Conclusions Having reviewed the Administrative Complaints, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named party pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to Hope Garden Assisted Living Facility. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The Agency issued the attached Notice of Intent to Deny letter and the Election of Rights form to Hope Garden Assisted Living Facility. (Ex. 2) The Election of Rights form advised of the right to an administrative hearing. 4. The parties have since entered into the attached Settlement Agreement. (Ex. 3) Based upon the foregoing, it is ORDERED: 1 Filed May 30, 2013 10:05 AM Division of Administrative Hearings 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $3,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 3. The Notice of Intent to Deny is withdrawn. ORDERED at Tallahassee, Florida, on this 2A day of Atty , 2013. SL i th dh sean Ageréy for He are Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 CERTIFY that a true and Or Se of this Final Order was served on the below-named persons by the method designated on this 27 ay of aa , 2013. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 2 Jan Mills Facilities Intake Unit (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Lourdes A. Naranjo, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) "| Calisha A. Francis, Esq. Attorney for Hope Garden Assisted Living Facility Martells and Francis, LLC 4000 Hollywood Blvd. , Suite 555-S Hollywood, Florida 33021 (U.S. Mail) E Gary Early Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
The Issue Whether the Respondents should be required, pursuant to Section 604.21, Florida Statutes, to pay the Petitioner $701.88 for agricultural products.
Findings Of Fact Pleasant View Nursery, Inc., is a corporation located in Valrico, Florida. K. S. Enterprises, Inc., d/b/a The Landscape Company and First Coast Wholesale Growers, is a corporation located in Jacksonville, Florida. K. S. Enterprises, at the time of the transaction involved in this proceeding, was licensed in Florida as a dealer in agricultural products. Lawyers Surety Corporation provided Surety Bond Number FLA-390042 (hereinafter referred to as the "Bond"), in the amount of $10,000.00 in support of K. S. Enterprises' license. The conditions and provisions of the Bond assure proper accounting and payment to producers, their agents or representatives for agricultural products purchased by K. S. Enterprises. On December 31, 1990, Pleasant View sold to K. S. Enterprises nursery plants produced by Pleasant View. The nursery plants were provided to, and accepted by, K. S. Enterprises. In consideration for the nursery plants sold to K. S. Enterprises on December 31, 1990, K. S. Enterprises agreed to pay Pleasant View the sum of $6,741.60 within 30 days from date of sale. K. S. Enterprises also agreed to the following terms of payment: We extend credit to few customers because of the tremendous capital required to carry it, because of the extensive cost of borrowing that capital. All accounts 30 days past due will be charged 1 1/2%. . . . A bill for payment for the plants purchased by K. S. Enterprises was sent to K. S. Enterprises the first week of January, 1991. No payment was made by K. S. Enterprises. K. S. Enterprises was billed again during the first week of February, 1991. No payment was made by K. S. Enterprises during the month of February. Interest of $101.12 attributable to the month of January, 1991, and $102.61 attributable to the month of February, 1991, was added to K. S. Enterprises account. Another bill was sent to K. S. Enterprises in March, 1991. On or about March 18, 1991, K. S. Enterprises paid $500.00 to Pleasant View. The payment was credited against the principal outstanding and not against interest in order to reduce the amount of interest that would accrue on the remaining indebtedness. Pleasant View continued to bill K. S. Enterprises each month for the balance due from K. S. Enterprises. Accrued interest was added to K. S. Enterprises' account each month. By August, 1991, the total amount of interest due from K. S. Enterprises was $701.88. The total amount remaining unpaid for the plants sold to K. S. Enterprises was $6,241.60. On or about June 19, 1991, a letter was mailed to K. S. Enterprises notifying K. S. Enterprises of Pleasant View's intent to file a complaint with the Department. K. S. Enterprises received the notice on or about June 25, 1991. On or about June 19, 1991, Pleasant View filed the complaint with the Department. The complaint was filed within six months after the date of the sale to K. S. Enterprises. Subsequent to the Department sending notice to K. S. Enterprises of the complaint, K. S. Enterprises paid Pleasant View $6,241.60. On or about August 13, 1991, Pleasant View received the payment of $6,241.60 from K. S. Enterprises. Pleasant View applied the payment first to the amount of interest that had accrued ($701.88) leaving $5,339.72 ($6,241.60 payment less $701.88 applied to interest) to apply against the remaining indebtedness. Applying the remaining $5,339.72 toward the remaining $6,241.60 owed for the plants left an unpaid balance of $701.88. These actions were taken pursuant to established policy of Pleasant View.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order requiring that K. S. Enterprises, Inc., pay the sum of $701.88 to Pleasant View Nursery, Inc. It is further RECOMMENDED that, should K. S. Enterprises, Inc., fail to comply with the Final Order, that Lawyers Surety Corporation should be called upon to pay the sum of $701.88 to Pleasant View Nursery, Inc., pursuant to Section 604.21, Florida Statutes. DONE and ENTERED this 25th day of September, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Case Number 92-3032A Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1992. APPENDIX Pleasant View has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Respondents did not file a proposed recommended order. Pleasant View's Proposed Findings of Fact Hereby accepted. Accepted in finding of fact 5. Accepted in findings of fact 6-7. Accepted in findings of fact 8-9 and 11-12. Accepted in findings of fact 14-15. Accepted in findings of fact 13 and 17. Hereby accepted. COPIES FURNISHED: Susan Goben, Office Manager Pleasant View Nursery, Inc. 1321 North Valrico Road Valrico, Florida 33594 Kenneth W. Smith, President K. S. Enterprises, Inc. 1914 Beachway Road, Suite 2-J Jacksonville, Florida 32207-2320 Lawyers Surety Corporation Legal Department 1025 South Semoran Suite 1085 Winter Park, Florida 32792 Richard Tritschler, Esquire Department of Agriculture & Consumer Services The Capitol, Pl-10 Tallahassee, Florida 32399-0810 Honorable Bob Crawford Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issue for determination is whether Respondent is indebted to Petitioner in the amount of $2,295.00 for agriculture products, plus $50.00 filing fee, totaling $2,345.00.
Findings Of Fact No dispute exists that, at all times material hereto, Horizon Nursery was a producer of agriculture products. No dispute exists that, at all times material hereto, Designing Women Landscaping was a dealer in agriculture products. No dispute exists that, at all times material hereto, Designing Women Landscaping purchased agriculture products from Horizon Nursery. Linda Esposito testified on behalf of Horizon Nursery. She is the Office Manager of Horizon Nursery. Beth Best testified on behalf of Designing Women Landscaping. She is the Vice President of Operations for Designing Women Landscaping. No dispute exists that Horizon Nursery and Designing Women Landscaping began their business relationship in February 2005. Horizon Nursery has a form titled “Terms and Conditions of Credit” for dealers in agricultural products who desire to do business with it on credit. Horizon Nursery also refers to the form as a credit application. The Terms and Conditions of Credit contains a section at the end of the form for the date, the name of the firm, the signature and title of the person executing the form on behalf of the firm, the printing of that person’s name, and the social security number of that person. The Terms and Conditions of Credit provisions provide in pertinent part: Charges are due 30 days from invoice date. All past due accounts are subject to a service charge of 1.5% per month. * * * The undersigned applicant does hereby certify that the information given is correct . . . it is agreed and understood by HORIZON NURSERY . . . and the undersigned that all purchases made on an open account will be paid in full according to the terms of sale on each invoice and this application. Horizon Nursery possessed a Terms and Conditions of Credit form dated February 8, 2005, with the firm name of Designing Women Landscape. Further, the Terms and Conditions of Credit form contained the signature of the owner of the firm, however, the name of the owner was not printed. The social security number was redacted. Designing Women Landscaping admitted that the signature appears to be that of its President, Susan Hallett.1 An inference is drawn and a finding of fact is made that the signature is that of the President of Designing Women Landscaping. Designing Women Landscaping did not possess a copy of the Terms and Conditions of Credit. A finding of fact is made that Designing Women Landscaping executed, agreed to, and was subject to the Terms and Conditions of Credit. Regarding payments on an account, Horizon Nursery’s standard operating procedure is to apply a payment first to service charges on the account and then to the oldest outstanding invoice of the account. Designing Women Landscaping received specific invoices from Horizon Nursery, regarding agricultural products ordered by and shipped to it, and paid the specific invoices for agricultural products from Horizon Nursery. However, several payments by Designing Women Landscaping were made beyond 30 days of the date of the invoices. When a payment was not made within 30 days of an invoice date, Horizon Nursery added a service charge to the balance owed in accordance with the Terms and Conditions of Credit; and, in accordance with its standard operating procedure, applied the payment first to the service fee owed and then to the oldest outstanding invoice. However, when Horizon Nursery sent a subsequent invoice to Designing Women Landscaping for agricultural products that were ordered by and shipped to Designing Women Landscaping, the invoice reflected, among other things, the cost for agricultural products ordered by and shipped to Designing Women Landscaping, but did not reflect the service charge that had been added to the Designing Women Landscaping’s account for the late payment. Moreover, none of the invoices for agricultural products ordered by and shipped to Designing Women Landscaping reflected service charges that had been added to the Designing Women Landscaping’s account for late payments. Horizon Nursery’s AR Dated Invoice/Payment Report reflects a beginning balance of $-0- for Designing Women Landscaping as of April 3, 2006. Subsequent to April 3, 2006, according to the AR Dated Invoice/Payment Report, Designing Women Landscaping began to accrue service charges. Throughout the business relationship between Horizon Nursery and Designing Women Landscaping, no dispute exists that Designing Women Landscaping received specific invoices totaling $168,622.96 for agricultural products ordered by and shipped to it by Horizon Nursery; and that Designing Women Landscaping paid $168,622.96 to Horizon Nursery. The last specific invoice submitted to Designing Women Landscaping was invoice no. 115783 dated April 8, 2008, in the amount of $2,295.00. Horizon Nursery’s AR Dated Invoice/Payment Report reflects that a payment of $2,295.00 was received by Horizon Nursery on May 15, 2008. The payment was received beyond 30 days of the date of the invoice. In accordance with its Terms and Conditions of Credit, Horizon Nursery added a service charge to Designing Women Landscaping’s account. Additionally, in accordance with its standard operating procedure, Horizon Nursery applied the payment first to service charges and then to the oldest outstanding invoice. Applying the two aforementioned procedures, Designing Women Landscaping’s account resulted in a balance owed. By a statement dated December 15, 2008, Horizon Nursery notified Designing Women Landscaping that it had an outstanding balance of $2,460.99, representing two outstanding invoices: invoice no. 115542 dated December 17, 2007, in the amount of $450.00, with a balance of $165.99, and invoice no. 115783 dated April 8, 2008 in the amount of $2,295.00, with a balance of $2,295.00, which was the last specific invoice to Designing Women Landscaping. Because Horizon Nursery had applied payments from Designing Women Landscaping first to service charges and then to the oldest outstanding invoice, the two invoices remained outstanding even though Designing Women Landscaping had paid the amounts indicated in the invoices. Horizon Nursery’s employee responsible for accounts receivable had several telephone conversations, regarding the late payments, service charges, and how Horizon Nursery applied the payments received, with Designing Women Landscaping’s bookkeeper, who was the employee responsible, among other things, for paying the invoices approved by Ms. Best. Designing Women Landscaping’s bookkeeper was employed with it for nine to 12 months. At no time did Horizon Nursery discuss with or communicate to an officer of Designing Women Landscaping regarding the service charges, late payments, and how Horizon Nursery applied the payments received. Even though Horizon Nursery’s statement dated December 15, 2008, and ledger reflects a balance of $2,460.99, Horizon Nursery is claiming $2,295.00, the amount of the invoice dated April 8, 2008. Additionally, Horizon Nursery is claiming $50.00 for filing the Amended Claim with the Department. No appearance was made by the casualty company, Nova Casualty Company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a final order finding that Designing Women Landscaping, Inc., d/b/a Designing Women Landscaping and Nursery is indebted to Horizon Nursery of Florida, LC in the amount of $2,295.00 and ordering the payment of same, plus a filing fee of $50.00 for filing the Amended Claim. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 5th day of February, 2009.
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 The issue is whether Village Ordinance No. 01-08, which regulates sexually oriented businesses, is inconsistent with the Principles for Guiding Development in the Florida Keys Area of Critical State Concern, pursuant to Section 380.0552, Florida Statutes.
Findings Of Fact On June 14, 2001, Respondent Islamorada, Village of Islands (Village), adopted Ordinance No. 01-08 (Ordinance). The Ordinance generally regulates the "location and separation" of "sexually oriented businesses." On June 19, 2001, Respondent Department of Community Affairs (DCA) entered a final order determining that the Ordinance is consistent with Section 380.0552, Florida Statutes (Principles for Guiding Development). In particular, the Ordinance applies to "regulated business[es]." These are defined as "[s]exually oriented bookstore[s]," "[s]exually oriented domination/submission parlor[s]," "[s]exually oriented mini motion picture theater[s]," "[s]exually oriented motel[s]," "[s]exually oriented motion picture theater[s,]" [e]ncounter studio/modeling studio[s]," and "[n]ude entertainment establishment[s]." The Ordinance defines a "[n]ude entertainment establishment" as: any establishment which does or does not offer alcoholic beverages for sale or consumption but does feature male or female entertainers, performing partially clothed, or completely nude, displayed in a setting, stage, or cubicle within a business, which has as its principal and incidental purpose the offering for viewing to adults of performances which have as their dominant or primary theme matters depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," as defined below. The Ordinance defines "specified sexual activities" as: Human genitals in a state of sexual stimulation, arousal, or tumescence; or Acts of human anilingus, bestiality, buggery, cunnilingus, coprophagy, coprophilia, fellatio, flagellation, masochism, masturbation, recrophilia, pederasty, pedophilia, sadism, sadomasochism, sexual intercourse or sodomy; or Fondling or other erotic touching of human genitals, pubic region, buttock, anus, or female breast; or Excretory functions as part of or in connection with the activities set forth in subsections (1) through (3). The Ordinance defines "specified anatomical areas" as: Less than complete and opaquely covered: Human genitals and pubic region; or Cleavage of the human buttocks; or That portion of the human female breast encompassed within an area falling below the horizontal line one would have to draw to intersect a point immediately above the top of the areola, including the areola; this definition shall include the entire lower portion of the human female breast, but shall not include a portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit or other wearing apparel, provided the areola is not so exposed; and Human male genitals in a discernible turgid state, even if completely and opaquely covered. The Ordinance provides that "regulated businesses" are permitted within the Industrial "I" Future Land Use category, subject to several restrictions. These restrictions include a 400-foot setback from the property line of any property designated on the future land use map, zoned, or used for residential purposes; or a 100-foot setback from the property line of any property used for a place of worship, park, or school. The Ordinance requires that, within 90 days of the effective date, all legal nonconforming "regulated businesses" shall conform to the provisions of the Ordinance, or the use shall be terminated. The Ordinance explains the legislative intent underlying its passage as follows: It is the intent and purpose of this [Ordinance] to regulate the location and separation of sexually oriented businesses, referred to herein as "regulated businesses," which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when they are located near properties designated, zoned or used for residential purposes or used for places of worship, parks or schools, thereby having a deleterious effect upon the adjacent areas. Further, it is recognized that the location of even one regulated business near such an area causes such deleterious effects on that area. Special regulation of these businesses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood, as provided herein. . . . Petitioner operates a restaurant and nightclub known as Woody's in Islamorada. Originally a roadhouse, Woody's has been in business since 1987. During the time that it has been in business, Woody's has offered adult entertainment featuring the band known as "Big Dick and the Extenders." Jack Snipes, the large man who is the "Big Dick" of "Big Dick and the Extenders," is a part owner of Woody's. The double entendre implicit in the name of the band exemplifies the sexual content that laces the band's show, which relies heavily on sexually explicit language, sexual props, and occasional baring of female breasts and male and possibly female buttocks. Historically, most of the nudity was occasional, largely spontaneous, and displayed by the crowd, rather than the band or employees of Woody's (Mardi Gras-Style Nudity). In May 2001, Woody's abandoned Mardi Gras-Style Nudity in favor of live nude dancing performed by dancers hired by Woody's. The dancers performed for the entire crowd or, for a tip, performed for a specific customer. However, Woody's allowed only dancing on the stage or table and prohibited physical contact between any dancer and any customer. Woody's is unobtrusive, although it abuts U.S. Route A1A. Surrounding Woody's are restaurants, boat yards, marinas, and stores. Woody's is not a notorious focal point of drug activity or prostitution. To the contrary, Mr. Snipes and his band have given freely of their time for charitable fundraising, according to the pastor of a local Methodist church. Some island residents view Woody's as an essential ingredient of their community and would not require Woody's to relocate. Other residents, such as those serving on the Village Council, probably do not view Woody's as an essential ingredient of their community and certainly would require Woody's to relocate. Woody's is not presently in an Industrial future land use category. The two areas designated Industrial on Islamorada's future land use map are on Plantation Key and comprise 24 acres, of which ten acres would be unavailable to a regulated business such as Woody's due to buffering requirements. DCA overcame all of Petitioner's objections to the Ordinance. Petitioner claimed that the Ordinance lacked specificity, such as floor-area ratios. However, the Ordinance applies an overlay of a new permitted use--regulated businesses--in areas designated Industrial. Other provisions of the comprehensive plan and land development regulations governing land uses in Islamorada will provide more specific guidelines concerning permitted land uses, including regulated businesses. Petitioner claimed that Woody's would be forced by economic necessity to relocate, if it had to revert to Mardi Gras-Style Nudity and that Woody's could not find an economically viable site within the Industrial areas in Islamorada. DCA proved that these claims were ungrounded. Petitioner claimed that the relocation of Woody's to an Industrial area would take it out of the commercial area in which it is presently located and place it in closer proximity to a church, park, and school. However, DCA proved that this relocation represented no more than a potential for incompatibility of land uses. More importantly, DCA proved that this relocation produced no meaningful inconsistency between the Ordinance and the comprehensive plan and land development regulations governing land uses in Islamorada such that would jeopardize Islamorada's planning capabilities. The Ordinance is not inconsistent with the principle of strengthening Islamorada's capabilities for managing land use and development, so that the local government may achieve these objectives without the ongoing designation of a critical area of state concern. An inconsistency with this criterion of the Principles for Guiding Development must be sufficiently significant to jeopardize the ability of the local government to engage in effective land use planning so as to protect the natural environment of the Florida Keys. DCA has proved that possible inconsistencies, if any, between the Ordinance and any provision of the comprehensive plan or land development regulations governing land uses in Islamorada would be insubstantial. The Ordinance is not inconsistent with the principle of ensuring the maximum well-being of the Florida Keys and its citizens through sound economic development. Neither the Ordinance nor the disappearance or relocation of Woody's and "Big Dick and the Extenders" will have any measurable impact on the economy of the Florida Keys. The Ordinance is not inconsistent with the principle of protecting the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. Neither the Ordinance nor the disappearance or relocation of Woody's and "Big Dick and the Extenders" will have any measurable impact on the public health, safety, and welfare of the citizens of the Florida Keys or the maintenance of the Florida Keys as a unique Florida resource. The Ordinance and the disappearance or relocation of Woody's and "Big Dick and the Extenders" will have no impact whatsoever on the natural resources and public facilities typically within the scope of the Principles for Guiding Development.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order determining that Islamorada Ordinance No. 01-08 is consistent with the Principles for Guiding Development, as set forth in Section 380.0552(7), Florida Statutes. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2002. COPIES FURNISHED: Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Steven G. Mason Steven G. Mason, P.A. 1643 Hillcrest Street Orlando, Florida 32803 Karen A. Brodeen, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Daniel A. Weiss Weiss Serota 2665 South Bayshore Drive, Suite 420 Miami, Florida 33133
The Issue Whether Respondent, Designing Women Landscaping, Inc. (Respondent), a dealer in agricultural products, owes Petitioner, Landscape Nursery, Inc. (Petitioner), a producer of Florida agricultural products, a sum of money for plants purchased from Petitioner's nursery. SUMMARY DISPOSITION On or about February 27, 2009, Petitioner filed an amended complaint with the Florida Department of Agriculture and Consumer Services (the "Department"), alleging that Respondent owes Petitioner the sum of $4,924.40, for plants delivered from Petitioner's nursery to Respondent's place of business. Respondent conceded that it owed some amount to the Petitioner, but prior to the hearing the parties could not agree on the amount owed. The Department forwarded the case to the Division of Administrative Hearings on March 27, 2009. The case was assigned to the undersigned and initially set for hearing on May 8, 2009. One continuance was granted, and the hearing was re-scheduled for May 22, 2009. The hearing was convened as re-scheduled. Prior to the taking of testimony, the parties discussed settlement of the matter. At the conclusion of their discussions, the parties stipulated: that the Division of Administrative Hearings has jurisdiction over this matter and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2009); that, at all times relevant to this proceeding, Petitioner was a "producer" pursuant to Subsection 604.15(9), Florida Statutes (2009); that, at all times relevant to this proceeding, Respondent was a "dealer in agricultural products" pursuant to Subsection 604.15(2), Florida Statutes (2009); that Respondent owes Petitioner $3,033.84 for plants delivered by Petitioner to Respondent; and, that no further interest would be sought or assessed against Respondent on the agreed principal amount owed to Petitioner. Based on the foregoing stipulations, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a final order requiring Respondent, Designing Women Landscaping, Inc., to pay Petitioner, Landscape Nursery, Inc., the principal sum of $3,033.84, without interest. DONE AND ENTERED this 29th day of May, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009. COPIES FURNISHED: Richard D. Tritchler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Susan Hallett Designing Women Landscaping and Nursery 6275 West State Road 46 Sanford, Florida 32771 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Nova Casualty Company 726 Exchange Street, Suite 1020 Buffalo, New York 14210 Gail Hess Landscape Nursery, Inc. 1955 South Apopka Vineland Road Orlando, Florida 32835 Joseph Shay Designing Women Landscaping and Nursery 6275 West State Road 46 Sanford, Florida 32771
The Issue Whether Respondent violated Subsections 481.325(1)(g), 481.325(1)(j), 481.325(1)(k), and 455.227(1)(a), Florida Statutes (2001), and, if so, what discipline should be imposed.
Findings Of Fact At all material times relevant to this proceeding, Maestre was licensed as a landscape architect in the State of Florida, having been issued license number LA 00001744. Maestre provided landscape architectural services through Tropicare Landscape, Inc. (Tropicare). Tropicare has never possessed a certificate of authorization for the practice of landscape architecture in the State of Florida. Stephen Kidd (Kidd) and his wife Jaqueline Hansen (Hansen) contacted Maestre to help them with a landscaping project in their backyard. Hansen found Maestre using the yellow pages in the telephone directory. Maestre came to the Kidd/Hansen residence sometime in June 2001 to discuss the project. Hansen provided Maestre with a sketch for the design of the project, which included a deck, a koi pond, a stream, and a waterfall. Hansen paid Maestre $40 for the consultation, although she and Kidd understood that the initial consultation was to be free. On June 15, 2001, Kidd and Hansen entered into a contract with Maestre for landscape architectural design services. The cover letter which accompanied the contract was on Tropicare letterhead. The contract provided that Maestre was to "examine surrounding conditions, locate and identify all existing amenities for the purpose of producing the necessary site plan." After the owners approved the preliminary phase, Maestre was to prepare working plans, which were to include the following: Planting: Shall name quantity and size all plantings {proposed & existing}, as well as depicting all proposed site amenities (sitting areas, walkways/deck, pond . . .) for various areas of the project site. Lighting: This plan shall show the location and type of light fixture to be used as decorative landscape lighting. Wiring and routing of electrical circuits are not part of this plan. If practical, this information will be depicted on the captioned planting plan. Layout & Details: As required, for all proposed hard-scape items referenced above, and such elements of the design solution proposed, shall be provided as needed for construction. The contract provided that Maestre may provide other services as requested by the owners such as obtaining subcontractor bids and making changes to completed working drawings. Maestre's role during the project installation was set forth in the contract as follows: Upon authorization of budgets & estimates by Owner, Tropicare Landscapes, Inc., shall implement and contract the Project, as phased by the Owner. The Landscape Architect shall oversee all work in progress. [50% of the Professional Fees disbursed by Owner as shown in Section II.b, shall be credited appropriately towards project installation.] Maestre's hourly fees were to be billed at $45 per hour for the preliminary work and other services and $65 per hour for the working plans. Hansen and Kidd provided Maestre with a copy of the deed restrictions for the subdivision in which the Kidd/Hansen residence was located. Kidd and Hansen received a statement from Maestre dated June 26, 2001, for $287.50, which represented 3.5 hours for site analysis and conceptual plan at $45 per hour and two hours for working drawings and base sheets at $65 per hour. Hansen paid Maestre $300 based on this statement. On his second meeting with Hansen, Maestre provided her with a conceptual plan, which was similar to the drawing that Hansen had originally provided to Maestre, except that Maestre had included gravel in some open areas where Hansen had wanted sod. Maestre sent Kidd and Hansen a statement dated July 5, 2001, for $393.75, which represented 6.25 hours for working drawings of the layout and planting design. Hansen paid Maestre $400 based on this statement. Kidd and Hansen provided Maestre with a copy of the survey of the property after the first site plan was completed. Maestre sent a statement to Kidd and Hansen dated July 10, 2001, in which he charged them $2,391.25, representing a project implementation deposit of $2,115 and 4.25 hours for working drawings for a new layout. Hansen paid Maestre $3,000 based on this statement. By letter dated July 11, 2001, Maestre advised Kidd and Hansen that the $2,115 deposit would be applied toward implementation of the project and that 50 percent of the professional fees paid for the working drawings would be credited toward project implementation. By statement dated July 23, 2001, Maestre charged Kidd and Hansen $650 for the working drawing of the final plan, representing ten hours of work. Hansen paid Maestre $650 based on this statement, bringing the total amount paid to Maestre to $4,390. By mid-August 2001, Hansen became nervous because no physical work was being done on the project. Maestre had not given her a project schedule, and she was uncomfortable with his work on the project. On August 20, 2001, Hansen advised Maestre by telephone that she and her husband no longer desired to continue with the project due to their financial circumstances. Kidd and Hansen were not having financial problems, but Hansen did not want to tell Maestre that they did not trust him. By letter on Tropicare letterhead dated August 20, 2001, Maestre advised Kidd and Hansen that the deposit that had been made for the installation had been applied towards an oriental wooden bridge and bamboo plants. Neither the bridge nor the purchase of the bamboo had been authorized by Hansen or Kidd. The letter included a statement of the costs for the bamboo and bridge and for six hours of additional services for meeting with potential subcontractors and for blueprints. The charge for the bamboo was $2,016, and the charge for the bridge was $372.80. As of the final hearing, Kidd and Hansen have not received either the bridge or the bamboo. By letter dated August 22, 2001, Hansen and Kidd advised Maestre that they were terminating the contract and wanted their money returned minus the money that had been paid for the plans. The correspondence and statements from Maestre to Kidd and Hansen were either on Tropicare's letterhead or a hybrid letterhead which showed both Maestre and Tropicare. It is clear that Tropicare was offering landscape architectural services with Maestre as the registered landscape architect. Maestre produced a layout plan dated August 2, 2001, and a plan with a plant list and construction notes (plant plan) dated June 5, 2001, with revisions on July 10 and 23, 2001. The plans were not in conformance with the deed restrictions for the subdivision in which the Kidd/Hansen residence is located. The deed restrictions required that "no structure of any kind, including but not limited to dwellings, garages, swimming pools, and screened cages, shall be erected nearer . . . than 8 feet from any side lot line, nor nearer than 15 feet from the rear lot line of any lot." The planting plan last revised on July 23, 2001, shows a mansard screened enclosure with eight-foot set backs from the rear lot line and a side line. The layout plan shows a setback of less than five feet from the mansard enclosure and the rear lot line. Both plans are in violation of the deed restrictions which require a 15-foot set back from the rear lot line. The waterfall structure has a five-foot set back from the rear lot line on the layout plan and an eight-foot set back on the planting plan. Both plans are violations of the deed restrictions requiring a 15-foot set back. The planting plan should contain the common names and the botanical names of the plants to be used in the project. The planting plan prepared by Maestre did not contain both the botanical and common names of the plants. The planting plan should specify the size, spacing, quality, and quantity of the plants. Maestre's planting plan did not specify the size, spacing, quality, or quantity of the plants to be used. The inadequate plant and planting specifications would not have permitted contractors to bid appropriately in the interests of Kidd and Hansen. Maestre's plans should have included specifications of location or of the type, size, and spacing of beams, joists, decking, and fasteners necessary for the construction of the deck structure. The plans prepared by Maestre did not include this information, which would be necessary to bid the deck portion of the project. Plans for water features such as the waterfall for the Kidd/Hansen residence should consider spray height or water fall, free board and operating water levels, water depth, water level and wave action, pool shape, color, materials for pipes and fittings, water volume and pressure, pump sizing, pump types and filtration systems. Maestre's plans did not specify or inadequately specified the characteristics of water flow, the water depth of the pond, pool shape, weir elevations, height of the waterfall, waterfall structure and components, pumping requirements, characteristics of the piping, and pump specifications. Maestre's plans for the deck were inadequate. The plans did not include specifications or details such as type, size, and spacing of beams, joists, decking, and fasteners for the construction of the deck structure. Additionally, the plans did not include the type of deck finish that would be applied after construction. The plans were inadequate in that they did not show how the bamboo screens were to be constructed or the height of the structures. This information would have been necessary to bid the bamboo structure portion of the project. Maestre met with potential subcontractors. The evidence does not clearly and convincingly show that these meetings were improper. However, Maestre did improperly charge Kidd and Hansen for the time he spent meeting with the subcontractors. Maestre charged Kidd and Hansen six hours for meeting with potential subcontractors at the rate of $65 per hour. The contract specified that the rate for such services was $45 per hour.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Manny F. Maestre violated Subsections 481.325(1)(g) and (j), Florida Statutes (2001); finding that he did not violate Subsections 481.325(1)(k) and 455.227(1)(a), Florida Statutes; imposing an administrative fine of $1,000 for a violation of Subsection 481.325(1)(g), Florida Statutes; imposing an administrative fine of $1,000 for a violation of Subsection 481.325(1)(j), Florida Statutes; issuing a written reprimand; and imposing two years of probation with conditions as the Board of Architecture and Interior Design deems necessary. DONE AND ENTERED this 23rd day of February, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2004. COPIES FURNISHED: Manny F. Maestre, Jr. Post Office Box 20816 Bradenton, Florida 34204 Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sherry Landrum, Executive Director Board of Architecture and Interior Design Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioners’ installation of ditch plugs on their property qualifies for an agricultural exemption from the requirement to obtain an environmental resource permit pursuant to section 373.406(2), Florida Statutes.
Findings Of Fact Petitioners, Paul and Kathleen Still (Petitioners), own a parcel of property comprised of 118 acres located within Section 33, Township 6 South, Range 21 East, in Bradford County, Florida, approximately six miles southwest of Starke, Florida (the Property). The Department is the state agency authorized under section 373.407, Florida Statutes, to make binding determinations at the request of a water management district or landowner as to whether an existing or proposed activity qualifies for an agricultural-related exemption from environmental resource permitting, pursuant to section 373.406(2). The Property is classified as agricultural by the Bradford County Property Appraiser. A county-maintained dirt road, Southwest 101st Avenue, forms the western boundary of the Property, and Lake Sampson forms the eastern boundary of the Property. Petitioners have owned the Property since 1996, and currently reside on the Property. A drainage ditch runs through the Property from Southwest 101st Avenue to Lake Sampson. The evidence suggests that it was originally constructed in the 1960s, was dug through wetlands and uplands, and serves to drain the area west of Southwest 101st Avenue. The ditch had the effect of draining some of the wetlands that had previously existed on the Property. The drainage ditch ends in the Northwest corner of the wetland above ditch plug 3, at which point water flows east and then north, eventually flowing into Lake Sampson north of the Property. The wetland above ditch plug 3 was a natural wetland which was likely part of Lake Sampson before Lake Sampson was partially drained in 1887. At some point, a low berm was pushed around parts of this wetland. Prior to Petitioners’ ownership, the berm was breached and the wetland drained. Ditch plug 3 was installed in this breach. Ditch plug 3 restored water to the same level as was present when the wetland was part of Lake Sampson. The Property contains stands of planted and naturally- regenerating pine, natural cypress, and a stand of cypress trees planted by Petitioners. Cypress is present on 43 acres of the Property, with more than 50 percent of that area having been planted. The density at which the cypress was planted will require that the stand be thinned. Most of the thinned cypress trees will be sent off to be turned into mulch. Some will be of a size that it can go into saw timber. Silviculture has been defined in several ways: The United States Department of Agriculture and the Department have, on their websites defined silviculture as “the art and science of controlling the establishment, growth, composition, health, and quality of forest and woodland vegetation to meet the diverse interests of landowners and a wide variety of objectives.” The United States Forest Service website defines silviculture as “the art and science of controlling the establishment, growth, composition, health and quality of forests and woodlands to meet the diverse needs and values of landowners and society on a sustainable basis.” Florida Administrative Code Rule 5I-2.003(29) defines silviculture as “a forestry operation dealing with the establishment, development, reproduction, and care of forest flora and fauna.” The Department’s Silviculture Best Management Practices, adopted in rule 5I-6.002, defines silviculture as “a process, following accepted forest management principles, whereby the trees constituting forests are tended, harvested and reproduced.” Production of cypress for lumber and mulch is a silvicultural and agricultural activity. Petitioners’ production of cypress for lumber and mulch constitutes a silvicultural operation. The production of cypress is enhanced by periodic inundation to control hardwood species of competing trees. Starting in 2004, Petitioners began to plan for the installation of ditch plugs on the Property, and shortly thereafter installed ditch plug 3, which is not in wetlands. That plug was short-lived, being removed prior to 2006 when Petitioners started getting groundwater infiltration into their shallow drinking water well. At some time in 2006 or 2007, Petitioners reinstalled ditch plug 3. In 2009, at the request of Petitioners, a preliminary field review was conducted by staff of the District to discuss the potential to install ditch plugs on the Property. Based on the preliminary investigation, it was determined that additional analysis would be needed to make sure that the proposed plugs would not have offsite and upstream drainage problems. Ditch plugs 1 and 2 were installed in stages beginning in 2011. Construction of the ditch plugs was done in stages to ensure that no offsite impacts would occur. There is no evidence in this case to suggest that the ditch plugs have resulted in any offsite and upstream drainage problems. Petitioners assert that the ditch plugs were installed to return water to wetlands that had been drained so as to enhance the production of cypress in those wetlands. Petitioners also admit that the ditch plugs will also have the effect of mitigating for sediment eroding from Southwest 101st Avenue. On November 5, 2014, the District notified Petitioners that it had come to the attention of the District that the ditch plugs may have been installed on the Property without proper authorization. At some time after November 5, 2014, Petitioners requested that the District provide notification of the applicability of one or more of the exemptions in section 373.406 to the installation of the ditch plugs on their Property. On April 24, 2015, the District requested additional information in support of Petitioners’ request, and advised Petitioners that the ditch plugs were not exempt under section 373.406(2) because the predominant purpose of the ditch plugs was to impede or divert the flow of surface water. The District further advised Petitioners that the ditch plugs may be eligible for exemption under section 373.406(9), which exempts measures having the primary purpose of environmental restoration or water quality improvement on agricultural lands where these measures have minimal or insignificant adverse impact on the water resources of the state. On June 4, 2015, as a result of the District’s April 24, 2015, letter, Petitioners requested a binding determination as to the applicability of the section 373.406(2) agricultural exemption. On June 18, 2015, the Department conducted a site visit. According to Mr. Lamborn, the county forester for Baker and Bradford counties, who wrote the Stewardship Forest Management Plan for the Property and has visited the Property several times, the Property is not a typical timber operation. Mr. Lamborn noted that Petitioners were the only landowners during his time as a county forester that identified soil and water conservation as their primary management goal for a forest stewardship plan. Mr. Vowell has never seen ditch plugs used in a silvicultural operation in the manner that Petitioners have used them on their Property. Mr. Bartnick testified that the Department has never issued an agricultural determination providing an exemption for ditch plugs in wetlands. In coming to its Binding Determination, the Department reviewed, among other information, correspondence between the District and the Petitioners; the Silvicultural Best Management Practices manual (2008); current and historical aerial photography of the Property; a USDA Soil Survey map; the 2015 Bradford County Property Appraiser Information Card; the National Wetland Inventory Map; and the Florida Forest Service Stewardship Management Plan. The review of the request for a Binding Determination substantially complied with the requirements of Florida Administrative Code Chapter 5M-15. On September 14, 2015, the Department applied the three-part test in rule 5M-15.005, and issued its Binding Determination which concluded that Petitioner’s activities did not meet the requirements for an agricultural exemption. Under the heading "Application of Statutory Criteria,” the Binding Determination provided that: Pursuant to Section 373.406(2) F.S., all of the following criteria must be met in order for the permitting exemption to apply. "Is the landowner engaged in the occupation of agriculture, silviculture, floriculture, or horticulture?" YES. FDACS-Florida Forest Service finds that Mr. Paul Still is engaged in the occupation of silviculture. "Are the alterations (or proposed alterations) to the topography of the land for purposes consistent with the normal and customary practice of such occupation in the area?" NO. FDACS-Florida Forest Service finds that the construction of the ditch plugs are not a normal and customary practice for silviculture being conducted in the area. Normal and customary silviculture would typically not include the plugging of existing ditches. In fact, silviculture in Florida often necessitates some level of drainage to make wetter sites more accessible and therefore more productive. Based on his experience, Mr. Lamborn explained that “conservation of soils and water resources”, as the main component of a Stewardship Plan is not customary. Moreover, the 2008 Silviculture Best Management Practices manual does not list ditch plugs installed in wetlands or in large ditches connected to wetlands, as a viable practice. The reference to ditch plugs in the 2008 Silviculture Best Management Practices manual is for “road-side” ditches and has to do with the entrapment and dispersion of sediment and the reduction of ditch- flow velocity, not hydrologic restoration. "Are the alterations (or proposed alterations) for the sole or predominant purpose of impeding or diverting the flow of surface waters or adversely impacting wetlands?" Because the exemption in section 373.406(2), F.S., requires an affirmative answer to all these criteria, and we have already found that the alterations are not consistent with normal and customary practice of such occupation in the area (see (b) above), there is no need to address this issue. In sum, the Binding Determination concluded the installation of ditch plugs in Petitioners’ particular circumstance did not qualify for the agricultural exemption under section 373.406(2), because such is not a normal and customary practice for silviculture being conducted in the area. Petitioners asserted that the Department’s determination reflected a “bias” towards pine production, and did not consider the requirements of cypress production. Much of the testimony regarding customary silvicultural practices was provided by Mr. Vowell. Mr. Vowell has worked with hundreds of small, private, non-industrial forest owners, and was clearly well-versed in pine production. He described his experience with the production of cypress as “very little.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Department of Agriculture and Consumer Services enter a final order finding that the activities on Petitioner’s Property addressed in this case are not exempt pursuant to section 373.406(2), Florida Statutes. DONE AND ENTERED this 2nd day of February, 2016, in Tallahassee, Leon County, Florida. S GARY EARLY 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 2nd day of February, 2016. COPIES FURNISHED: Lauren Brothers, Esquire Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 (eServed) Paul Still Kathleen Still 14167 Southwest 101st Avenue Starke, Florida 32091 (eServed) Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact Respondent, Lincoln A. Herreid, was, at all times material hereto, licensed to practice land surveying in the State of Florida, having been issued license number 3015. At issue in these proceedings are three surveys, which Respondent admits he performed, signed and sealed, to wit: A survey of the real property located at 9 East Lucy Street, Florida City, Florida; a survey of a portion of the real property located in Florida Fruitland Company's Subdivision No. One, Dade County, Florida; and, a survey of the real property located at 20301 S.W. 117 Avenue, Miami, Florida. 9 East Lucy Street Survey On December 17, 1983, Respondent signed and sealed a Sketch of Survey" for Lots 1 and 2, Block 1, Hays Subdivision, Plat Book 55, Page 53, Public Records of Dade County, Florida, commonly known as 9 East Lucy Street, Florida City, Florida. The Lucy Street property is rectangular in shape, and abuts streets on its north, east and west sides. The survey shows only one angle and no bearings, fails to reflect the measured distance to the nearest intersection of a street or right-of-way, and fails to reflect whether any monument was found, or set, at the southeast corner of the property. The evidence establishes that no monument was found, or set, at the southeast corner of the property. Respondent avers that no monument was set because debris, composed of paints and chemicals, preempted the area and precluded the setting of a monument. However, no offset witness point was set, nor did the survey reflect why a monument had not been set. Florida Fruitland Company Subdivision Survey On February 24, 1984, Respondent signed and sealed a "Waiver of Plat," a survey of a portion of Tract 21, Section 15, Township 53 South, Range 40 East, of Florida Fruitland Company's Subdivision No. One, Plat Book 2, Page 17, Public Records of Dade County, Florida. The Waiver of Plat shows only one angle and no bearings, indicates the four corners of the property by "Pipe," without reference to whether the pipe was set or found, fails to reflect the measured distance to the nearest intersection or right-of- way, fails to reference the source documents for the legal description of the property, and fails to provide vertical datum and benchmark descriptions. Further, the survey incorrectly positioned the property, reflected inaccurate boundary measurements, and established an incorrect elevation. The property, which is the subject of the Waiver of Plat, is rectangular in shape, zoned commercial (no side set- backs required), and its front (the northern boundary of the property) abuts Northwest 70th Street, between N.W. 82nd Avenue and N.W. 84th Avenue, Miami, Florida. The evidence establishes that the north/south dimensions of the property, as reflected by Respondent's survey, were overstated by 2.1' on the west boundary line, and 2.01' on the east boundary line. Although Respondent correctly depicted the correct distances of the east/west property line, the positioning of that line in relation to the fractional line was in error by .12', and the northwest and northeast corner placements were in error by .24' and .20', respectively. The elevation established by Respondent's survey was in error by one foot. 20301 S.W. 117 Avenue Survey On June 13, 1984, Respondent signed and sealed a "Sketch of Survey," for Lot 17, Block 6, Addition J., South Miami Heights, Plat Book 68, Page 74, Public Records of Dade County, Florida commonly known as 20301 S.W. 117 Avenue, Miami, Florida. The Sketch of Survey reflects only one angle and no bearings, and failed to set a monument or offset witness point for the northeast corner of the property.
