90-005248 Department Of Agriculture And Consumer Services vs. Tri-State Plant Food, Inc.
 Status: Closed
Recommended Order on Wednesday, November 28, 1990.


View Dockets  
Summary: Respondent fertilizer registrations suspended. Tests revealed fertilizer sold by respondent not consistent with labeled contents.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8FLORIDA DEPARTMENT OF AGRICULTURE )

13AND CONSUMER SERVICES, )

17)

18Petitioner, )

20)

21vs. ) CASE NO. 90-5248

26)

27TRI-STATE PLANT FOOD, INC., )

32)

33Respondent. )

35__________________________________)

36RECOMMENDED ORDER

38Pursuant to written notice a formal hearing was held in this case before

51Larry J. Sartin, a duly designated Hearing Officer of the Division of

63Administrative Hearings, on October 23, 1990, in Tallahassee, Florida.

72APPEARANCES

73For Petitioner: Harold Lewis Michaels

78Senior Attorney

80Department of Agriculture and

84Consumer Affairs

86Room 515, Mayo Building

90Tallahassee, Florida 32399-0800

93For Respondent: James D. Farmer, Esquire

99Farmer, Farmer & Malone, P.A.

104Post Office Drawer 668

108Dothan, Alabama 36302

111STATEMENT OF THE ISSUES

115Whether the fertilizer registrations in Florida of the Respondent, Tri-

125State Plant Food, Inc., should be suspended for committing the acts set out in

139an Administrative Complaint issued by the Petitioner, the Florida Department of

150Agriculture and Consumer Affairs, on July 31, 1990?

158PRELIMINARY STATEMENT

160The Petitioner, the Department of Agriculture and Consumer Affairs

169(hereinafter referred to as the "Department"), issued an Administrative

179Complaint notifying the Respondent, Tri-State Plant Food, Inc. (hereinafter

188referred to as "Tri-State"), that its fertilizer registrations in the State of

201Florida would be suspended for a period of 90 days. In a letter dated August

21620, 1990, the President of Tri-State confirmed Tri-State's intent to request a

228formal hearing to contest the allegations of the Administrative Complaint. By

239letter dated August 21, 1990, the Department referred the matter to the Division

252of Administrative Hearings.

255At the formal hearing the Department presented the testimony of Dale W.

267Dubberly, the Chief of the Division of Inspection, Bureau of Feed, Seed and

280Fertilizer Inspection of the Department. The Department also offered 6 exhibits

291which were accepted into evidence.

296Tri-State presented the testimony of James O. Culbreth, President of Tri-

307State, and Hugh M. Griffith, plant supervisor. Two exhibits were offered by

319Tri-State and accepted into evidence.

324The parties have filed proposed recommended orders containing proposed

333findings of fact. A ruling on each proposed finding of fact has been made

347either directly or indirectly in this Recommended Order or the proposed finding

359of fact has been accepted or rejected in the Appendix which is attached hereto.

373FINDINGS OF FACT

376i-State is an Alabama corporation engaging in the manufacture and

386sale of commercial fertilizer.

390i-State's commercial fertilizers are registered with the Department

398for sale in the State of Florida.

405i-State has a fertilizer manufacturing plant located in Dothan,

414Alabama. Commercial fertilizer manufactured at the Dothan plant is sold by Tri-

426State in Florida, Georgia and Alabama.

4324. The Department is charged with the responsibility of regulating the

443registration, labeling, inspection and analysis of commercial fertilizers

451distributed in Florida.

4545. All commercial fertilizer distributed in Florida is required to contain

465a label. The label must contain the manufacturer's "guaranteed analysis" (the

476minimum percentage of plant nutrients the manufacturer claims the fertilizer

486contains) of the fertilizer. In carrying out its responsibility to regulate the

498distribution of commercial fertilizer in Florida, Department personnel take

507samples of commercial fertilizer that will be distributed in Florida to

518determine whether the actual content of the fertilizer conforms with the

529guaranteed analysis contained on the label.

5356. During the period July 1, 1989, through September 30, 1989, the

547Department analyzed 10 samples of Tri-State's commercial fertilizer to be sold

558in Florida to determine whether Tri-State's guaranteed analysis was accurate.

568Of the 10 samples, 8 were determined to be deficient. The primary plant

581nutrient deficiency was 28.08%. The allowable primary plant nutrient deficiency

591level is 12.5%i-State's fertilizer exceeded the tolerances for primary

600plant nutrients. Accordingly, Tri-State was notified that it would be on

611probation for the period January 1, 1990, through March 31, 1990.

6227. During the period October 1, 1989, through December 31, 1989, the

634Department analyzed 28 samples of Tri-State's commercial fertilizer to be sold

645in Florida to determine whether Tri-State's guaranteed analysis was accurate.

655Of the 28 samples, 14 were determined to be deficient. The primary plant

668nutrient deficiency was 23.7%i-State's fertilizer exceeded the tolerances

676for primary plant nutrients. Accordingly, Tri-State was notified that it would

687be on probation for the period April 1, 1990, through June 30, 1990.

7008. During the period January 1, 1990, through March 31, 1990, the

712Department analyzed 51 samples of Tri-State's commercial fertilizer to be sold

723in Florida to determine whether Tri-State's guaranteed analysis was accurate.

733Of the 51 samples, 20 were determined to be deficient. The primary plant

746nutrient deficiency was 16.28%i-State's fertilizer exceeded the tolerances

754for primary plant nutrients. Accordingly, Tri-State was notified that it would

765be on probation for the period July 1, 1990, through September 30, 1990.

7789. During the period April 1, 1990, through June 30, 1990, the Department

791analyzed 39 samples of Tri-State's commercial fertilizer to be sold in Florida

803to determine whether Tri-State's guaranteed analysis was accurate. Of the 39

814samples, 18 were determined to be deficient. The primary plant nutrient

825deficiency was 13.45%i-State's fertilizer exceeded the tolerances for

833primary plant nutrients. Accordingly, Tri-State was notified that it would be

844on probation for the period October 1, 1990, through December 31, 1990.

85610. On July 31, 1990, the Department issued an Administrative Complaint

867against Tri-State proposing to suspend Tri-State's fertilizer registrations in

876Florida for 90 days based upon the deficiencies described in findings of fact 6

890through 9.

89211. Of the 39 official samples analyzed by the Department during the

904period April 1, 1990, through June 30, 1990, 24 or 61.5% were taken during the

919preceding calendar quarter, January 1, 1990, through March 31, 1990.

92912. All 39 official samples analyzed by the Department during the period

941April 1, 1990, through June 30, 1990, were "reported" during the period April 1,

9551990, through June 30, 1990. The date "reported" of each sample is the date the

970sample was analyzed. All of the 39 samples were "reported" within approximately

98230 days after the samples were taken.

98913. Official samples are taken by personnel of the Department's Division

1000of Inspection. The official samples are then delivered to the Department's

1011Division of Chemistry/Fertilizer Laboratory where they are analyzed or

"1020reported." It is the Department's policy to analyze official samples in the

1032order they are received. The weight of the evidence failed to prove that the

1046Department has a policy of expediting the analysis of official samples upon

1058request of a manufacturer on probation. Official samples are generally reported

1069within approximately 30 days after they are taken.

107714. It is the policy of the Department to encourage persons on probation

1090to report that a bulk shipment of commercial fertilizer is to be made into

1104Florida so that the Department can attempt to take samples of the bulk

1117fertilizer shipment. Because samples are weighted based upon the tonnage of a

1129sample in determining efficiency, each bulk shipment of fertilizer for

1139distribution in Florida can have a significant affect on whether a person on

1152probation is determined to still be deficient.

115915. The Department makes every reasonable effort to sample a bulk shipment

1171if given reasonable notice and if an inspector is reasonably available. The

1183weight of the evidence failed to prove, however, that the Department's policy

1195includes the analysis of official samples on an expedited basis at the request

1208of a manufacturer.

121116. On June 8, 1990, an official sample was taken by Department personnel

1224at the request of Tri-Statei-State presented evidence concerning efforts if

1234made to get the Department to analyze the official sample taken on June 8, 1990,

1249during the period April 1, 1990, through June 30, 1990. The Department did not

1263honor this request. The June 8, 1990, official sample was analyzed after June

127630, 1990. The weight of the evidence failed to prove that the Department's

1289failure to report the June 8, 1990, sample during the period April 1, 1990,

1303through June 30, 1990, was contrary to the Department's policy concerning the

1315analysis of official samples in the order received by the Division of

1327Chemistry/Fertilizer Laboratory, which means that normally a sample will be

1337analyzed within approximately 30 days after it was taken.

1346i-State began distributing fertilizer in Florida in 1985. Tri-State

1355has had a consistent history of violations since that time. Since the end of

13691987, Tri-State has paid penalties imposed by the Department of $24,519.17 and

1382has been on probation at least 2 quarters of every calendar year.

139418. The Department has held a number of informal conferences with Tri-

1406State in an effort to work with Tri-State to correct the problems it has been

1421experiencing with the commercial fertilizer it has distributed in Florida. The

1432weight of the evidence failed to prove that the problems have been resolved.

144519. Since January 1, 1990, Tri-State has endeavored to make corrections in

1457its manufacturing methods to eliminate its primary plant nutrients deficiencies.

1467Those efforts are described in Tri-State's proposed findings of fact 20 and 21

1480and are hereby accepted.

1484CONCLUSIONS OF LAW

148720. The Division of Administrative Hearings has jurisdiction of the

1497parties to and the subject matter of this proceeding. Section 120.57(1),

1508Florida Statutes (1989).

1511Section 576.031(1), Florida Statutes (1989), requires that commercial fertilizer

1520distributed in Florida in containers must:

1526. . . have placed on or affixed to the immediate and

1538outside container, if there be one, a label setting

1547forth in clearly legible and conspicuous form the

1555information required in s. 576.021(1)(b)-(f), and the

1562net weight.

156421. In pertinent part, Section 576.021(1), Florida Statutes (1989),

1573requires that a "guaranteed analysis" be included on the label required to be

1586affixed to commercial fertilizer containers. Section 576.021(1)(c), Florida

1594Statutes (1989). The terms "guaranteed analysis" are defined, in pertinent

1604part, as follows:

1607(a) "Primary plant nutrients." The term "guaranteed

1614analysis" means the minimum percentage of plant

1621nutrients claimed in the following order and form:

16291. Total Nitrogen.............percent

16322. Nitrate Nitrogen...........percent

16353. Ammoniacal Nitrogen........percent

16384. Water-Soluble Organic Nitrogen

1642(and/or Urea Nitrogen).....percent

16455. Water-Insoluble Nitrogen...percent

16486. Available Phosphoric Acid

1652(P2O5).....................percent

16537. Soluble Potash (K2O).......percent

1657Section 576.011(13), Florida Statutes (1989).

166222. Section 576.051(2), Florida Statutes (1989), authorizes the Department

1671to "sample, test, inspect, and make analyses of commercial fertilizer sold or

1683offered for sale within this state . . . to determine whether such commercial

1697fertilizers are in compliance with . . . " Chapter 576, Florida Statutes (1989).

1710Section 576.051(3), Florida Statutes (1989), requires that an "official sample"

1720be used by the Department in carrying out its responsibility under Section

1732576.051(2), Florida Statutes (1989). An "official sample" is defined in Section

1743576.011(19), Florida Statutes (1989), as "any sample of commercial fertilizer

1753taken by the department or its representative, in accordance with the provisions

1765of law or rules adopted hereunder, and designated as 'official' by the

1777department." The manner in which official samples are to be taken is governed

1790by Rule 5E-1.009, Florida Administrative Code.

179623. Pursuant to Section 576.151(6), Florida Statutes (1989), "misbranding"

1805of commercial fertilizer is a prohibited act. "Misbranded" is defined by

1816Section 576.011(17), Florida Statutes (1989), in pertinent part, as follows:

1826(f) If its contents fail to meet the guaranteed

1835analysis as expressed on the labeling under which it is

1845sold, in excess of authorized tolerances.

185124. The authorized tolerances by which commercial fertilizer may exceed

1861the guaranteed analysis is governed by Section 576.061(1), Florida Statutes

1871(1989), and Rule 5E-1.011, Florida Administrative Code. Section 576.061(2),

1880Florida Statutes (1989), provides for the imposition of a penalty if authorized

1892tolerances are exceeded. Additionally, Section 576.061(5), Florida Statutes

1900(1989), authorizes the imposition of penalties for misbranding of commercial

1910fertilizers as follows:

1913(5) The department may enter an order imposing one

1922or more of the following penalties against any person

1931who violates any of the provisions of this chapter or

1941the rules promulgated hereunder . . . "

1948(a) Issuance of a warning letter.

1954(b) Imposition of an administrative fine of not more

1963than $1,000 per occurrence after the issuance of a

1973warning letter.

1975(c) Revocation or suspension of any registration

1982issued by the department.

198625. Additionally, Section 576.101, Florida Statutes (1989), authorizes the

1995following actions by the Department:

2000(1) The department may deny or revoke any

2008registration issued by the department for any

2015violation of the provisions of this chapter or the

2024rules promulgated thereunder.

2027(2) The department may place any fertilizer plant on

2036a probationary status when the deficiency levels of

2044samples taken from that plant do not meet minimum

2053performance levels as established by rule.

205926. To implement the penalty provisions of Section 576.061 and 576.101,

2070Florida Statutes (1989), the Department has promulgated Rule 5E-1.018, Florida

2080Administrative Code. Rule 5E-1.018(2), Florida Administrative Code, provides,

2088in pertinent part:

2091(2) A registrant of commercial fertilizer may be

2099designated to be on probation if any one or more of the

2111following levels of deficiencies . . . occur for

2120official samples analyzed during the preceding

2126reporting quarter.

2128(a) Primary plant nutrient elements (total nitrogen,

2135available phosphoric acid and soluble potash) - 12.5

2143percent or more of nutrients guaranteed are found to be

2153deficient by an amount greater than the established

2161tolerance, or, 5 percent or more of nutrients

2169guaranteed are found to be deficient by an amount

2178greater than 3 times the established tolerance.

2185[Emphasis added].

2187Pursuant to this provision, Tri-State has been placed on probation for each

2199quarter of 1990.

220227. At issue in this proceeding is Rule 5E-1.018(5), Florida

2212Administrative Code, which provides:

2216(5) If, based on all official samples reported of

2225the registrant's product during the probation period,

2232the condition in (2) above for which the registrant was

2242placed on probation is above the acceptable level, the

2251department may revoke and deny all registrations of the

2260registrant. If fewer than 8 samples of a registrant's

2269product are reported during any designated probationary

2276period, the probation shall be extended for additional

2284reporting quarters until a cumulative total of eight or

2293more samples have been reported. The department shall

2301not revoke and deny registrations if there are fewer

2310than 3 deficient nutrients in the registrant's product

2318during the probations period. If the registrant's

2325performance record is satisfactory the registrant shall

2332be removed from probations. [Emphasis added].

2338Based upon official samples taken in part during the period January 1, 1990,

2351through March 31, 1990, and in part during the period April 1, 1990, through

2365June 30, 1990, the Department has proposed to suspend Tri-State's registrations

2376for a period of 90 days.

238228. The official samples relied upon by the Department for its proposed

2394action, although taken during the first and second quarters of 1990, were

2406analyzed or "reported" by the Department during the period April 1, 1990,

2418through June 30, 1990.

242229. In challenging the proposed suspension of its registrations, Tri-State

2432has argued first that the Department's proposed action is contrary to the

2444requirements of Rule 5E-1.018, Florida Administrative Code, because the official

2454samples relied upon by the Department were not "taken" during the quarter it was

2468on probation, April 1, 1990, through June 30, i-State has argued that

2480the last sentence of Rule 5E-1.018(5), Florida Administrative Code, requires

2490that it be removed from probation if its "performance record is satisfactory .

2503. . " based upon samples taken only during the probationary period. Rule 5E-

25161.018, Florida Administrative Code, however, does not expressly require that the

2527Department base a decision to suspend or revoke fertilizer registrations on

2538official samples taken only during the probationary period. To the contrary,

2549Rule 5E-1.018(5), Florida Administrative Code, provides that the official

2558samples the Department may base a decision to revoke or suspend fertilizer

2570registrations on are those samples which are "reported" during the probationary

2581period. Official samples are "reported" when they are analyzed.

259030. The weight of the evidence in this matter proved, and Tri-State has

2603not disputed, that all of the official samples relied upon in the Department's

2616decision to suspend Tri-State's registrations were "reported" during the

2625probationary period April 1, 1990, through June 30, 1990. The Department's

2636proposed action is, therefore, consistent with the clear and unambiguous

2646language of Rule 5E-1.018(5), Florida Administrative Code.

265331. Whether the requirement of Rule 5E-1.018(5), Florida Administrative

2662Code, that official samples "reported", as opposed to those "taken", during a

2674probationary period will control whether the Department may revoke or suspend a

2686manufacturer's fertilizer registrations is arbitrary and capricious is not at

2696issue in this proceeding. This is a formal administrative hearing pursuant to

2708Section 120.57(1), Florida Statutes (1989), and not a rule challenge pursuant to

2720Section 120.56, Florida Statutes (1989). The validity of Rule 5E-1.018, Florida

2731Administrative Code, has not bee challenged in this proceeding. Nor has it

2743previously been declared invalid. Therefore, the Rule is assumed to be valid

2755and must be followed.

2759i-State has also argued that the Department has abused its

2769discretion or acted in bad faith, arbitrarily or capriciously in failing to

2781analyze during the period April 1, 1990, through June 30, 1990, an official

2794sample taken on June 8, 1990, from a bulk fertilizer shipment Tri-State made

2807into Floridai-State had requested on June 22, 1990, that the official

2818sample be analyzed before the end of June, 1990. The weight of the evidence

2832failed to prove that the Department's failure to analyze the June 8, 1990,

2845official sample before the end of June, 1990, was improper. The Department's

2857policy is to take official samples when requested, if reasonably possible. The

2869weight of the evidence proved that the Department followed this policy by taking

2882an official sample on June 8, 1990, at Tri-State's request. Once an official

2895sample is taken it is the Department's policy to analyze the sample within

2908approximately 30 days after the sample was taken. The weight of the evidence

2921failed to prove that the Department failed to follow this policy by refusing to

2935analyze the sample earlier as requested by Tri-State.

294333. Finally, Tri-State has argued that the Department's proposed action

2953will not promote the legitimate public interests and purposes underlying the

2964Florida commercial fertilizer law. In suggesting that the Department's proposed

2974action is not in the public interest, Tri-State has cited its payment of fines

2988and penalties to the Department, the improvements Tri-State has made in its

3000manufacturing process during the four quarters involved in the Administrative

3010Complaint and the corrective measures Tri-State has recently taken. The weight

3021of the evidence failed to prove, however, that these actions are sufficient to

3034protect the public interest or that suspension of Tri-State's registrations

3044would be contrary to the public interest.

305134. The penalties paid by Tri-State were to compensate for past

3062deficiencies. The corrective actions Tri-State has taken come too latei-

3072State has experienced deficiencies since it began operating in Florida. Since

30831987, Tri-State has been deficient in at least two quarters each calendar year.

3096Prior to the proposed revocation at issue in this proceeding, Tri-State was

3108deficient in four consecutive quarters. In light of Tri-State's past history of

3120performance in Florida, the public interest will be better served if Tri-State's

3132registrations are suspended.

313535. If Tri-State believes the public interest will be served by allowing

3147Tri-State to distribute fertilizer in Florida because it has corrected its

3158problems, Tri-State may request reinstatement of its registrations pursuant to

3168Rule 5E-1.018(7), Florida Administrative Code.

3173RECOMMENDATION

3174Based upon the foregoing Findings of Fact and Conclusions of Law, it is

3187RECOMMENDED that a Final Order be issued suspending Tri-State's fertilizer

3197registrations in the State of Florida for a period of ninety (90) days and

3211dismissing the Petition in this matter with prejudice.

3219DONE and ENTERED this __28th__ day of November, 1990, in Tallahassee,

3230Florida.

3231___________________________________

3232LARRY J. SARTIN

3235Hearing Officer

3237Division of Administrative Hearings

3241The DeSoto Building

32441230 Apalachee Parkway

3247Tallahassee, Florida 32399-1550

3250(904) 488-9675

3252Filed with the Clerk of the

3258Division of Administrative Hearings

3262this __28th__ day of November, 1990.

3268APPENDIX

3269The parties have submitted proposed findings of fact. It has been noted

3281below which proposed findings of fact have been generally accepted and the

3293paragraph number(s) in the Recommended Order where they have been accepted, if

3305any. Those proposed findings of fact which have been rejected and the reason

3318for their rejection have also been noted.

3325The Department's Proposed Findings of Fact

3331Proposed Finding Paragraph Number in Recommended Order

3338of Fact of Acceptance or Reason for Rejection

3346Paragraph 1 1 and 3-4.

3351Paragraph 2 6.

3354Paragraph 3 7.

3357Paragraph 4 8.

3360Paragraph 5 9.

3363Paragraph 6 17.

3366Tri-State's Proposed Findings of Fact

3371Proposed Finding Paragraph Number in Recommended Order

3378of Fact Number of Acceptance or Reason for Rejection

33871 1-2.

33892 4, 6 and hereby accepted.

33953 6-10.

33974 17.

33995 11.

34016 Hereby accepted.

34047 This proposed finding of fact contains

3411speculation. It is not relevant to this

3418proceeding.

34198-9 Not relevant to this proceeding.

342510 Not supported by the weight of the

3433evidence. See 13.

343611-14 Not relevant to this proceeding.

344215 2 and 14.

344616 16.

344817-18 See 16.

345119 See 19.

345420-21 19.

345622-23 Not relevant to this proceeding.

3462Copies Furnished To:

3465James D. Farmer, Esquire

3469Post Office Drawer 668

3473Dothan, Alabama 36302

3476Harold Lewis Michaels

3479Senior Attorney

3481Department of Agriculture and

3485Consumer Affairs

3487Room 515, Mayo Building

3491Tallahassee, Florida 32399-0800

3494Honorable Doyle Conner

3497Commissioner

3498Department of Agriculture and

3502Consumer Services

3504The Capitol

3506Tallahassee, Florida 32399-0810

3509NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3515All parties have the right to submit written exceptions to this Recommended

3527Order. All agencies allow each party at least 10 days in which to submit

3541written exceptions. Some agencies allow a larger period within which to submit

3553written exceptions. You should contact the agency that will issue the final

3565order in this case concerning agency rules on the deadline for filing exceptions

3578to this Recommended Order. Any exceptions to this Recommended Order should be

3590filed with the agency that will issue the final order in this case.

Select the PDF icon to view the document.
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Date
Proceedings
PDF:
Date: 12/17/1990
Proceedings: Agency Final Order
PDF:
Date: 12/17/1990
Proceedings: Recommended Order
PDF:
Date: 11/28/1990
Proceedings: Recommended Order (hearing held , 2013). CASE CLOSED.

Case Information

Judge:
LARRY J. SARTIN
Date Filed:
08/22/1990
Date Assignment:
08/30/1990
Last Docket Entry:
11/28/1990
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

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