Humphreys Flowers, Inc. vs. AGRICULTURE

Transcription

1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law March 2015 Humphreys Flowers, Inc. vs. AGRICULTURE Follow this and additional works at: This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF AGRICULTURE IN THE MATTER OF: Humphreys Flowers, Inc. DOCKET NO: J Respondent NOTICE OF DEFAULT AND INITIAL ORDER This matter came to be heard on February 3, 2015, before Leonard Pogue, Administrative Judge assigned to the Secretary of State, Administrative Procedures Division, and sitting for the Commissioner of the Tennessee Department of Agriculture. Jason Miller, counsel, represented the Department. No individual or attorney appeared on behalf of the Respondent Humphreys Flowers. The subject of this hearing was a Complaint and Notice of Hearing against the Respondent to determine whether Humphreys Flowers engaged in the business of being a florist without a valid florist certificate issued by the Tennessee Department of Agriculture and whether the Commissioner should impose a civil penalty against the Respondent for alleged violations of Tenn. Code Ann and Rule ORDER OF DEFAULT The State moved that a default be entered against Respondent for failure to participate in the hearing after due notice. Humphreys Flowers, Inc. was administratively dissolved as late as 1991, and that as such, the business is unincorporated and does not have a viable registered agent for service of process. The State introduced proof that service, by certified mail, of the notice of 1

3 hearing was made at the address of record before December 18, Further, the Department attempted in December 2014 to call Rob Johnson and left him a voic regarding filing of the Notice of Hearing in this matter; and the Department has no knowledge that Mr. Johnson could be located at an address other than that which is on file with the Department. It appearing that proper notice was sent to Respondent, and that Respondent failed to appear at the hearing, the State s Motion for Default is well taken and is hereby GRANTED pursuant to TENN. CODE ANN (a). See also RULE (1) of the Uniform Rules of Procedure for Hearing Contested Cases before State Administrative Agencies, TENN. COMP. R. & REGS. Ch (June 2004 (Revised)). INITIAL ORDER After consideration of the record in this matter, it is determined that the Respondent be fined a civil penalty in the amount of three hundred fifty dollars ($350.00). This decision is based upon the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Frank Heery is a plant certification inspector for the Department, and has served in that role for more than 30 years. One of Mr. Heery s job duties includes inspection of florists in the east Tennessee, Chattanooga area. 2. Mr. Heery is familiar with Humphreys Flowers because he inspects its establishment for compliance with regulatory authority governing florists. Mr. Heery is also familiar with Humphreys Flowers personally because he lives in the Chattanooga area and has witnessed various flower arrangements from Humphreys Flowers given to or purchased by people in that community. 2

4 3. Humphreys Flowers is located at 1220 McCallie Avenue in Chattanooga, Tennessee. 4. On September 16, 2009, and on February 6, 2013, Mr. Heery inspected Humphreys Flowers for compliance with the Department s regulatory requirements. On each of these occasions, Mr. Heery witnessed tropical plants and other potted live plant material showcased in Humphreys Flowers gallery. These plants are the type of rooted plant material that otherwise requires certification from the Department before it may be sold or distributed. On at least one occasion, Humphreys Flowers provided to Mr. Heery invoice verification for these plants, which is required by regulation for the plants future sale or distribution. 5. On each of these occasions, Mr. Heery notified Humphreys Flowers personnel that the business Florist Certificate expired as of September 30, 2008, and that certificate fees and late penalties needed to be satisfied to bring the certification current. Following the February 6, 2013, inspection Mr. Heery indicated on his inspection report that a civil penalty citation should be issued to Humphreys Flowers On June 2, 2014, Mr. Heery visited Humphreys Flowers for the purpose of hand delivering to the business a Notice of Expired Certification from the Department. On that occasion, Mr. Heery again witnessed tropical plants and other potted live plant material showcased in Humphreys Flowers gallery, where plants for sale were displayed. These plants were substantially similar to those plants witnessed by Mr. Heery at Humphreys Flowers in 2009 and Anni Self is the plant pathologist for the Department, and she has served in this position for more than 15 years. One of Ms. Self s duties in this role involves oversight of 1 Upon representation of the Department, no further action has been taken regarding that civil penalty. 3

5 record keeping for florist certificates with the Department. In this respect, Ms. Self is familiar with Humphreys Flowers and its history for obtaining a florist certificate from the Department. 8. Humphreys Flowers last obtained a florist certificate from the Department on October 23, That certificate expired on September 30, Since that time, Humphreys Flowers has not renewed or obtained another florist certificate from the Department. 9. Walker Haun is the Plant Certification Administrator for the Department, and he has served in that role since The Plant Certification section provides permits for various plant providers that ship, sell, or distribute live plant material into or within the state. Those businesses that deal in live plant material of the type witnessed by Mr. Heery could be required to obtain one of several types of permits or certifications depending on the nature of their business. A florist certification is the minimum certification required for any person who offers such live plant material for sale in Tennessee. CONCLUSIONS OF LAW 1. Under Tenn. Code Ann , The commissioner has the power to promulgate such rules and regulations under the authority of this part as may be necessary to prevent the further introduction of insect pests, pest plants, or plant diseases into the state, and to eradicate or suppress and control such insect pests, pest plants, or plant diseases occurring therein. Rules and regulations established under this part shall have the force and effect of law. 2. Under R , It shall be illegal for any person to engage in the business of being a... Florist without first having secured a... Florist certificate from the Tennessee Department of Agriculture. 4

6 3. Under Tenn. Code Ann (4), Florist means an establishment whose primary business is the retail sale of fresh cut flowers. A florist shall not be considered a dealer; provided, that the sales of rooted plant material sold by a florist shall be those used to enhance fresh cut flower arrangements, or that are intended to be grown and maintained indoors and that are not intended to be planted in the landscape. 4. Consistent with the testimony of Mr. Haun, this statutory definition of Florist provides a permit category that is a subset of the requirements for a plant dealer certificate. 2 Thus, when any person acquires plant material for resale or commercial distribution and that material is capable of propagation, he is otherwise required to obtain a plant dealer certificate 3 from the Department unless his business qualifies as a florist. Based on the testimony provided regarding Humphreys Flowers showcase of rooted plants for sale, Humphreys Flowers is a florist for purposes of Tenn. Code Ann , et seq. and its corresponding regulations. Consequently, Humphreys Flowers was required pursuant to R to obtain a florist certificate from the Department prior to engaging in those activities witnessed by Mr. Heery on September 16, 2009, February 6, 2013, and June 2, If a florist completes and submits the appropriate application, certification fee, and payment for penalties, if applicable, a florist certificate shall be issued. Such certificates shall expire on September 30 of each year. R Based on the testimony of Ms. 2 Florist certifications through the Department are $25; plant dealer certificates are $200. Tenn. Code Ann (f)(5), (8); R (a), (b). 3 A plant dealer is any person not a grower of nursery stock or other plants who buys or otherwise acquires nursery stock or other plants for the purpose of reselling or otherwise distributing nursery stock or other plants independently of any control of the grower. Tenn. Code Ann (3). Nursery stock means all trees, shrubs, or other perennial plants or parts of trees, shrubs, or other perennial plants grown or kept for, or capable of propagation, distribution, or sale on a commercial basis. Tenn. Code Ann (9). 5

7 Self, Humphreys Flowers last completed and submitted an application and fee for a florist certificate in October Consistent with her testimony and R , Humphreys Flowers florist certificate for that year expired on September 30, Consequently, Humphreys Flowers was without a valid florist certificate at the time of events witnessed by Mr. Heery on September 16, 2009, February 6, 2013, and June 2, The Department has proved by a preponderance of the evidence that Humphreys Flowers engaged in the business of being a florist on September 16, 2009, February 6, 2013, and June 2, 2014; that Humphreys Flowers was required to obtain a valid florist certificate prior to engaging in its business as a florist on these dates; and, that despite repeated inspections and warnings Humphreys Flowers continued on these dates to engage in the business of being a florist without first obtaining a valid florist certificate from the Department. 7. Violators of Tenn. Code Ann et seq. or its regulations may be subject to issuance of civil penalties under R and Tenn. Code Ann R Under Tenn. Code Ann (a), [t]he department [of agriculture]... may, in a lawful proceeding respecting licensing, as defined in the Uniform Administrative Procedures Act, compiled in chapter 5 of this title, in addition to or in lieu of any other lawful disciplinary action, assess a civil penalty of not more than five hundred dollars ($500) for each violation of statute, rule or order enforceable by the department.... Any person who sells, offers for sale, or moves plants without having first secured the proper certificate is subject to a civil penalty up to $500. See R (21). The penalty for a first violation of this sort is a warning and seven days to comply. The penalty for a second violation of this sort is $100. The penalty for a third violation of this sort is $250. R (21). 6

8 8. Based on the testimony of Frank Heery, the Department warned Humphreys Flowers of its certificate violation and the need to secure a florist certificate for the business operations after inspection on September 16, Consequently, the subsequent instances of similar violations on February 6, 2013, and June 2, 2014, are subject to issuance of civil penalties. 9. Under Tenn. Code Ann and (10), Notwithstanding any contrary law, the department [of agriculture]... may assess the actual and reasonable costs of the investigation, prosecution and hearing of any disciplinary action held in accordance with the contested case provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, in which sanctions of any kind are imposed on any person or entity required to be licensed, permitted, registered or otherwise authorized or regulated by the department.... These costs may include, but are not limited to, those incurred and assessed for the time of the prosecuting attorneys, investigators, expert witnesses, administrative judges, court reporters and any other persons involved in the investigation, prosecution and hearing of the action. 10. The Department has proved by a preponderance of the evidence that Humphreys Flowers committed violations of R on September 16, 2009, February 6, 2013, and June 2, 2014, as set forth above. 11. Accordingly, for the reasons stated herein, Humphreys Flowers is assessed two civil penalties for instances where it engaged in the business of being a florist without first securing a valid florist certificate from the Department $100 for engaging in the business of being a florist on February 6, 2013, without first securing a florist certificate from the Department; and $250 for engaging in the business of being a florist on June 2, 2014, without 7

9 first securing a florist certificate from the Department. The total of these penalties shall equal $350. WHEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED that Respondent is hereby ASSESSED and shall pay a civil penalty in the amount of $ and the costs of this action (limited to court reporter and administrative procedures division costs) are assessed against Respondent. This Initial Order entered this day of March, Leonard Pogue Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State this day of March, J. Richard Collier, Director Administrative Procedures Division 8