respondent's regional supervisor, Gabriel Monsivais, approached a gentleman by the name of Trampis Dowdle about purchasing sod. Monsivais had never met Dowdle and, in fact, knew him only as "Mr. Trampis." Dowdle represented that he could obtain sod from Petitioner, and a deal was struck. There was no written contract between Monsivais and Dowdle, nor--quite interestingly- -between Petitioner and Respondent. Nonetheless, Respondent had its drivers go to Petitioner's sod field and begin loading sod for Respondent's use. In all, approximately 1,700 pallets of sod were acquired from Petitioner's field by Respondent. Each time a load of pallets was taken, a Load Sheet was created to show the number of pallets, the location of the field, and the name of the person taking the sod. The driver of the truck was expected to sign the Load Sheet, indicating that the sod had indeed been received. There is no dispute between the parties about the number of pallets taken by Respondent's drivers.1 As sod was taken by Respondent, Petitioner would issue an invoice reflecting the amount of sod and the price to be paid. The invoices were sent to Respondent via U.S. Mail. The total amount billed for the sod was $42,559.16. Respondent issued a check (No. 8899) in the amount of $1,271.16, made payable to Petitioner on November 30, 2007, in payment of the first invoice from Petitioner. No further checks from Respondent were received by Petitioner, leaving a balance due of $41,288.00.2 Respondent, however, did attempt to make payments for the sod it purchased. Respondent wrote checks to Dowdle based on Dowdle's representations that he either owned Petitioner's company or was working for Petitioner. In fact, Dowdle neither owned nor was in any way affiliated with Petitioner. Dowdle was apparently defrauding Respondent (and possibly Petitioner as well). Respondent's representative, Joseph Bushong, and Petitioner's representative, Jake Alderman, had never met prior to the day of the final hearing in this matter. There was no written contract between the parties. The entire business relationship between the parties was done orally, based on conversations between Monsivais and Dowdle. Nonetheless, Respondent did obtain over $42,000.00 worth of sod from Petitioner. Respondent does not contest this fact. Respondent's actions indicate acknowledgement of the presumed relationship between the parties. Respondent submitted a credit application to Petitioner with references and credit information to be used by Petitioner in extending credit to Respondent for the sod it was purchasing. Respondent issued at least one check directly to Petitioner for payment of the sod in response to an invoice issued by Petitioner. The check was made payable to "Florida Sod" in the amount of $1,271.16. That check directly corresponds to the amount in Invoice No. 1697 from Petitioner dated October 8, 2007. Respondent did receive additional invoices from Petitioner for the sod Respondent had purchased and received. Clearly, there was an understanding between the two companies that a business relationship existed. After making its first payment to Petitioner, Respondent's subsequent payments for the sod were made directly to Dowdle and his companies. One such payment, made by way of a credit card, was actually applied to a restaurant with which Dowdle apparently had some business connection. Other payments were made via checks made payable to other Dowdle interests. Respondent made payments to Dowdle in the mistaken belief that Dowdle was the agent of or employed by Petitioner. In fact, Dowdle has never been affiliated with Petitioner. Petitioner did not receive any of the payments made by Respondent to Dowdle. Petitioner and Dowdle are not related or affiliated in any fashion (other than a prior arm's-length sod purchase between the two). It is clear that Dowdle received the payments intended for Petitioner in payment for the sod purchased by Respondent. Dowdle, whose whereabouts are unknown by the parties, did not provide Petitioner with the payments. Rather, from the evidence, it appears that Dowdle kept the payments, thereby committing a fraud on both Petitioner and Respondent. Though both parties are somewhat at fault in this matter for failure to utilize normal and acceptable business practices, one or the other party must necessarily bear the burden of payment. The evidence supports Petitioner in this regard because it best followed normal business procedures. Had Respondent made its remittance checks payable to Petitioner (who had issued the invoices), Dowdle would not have been able to abscond with the money. Had Respondent obtained some affirmative proof that Dowdle was an agent of Petitioner, Respondent would have known better than to provide money to Dowdle. Had Respondent contacted Petitioner directly instead of relying on third parties (its foreman and Dowdle), the deception would have been uncovered. However, the facts of this case support the proposition that Petitioner made a valid sale of sod to Respondent, and Respondent did not pay Petitioner for the sod.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring Respondent to pay Petitioner the sum of $41,288.00 within 30 days of entry of a final order. DONE AND ENTERED this 31st day of October, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2008.
The Issue The issues in this cause are whether respondent is guilty of violating F.S. 561.42(1) in that it did assist four retail vendors by giving gifts and/or guilty of violating F.A.C. Rule 7A-4.45 in that it failed to reflect on four invoices the complete addresses of four vendors and their signatures, and if so, whether a civil penalty should be assessed against respondent's license or such license should be suspended or revoked, pursuant to F.S. S. 561.29.
Findings Of Fact Having considered the testimony and evidence presented at the hearing, the following findings of fact are made: On or about June 1, 1975, Mr. George C. Gould went to respondent's place of business and obtained six to eight boxes containing 12,000 to 15,000 invoices. Four of these invoices form the basis for the present charges against respondent. Invoice No. 5327, dated January 23, 1975, contains the information, inter alia, that items were sold to "Magic Market number 139, Apal Pkway," License Number 47-164, and also that one bottle of Boones Farm Strawberry Wine was delivered as a promotional item at no charge. Invoice No. 5331, dated January 23, 1974, is for "Inland Quick Stop, Hwy 20 and Cap. Circle", License No. 47-175, and indicates that one bottle of Boones Farm Strawberry Wine was delivered at no charge as a promotional item. Invoice No. 5332, dated January 23, 1974, is for "Tempo, W. Tenn. St." License No. 47-17, and indicates that one bottle of Boones Farm Strawberry Wine was delivered as a promotional item at no charge. Invoice No. 6512, dated February 6, 1974, is for "Subway, W. Tenn. St.", License No. 47-145, and indicates that one bottle of Rhine was delivered as a sample at no charge. None of the above invoices contained the signature of the vendors. Mr. Monty Myers, President of respondent, acknowledged that technical breaches occurred when the bottles of wine were given to the vendors above listed. In mitigation, Mr. Myers stated that the giving of promotional gifts had been going on for some time, especially with the beer distributors. In May of 1975, Mr. Myers, other distributors and five persons with the Division of Beverage had a meeting. At this meeting Mr. Myers acknowledged that he had in the past given promotional items to vendors. Members of the Division of Beverage informed Myers and the others that after this May meeting, charges would be brought against those who gave away promotional items or gifts. No promotional items have been given by respondent since the May meeting. Myers further testified that he did not understand the extent of the address requirement, that the number 47 in the license number represents Leon County and that he would now be able to comply with the address requirements.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating F.S. s. 561.42(1) and F.A.C. Rule 7A-4.45, and that a civil penalty in the amount of $80.00 be imposed. Respectfully submitted and entered this 17th day of November, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Johns Building 725 South Bronough Street Tallahassee, Florida J. Klein Wigginton, Esquire 504 East Jefferson Street Tallahassee, Florida
The Issue Whether Respondents, Ag-Mart Produce, Inc. (Ag-Mart), and its employees' Justin Oelman (in DOAH Case No. 06-0729) and Warrick Birdwell (in DOAH Case No. 06-0730), committed some, any, or all of the violations alleged in the Administrative Complaints detailed herein and, if so, what penalty should be imposed.
Findings Of Fact Based upon the evidence presented at the final hearing, the following relevant findings of fact are made: The Department is the state agency charged with administration of the Florida Pesticide Law, Chapter 487, Part I, Florida Statutes. Among the duties of the Bureau of Compliance Monitoring within the Division of Agricultural Environmental Services are the designation and regulation of restricted-use pesticides, the testing and licensure of certified pesticide applicators, and the enforcement of federal worker protection standards regarding the exposure of farm workers to pesticides. §§ 487.011, 487.042, 487.044, and 487.051, Fla. Stat.; Fla. Admin. Code R. 5E-2.039. The Administrative Complaints allege two types of violation of the Florida Pesticide Law. First, they allege that Ag-Mart harvested tomatoes prior to the end of the pre-harvest interval, the period of time that must pass after a pesticide is applied to a tomato plant before that plant's fruit may be safely harvested. The pre-harvest interval is specified on the labels of restricted-use pesticides. Second, they allege that Ag-Mart allowed workers to enter sprayed fields prior to the end of the restricted entry interval, the period of time that must pass after a pesticide is applied before it is safe for a worker to enter or remain in the treated area. The restricted entry interval is also specified on the labels of restricted-use pesticides. In 2004, Ag-Mart operated farms in several locations in Florida and North Carolina. Ag-Mart operated packing houses in Plant City, Florida, and in New Jersey. Ag-Mart grows, packages, and distributes grape tomatoes under the "Santa Sweets" label, and a round-type tomato marketed as "Ugly Ripe." During all times relevant to this proceeding, Ag-Mart's principal administrative offices were located in Plant City, Florida, and Ag-Mart's operations were managed by its president, Donald Long. At the final hearing, several Ag-Mart employees, including Mr. Long, testified as to Ag-Mart's practices in establishing planting and pesticide spraying schedules, carrying out those schedules in the field, and ensuring that legal restrictions on pesticide use are observed. This testimony is credited as to Ag-Mart's general pattern and practice, but does not disprove the Department's evidence as to particular instances of pre-harvest interval or restricted entry interval violations. Among other duties, Mr. Long was responsible for scheduling Ag-Mart's cultivation of tomato plants at the company's farms, so that product is available year-round. Mr. Long prepared a 2004 planting schedule that spaced the planting of new crops a week to ten days apart to ensure a continuous flow of tomatoes once the plants matured. For the 2004 season, the South Florida farm began planting in September 2003, with harvesting commencing in December 2003 and continuing through May 2004. The North Florida farm started its spring season plantings in March and April 2004, with harvest beginning in early June 2004 and lasting until August 2004. Each "planting" at Ag-Mart consists of a specific amount of acreage that is cultivated for a specific period of time to produce an expected yield of tomatoes. Mr. Long determines the size of each planting based on past yields and projected needs. A single planting of grape tomatoes is harvested multiple times. Depending on conditions, a planting of grape tomatoes at the South Florida farm can be harvested between ten and 15 times in the fall, with fewer harvesting opportunities in the spring. A planting of grape tomatoes at the North Florida farm may be harvested between eight and ten times. Each planting takes up portions of acreage called "fields," which are divided by land features and irrigation systems. Fields are of varying sizes, depending on the nature of the terrain and the irrigation system. The fields are numbered, and a planting is usually done in a certain number of roughly contiguous fields. A field is further divided into separately numbered "blocks," each block consisting of six rows of tomato plants, three rows on each side of a "drive area" through which tractors and harvest trucks can maneuver to reach the plants. The blocks are numbered in sequence from the beginning to the end of the field. At the South Florida farm in 2004, Ag-Mart cultivated ten separate plantings of between 79 and 376 gross acres. Each planting contained as few as three and as many as ten separate fields. At the North Florida farm in 2004, Ag-Mart cultivated five separate plantings of between 92 and 158 gross acres. Each planting contained either two or three separate fields.2 The cycle of farming activities at the Ag-Mart farms included ground preparation, planting, staking, tying, harvesting, and post-harvest clean-up. Farm laborers were recruited and transported to the fields by crew leaders, who must be registered as farm labor contractors with the Department of Business and Professional Regulation pursuant to Chapter 450, Part III, Florida Statutes, and Florida Administrative Code Rule 61L-1.004. The crew leaders supervised the field laborers and prepared their weekly time cards. The crew leaders were directed by Ag-Mart's labor supervisors as to where the laborers were to work and which tasks were to be performed at any given time. Crew leaders providing services to Ag-Mart in 2004 included: Sergio Salinas, d/b/a Salinas & Son, Inc.; Pascual Sierra; and Juan Anzualda, d/b/a Juan Anzualda Harvesting, Inc. Mr. Salinas and Mr. Anzualda were crew leaders at the South Florida farm in the spring 2004 season. Mr. Sierra was a crew leader at the North Florida farm in 2004. At the South Florida farm, Mr. Salinas and three or four supervisors called "field walkers" oversaw the daily work of the 150 to 200 farm laborers who worked in Mr. Salinas' crew. Mr. Salinas owned and operated buses that transported the workers to and within the farm. Mr. Salinas also operated trucks to haul the harvested tomatoes from the fields to the shipping dock on the South Florida farm. A truck was also needed to move portable toilets to the fields for the use of the laborers. Because of the amount of equipment necessary to conduct a harvest, and the intense hand labor required to pick a row of tomatoes, Mr. Salinas always kept his crew together in one location while harvesting. During the period of January through May 2004, Mr. Salinas' crew typically harvested in one or two fields per day, and never more than four fields in one day. Mr. Anzualda and his 15 field walkers supervised a crew of 150 laborers at the South Florida farm during March and April 2004. Mr. Anzualda always kept his crew together when performing harvesting activities, due to the amount of equipment and the time necessary to set up near the work areas. Mr. Anzualda estimated that it took between 45 and 90 minutes to set up his equipment and line up his workers along the rows before harvesting could commence in a given field. Mr. Anzualda's crew typically harvested in one or two fields per day at the South Florida farm during the peak harvest period of March and April 2004, and never in more than four fields in one day. Ag-Mart paid the farm laborers the piece rate of $2.50 per tub of grape tomatoes. A "tub" weighs about 21 pounds. Different piece rates applied to different forms of work. For tying activities, the laborers under Mr. Salinas were paid $0.75 per 100 linear feet of work, while those under Mr. Anzualda were paid $0.50 per 100 linear feet. The laborers were paid the minimum wage of $5.15 per hour for some work, such as weeding and the harvest of Ugly Ripe tomatoes. In any event, the laborers were guaranteed the minimum wage, and were paid $5.15 per hour if that amount was greater than their pay would have been under piece work rates. Planting activities are performed by hand. Tomato plants are started in greenhouses, and then transplanted to the field when they are six weeks old and about six inches high. Staking is performed manually and by machine, as stakes are placed between the tomato plants to support the plants as they mature. Tying is performed manually, from about the second week after planting until the eighth or ninth week. "Tying" involves tying the tomato plants with string to the stakes to allow them to grow up the stakes as they mature. The tomato plants are six to seven feet tall at maturity. After the tomatoes were planted in 2004, Ag-Mart's farms began the application of pesticides according to a company-wide spray program devised by Mr. Long prior to the season. The spray program outlined the type and volume of pesticide products to be applied to the maturing tomato plants from the first week of planting through the end of the harvest. Once tying and harvesting activities began, Ag-Mart's spray program called for the application of pesticides "behind the tying" or "behind the harvest," meaning that spraying was done immediately after tying or harvesting was completed in a field. The spraying was done behind the workers because picking and tying opens up the plants, which enables the pesticide to better penetrate the plant. The timing of the spraying also allows fungicide to cover wounds from broken leaves caused by picking, thus preventing infection. Harvesting is performed manually by the farm laborers, who pick the ripe fruit from the tomato plants and place it into containers. The crew leader lines up the laborers with one person on each side of a row of tomatoes, meaning that a crew of 150 laborers can pick 75 rows of tomatoes at a time. The farm workers pick all of the visible fruit that is ripe or close to ripe on the blocks that are being harvested. Once the picking is complete on a block, it takes seven to ten days for enough new fruit to ripen on that block to warrant additional harvesting. Justin Oelman was Ag-Mart's crop protection manager at the South Florida farm in 2004. Mr. Oelman worked for Ag-Mart for eight years as a farm manager and crop protection manager before leaving in 2005 and had three years prior experience as a crop protection manager for another tomato grower. As crop protection manager in 2004, Mr. Oelman was the licensed pesticide applicator responsible for ordering chemicals and directing the application of pesticides. His job included writing up the "tomato spray ticket" for each pesticide application. The spray ticket is a document that, on its face, indicates the date and time of a pesticide application and its location according to planting, field, and block numbers. The spray ticket also states the name of the tractor driver who physically applies the pesticide, the type and amount of the pesticide applied, and the number of acres treated. Licensed pesticide applicators are required by Department rule to record the information included on the spray ticket. Fla. Admin. Code R. 5E-9.032. In applying pesticides to the South Florida farm's grape tomato crop in 2004, Mr. Oelman followed the spraying program designed by Mr. Long before the season. Because the pesticides were applied behind the farm workers' field activity, Mr. Oelman maintained close communications with Josh Cantu, the Ag-Mart labor supervisor in charge of tying activities on the South Florida farm, and with Eduardo Bravo, the labor supervisor in charge of grape tomato harvesting. Mr. Bravo in turn directed crew leaders such as Mr. Salinas and Mr. Anzualda on where to take their crews to conduct harvesting work. These communications kept Mr. Oelman apprised of where the crews were working and how much progress the tying or harvesting activities were expected to make by the end of the day. Mr. Oelman was then able to plan the next day's pesticide applications so that his tractor drivers would be ready to enter the field and apply the pesticides soon after the tying or harvesting activities were completed. Mr. Oelman typically wrote the spray tickets on the day before the actual pesticide application, based on the information gathered from Mr. Bravo and Mr. Cantu. Thus, the starting times shown on the tickets are times that were projected by Mr. Oelman on the previous afternoon, not necessarily the time that spraying actually commenced. Spraying could be delayed for a number of reasons. At times, the work in the fields would not progress as quickly as Mr. Cantu or Mr. Bravo had anticipated, due to the heaviness of the harvest. Pesticides are not applied to wet plants; therefore, rain could delay a planned spray application. Mr. Oelman's practice was to write a new spray ticket if a day's planned application was completely cancelled. However, if the planned spray application was merely delayed for a time, Mr. Oelman did not create a new spray ticket or update the original ticket to reflect the actual starting time. Mr. Oelman failed to explain why he did not always create a new ticket when the information on the existing ticket ceased to be accurate. Mr. Oelman directly supervised the Ag-Mart employees who drove the tractors and operated the spray rigs from which pesticides were applied to the tomato plants. Mr. Oelman trained the tractor drivers not to spray where people were working, but to wait until the tying or harvesting activities in designated fields had been completed. Once the fields had been sprayed, Mr. Oelman would orally notify Mr. Bravo and Mr. Cantu of the location of the pesticide applications. Mr. Oelman would also post copies of the spray tickets at the farm's central posting board, on which was posted relevant information regarding the pesticides being used at the farm, the restricted entry intervals and pre-harvest intervals for the pesticides, and other safety information.3 When restricted-use pesticides4 were to be applied, Mr. Oelman posted the entrances to the field with warning signs before the application began. The signs, which stated "Danger/Pesticides/Keep Out" in English and Spanish, were left in place until twelve hours after the expiration of the restricted entry interval for the applied pesticide. Mr. Oelman attested that he always made these postings when restricted-use pesticides such as Monitor and Danitol were applied at the South Florida farm. Mr. Salinas and Mr. Anzualda testified that they never harvested tomatoes from fields posted with pesticide warning signs. Mr. Anzualda checked for warning signs every day to ensure that his crew was not being sent into fields where pesticides had recently been applied. The restricted entry interval (REI) and the pre- harvest interval (PHI) are set forth on the manufacturer's label of each restricted-use pesticide, in accordance with 40 C.F.R. Parts 156 (labeling requirements for pesticides and devices) and 170 (worker protection standard). The REI, a worker safety standard, is the time period after application of a restricted- use pesticide that must elapse before workers are allowed to enter the treated area. The PHI, a food safety standard, is the time period that must elapse after a spray application before harvesting can begin. The REI and PHI vary according to individual pesticides. In 2004, Warrick Birdwell was the farm manager at Ag- Mart's North Florida farm in Jennings. Prior to 2004, Mr. Birdwell had worked ten years for other tomato growers in Virginia and Florida. As farm manager, Mr. Birdwell was responsible for all operations from ground preparation through post-harvest clean-up at the North Florida farm. Mr. Birdwell was also a licensed restricted-use pesticide applicator and was responsible for the application of pesticides at the North Florida farm. In 2004, Mr. Birdwell was assisted in carrying out the spray program by Dale Waters, who supervised the tractor drivers and equipment.5 During 2004, grape tomatoes were harvested at the North Florida farm on a rotation of at least seven days per block, meaning that it would take at least seven days after a harvest, in a given field, to grow enough vine ripe fruit to warrant another harvest. Mr. Birdwell prepared the spray tickets for the planned application of pesticides. He created his spray tickets a day or two before the actual date that the application was scheduled to take place. At times, delays occurred due to weather, equipment failures, or slower than anticipated progress in the harvest. Mr. Birdwell's practice was to create a new ticket and destroy the old one if the delay prevented a scheduled application from occurring on the scheduled date. However, if the spraying was commenced on the scheduled date, but had to be completed on the next day, Mr. Birdwell kept the original spray ticket without amendment. Mr. Birdwell failed to give a reason why a new ticket was not created each time the information, included in the original ticket, ceased to be accurate. Mr. Birdwell communicated throughout the day with Charles Lambert, the North Florida farm's labor supervisor, to monitor the progress of the harvesting activities and ensure that workers did not enter fields where REIs or PHIs were in effect. Mr. Birdwell also directed that warning postings be placed at the entrances to fields where restricted-use pesticides had been applied. Farm labor crews were allowed to move on the farm property only at the specific direction of Mr. Lambert, whose constant communication with Mr. Birdwell helped ensure that labor crews stayed out of treated fields until it was safe to enter them. Harvested product received at Ag-Mart's packing houses is tracked by foreman receiving reports, which identify the product and its quantity, the name of the crew leader responsible for harvesting the product, the farm from which the product was shipped, and the planting number from which the product was harvested. The receiving reports are used to calculate the commission payments due to the Ag-Mart crew leaders, who are paid based on the amount of fruit their crews harvest, and to analyze the yields of specific plantings. The "date received" column on the receiving reports showed the date the product was shipped from the farm to the packinghouse. In March 2005, the Palm Beach Post published an article stating that three women, who harvested tomatoes for Ag- Mart in 2004, bore children who suffered from birth defects. The article questioned whether the birth defects were connected to the pesticides used by Ag-Mart on its tomatoes. The women had worked at both the South Florida and North Florida farms, and at an Ag-Mart farm in North Carolina. In response to the article, the Collier County Health Department began an inquiry to determine the cause of the birth defects and asked for the Department's help in performing a pesticide use inspection at the South Florida farm, where the three women, identified as Francisca Herrera, Sostenes Salazar, and Maria de la Mesa (also called Maria de la Mesa Cruz), worked from February through July 2004. The Department's investigation commenced with a work request sent from Tallahassee to Environmental Specialist Neil Richmond in Immokalee on March 7, 2005.6 Mr. Richmond regularly conducts inspections at golf courses, farms, chemical dealers, and fertilizer plants throughout Collier County. The work request directed Mr. Richmond to obtain pesticide use records for Ag-Mart covering the period of February through July 2004 and employee records showing the names of the three employees and the dates they worked in 2004. The work request further directed Mr. Richmond to conduct a pesticide use inspection at the South Florida farm to document the pesticide products used in the field. Finally, the work request directed Mr. Richmond to conduct a full worker protection standard inspection to document the posting of fields, central posting information, and REIs at the South Florida farm. Mr. Richmond initially visited Ag-Mart's South Florida farm on March 28, 2005, accompanied by two persons from the Collier County Health Department. During the course of the inspection, Ag-Mart's farm manager, Doug Perkins, produced spray tickets for both the South Florida and North Florida farms for the period February through July 2004. Mr. Perkins also produced a spreadsheet identifying the dates worked and the farm locations for each of the three women named in the newspaper article. This spreadsheet was prepared at the direction of Ag- Mart's human resources manager, Angelia Cassell, and was derived from the three workers' timesheets for 2004. On March 30, 2005, Mr. Richmond filed a written report with the documents he received from Ag-Mart. The Department's Bureau of Compliance Monitoring then assigned the matter to Case Reviewer Jessica Fernandez in Tallahassee. Ms. Fernandez was given the task of reviewing all the information gathered by the Department's inspectors to determine whether Ag-Mart had violated the Florida Pesticide Law or any of the Department's implementing rules. On April 12, 2005, Ms. Fernandez sent a request for additional information to Mr. Richmond, which stated in relevant part: According to the work log included in this file, Ms. Fransisca [sic] Herrera, Ms. Maria de la Mesa Cruz and Ms. Sostenes Salazar worked at the Ag-Mart farm located in Immokalee between January 2004 and October 2004. Please obtain as much information as possible regarding the specific Planting, Field and Block numbers in which these workers worked during the period of February 2004 through June 2004. Mr. Richmond went to the South Florida farm on March 13, 2005, and communicated this request for additional information to Mr. Oelman, who responded that it would take several days to gather the requested information. Mr. Richmond returned to the farm on April 15, 2005. On that date, Mr. Oelman explained to Mr. Richmond the sequencing of harvesting and spray activities at the South Florida farm. Mr. Oelman told Mr. Richmond that Ag-Mart's harvest records indicate, only, which planting the laborers were working in on a given day and that a planting includes more than one field. Mr. Oelman also told Mr. Richmond that Ag-Mart's spray records are kept according to field and block numbers and that his practice was to spray behind the picking. On April 22, 2005, Ms. Cassell faxed to Mr. Richmond a spreadsheet entitled "Field Locations for SFL 2/04 thru 6/04." All involved understood that "SFL" referred to the South Florida farm.7 With the assistance of subordinates in her office, Ms. Cassell produced this document to show, in her words, "the total of what field locations the [three] women might have worked in." Ms. Cassell started with time cards, which indicated the dates and hours the three women worked. Then she obtained foreman receiving reports, which she understood to tell her which plantings were harvested on which dates. Finally, she obtained, from the farm, a handwritten document showing which fields were included in each planting. From this information, Ms. Cassell was able to fashion a spreadsheet indicating the range of fields each woman could have worked in from February through June 2004. Mr. Richmond testified that he read the spreadsheet's title and understood the document to show where the women actually worked each day. The document appeared self- explanatory. No one from Ag-Mart told Mr. Richmond that the spreadsheet showed only where the women could have worked, or "possible" locations. Mr. Richmond passed the spreadsheet on to Ms. Fernandez, with a report stating that it showed "the field locations for Ms. Herrera, Ms. Salazar, and Ms. de la Mesa where they worked on respective dates." Ms. Fernandez also operated on the assumption that the spreadsheet showed what its title indicated, the actual field locations of the three women on any given day from February through June 2004. Ms. Cassell testified that she put the title on the spreadsheet without much thought, simply as an identifier for the file on her computer's hard drive. Ms. Cassell understood that she was creating a spreadsheet of all the fields the women could possibly have worked in on a given day. She could be no more precise, because Ag-Mart did not keep records that would show the specific fields where an individual worked on a given day. The president of Ag-Mart, Mr. Long, confirmed that Ag- Mart does not keep records on which fields a worker is in on a given day. At the time the Department made its request, Mr. Long told Ms. Cassell that there was no way Ag-Mart could provide such precise worker location data. The closest they could come would be to correlate harvest or receiving data, which showed what plantings a crew had harvested from, with the workers' time cards. Ag-Mart knew whose crew each woman had worked in; so the spreadsheet listed all the fields in the planting worked by the crew, as a way of showing which fields the women might have worked in. On May 4, 2005, Ms. Fernandez sent Compliance Monitoring Bureau Chief Dale Dubberly a request for additional information, which Mr. Dubberly forwarded to Mr. Richmond the next day. Ms. Fernandez first requested the time work started and ended for each worker in each field on every date listed in the spreadsheet provided on April 22, 2005. Ms. Fernandez next asked for the field location for each worker from July 2004 to November 2004. She asked for the block numbers corresponding to each of the fields in North Florida, South Florida, and North Carolina during the 2004 season and a map showing the distribution of blocks, fields and plantings for those farms during the 2004 season. She asked for spray records for South Florida for October and November 2004. Finally, Ms. Fernandez requested a more legible copy of the spreadsheet, which she stated "shows each worker's field location." Upon receiving this request through Mr. Richmond, Ms. Cassell, her staff, and Ag-Mart farm compliance manager, Amanda Collins created a new spreadsheet, which Ms. Cassell titled "Field Locations for 3 Employees for 2004." This spreadsheet was identical in format to the earlier document, but was expanded to include the dates the three women worked for all of 2004. For each worker, the spreadsheet provided a cell for each day worked, and within that cell a list of field numbers. Again, the Department took these field numbers to represent fields in which the women actually worked, when Ag-Mart actually intended them to represent fields in which the women possibly worked. Some of the cells listed as many as 23 field numbers for one day. The method of developing this spreadsheet was similar to that employed for the first one. The weekly time cards of the three women were used to provide the days they worked. Ag-Mart's weekly time cards show the name of the employee, the rounded hours worked each week, the number of piece units worked, the hours worked for minimum wage, and the initials of the crew leader for whom the employee worked that week. For their South Florida farm work in 2004, Ms. Herrera and Ms. Salazar worked exclusively for crew leader Sergio Salinas. Ms. de la Mesa worked at South Florida for crew leader Juan Anzualda and at North Florida for crew leader Pascual Sierra.8 To identify the fields where the three women might have worked on a given day, Ms. Cassell and her staff again used foreman receiving reports and planting schedules. The receiving reports were understood to provide the dates of shipping for harvested product, and these were correlated to the dates on which the three women worked. Again, Ms. Cassell listed every field within a planting as a possible work location, because Ag-Mart kept no data that identified the fields in which the women actually worked on a given date. On May 6, 2005, Mr. Richmond met with Ms. Cassell and Ms. Collins at Ag-Mart's Plant City administrative offices. The meeting lasted no more than 15 minutes and consisted of Ag-Mart employees turning over various documents to Mr. Richmond, along with some explanatory conversation. Ms. Cassell specifically recalled explaining to Mr. Richmond that the field location spreadsheet indicated the "total possible fields that the three employees could have worked in." Mr. Richmond denied that Ms. Cassell gave him any such explanation. Ms. Collins recalled that Mr. Richmond and Ms. Cassell had some discussion about the spreadsheet, but could recall no particulars.9 Mr. Richmond forwarded the documents received at the May 6, 2005, meeting to Ms. Fernandez in Tallahassee. His written summary, also dated May 6, 2005, represents Mr. Richmond's contemporaneous understanding of the meaning of the documents he was given at the Plant City meeting. The summary stated, in relevant part: Ms. Collins provided the times which the three ladies worked at the various locations which came from the three ladies time cards (See Exhibits V-1 through V-3, copies of time worked information). Ms. Collins stated that this has the start and finished [sic] times, but does not have which fields they worked at a particular time as they may pick in several fields throughout the day. Ms. Collins provided another copy of the field locations for each of the three ladies (See Exhibits W-1 and W-2, copies of field locations of workers). Ms. Collins also provided maps with field locations depicting blocks and plantings (See Exhibits X-1 through X-13, maps depicting field locations with blocks and plantings). The field no. is the main number in each block, the first two numbers are the numbers of the planting, while the remaining number in the set is the block number. . . . At the hearing, Mr. Richmond testified that he "absolutely" would have communicated to Ms. Fernandez any conversation he had with, either, Ms. Cassell or Ms. Collins indicating that the field location spreadsheet was anything other than a document showing where the women worked on a given day. This testimony is credible and, coupled with Mr. Richmond's contemporaneous written statement, leads to the finding that Mr. Richmond's testimony regarding the May 6, 2005, meeting in Plant City should be credited. On May 12, 2005, Ms. Cassell sent Mr. Dubberly an e- mail with an attachment correcting some aspects of the spreadsheet. Ms. Cassell's e-mail message stated: I have attached the the [sic] revision to the original sheet given on the 3 woman's [sic] field locations. I included which field location for NC. There was one revision I made for Francisca on week ending 4/24/05 [Ms. Cassell clearly means 2004]. She was in NC that week and on the last two days of that week I had SFL field numbers and it should of [sic] been NC [sic] please discard old report and replace with revised one. The Department cites this e-mail as further indication that Ag-Mart represented the spreadsheet as indicating actual field locations for the three women, or at least that Ag-Mart said nothing to clarify that the spreadsheet showed something other than the fields where the women actually worked. Ms. Fernandez, the case reviewer whose analysis led to the filing of the Administrative Complaints against Ag-Mart, believed that the field location spreadsheets prepared by Ms. Cassell and her staff reflected the actual work locations for Ms. Herrera, Ms. Salazar, and Ms. de la Mesa. As a case reviewer, Ms. Fernandez receives files compiled by the field staff and reviews the files to determine whether a violation of the Florida Pesticide Law has occurred. The procedure of the Bureau of Compliance Monitoring appears designed to ensure that the case reviewers have no contact with the subjects of their investigation and, instead, rely on field inspectors to act as conduits in obtaining information from companies such as Ag-Mart. As a result, Ms. Fernandez had no direct contact with anyone from Ag-Mart and, thus, had no direct opportunity to be disabused of her assumptions regarding the field location spreadsheet. Ms. Fernandez conceded that she had never been on a tomato farm at the time she conducted her review of the Ag-Mart case. She did not take into consideration the acreage of the fields or the size of the work crews and their manner of operation. She made no attempt to visualize the effort it would take for one worker to harvest in ten or 20 fields in one day. She assumed that each woman worked in at least part of each field listed on the spreadsheet for each day listed. Ms. Fernandez believed that the spreadsheet was clear on its face and saw no need to make further inquiries as to the plausibility of the assumption that it reflected actual, not possible, field locations. As found above, Ag-Mart made no statement to any Department employee to qualify that the spreadsheet meant only possible field locations. Nonetheless, common sense should have caused someone in the Department to question whether this spreadsheet really conveyed the information that its title appeared to promise. On some days, the spreadsheet places a single field worker in 23 fields. Ag-Mart's crew leaders credibly testified that their crews never worked in more than four fields in one day and more often worked in only one or two. Even granting Ms. Fernandez' ignorance, Mr. Dubberly or some other superior in the Department should have had enough knowledge of farm operations to question the plausibility of Ms. Fernandez' assumptions. While Ag-Mart is at fault for not explaining itself clearly, the Department is also at fault for insisting that the spreadsheet be taken at face value, no matter how implausible the result.10 At the hearing, Ms. Fernandez explained how she used the documents provided by Ag-Mart to draft the Administrative Complaints. As an example, Counts I and II of the North Florida Complaint provide: Count I On June 6, 2004, Mr. Cesar Juarez and Mr. Alexis Barrios treated approximately 157.6 acres of grape tomatoes, planted in fields 7-8, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The Monitor 4 Spray supplemental label states: "REMARKS . . . Do not apply more than a total of 10 pints per acre per crop season, nor within 7 days of harvest." Worker field location records show that tomatoes were harvested from fields 7 and 8 on June 7, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre- harvest interval stated on the Monitor 4 Spray label. Count II The Danitol 2.4 EC Spray label states: "TOMATO . . . Do not apply the DANITOL + MONITOR 4 Spray tank mix within 7 days of harvest." As noted in the previous paragraph, fields 7-8 were treated with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray on June 6, 2004. Tomatoes were harvested from these same fields on June 7, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Danitol 2.4 EC Spray label. Ms. Fernandez obtained the information regarding the date, time, and manner of pesticide application from the spray tickets described above. She obtained the Monitor and Danitol PHI information from the product label. She obtained the harvest information from the spreadsheet, which indicated that Ms. de la Mesa worked in fields 7 and 8 on June 7, 2004. Counts I and II alleging violations of the PHIs for Monitor and Danitol had an accompanying Count XIX, alleging a violation of the REI for Monitor arising from the same set of facts: Count XIX The Monitor 4 Spray and the Danitol 2.4 EC Spray labels contain the following language: "AGRICULTURAL USE REQUIREMENTS. Use this product only in accordance with its labeling and with the Worker Protection Standard, 40 CFR part 170. This Standard contains requirements for the protection of agricultural workers on farms, forests, nurseries, and greenhouses, and handlers of agricultural pesticides. It contains requirements for training, decontamination, notification, and emergency assistance. It also contains specific instructions and exceptions pertaining to the statements on this label about personal protective equipment (PPE) and restricted entry interval. The requirements in this box only apply to users of this product that are covered by the Worker Protection Standard." On June 6, 2004, Mr. Cesar Juarez and Mr. Alexis Barrios treated approximately 157.6 acres of grape tomatoes, planted in fields 7-8, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The application started at 11:30 am and ended at 5:30 pm on June 6, 2004. The Monitor 4 Spray label states: "Do not enter or allow worker entry into treated areas during the restricted entry interval (REI) of 48 hours." Work records show that Ms. de la Mesa, directed by licensed applicators Mr. Charles Lambert (PV38793)11 and Mr. Warrick Birdwell (PV36679), worked in fields 7 and 8 on June 7, 2004, and that her working hours for June 7, 2004, were 8:00 am to 6:30 pm. Therefore, Ms. de la Mesa and other workers were instructed, directed, permitted or not prevented by the agricultural employer, Ag-Mart Produce, Inc. from entering treated fields before the expiration of the REI stated on the Monitor 4 Spray label. Throughout the hearing, Ag-Mart contended (and the Department did not dispute) that no statute or rule requires Ag-Mart to keep a daily log of the fields where its employees work. The Department also conceded that Ag-Mart was cooperative throughout its investigation.12 Ag-Mart contends that all counts should be dismissed because of the Department's reliance on the field location spreadsheet, which shows only the possible field locations of the workers. This contention goes to far. For example, the counts set forth above are well taken, because the spray tickets indicate that fields 7 and 8 were sprayed on June 6, 2004, and the field location spreadsheet indicates that Ms. de la Mesa worked only in fields 7 and 8 on June 7, 2004. Ag-Mart further attacked the spreadsheet by suggesting the unreliability of the dates on the foreman receiving reports. As found above, the receiving reports generally showed the date the product was shipped from the farm to the packinghouse, as well as the crew leader who provided the tomatoes and the planting from which the tomatoes were harvested. At the hearing, Ag-Mart contended that the date the product was shipped was not always the same date it was harvested. Further, Ag-Mart demonstrated that one of the receiving reports relevant to this proceeding showed the date the product was received at the packing house, rather than the date the product was shipped from the farm, due to a clerical error. Ag-Mart argued that this example showed that the receiving reports were not a reliable source for determining the precise dates of harvest in a given field on the North Florida farm. Ag-Mart's evidence is insufficient to demonstrate the unreliability of the receiving reports, where Ag-Mart itself relied on the reports to provide the Department with the spreadsheet showing possible field locations of the three workers. Ag-Mart had ample opportunity to make a thorough demonstration of the reports' alleged unreliability and failed to do so. Ag-Mart also attempted to cast doubt on the accuracy of the spray tickets through the testimony of Mr. Oelman and Mr. Birdwell, both of whom stated that the spray tickets are written well in advance of the pesticide applications and are not invariably rewritten or corrected when the spraying schedule is pushed back due to rain or slow harvest. However, the pesticide applicator is required by law to maintain accurate records relating to the application of all restricted-use pesticides, including the date, start time and end time of the treatment, and the location of the treatment site. Fla. Admin. Code R. 5E-9.032(1). The Department is entitled to inspect these records. Fla. Admin. Code R. 5E-9.032(6). Ag-Mart may not attack records that its own employee/applicators were legally required to keep in an accurate fashion. The Department is entitled to rely on the spray tickets as accurate indicators of when and where pesticide applications occurred. Thus, the undersigned has accepted the accuracy of the spray records and the receiving reports, but not of the field location spreadsheet. However, there are some dates on which the fields shown on the spreadsheet perfectly match the fields shown on the spray tickets, as in Counts I, II, and XIX of the North Florida Complaint set forth above. It is found that the Department has proven these counts by clear and convincing evidence. In addition to Counts I, II, and XIX of the North Florida Complaint, the Department has proven the following counts of the North Florida Complaint by clear and convincing evidence: Counts XI, XII, and XXII (spraying in fields 7 and 8 on June 17, 2004; Ms. de la Mesa worked only in fields 7 and 8 on June 19, 2004); and Count XIII (spraying Agrimek 0.15 EC Miticide/Insecticide, with PHI of seven days, in fields 7 and 8 on June 3, 2005; Ms. de la Mesa worked only in fields 7 and 8 on June 7, 2004). The Department has proven none of the counts in the South Florida Complaint by clear and convincing evidence. Some explanation must be made for the finding that Counts XXXI and XXXII were not proven by clear and convincing evidence. Those counts allege as follows: Count XXXI On April 17, 2004, Mr. Lorenzo Reyes, Mr. Demetrio Acevedo and Mr. Francisco Vega treated approximately 212.5 acres of grape tomatoes, planted in fields 11, 6 and 4, with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray. The Monitor 4 Spray supplemental label states: "REMARKS . . . Do not apply more than a total of 10 pints per acre per crop season, nor within 7 days of harvest." Worker field location records show that tomatoes were harvested from fields 11, 6 and 4 on April 21, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Monitor 4 Spray label. Count XXXII The Danitol 2.4 EC Spray label states: "TOMATO . . . Do not apply the DANITOL + MONITOR 4 Spray tank mix within 7 days of harvest." As noted in the previous paragraph, fields 11, 6 and 4 were treated with a mixture of Bravo Weather Stik, Monitor 4 Spray and Danitol 2.4 EC Spray on April 17, 2004. Tomatoes were harvested from these same fields on April 21, 2004. Therefore, these tomatoes were harvested prior to the 7 day pre-harvest interval stated on the Danitol 2.4 EC Spray label. These counts base their allegation that tomatoes were harvested from fields 11, 6, and 4 on April 21, 2004, on the field location spreadsheet, which indicates that Ms. Salazar possibly worked in fields 4, 6, 9, 10, and/or 11 on April 21, 2004. Thus, the spreadsheet does not definitely prove that Ms. Salazar harvested tomatoes in the three sprayed fields within the PHI. At the final hearing, the Department introduced a spray ticket showing that Monitor and Danitol were also applied to fields 9 and 10 on April 15, 2004. This additional spray ticket completed the Department's demonstration that every field in which Ms. Salazar harvested tomatoes on April 21, 2004, had been sprayed with Monitor and Danitol within the seven-day PHI. However, the Department did not amend the South Florida Complaint to allege the fact of the second spray ticket, and, so, must be held to the allegations actually made in the complaint. Ag-Mart may not be found guilty of facts or violations not specifically alleged in the South Florida Complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (facts not alleged in the Administrative Complaint). See also B.D.M. Financial Corporation v. Department of Business and Professional Regulation, 698 So. 2d 1359, 1362 (Fla. 1st DCA 1997) (violations not alleged in the Administrative Complaint). In similar fashion, Counts XLI and XLII of the South Florida Complaint allege that fields 21, 22, 18, and 19 were sprayed with Monitor and Danitol on May 15, 2004, and allege PHI violations in fields 21, 22, 18, and 19 on May 20, 2004, based on the field location spreadsheet's indication that Ms. Salazar possibly worked in one or more of fields 18 through 25 on that date. Thus, the spreadsheet does not definitely prove that Ms. Salazar harvested tomatoes in the four sprayed fields within the PHI. At the final hearing, the Department introduced a spray ticket showing that Monitor and Danitol were, also, applied to fields 20, 23, 24, and 25 on May 14, 2004. This additional spray ticket completed the Department's demonstration that every field in which Ms. Salazar harvested tomatoes on May 20, 2004, had been sprayed with Monitor and Danitol within the seven-day PHI. Again, however, the Department failed to amend the South Florida Complaint to reflect its subsequently developed evidence. Subsection 487.175(1)(e), Florida Statutes, provides that the Department may enter an order imposing an administrative fine not to exceed $10,000 for each violation. The statute further provides as follows: When imposing any fine under this paragraph, the department shall consider the degree and extent of harm caused by the violation, the cost of rectifying the damage, the amount of money the violator benefited from by noncompliance, whether the violation was committed willfully, and the compliance record of the violator. Mr. Dubberly testified that the Department does not have a rule for determining the amount of fines, but uses a matrix, attaching a rating of 0 to 5 for each of the criteria named in the quoted portion of the statute, with 5 representing the most egregious violation. The extent of harm caused by the violation is divided into two classifications: (A) the degree and extent of harm related to human and environmental hazards and (B) the degree and extent of harm related to the toxicity of the pesticide(s). The remaining criteria considered in the matrix are: (C) the estimated cost of rectifying the damage, (D) the estimated amount of money the violator benefited by noncompliance, whether the violation was committed willfully, and (F) the compliance record of the violator. Each factor is given its numerical value. The values for factors (B) through (F) are added, then the total is multiplied by the value for factor (A). The resulting number is then multiplied by $100.00 to determine the amount of the fine. The PHI violations were primarily food safety violations, the concern being that there might be an unacceptable pesticide residue on the tomatoes if they were harvested within the PHI. The REI violations were based on concerns for worker safety from pesticide exposure. In determining the fines for PHI violations, the Department assigned a numerical value of 2 for factor (A). In determining the fines for REI violations, the Department assigned a numerical value of 3 for factor (A), based on a reasonable probability of human or animal death or injury, or a reasonable probability of serious environmental harm. For purposes of this proceeding, all the pesticides used by Ag-Mart were restricted-use pesticides. In considering the value to be assigned to factor (B), the Department relied on the pesticide labels, which contain signal words for the category of potential hazard to human or animal life posed by that pesticide. Monitor contained the signal word "Danger," which represents the highest level of potential hazard. A value of 5 was assigned for factor (B) in the alleged violations involving the use of Monitor. Danitol and Agrimek contained the signal word "Warning," which indicated a lesser potential hazard. A value of 3 was assigned for factor (B) in the alleged violations involving Danitol or Agrimek. Because the estimated cost of rectifying the damage and the estimated amount of money the violator benefited by noncompliance was unknown, the Department assigned a value of 0 to factors (C) and (D). As to factor (E), dealing with the willfulness of the violation, the Department assigns a value of 0 if there is no evidence of willfulness, a value of 1 if there is apparent evidence of willfulness, and a value of 5 if it determines the violation was intentional. Because of the large number of alleged PHI and REI violations, the Department assigned a value of 1 for factor (E), finding apparent evidence of willful intent for each alleged violation. As to factor (F), dealing with the violator's compliance history, the Department considers the three years immediately preceding the current violation. The Department assigns a value of 0 if there are no prior violations, a value of 1 for a prior dissimilar violation, a value of 2 for multiple prior dissimilar violations, a value of 3 for a prior similar violation, and a value of 4 for multiple prior similar violations. Because Ag-Mart had one prior dissimilar violation within the preceding three years, the Department assigned a value of 1 for factor (F) for each alleged violation. Because the sole basis for finding apparent evidence of willful intent was the number of alleged violations, the Department calculated its recommended fines in two ways: by assigning a value of 0 based on no evidence of willful intent and by assigning a value of 1 based on apparent evidence of willful intent. In DOAH Case No. 06-0730, the North Florida Complaint, the Department recommended a fine of either $1,200 (no evidence of willful intent) or $1,400 (apparent evidence of willful intent) for each of the PHI violations alleged in Counts I, III, V, VII, IX, and XI, which involved the use of Monitor. The Department recommended a fine of either $800 (no evidence) or $1,000 (apparent evidence) for Counts II, IV, VI, VIII, X, and XII, involving the use of Danitol, and for Counts XIV, XV, and XVI, involving the use of Agrimek. For each of the REI violations alleged in Counts XIX through XXII, the Department recommended a fine of either $1,800 (no evidence) or $2,100 (apparent evidence). The Department established by clear and convincing evidence seven of the 20 counts of the North Florida Complaint that remained at issue at the time of the hearing, and none of the 58 counts of the South Florida Complaint that remained at issue at the time of the hearing. The undersigned accepts the Department's calculation of the recommended fines for these violations and recommends that the Department apply the lower calculation for each of the violations. Thus, the recommended fines are as follows: Count I, PHI violation involving the use of Monitor, $1,200; Count II, PHI violation involving the use of Danitol, $800; Count XI, PHI violation involving the use of Monitor, $1,200; Count XII, PHI violation involving the use of Danitol, $800; Count XIII, PHI violation involving the use of Agrimek, $800; Count XIX, REI violation, $1,800; and Count XXII, REI violation, $1,800. Thus, the total recommended fine for the seven proven violations is $8,400. In conclusion, it is observed that these cases demonstrate a gap in the enforcement mechanism of the Florida Pesticide Law, at least as it is currently understood and practiced by the Department. The law requires licensed applicators to comply with the PHI and REI restrictions on the labels of the restricted-use pesticides they apply to these crops. The law requires the applicators to keep accurate records of when and where they apply pesticides and of the kind and quantity of pesticides applied in each instance. Yet all parties to this proceeding agreed that the law does not require either the applicators or the growers to keep accurate records of when and where farm workers enter the fields and conduct the harvest. This failure to complete the record- keeping circle makes it extremely difficult for the Department to prove by clear and convincing evidence that a PHI or REI violation has taken place. The PHI and REI restrictions appear virtually unenforceable through company records, except when some fluke of record keeping allows the Department to establish that a given worker could only have been in a recently sprayed field on a given day. It does little good to know when the pesticides were applied to a field if there is no way of knowing when workers first entered the field or harvested tomatoes after the spraying. Ag-Mart credibly demonstrated that its general practices are designed to minimize worker exposure and guarantee safe harvest, but the company keeps no records to demonstrate to its customers that it observes these practices in particular instances and is under no legal obligation to keep such records. This state of regulatory affairs should be as disturbing to Ag-Mart as to the Department, because purchasers of tomatoes in Florida's grocery stores do not require clear and convincing evidence in order to switch brands.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department enter a final order that provides as follows: That Ag-Mart committed the violations alleged in Counts I, II, XI, XII, and XIII of the North Florida Complaint, for which violations Ag-Mart should be assessed an administrative fine totaling $8,400; That Ag-Mart pay to the Department $3,000 to resolve Counts L through LIV of the South Florida Complaint and Counts XVII and XVIII of the North Florida Complaint; and That all other counts of the North Florida Complaint and the South Florida Complaint be dismissed. DONE AND ENTERED this 16th day of March, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2007.
The Issue Do the Department's rules require substantiation of a claim by the claimant, in this case the Petitioner? Has Petitioner factually substantiated his claim in this case: Regarding the cause of the loss? Regarding the amount of the loss? Is Petitioner entitled to the value of the plants which died as a result of the move, as well as the price of replacement plants? Is Petitioner entitled to interest on the loss after any specific date and, if so at what interest rate?
Findings Of Fact Petitioner is a landscape nurseryman who has operated a family-owned nursery in Manatee County, Florida, since being awarded a degree in Ornamental Horticulture from the University of Florida in 1949. He is a Registered Nursery Appraiser, and his business is primarily a retail nursery and landscape contracting company. At all times material hereto, the Petitioner's business was a combination of landscaping contracting and retail sales. The nursery presently consists of 113 acres, employs approximately 60 people, and has an annual sales volume in excess of three-quarters of a million dollars. Reasoner Tropical Nurseries has been operated by Petitioner's family for more than 100 years, and Petitioner has been associated with the business all of his life. Petitioner's business included an 18-acre nursery located in Oneco, Florida. The Oneco nursery was a field nursery where Petitioner grew a wide variety of plant material in the ground as opposed to containers. By virtue of a quick-taking condemnation action, the Department acquired approximately 50 percent of Petitioner's Oneco nursery on October 27, 1977. In order to vacate the land taken by the Department, Petitioner had to move 7,530 separate units of field-grown plant material to adjacent land. Prior to commencing the move, the Petitioner certified to the Department an inventory of the plant material to be relocated. (Petitioner's Exhibits 4-A and 4-B). The Department circulated Petitioner's inventory list to expert nurserymen to obtain estimates of the Petitioner's moving costs, and requested estimates from the experts on both the cost to move and the cost to reestablish Petitioner's plants. The Department took the lower estimate submitted for the move and added the lower estimate for reestablishment maintenance to determine the amount to be paid Petitioner, said amount being in excess of $450,000. The Department never requested Petitioner to supplement his original inventory to provide any additional descriptive information concerning the identity of the plant material to be relocated, i.e. family, genus, species, variety, grade, size, etc. Petitioner elected to move his own nursery stock in order to have more control over the timing, transplanting procedures and care of the relocated plants. Petitioner began moving the material in approximately July of 1977, and completed the move in May of 1978. The Petitioner's move represented a complex and costly relocation. Petitioner confirms he was paid for moving, and his claim does not include expenses related to that portion of the project. Despite the use of adequate transplanting procedures, plant material will die or become damaged as a result of being transplanted. Petitioner was unable to obtain insurance coverage to protect him against the expected loss and damage to his plant material. The procedures used by Petitioner in preparing the relocation site, preparing and moving the plant material, and providing post-move reestablishment maintenance were in accord with the reasonable standards practiced in the nursery industry to minimize damage and loss to transplanted trees and plants. As a proximate result of being moved, some of Petitioner's plants died or were damaged. Expert nurserymen who examined the stock in preparing estimates for the Department for the cost of the move and with experience in transplanting similar nursery stock examined the list of plants transplanted and the losses claimed by Petitioner. They offered their expert opinions that the quantity of the losses suffered by Petitioner were reasonable, given the specific plant materials moved and lost. On May 31, 1978, Petitioner, certified to the Department that the move had been completed. (Petitioner's Exhibit 15). The certification used the same inventory of material as contained in Petitioner's Exhibit 4-B. On June 1, 1978, Petitioner invited the Department to inspect the losses that had been suffered by the Petitioner as a result of the move (Petitioner's Exhibit 15), and suggested that the Department make quarterly inspections to keep abreast of losses. In reply to Petitioner's Exhibit 15, on June 20, 1978, the Department advised the Petitioner by letter that the Department's district office would be contacting Petitioner to arrange inspections. (Petitioner's Exhibit 16). On May 15, 1979, the topic of losses was again addressed in correspondence between the parties. (Respondent's Exhibit 5). Although the Department stated that its district office personnel would meet with Petitioner concerning a determination of losses, the Department did not attempt to arrange such a meeting with Petitioner. After Petitioner's relocation was completed, it was discovered that the Department's survey stakes were misplaced. Accordingly, Petitioner had to move additional plant material from the right-of-way. In June of 1979, the Department employed Jack Siebenthaler as an expert nurseryman to submit an estimate for Petitioner's second relocation. Siebenthaler conducted an inspection on June 27, 1979, of a portion of Petitioner's nursery which was located adjacent to Petitioner's relocation site. (Petitioner's Exhibit 22). The Petitioner has been fully compensated for all expenses incurred during his first and second moves, with the exception of compensation for losses sustained as a result of his first relocation. Petitioner is eligible to be reimbursed for such losses. The Petitioner's claim for losses and appeal from its disallowance by the Department were timely. (Pretrial Stipulation). On January 15, 1981, the Petitioner submitted a more detailed claim to the Department, covering both the plants that died and those that were damaged. (Petitioner's Exhibit 21). During the six months that followed the submission of this claim, the Department did not request Petitioner to provide any additional information relative to the claim, nor did the Department inspect or otherwise attempt to verify losses. The Department had a duty to supply the Petitioner with specific instructions relative to documentation required by the Department to support a claim for losses, and Petitioner was dependent on the Department for such instructions. In its letters of June 20, 1978, and May 15, 1979 (Petitioner's Exhibit 16, and Respondent's Exhibit 5, respectively), the Department addressed supporting documentation for a loss claim in general terms. The claims for losses submitted by the petitioner (Petitioner's Exhibits 20 and 21) were in substantial compliance with the general instructions provided by the Department. The Petitioner waited for some time to determine whether a plant that was adversely affected by the move would recover or would die. When it was clear that the plant was dead, the plant was removed and, depending on the plant's size, was disposed of by burning or placing it in the trash. By the time the Department indicated that the data provided by Petitioner was insufficient, the dead plants had been destroyed. The Department's failure to provide Petitioner with detailed instructions during either the monitoring period or within a reasonable time thereafter concerning the documentation of losses prejudiced Petitioner in his ability to provide more detailed evidence as to the extent of his losses. The Petitioner is qualified both as the owner of the property and as an expert in the nursery industry to render an opinion concerning the value of the material moved and the cause and value of the material either lost or damaged. Petitioner's list of inventory lost was examined by two experts called by the Petitioner who had been employed by the Department to give estimates of the cost of moving the plant materials. This list was also examined by the Department's expert. The following is a listing of the materials lost or damaged with the values as indicated by the Petitioner, his experts, and the Department's expert: (See attached table.) INVENTORY ON LOSSES REASONER'S EXPERTS LOST/ ITEMS DOT REASONER NO. 1 NO. 2 DAMAGED Oaks, live & Laurel 8-14' $25.00 $ 250.00 $125.00 $250.00 5 15-25' 80.00 800.00 400.00 to 800.00 18 500.00 Pottosporum, Tobira 5' 10.00 100.00 60.00 to 100.00 15 65.00 Ligustrum 7-12' 25.00 250.00 175.00 250.00 16 Podocarpus Pringle, Dense Blue 5-10' 20.00 200.00 200.00 150.00 5 Paurotis Wrightii 2-5' 5.00 50.00 35.00 50.00 95 Podocarpus Nagi 8-18' 40.00 400.00 400.00 400.00 15 Jacaranda 14-18' 40.00 400.00 400.00 300.00 11 Severinia 6-10' 25.00 250.00 250.00 250.00 8 Rodocarpus Reasonerii 3-6' 7.50 75.00 40.00 50.00 13 7-10' 25.00 250.00 200.00 200.00 28.4 11-22' 100.00 1,000.00 1,000.00 1,000.00 44.5 Bottlebrush 8-18' 22.50 225.00 120.00 225.00 9 Citrus 3-5' -0- 35.00 35.00 35.00 297.8 6-9' -0- 75.00 125.00 75.00 282.3 12-14' -0- 500.00 500.00 500.00 43.8 Assorted Trees 10-20' 75.00 500.00 500.00 350.00 14 20-35' 200.00 1,550.00 1,550.00 500.00 to 6 5,000.00 Assorted Shrubs 4-9' -0- 75.00 60.00 75.00 9 10-15' -0- 175.00 100.00 100.00 to 13 150.00 Podocarpus Macrophylla 3-5' 3.50 35.00 20.00 35.00 31.5 6-10' 15.00 150.00 100.00 100.00 40.4 11-20' 11.00 to 400.00 High 400.00 39.2 20.00 21-30' 21.00to 1,500.00 1,500.00 Spec OK 11 30.00 The opinions expressed by the Department's expert were based upon the assumption that all plants that died were of the poorest quality, which plants would be the most susceptible to damage or death. However, the Department's expert did not examine any of the plants lost or damaged. The Petitioner's experts also did not examine any of the lost or damaged plants; however, they based their evaluations upon Petitioner's claim document (Petitioner's Exhibit 21) and their knowledge of the prices for plant materials of the types described. Petitioner's estimates are accepted as accurate based upon his personal observation and knowledge of the plants lost; however, in those cases in which his estimates of value conflict with the estimates of the other experts which were called, the value has been reduced. The retail value of the plant materials lost reduced for volume sale is found to be as follows: Items Value Lost & Damaged Total Oaks, Live & Laurel $ 200.00 x 5 $ 1,000.00 500.00 x 18 9,000.00 Pittosporum, Tobira 75.00 x 15 1,125.00 Ligustrum 200.00 x 16 3,200.00 Podocarpus Pringle 175.00 x 5 875.00 Paurotis Wrightii 40.00 x 95 3,800.00 Podocarpus Nagi 350.00 x 11 3,850.00 Jacaranda 400.00 x 15 6,000.00 Severinia 250.00 x 8 2,000.00 Podocarpus Reasonerii 50.00 x 13 650.00 200.00 x 28.4 5,680.00 500.00 x 44.5 22,250.00 Bottlebrush 175.00 x 9 1,575.00 Assorted Trees 500.00 x 14 7,000.00 1,500.00 x 6 9,000.00 Assorted Shrubs 75.00 x 9 675.00 150.00 x 13 1,950.00 Podocarpus $ 30.00 x 31.5 945.00 Macrophylla 100.00 x 40.4 4,040.00 400.00 x 39.2 15,680.00 1,000.00 x 11 11,000.00 TOTAL $ 111,295.00 Of the losses involved, the loss of the citrus trees and the Jacaranda were the subject of controversy regarding whether they suffered as the result of the move. In Petitioner's letter to Mr. Joseph A. Alfes dated June 10, 1980, Petitioner states regarding the loss of those plant materials: The initial Jacaranda loss of 15 was as expected, the entire lot was lost in the fall heavy rains of 1979; probably their loss would have been much less severe if they had been fully and com- pletely established at the time of the very heavy rainfall. The Citrus loss - particularly the large specimen trees - was due to drown- ing; the North part of the new nursery got too wet - the S.C.S. designed the drainage initially, and after the major loss of trees recommended additional drainage ditches. Again it is problem- atic that if the trees were fully and completely established they might have survived the adverse conditions ... Based upon the Petitioner's explanation of the circumstances and the loss of these trees, the loss of the 15 Jacaranda trees is found to be proximate to the moving; however, the loss of the Citrus trees is found to be the result of extremely wet weather and poor drainage. The Department is not responsible for the field conditions which were proximate to the loss of the citrus trees and the remaining Jacaranda trees.
Recommendation Based upon the facts presented, the Hearing Officer recommends that the Petitioner should receive $105,730.25, the reasonable value of the property which he lost or had damaged in the process of the move; and that this constitutes the total amount to which he is entitled for those damages. Petitioner should not receive interest on the amount. DONE and ORDERED this 16th day of April, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 16th day of April, 1982. COPIES FURNISHED: C. Robert Pickett, Esquire SE National Bank Building Post Office Drawer 9480 Bradenton, Florida 33505 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue An administrative complaint dated January 24, 1991, alleges that Respondent violated Chapter 450, F.S., Part III, by acting as a farm labor contractor without an active certificate of registration and by contracting with an unregistered individual. The issue for disposition is whether those violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Gabriel Bain, the Respondent, has worked in citrus fields for 37 years. At various times he has been registered as a farm labor contractor. He had his own company, Mid-Florida Harvesting, but became bankrupt in 1990 after the citrus freeze disaster. Bain's business address is 30 South Ivey Lane, Orlando, Florida. On or about December 14, 1990, Compliance Officers, Henry Parker and Marshall Carroll were at Nevins Fruit Company in Mims, Brevard County, checking leads on unregistered farm labor contractors. In the course of an interview with Steve Schaffer, Harvest Manager for Nevins, Gabriel Bain was called in as the man who was in charge of the harvesting job. Bain identified himself to the officers with a driver's license and did not have his certificate of registration with him. Schaffer produced the certificate that Bain had submitted when he was hired by Nevins. The certificate was in the name of General Traders, Inc., and had an expiration date of February 28, 1991. "G. Bain" was handwritten on the signature line. During the meeting with Carroll and Parker, on December 14, 1990, Bain freely admitted hiring Jerome Pender as a sub-contractor. Pender was not registered as a farm labor contractor, but had shown Bain papers that he had applied for his certificate. Bain signed a notarized statement attesting to this fact and gave it to the compliance officers. The compliance officers issued a summary of violations to Bain for utilization of an unregistered crewleader. At the time, they were unaware that Bain was, himself, unregistered. Gabriel Bain's registration in the name of Mid-Florida Harvesting expired on June 30, 1990. His application, in the name of General Traders, Inc., was approved on March 1, 1991. In December 1990, he was working for General Traders but was not included in that company's registration. He was not registered in any other name in December 1990, and a subsequent summary of violations was issued, citing "fail to register." In December 1990, at the time of the compliance officers' investigation, Gabriel Bain was working for Nevins Fruit Company as a farm labor contractor and was paid for his work in that capacity. In this work he subcontracted with other labor contractors who provided crews. At the hearing Bain claimed that he lied to the compliance officers about hiring Jerome Pender. He claimed he lied because he had actually hired Willie Simmons, someone whom the Nevins people had told him they did not want "within 100 miles" of their groves. This self-impeachment in no way advances Respondent's averment of innocence.
Recommendation Based upon the foregoing, it is hereby recommended that a final order be entered, finding Gabriel Bain guilty of violating Sections 450.30(1), F.S. and 450.35, F.S., and assessing a civil fine of $1250.00 to be paid within thirty (30) days. RECOMMENDED this 22nd day of July, 1992, at Tallahassee, Florida. MARY W. CLARK 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 22nd day of July, 1991. COPIES FURNISHED: Francisco Rivera, Sr. Atty. Department of Labor and Employment Security 2012 Capital Circle, S.E. 307 Hartman Building Tallahassee, Florida 32399-0658 Gabriel Bain 30 S. Ivey Lane Orlando, Florida 32811 Frank Scruggs, Secretary 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Cecilia Renn Chief Legal Counsel 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152
Findings Of Fact Based on the record transmitted to the Division of Administrative Hearings by the Petitioner, the following are found as the relevant facts: The Respondent, Hinson Oil Company, owns four outdoor advertising signs in Gadsden County, Florida, located on the south side of I-10, in the proximity of County Road 270-A. On October 3, 1984, the Department of Transportation notified the Respondent in writing that these signs violated Section 479.11, Florida Statutes, in that they were alleged to be located in an area which is not a zoned or unzoned commercial or industrial area. The return receipt was signed by E. W. Hinson, Jr., on October 9, 1984. Paragraph 2 of the notices of violation served on October 3 and received on October 9, 1984, sets forth the following procedural requirements: You must comply with the applicable provisions of said Statute(s) and Cede(s) within thirty (30) days from the date of this notice, . . . or in the alternative, an administrative hearing under Section 120.57, Florida Statutes, must be requested by you within thirty (30) days of the date of this notice . . . E. W. Hinson, Jr., on behalf of the Respondent, requested an administrative hearing by letter dated November 16, 1984. This request was received by the Department of Transportation clerk on November 19, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order dismissing with prejudice the Respondent's request for an administrative hearing in each of these cases. THIS RECOMMENDED ORDER entered this 24th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 24th day of January, 1985. COPIES FURNISHED: Philip S. Bennett, Esquire and Maxine Fay Ferguson, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 E. W. Hinson, Jr. Hinson Oil Company P.O. Box 1168 Quincy, Florida 32351 John Curry, Esquire P.O. Drawer 391 Quincy, Florida 32351
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $5,560.08 for limes grown by Petitioner and picked and sold by Respondent Southeast?
Findings Of Fact Petitioner Joyce McKiness is a grower of limes in Homestead, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the limes, then brings them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the limes pays Southeast after receipt of the limes, Southeast ascertains what prices were paid for the limes, and then calculates its costs and pays the grower the difference. Between the weeks ending March 4 and July 8, 1988, Southeast picked 1,165.1 bushels of limes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's limes picked by Southeast. Petitioner disputes Southeast's calculations as to the price which Southeast received for the limes, the percentage of the limes picked by Southeast which `graded out' for sale, and the amount of picking and inspection fees charged by Southeast. Petitioner bases the price that she claims Southeast received for the limes, for the eight separate pickings in question in this cause, on her belief that 1988 lime prices were 25% higher than 1987 lime prices. She, therefore, added 25% to the prices of limes picked in 1987 for the same months. No competent, substantial evidence was offered in support of Petitioner's belief. In one instance, Southeast paid her a higher price per bushel than she claims. Petitioner claims that 80% of each picking was saleable citrus. Southeast's records reflect that Petitioner was given credit for 80% of her limes on one of the eight pickings. For the remainder of the pickings, however, Southeast gave her credit for as little as 45.4% of the bushels picked and as high as 99.7% of the bushels picked. No competent, substantial evidence was offered to justify Petitioner's selection of 80% for all eight pickings. The 80% figure selected by Petitioner allows for no differences in the amount of marketable limes from each picking, and there is no evidence to support the proposition that no matter when during the season the limes are picked exactly 80% of them will be marketable. No competent, substantial evidence was offered as to how Petitioner computed the picking and inspection fees paid by Southeast, which fees were then deducted by Southeast from the sale price of the limes before crediting Petitioner with the balance of the sale price. In two instances, the picking and inspection fees charged by Southeast were less than what Petitioner claims they should be. Southeast admits that for lime pool #809 for the week ending March 4, 1988, it owes petitioner the amount of $393.36.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Joyce McKiness in the amount of $393.36 and that such monies should be paid to her within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January, 1990. LINDA M. RIGOT 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 30 day of January, 1990. COPIES FURNISHED: Cliff Willis Florida Farm Bureau Mutual Insurance Company 1850 Old Dixie Highway Homestead, Florida 33033 Don Reynolds c/o Aaron Thomas, Inc. 11010 North Kendall Drive, Suite 200 Miami, Florida 33176 Joyce McKiness 20350 Southwest 346th Street Homestead, Florida 33034 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue The issue in this case is whether Petitioners sold nursery plant materials to Respondent U.S. Lawns of Orlando, Inc. for which the latter did not pay.
Findings Of Fact On May 24, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 460 Juniper plants, for $731.40 including tax. The plants were picked up by U.S. Lawns employee Mark Rosetta. U.S. Lawns of Orlando, Inc. does not dispute the validity of the claim arising out of the May 24 sale. However, U.S. Lawns has never paid for these plant materials. On June 6, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 40 Juniper plants and 50 grass plants for $166.95 including tax. These plants were picked up by Jeffrey Miller, who was an employee of U.S. Lawns. U.S. Lawns disputes the validity of the June 6 sale. However, the owner of U.S. Lawns, Glen Jaffee, never responded to numerous telephone calls from Pen Smith of Jon's Nursery, Inc. concerning the unpaid invoices. Nor did anyone respond to a certified demand letter that Mr. Smith mailed to U.S. Lawns on August 29, 1990, or the numerous monthly statements reflecting the unpaid balances. An officer and employee of U.S. Lawns of Orlando, Inc., Pat Oyler, had ordered the plant materials by telephone from Jon's Nursery, Inc. Mr. Oyler had previously ordered plant materials on behalf of U.S. Lawns from Jon's Nursery, which had always been paid. On two occasions subsequent to the sales in question, Mr. Oyler ordered plant materials from Jon's Nursery, Inc. on behalf of U.S. Lawns, but paid for them with his personal check, and Mr. Smith told him that he would need, in such cases, to order the plants in his name. On May 31, 1990, Concepts in Greenery, Inc. sold U.S. Lawns ten 15-gallon crepe myrtles for $318 including tax. These items were picked up by Jeffrey Miller driving a U.S. Lawns truck. These plant materials had been ordered by Mr. Oyler of U.S. Lawns. Concepts in Greenery, Inc. had also previously done business with U.S. Lawns and been paid. In a sale which had taken place on March 25, 1990, Mr Oyler had ordered about $400 worth of plant materials on behalf of U.S. Lawns. Additionally, in its application for credit with Concepts in Greenery, Inc. dated April 11, 1988, Mr. Jaffee, as president of U.S. Lawns of Orlando, Inc., had certified that Mr. Oyler was vice president of U.S. Lawns of Orlando, Inc. Repeated telephone calls and monthly statements from Concepts in Greenery, Inc. to U.S. Lawns of Orlando, Inc., as well as a certified letter dated September 19, 1990, to Mr. Jaffee, were unsuccessful in obtaining any response whatsoever from the latter company. Spring Hill Nursery, Inc. made several sales of a variety of plant materials to U S. Lawns of Orlando, Inc. Including tax, these sales were as follows: March 13, 1990, for $131.18; March 26, 1990, for $544.05; April 5, 1990, for $12.24; April 6, 1990, for $90.10; April 17, 1990, for $593.60; April 18, 1990, for $55.65; and April 27, 1990, for $92.75. An eighth invoice dated June 4, 1990, for $581.15 has been excluded because it bears the names of Oyler Construction Company, Inc., Bentley Green, and Pat Oyler as the persons invoiced and nowhere mentions U.S. Lawns. The total of the seven sales to U.S. Lawns is $1519.57. Spring Hill Nursery, Inc. repeatedly tried to contact Mr. Jaffee and U.S. Lawns, including by letter dated August 27, 1990, but never received any response to its demand for payment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring U.S. Lawns of Orlando, Inc. to pay the above-indicated sums to the respective parties. DONE AND ENTERED this 9th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 9th day of April, 1991. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel Department of Agriculture 515 Mayo Building Tallahassee, FL 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Pen Smith, Sales Manager Jon's Nursery, Inc. 24546 Nursery Way Eustis, FL 32726 Charles Brown, Nursery Manager Concepts in Greenery, Inc. 16366 Old Cheney Highway Orlando, FL 32833 David Rubright, President Spring Hill Nursery, Inc. 1921 Hill Drive Apopka, FL 32703 Glen Jaffee 612 Bryn Mawr Orlando, FL 32804 Bankers Insurance Company 10051 5th Street North St. Petersburg, FL 33702
The Issue Whether Respondent Employer committed an unlawful employment practice against Petitioner on the basis of his race, color, disability/handicap, and/or age.1/
Findings Of Fact Petitioner is an African-American male who was 66-68 years of age at all times material. Petitioner worked successfully, in a variety of positions, for Respondent from March 20, 1999, until July 29, 2007. By all accounts, he was an excellent employee in each position. He has, at his own expense, trained for, and received, a security guard license and education as a fork lift operator. The published job description for employment as a Wal- Mart Garden Center Sales Associate, has, since May 2005, required, among other "essential functions," that one be able to: While moving within the department over uneven surfaces and moving up and down a ladder, frequently lifting, sorting, carrying, and placing merchandise and supplies of varying sizes, constantly lifting up to 50 pounds without assistance and over 50 pounds with team lifting. On March 3, 2006, Petitioner signed this job description, signifying that he possessed the ability at that time to perform all its essential functions. On a Saturday in July 2007, Petitioner was still working for Respondent as a Garden Center Sales Associate. Early that day, Petitioner and a cashier were alone in the garden center of Respondent's store at 13th Avenue, Gainesville, Florida. Upon her request, Petitioner loaded 83 bags of top soil into a customer's truck without assistance. Later that same day, Petitioner's wrist began to hurt. The following Monday, Petitioner’s hand was swollen. He approached Store Manager Thomas Horton, and told Mr. Horton that he needed to see a doctor. Petitioner did nothing to alert Mr. Horton that he might have had an on-the-job injury. Mr. Horton orally authorized Petitioner to go to a doctor. Petitioner unilaterally selected Dr. Youssef W. Wassef to treat his wrist. There is no evidence of the workers' compensation process, pursuant to Chapter 440, Florida Statutes, ever being invoked. On or about August 2, 2007, Dr. Wassef provided a note that said: Patient should not allowed [sic] to lift more then [sic] 15 lb. This note was provided to Respondent’s store personnel office by Petitioner at or about the same time he got it. According to the August 2, 2007, restrictions placed on Petitioner by his treating physician, Petitioner was unable to perform the essential functions of the Garden Center Sales Associate position. Petitioner testified that he last worked on July 29, 2007. On or about September 6, 2007, Petitioner delivered to his store’s personnel office another note from Dr. Wassef, stating: Patient should continue until further notice on full-time, light duties, no lifting or pushing. This note also placed medical restrictions on Petitioner which made him unable to fulfill the essential functions of his Garden Center Sales Associate position. It is unclear whether Petitioner was working or was on the equivalent of sick leave from Monday, July 30, 2007, until September 7, 2007. It is most probable, based on the evidence as a whole, that at least after receiving the August 2, 2007, doctor’s note, Wal-Mart did not allow Petitioner to work in the capacity of a Garden Center Sales Associate. Specifically, Mr. Horton testified that he “called back” Petitioner sometime during the back-to-school/college season, which “season” would have been in late August or early September, to work in a temporary position. The temporary position assigned Petitioner was described by Ms. Chewning, the store's Personnel Manager, as a “May I assist you?” position. In this temporary position, which lasted only a few weeks, Petitioner was only required to walk around and point out to inquiring shoppers their requested back-to-school/college materials. Wal-Mart did not require Petitioner to work outside his medical restrictions. When the back-to-school/college season ended, so did the temporary position. When the back-to-school/college season ended and the temporary sales associate position was eliminated, there were no positions available at Petitioner’s store that he could perform with his medical restrictions on lifting and pushing. Also, at that point in time, Mr. Horton began to lay off people in some positions. However, Petitioner remained on leave and was not laid off. Although Petitioner referred to a People Greeter position in his November 20, 2007, discrimination complaint before FCHR, there is no credible record evidence that Petitioner requested a Wal-Mart People Greeter position as an “accommodation” of his condition prior to filing his discrimination complaint or that a People Greeter position was vacant at any time material to this case. However, the published job description for employment as a Wal-Mart People Greeter has, since May 2005, required, among other "essential functions" that the incumbent be able to: Provide shopping carts to customers by pushing or pulling up to 10 pounds of pressure . . . Frequently lifting, placing and deactivating items weighing up to 10 pounds without assistance, and regularly lifting merchandise over 10 pounds with team lifting. Petitioner documented at hearing, via an old doctor’s report, that in 1991, he had severe arthritis in both his elbows and that surgery was contemplated at that time. However, there is no clear evidence that he had the surgery or, if he had the surgery, what was its outcome. There also is no persuasive evidence that Respondent’s personnel office or any Wal-Mart employee material to the instant case knew about this doctor’s report prior to the present litigation. Petitioner demonstrated at hearing that his elbows are visible in the short-sleeve shirts worn by Wal-Mart employees. He believes his elbows stick out farther than other people’s elbows, and he speculated that his superiors and store personnel office employees decided visually that he had a handicap because “my arms stick out” and because of a scar on one arm. The undersigned observed his demonstration. If there is a deformity, it is not substantial, and the scar is not visible without close inspection. Sometime in August-September 2007, probably during the back-to-school/college season, Mr. Horton observed Petitioner wearing what Mr. Horton believed to be a brace on Petitioner’s hand, but which was, in fact, a wristband. However, no evidence supporting Petitioner’s theory that any superiors or personnel office employees did, in fact, perceive him as disabled/handicapped was adduced. Petitioner denied ever being handicapped or unable to perform the essential functions of his job as a Wal-Mart Garden Center Sales Associate. Mr. Horton and Jennifer Chewning each credibly denied ever perceiving Petitioner as handicapped, even up to the date of the hearing. When he had been hired in 1999, Petitioner acknowledged receipt and understanding of the policies contained within Respondent’s Associates Handbook. Petitioner again acknowledged receipt and understanding of these policies on March 29, 2001, when he was issued a revised Associates Handbook. Wal-Mart regularly offers leaves of absence to any associate who has a medical condition that is not perceived by the employee or management as a “disability” under the Americans with Disabilities Act (ADA) or the Florida Civil Rights Act, but whose condition prevents him from performing his job. Ms. Chewning testified that the Request for Leave of Absence form described below is used specifically for situations not covered by the ADA or by State disability laws.3/ The form upon which an employee may apply for such a leave of absence advises that the leave of absence is without pay; that there will be no accrual of benefits or seniority during the leave of absence; and that the employee must pay his own insurance premiums during this period. Grant of the requested leave is dependent upon the treating physician’s verification of the employee's medical condition. (See Finding of Fact 20.) Based on Petitioner's inability to perform the essential functions of any available position within the store in September 2007, Ms. Chewning offered Petitioner such a leave of absence. Petitioner disputes some of the contents of the Request for Leave of Absence form in evidence, which completed form Mr. Horton retroactively approved on September 21, 2007, for Petitioner to be on continuous leave beginning September 7, 2007, with a return date of December 31, 2007. However, Petitioner admits that he signed this form. The date beside Petitioner’s signature seems to be September 19, 2007. Petitioner’s signature on this form signifies that he was requesting “medical leave,” thereby acknowledging: A medical condition (including pregnancy and childbirth, and on-the-job Workers’ Comp. injuries) requiring time away from work. The Health Care Provider’s Section, below, must be completed and signed. Before returning, associate must submit a return- to-work statement/release from a Health Care Provider detailing restrictions, if any. . . . * * * . . . I fully understand Wal-Mart’s Leave of Absence Policy. Petitioner also agreed that on or about September 19, 2007, as reflected on the portion of this Request for Leave of Absence form which was filled-in by Dr. Wassef, Petitioner’s doctor had certified that Petitioner should begin medical leave on September 9, 2007, and continue through September 30, 2007. Petitioner asserted that on or about September 13, 2007, he delivered to someone other than Ms. Chewning in Respondent's personnel office another note from Dr. Wassef stating: Patient has partial permanent disability.[4] Does not need sick leave. He needs to continue to work full-time with limited lifting, pulling, and pushing. Petitioner asserted that on or about October 29, 2007, Petitioner delivered to someone other than Ms. Chewning in Respondent's personnel office the last note he had received from Dr. Wassef, which stated: Patient able to work full-time with limited lifting to 20 pounds. Ms. Chewning testified that neither the September 13, 2007, nor the October 29, 2007, medical notes contemporaneously reached either herself or Petitioner’s personnel file. According to the last medical note she received prior to hearing, Petitioner could not even perform the essential functions of a People Greeter position. (See Findings of Fact 10 and 13.) Reviewing Dr. Wassef’s September 13, 2007, and October 29, 2007, notes for the first time at hearing, she pointed out that, according to the most recent note, Petitioner was still medically restricted from performing some of the essential functions of his Garden Center Sales Associate’s position. (See Findings of Fact 3 and 22.) She has never received a medical release permitting Petitioner to return to full functioning as a Garden Center Sales Associate. Ms. Chewning testified that Wal-Mart has a policy that a medical leave of absence may not extend beyond one year. However, neither its printed non-ADA leave of absence policy in evidence nor the Request for Leave of Absence form in evidence specifies a one year maximum leave. More than a year after Petitioner’s leave began on September 7, 2007, and nearly 10 months after the leave was supposed to end on December 31, 2007, Wal-Mart has not taken steps to terminate Petitioner, because of the current litigation that began with Petitioner’s filing his complaint with FCHR on November 20, 2007. Ms. Chewning testified that, as of the date of hearing on October 15, 2008, Respondent had not terminated Petitioner; Petitioner remained on his approved unpaid leave of absence; and if Petitioner brings in a doctor’s note saying he can perform all the essential functions listed on his Garden Center Sales Associate’s job description, including but not limited to being able to lift 50 pounds, Wal-Mart will put Petitioner back in his Garden Center Sales Associate position, and he will retain his salary level, his accrued years of service, and all his benefits as they existed at the beginning of his leave of absence. Petitioner erroneously perceives himself as having been terminated and wants to go back to work, but he has not yet presented any doctor’s release that allows him to perform regularly the functions of a Garden Center Sales Associate. There is no evidence herein that under similar conditions Wal-Mart has treated any person of any race other than African-American differently than Petitioner has been treated. There is no evidence herein that under similar conditions Wal-Mart has treated any person of any age other than 66-68 years of age, differently than Petitioner has been treated.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 2nd day of February, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 2nd day of February, 2009.
Findings Of Fact Petitioner, Ponsell's Farms, Inc., operates a nursery business in Glen St. Mary (Baker County), Florida. On or about January 16, 1982 Petitioner received a telephone order from Respondent, Reasoner's Tropical Nursery, Inc., for nursery stock consisting mainly of Magnolia trees and tubs at an undisclosed price. The order was subsequently revised by Respondent on January 20 when it added more stock to its order. The total value of the order was placed at $8,800. Respondent operates a nursery business in Oneco (Manatee County) , Florida. There was no written agreement between the parties concerning the sale. However, the parties did orally agree that the trees were needed as soon as possible and that Respondent would provide its own transportation. Respondent also paid a $3,000 cash deposit on the order. After the order was placed, Petitioner immediately dug up the trees and placed them in a holding area pending arrival of Respondent's truck. The trees were wrapped in burlap bags and watered periodically with Petitioner's sprinkling system. Petitioner telephoned Respondent on January 20, 25 and 28 to advise him the trees had been dug and were ready to be picked up immediately. These calls were followed by a written invoice mailed to Respondent on February 10. Additional telephone calls were made during the month of February. On one occasion in January, Respondent advised Petitioner that its truck was disabled and unable to operate; however, Petitioner later learned that the truck was repaired and again operable the day after that advice was given. At some point in February, Petitioner advised Respondent by telephone that the trees were "getting bad" and needed to be picked up immediately. Finally, on March 2, Respondent's truck and driver arrived to pick up the shipment. The driver was given the opportunity to inspect the plants before they were loaded. Only a few plants were rejected. However, Respondent claimed the driver was only that and had no authority to do anything except drive the truck. The driver also borrowed a net to cover the trees while being transported. Its uncontradicted value was placed at approximately $500 and has not yet been returned to Petitioner. Upon receipt of the plants, Respondent immediately wrote Petitioner on March 5 expressing dissatisfaction with the entire shipment. Respondent also invited Petitioner to send a representative to inspect the plants. Further investigations were made by representatives of the Florida Division of Plant Industry and the Manatee County Extension Service. These confirmed that the plants had deteriorated. Petitioner's representative visited Respondent's nursery twice to recover the net and inspect the plants but for some unexplained reason was unable to do either. Respondent presented a registered landscape architect who opined that the damage to the trees was caused by improper sprinkling in the holding area. He also stated that three to four weeks was the most desirable holding time for plants. How ever, the time between which the plants were dug by Petitioner and ultimately picked up by Respondent exceeded this time period. He corroborated the testimony of Respondent that due to the condition of the plants, they will not be saleable for another year, or a total of two years after they were originally delivered. Respondent believes that plants can be dug up and maintained in a holding area for up to a year without incurring shock and damage if properly cared for. Because of this, he felt no urgency to pick up the plants despite repeated calls from Petitioner. He maintains that this is the normally accepted practice in nurseries in Florida, and his failure to pick up the plants was not unusual. Petitioner countered that the trees were properly cared for and only because of Respondent's delay in picking up the shipment did the damage occur. Both sides agree the cost of the plants as originally ordered was $8,800. The value of the net ($500) was not contradicted. Respondent has calculated the value of the shipment in its present state to be only $1,595.70; thus it claims it is entitled to a $1,404.30 reimbursement from the $3,000 deposit. Respondent gave no definitive reason why it ignored the requests of Petitioner and did not pick up the shipment within a reasonable time after placing the order. This delay was a direct cause of the deterioration of the shipment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be paid $5,425 by Respondent within fifteen days after the date of the final order entered in this proceeding. DONE and RECOMMENDED this 11th day of May, 1983 in Tallahassee, Florida. DONALD R. ALEXANDER 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 11th day of May, 1983.
