NAPLES DAILY NEWS

March 23, 2007

Judge: Drop most violations against Ag-Mart

Company claims victory after judge recommends that nearly all the pesticide use violations brought against it be dismissed

By Laura Layden

An administrative law judge has recommended dismissing nearly all of the alleged pesticide use violations brought against Ag-Mart Produce Inc. in Florida.

The Florida Department of Agriculture charged the Plant City-based tomato grower with dozens of violations after three of the company’s workers had babies born with severe birth defects.

The mothers lived in the same labor camp in Immokalee when they became pregnant.

One baby was born without arms and legs. Another baby had a deformed jaw, and a third died a few days after birth and was so disfigured it was difficult to determine its sex.

Administrative Law Judge Lawrence Stevenson has recommended dropping all but seven of 78 alleged violations considered in the complaint against Ag-Mart.

The company sees it as a victory.

The ruling follows a similar one in North Carolina, where an administrative judge in December recommended dismissing 271 asserted pesticide violations.

“Absolutely Ag-Mart feels vindicated by the recommended orders, both in Florida and North Carolina,” said David Stefany, attorney for the company.

Most of the alleged violations involve allowing workers to re-enter fields too soon after pesticides have been sprayed and not waiting the required time to harvest crops after applying pesticides.

The investigation began in Florida and the agriculture department based its charges on records supplied by Ag-Mart, which the company says were misused to bring a case against it.

“As we have stated from the outset, agriculture officials from North Carolina and Florida misunderstood information supplied by Ag-Mart... Now two independent judges have agreed with what we’ve been telling the states all along,” said Ag-Mart President Don Long, in a company statement.

Agriculture commissioners in Florida and North Carolina still have to sign off on the judges’ orders. Ag-Mart is considering whether to fight the remaining charges and appeal the order in Florida.

If the order is approved, the company would pay $8,400 for the seven violations, which all occurred in North Florida, not Immokalee. That would be added to $3,000 in fines it already agreed to pay in a partial settlement.

“Certainly that would be one of the most significant fines we’ve collected in a pesticide violation case,” said Terry McElroy, a Department of Agriculture spokesman.

The department has 15 days to respond if there’s any disagreement with the judge’s order, he said.

“There is not a whole lot we can say at this point,” McElroy said, noting state Agriculture Commissioner Charles Bronson has the final say over whether to accept the recommended order.

Initially, the department sought $111,200 in fines. If the judge’s order is approved, Ag-Mart would end up paying $11,400.

“That sure is a night-and-day difference,” Stefany said.

Ag-Mart offered to pay $25,000 in a settlement to avoid an administrative hearing, but the department refused it.

Originally, the department charged Ag-Mart with 88 violations of the state’s pesticide law. Ten of those were resolved before the administrative hearing, with the company agreeing to pay the $3,000 settlement.

The suspected violations were in part based on a spreadsheet the company provided to the state that showed the fields the women could have possibly worked in between February and June 2004. Ag-Mart contends the information was misinterpreted to mean where the women actually worked each day.

The spreadsheet listed as many as 23 fields in one day. At the time, the company did not keep close tabs on its workers from day to day. That has since changed, Stefany said.

During the administrative hearing, Ag-Mart cast doubt on its own records for spraying. The law requires the company to maintain accurate records.

In his ruling, Stevenson said the department failed to show “clear and convincing evidence” on alleged pesticide violations at fields in Immokalee. He said the case demonstrates “a gap in the enforcement mechanism of the Florida pesticide law” because it does not require applicators or growers to “keep accurate records of when and where farmworkers enter the fields and conduct the harvest.”

“This failure to complete the record-keeping circle makes it extremely difficult,” he said, for the department to prove violations have taken place.

While Ag-Mart is claiming victory, Andrew Yaffa, a Fort Lauderdale attorney representing the parents of one of the children born with defects, said he doesn’t see it that way.

“It’s not a vindication,” he said. “What they have done is they’ve hidden behind and continue to hide behind their own faulty record-keeping practices. And the reality is that these cases and the charges levied against them have caused Ag-Mart to change everything that they do.”

The company has stopped using pesticides they know have caused birth defects and they’ve changed their spray practices, he said.

Ag-Mart representatives say those changes were already in the works before complaints were brought in Florida and North Carolina.

Yaffa, with the Miami-based firm of Grossman Roth, represents Francisca Herrera and Abraham Candelario, the parents of Carlitos, who has a rare disorder that left him without arms and legs.

In their lawsuit, the parents, now living in Miami, allege that Ag-Mart did not take proper steps to protect them or their unborn son. They say they were directly sprayed with pesticides as they worked in the fields and they were allowed to work in freshly sprayed fields.

“They are devastated,” Yaffa said. “They are doing the best they can for their son, who currently needs and will always need everything. ... He’s not self-sufficient in any way.”

Ag-Mart, a subsidiary of Philadelphia-based Procacci Brothers, sells its grape tomatoes throughout the United States under the name Santa Sweets. It also grows and markets heirloom tomatoes called UglyRipes.

The company calls itself a leader in worker safety, environmental protection and the growing of safe and nutritious produce.

“The safety of our workers and our products is of paramount importance to Ag-Mart,” Long said.