21-002720 Florida Department Of Agriculture And Consumer Services vs. Spanish River Nursery, Llc Status: Closed Recommended Order on Thursday, January 27, 2022.

Summary: Department proved by clear and convincing evidence that Respondent violated rules requiring display of pesticide safety information and training, but not re-entry interval requirements. Recommended $1,000 administrative fine.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

F LORIDA D EPARTMENT OF A GRICULTURE

A ND C ONSUMER S ERVICES ,

Petitioner ,

vs. Case No. 21 - 2720

S PANISH R IVER N URSERY , LLC , * A MENDED A S T O P ARAGRAPHS 14

A ND 16

Respondent .

/

* A MENDED R ECOMMENDED O RDER

This case came before Administrative Law Judge (ÑALJÒ) Darren A.

Schwartz of the Division of Administrative Hearings (ÑDOAHÒ) for final

hearing on November 1 0 , 2021, by Zoom conference.

A PPEARANCES

For Petitioner: Lee Damessous, Esquire

Florida Department of Agriculture and

Consume r Services

407 South Calhoun Street , Suite 520

Tallahassee, Florida 32399 - 0800

For Respondent: Manuel Rivero, pro se

Spanish River Nursery, LLC

8571 156 Court South

Delray Beach, Florida 33446

S TATEMENT OF T HE I SSUE S

Whether Respondent, Spanish River Nursery, LLC (Ñ Respondent Ò),

violated the statutes and rules alleged in the Administrative Complaint; and,

if so, the penalty that should be imposed.

P RELIMINARY S TATEMENT

On J uly 2, 2021, Petitioner, Florida Department of Agriculture and

Consumer Services (Ñ Department Ò), issued a three - count Administrative

Complaint against Respondent, seeking to impose an administrative fine in

the amount of $2,600. 00. Respondent timely filed a request for a formal

administrative hearing to contest the allegations. Subsequen tly, the

Department referred the matter to DOAH to assign an ALJ to conduct the

final hearing.

The final hearing was held on November 1 0 , 2021, by Zoom conference. At

the hearing, the Department presented the testimony of Ryan DeSutter. The

DepartmentÔs Exhibits 1, 2, 5 through 8, 10, 12, and 14 were received into

evidence. Respondent presented the testimony of David Jordling. Respondent

did not offer any exhibits into evidence.

The one - volume final hearing Transcript was filed at DOAH on January 4,

202 2. The parties timely filed proposed recommended orders, which were

considered in the preparation of this Recommended Order. Unless otherwise

indicated, all statutory and rule references are to the versions in effect at the

time of the alleged violations.

F INDINGS OF F ACT

1. The Department is the state agency charged with administering the

Florida Pesticide Law (ÑFPLÒ) , chapter 487, part I, Florida Statutes.

2. Respondent is a nursery doing business in Florida subject to the FPL .

3. In January 2019, the Department conducted an initial inspection of

RespondentÔs nursery to determine compliance with the FPL .

4. Following th is initial inspection, the Department issued a four - count

Administrative Complaint to Respondent on April 15, 2020, alleging that

Respondent violated the FPL by failing to provide: (1) pesticide safety

information in a central display area; (2) the required Worker Pr otection

Standard (ÑWPSÒ) training for agricultural workers; (3) supplies for

decontamination; and (4) the label required for personal protection

equipment.

5 . Respondent did not dispute the allegations in the initial Administrative

Complaint ; r ather, Res pondent hired David Jordling (ÑMr. JordlingÒ) to

address the issues raised during the 2019 original inspection and bring

Respondent into compliance.

6 . On October 27, 2020, Erik Cruz (ÑMr. CruzÒ), a pesticide Ñ handler Ò

employed by Respondent, sprayed a pesticide , Kocide 2000 - 0

Fungicide/Bactericide (ÑKocide 2000 Ò ) , upon ornamental plants situated in

greenhouses located at RespondentÔs nursery .

7 . In Count I of the instant Administrative Complaint, the Department

alleges that Respondent violated WPS 40 C.F.R. § 170.311, adopted by

reference in Florida Administrative Code Rule 5E - 2.039, by failing to

maintain pesticide safety information at the central display area within 30

days following Mr. CruzÔs pesticide application .

8 . On November 19, 2020, Department Inspector Ryan DeSutter

(ÑMr. DeSutterÒ) conducted a n unannounced reinspection of RespondentÔs

nursery. During his re inspection, Mr. DeSutter observed th ere was no

pesticide safety information located at the c entral d isplay a rea in violation of

40 C.F.R. § 170.311 and rule 5E - 2.039 . 1

9 . The clear and convincing evidence adduced at hearing demonstrates

that Respondent violated 40 C.F.R. § 1 70.311 and rule 5E - 2.039, by failing to

display safety information in the central display area within 30 days

following Mr. CruzÔs application of the Kocide 200 0 on October 27, 2020.

10 . In Count II of the instant Administrative Complaint, the Department

a lleges that Respondent violated 40 C.F.R. § § 170.401 and 170.501, adopted

1 Mr. DeSutter did not conduct the initial inspection in January 2019.

by reference in rule 5E - 2.039, by failing to provide WPS training to its

agricultural employees within the last year , and not identifying the ÑEPA

approval numberÒ in its training records.

1 1 . During his reinspection on November 19, 2020, Mr. DeSutter reviewed

RespondentÔs training records. At the hearing, Mr. Jordling persuasively and

credibly testified that he tra ined Mr. Cruz as a ÑhandlerÒ in May 2019 , and

that his reference to Mr. Cruz in the training record as a ÑW,Ò meaning

Ñ worker ,Ò instead of ÑH,Ò meaning Ñhandler,Ò was a mistake .

12. Although Mr. Cruz was trained as a ÑhandlerÒ in May 2019, he d id not

receive re training as a ÑhandlerÒ w ithin one - year immediately preceding the

date of his pesticide application on October 27, 2020. In addition, some

ÑworkersÒ were not retrained as of the date of the reinspection. Finally,

a lthough Respondent identi fied a training video in the record, the ÑEPA

approval numberÒ for the training material was not identified in the training

record .

1 3 . The clear and convincing evidence adduced at hearing demonstrates

that Respondent violated 40 C.F.R. § § 170.401 and 170. 5 01 and rule 5E -

2.039, by failing to re train Mr. Cruz as a Ñ handler Ò within the last year

immediately preceding his pesticide application on October 27, 2020 ; failing

to timely retrain ÑworkersÒ by the date of the reinspection; and failing to

identify the EPA approval number for the training material in the training

record .

1 4 . In Count III of the instant Administrative Complaint, the Department

alleges that Respondent only maintained a 24 - hour restricted entry

interval (ÑREIÒ) following the application of the Kocide 2000 by Mr. Cruz on

October 2 7 , 2020, in violation of the pesticide label REI of 48 hours , in

violation of 40 CFR § 170.407, adopted by reference in rule 5E - 2.039 and

section 487.031(10) , Florida Statutes .

1 5 . At the hearing, Mr. Jordling persuasively and credibly testified that

the Kocide 2000 , sprayed by Mr. Cruz on October 2 7 , 2020, was sprayed on

plants located in greenhouses at RespondentÔs nursery . Because the pesticide

was sprayed on plants located in greenhouses, the REI as specified on the

labeling may be re duced by Respondent to 24 hours .

1 6 . In sum, the Department failed to prove by clear and convincing

evidence that Respondent violated 40 C. F.R. § 170.407, adopted by reference

in rule 5E - 2.039 and section 487.031(10), by failing to maintain a 48 - hour

REI following Mr. CruzÔs application of Kocide 2000 on October 2 7 , 2020.

17. As to Count III, the Department attempts to attack the credibility of

Mr. JordlingÔs testimony based on his alleged violation of the rule of

sequestration. This possible violation was not brought to the undersigned Ôs

attention during the hearing and was raised for the firs t time in

RespondentÔs Proposed Recommended Order. When a partyÔs counsel

suspects a witness has violated the rule, the issue should be brought to the

Ñimmediate attentionÒ of the ALJ and opposing party. Del Monte Banana Co .

v. Chacon , 466 S o. 2d 1167, 117 1 (Fla. 3d DCA 1985). Even if a violation

occurred, it would have been within the undersignedÔs discretion to determine

how to remedy the violation. Id .

18. In the instant case, the Department challenges Mr. JordlingÔs

testimony, in which he stated t hat ÑSpanish River is 35 acres. ItÔs not 15

acres as previously spoken about.Ò Whether Spanish River consists of 3 5 or

15 acres, however, is not significant to the undersignedÔs resolution of the

relevant issues under Count III .

19. T he undersigned h ad the distinct opportunity to observe the demeanor

and credibility of Mr. Jordling while testifying , and found his testimony

regarding the application of the Kocide 2000 in greenhouses on RespondentÔs

property by Mr. Cruz on October 27, 2020, to be persua sive and credible.

20. Notably, Mr. DeSutter was unaware if there are greenhouses on

RespondentÔs property because his investigation was conducted primarily in

the front area where the nurseryÔs office is located and the greenhouses are

not locate d. At the hearing, Mr. DeSutter acknowledged that he did not view

a Ñgood portionÒ of the nursery.

2 1 . As to the appropriate amount of the administrative fine for

RespondentÔs violations under Counts I and II of the instant A dministrative

C omplaint, no actual harm or damage was caused by the violations,

Respondent did not benefit monetarily from the noncompliance, and none of

the violations were committed willfully.

2 2 . In fact, a s to Count I, a poster including safety information was

prop erly displa y ed by Respondent at the central display area in

November 2020, prior to the arrival of Tropical Storm Eta. However, as

Mr. DeSutter acknowledged during the hearing, Tropical Storm Eta came

through the area within days prior to his re i nspection. High winds

attributable to Tropical Storm Eta caused the safety poster that had been

displayed in the central display area to be blow n away.

2 3 . On the date of Mr. DeSutterÔs reinspection, Respondent was still in the

process of c leaning up the property due to the high winds and damage caused

by impacts from Tropical Storm Eta, and therefore, no safety information

was , in fact, on display in the central display area at the time of the

reinspection. However, Respondent had not sprayed any pesticides since

Mr. CruzÔs application of Kocide 2000 on October 27, 202 0 .

2 4 . At his November 19, 2020, re inspection, Mr. DeSutter provided

Respondent with a new poster , which Respondent immediately posted and

displayed at the central display area. A cco rding to Mr. DeSutter ,

RespondentÔs placement of this new poster in the central display area during

his reinspection on November 19, 2020, immediately brought Respondent into

compliance with the applicable laws. Thus, Respondent was only not in

compliance for a very short period of time , a period of time in which there was

no spraying of pesticides at the nursery .

2 5 . As to Count II, Mr. Cruz had been trained as a ÑhandlerÒ in May of

2019 . RespondentÔs violation amounts to a failure to timely retrain Mr. Cruz

during an approximate six - month period immediately preceding his pesticide

application on October 27, 2020. In other words, Respondent was out of

compl iance with regard to the retraining of Mr. Cruz by approximately six

months. Respondent was also out of compliance with retraining of ÑworkersÒ

for only a relatively short period of time. The violation for the failure to

include the EPA training number on the form was a n oversight by

Respondent .

C ONCLUSIONS OF L AW

2 6 . DOAH has jurisdiction over the subject matter and parties pursuant to

sections 120.569 and 120.57(1), Florida Statutes.

2 7 . This is a proceeding whereby the Department seeks to impose an

administrative fine against Respondent Ôs license . A proceeding to impose an

administrative fine against a license is penal in nature, and the Department

bears the burden to prove the allegations in the Administrative Complaint by

clear and convincing evidence. DepÔt of Banking & Fin., Div. of Sec. & Inv .

Prot. v. Osborne Ste r n & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987); DepÔt of Ag ric . and Cons umer Servs. v. King , 20 -

1367PL (Fla. DOAH Aug. 21, 2020; FDACS Feb. 17, 2021); DepÔt of Ag ric . and

Cons umer Servs. v. Ag - Mart Produce, Inc. , 06 - 0729 and 06 - 0730 (Fla. DOAH

Mar . 16, 2007; FDACS Ap r. 13, 2007).

2 8 . The clear and convincing evidence standard :

R equires that the evidence must be found to be

credible ; the facts to which the witnesses testify

must be distinctly remembered ; the testimony must

be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The

evidence must be of such weight that it produces in

the mind of the trier o f fact a firm belief or

conviction, without hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

2 9 . Moreover, charges in such proceedings must be strictly construed , with

any ambiguity construed in favor of the Respondent . Mun ch v. Dep't of Prof'l

Reg., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992) ; DepÔt of

Ag ric . and Cons umer Servs. v. King , 20 - 1367PL, RO at ¶ 17 . The allegations

set forth in the Administrative Complaint are those upon which this

proceeding i s predicated. Cottrill v. DepÔt of Ins. , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996). Due process prohibits the Department from taking

disciplinary action against a licensee based on conduct not specifically alleged

in the Administrative Complaint. Id ; see also Delk v. DepÔt of ProfÔl Reg. , 595

So. 2d 966, 967 (Fla. 5th DCA 1992) ; DepÔt of Ag ric . a nd Cons umer Servs. v.

King , 20 - 1367PL, RO at ¶ 18 .

30 . The FPL is codified in sections 487.011 through 487.175. As set forth

in section 487.012, the purpo se of the FPL is to Ñregulate the distribution,

sale, and use of pesticides . . . and to protect people and the environment from

the adverse effects of pesticides.Ò

3 1 . Section 487.031(10) provides that it is unlawful Ñ[f]or any person to

use any pesticide . . . in a manner other than as stated in the labeling or on

the label or as specified by the department or the United States

Environmental Protection Agency.Ò Howeve r, under section 487.031(10)(e), it

is not unlawful to use any pesticide Ñin a manner determined by rule not to

be an unlawful act.Ò

3 2 . Rule 5E - 2.039 adopts by reference the WPS for agricultural pesticides

as specified in 40 C.F.R. § 170 .

3 3 . As to Coun t I, 40 C.F.R. § 170.311(b)(5) requires that pesticide safety

information must be Ñdisplayed no later than 24 hours after the end of the

application of the pesticideÒ and Ñdisplayed continuously from the beginning

of the display period until at least 30 da ys after the end of the last applicable

restricted - entry interval. . . . Ò

3 4 . As detailed above, Mr. Cruz sprayed Kocide 2000 on October 27, 2020.

Accordingly, Respondent violated 40 C.F.R. § 170.311 and rule 5E - 2.039, as

alleged in Count I, by failing to display safety information in the central

display area for 30 days following October 27, 2020.

3 5 . As to Count II, 40 C.F.R. § § 170.401 and 170.501 describe the training

requirements for ÑworkersÒ and Ñhandlers,Ò respectively.

3 6 . 40 C.F.R. § 170.305 defines a ÑworkerÒ as Ñany person, including a self -

employed person, who is employed and performs activities directly relating to

the production of agricultural plants on an agricultural establishment.Ò

3 7 . 40 C.F.R. § 170. 305 defines a ÑhandlerÒ as a person who does any one

task from a list of tasks, including Ñmixing, loading, or applying pesticides.Ò

3 8 . 40 C.F.R. § 170.401(a) requires that Ñ[b]efore any worker performs any

task in a treated area on an agricultural establishment where within 30 days

a pesticide application product has been used or a restricted - entry interval

for such pesticide has been in effect, the agricultural employer must ensure

that each worker has been trained in accordance with this section within the

last 12 mo nths.Ò

3 9 . 40 C.F.R. § 170.501(a) requires that Ñbefore any handler performs

activity involving a pesticide product, the employer must ensure that the

handler has been trained in accordance with this section within the last 12

months.Ò

40 . 40 C.F.R. § 17 0.501(d)(1)(iii) requires that training records for

ÑhandlersÒ and ÑworkersÒ identify the EPA approval number.

4 1 . As detailed above, although Mr. Cruz, a Ñ handler, Ò had initially been

trained by Mr. Jordling as a ÑhandlerÒ in May 2019, he had not been

re trained as a ÑhandlerÒ within the one - year period immediately preceding

his application of the Kocide 2000 on October 27, 2020. Accordingly,

Respondent violated 40 C.F.R. § 170.501 and rule 5E - 2.039, as alleged in

Count II, by failing to retrain Mr. Cruz as a ÑhandlerÒ during the one - year

period immediately preceding his application of the Kocide 2000 on

October 27, 2020. Respondent also violated 40 C.F.R. § 170.401 and rule 5E -

2.039, by failing to timely retrain Ñworkers . Ò Respondent also violated

40 C. F.R. § 170.501(d)(1)(iii), by failing to identify the EPA approval number

for the training video in the training record. 2

4 2 . As to Count III, 40 C.F.R. § 170.407 requires that after the application

of any pesticide, the agricultural employer must not allow or direct any

worker to enter or to remain in the treated area before the REI specified on

the pesticide product labeling has expired and all treated area warning signs

have b een removed or covered.

4 3 . Section 487.031(10) further provides that when a pesticide is applied,

Ñany deviation from label recommendations must be with the consent of the

purchaser of the pesticide application.Ò

4 4 . As detailed above, the labeling on t he Kocide 2000 provide s for an REI

of 48 hours following application. However, the REI may be reduced to 24

hours if the pesticide is applied to plants located in greenhouses. In the

instant case, the pesticide was applied to plants located in greenhouses , and

therefore the REI could be reduced to 24 hours . Acco r dingly, Respondent did

not violate 40 C.F.R. § 170.407, rule 5E - 2.039, or section 487.031(10), as

alleged in Count III.

4 5 . Pursuant to s ection 487.175 (1) (e) , when any person or licensee has

violated any provision of the FPL or rule adopted under the FPL, the

Department may enter an order imposing an administrative fine in the Class

III category pursuant to section 570.971 , Florida Statutes, for each violation .

46. ÑWhen imposing a 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

2 Notably, the Department does not specifically argue in its Proposed Recommended Order

that Respondent failed to train its ÑworkersÒ in violation of 40 C.F.R. § 170.401. Rather , the

DepartmentÔs argument regarding training of employees i s confined to the sufficiency of

Mr. CruzÔs training as a Ñhandler.Ò In addition, Mr. DeSutter acknowledged at the hearing

that the basis for Count II was Mr. Cruz . In any event, because the Department alleged in

Count II a violation of 40 C.F.R. § 170.401 , based on a lack of proper training of Ñagricultural

employees,Ò and not just Mr. CruzÔs training as a Ñhandler,Ò the undersigned specifically

addressed this allegation.

noncompliance, whether the vi olation was committed willfully, and the

compliance record of the violator.Ò § 487.175 (1) (e), Fla. Stat.; see also DepÔt of

Ag ric . and Cons umer Servs. v. Ag - Mart Produce, Inc. , 06 - 0729 and 06 - 0730

(Fla. DOAH Mar . 16, 2007; FDACS Apr . 13, 2007).

4 7 . Under section 570.971(1)(c) , a Class III violation may result in the

imposition of an administrative fine not to exceed $10,000.00 for each

violation.

4 8 . Applying the foregoing legal principles to the instant case, the

Department sought a total administrative fine in the instant Administrative

Complaint of $2,600.00 for all of the alleged violations. However, not all of

the alleged violations were proven.

4 9 . Of those allegations proven under Counts I and II, there was no actual

harm or damage caused by the v iolations, Respondent did not benefit

monetarily from the non - compliance, and none of the violations were

committed willfully . However, Respondent does have a prior record of

noncompliance based on the initial Administrative Complaint issued

April 15, 2020, which was not contested. On the other hand, Mr. Jordling was

hired by Respondent to address the issues of concern set forth in the April 15,

2020, initial Administrative Complaint, although some of the same types of

violations , as detailed above with respect to Counts I and II of the instant

Administrative Complaint, were still present when Mr. DeSutter conducted

his re - inspection on November 19, 2020.

50 . In sum, u nder the particular facts of this case, an app ropriate

administrative fine again st Respondent for those violations proven under

Counts I and II of the instant Administrative Complaint is $500 .00 per count,

for a total $1,000.00.

R ECOMMENDATION

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

R ECOMMENDED that Petitioner, Florida Department of Agriculture and

Consumer Services, enter a final order imposing an administrative fine

against Respondent, Spanish River Nursery, LLC, in the total amount of

$1,000.00.

D ONE A ND E NTERED this 2 7 th day of January , 2022 , in Tallahassee, Leon

County, Florida.

S

D ARREN A. S CHWARTZ

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 7 th day of January , 2022 .

C OPIES F URNISHED :

Andrew Espinosa Lee Damessous, Esquire

Manuel Rivero, Operations Manager Florida Department of Agriculture

Spanish River Nursery, LLC and Consumer Services

8571 156 Court South 407 South Calhoun Street , Suite 520

Delray Beach, Florida 33446 Tallahassee, Florida 32399 - 0800

Honorable Nicole "Nikki" Fried Steven Hall, General Counsel

Commissioner of Agriculture Florida Department of Agriculture

Florida Department of Agriculture and Consumer Services

and Consumer Services 407 South Calhoun Street, Suite 520

The Capitol, Plaza Level 10 Tallahassee, Florida 32399 - 0800

Tallahassee, Florida 32399 - 0810

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.