Ag-Mart asks judge to slash pesticide fine

Grower also wants evidence ruled out

Ag-Mart, a multinational tomato grower accused of exposing its workers to pesticides, asked a judge Tuesday to throw out the bulk of the evidence against it and all but $500 of a $184,500 fine.

The company's lawyers argued in an administrative law hearing in Raleigh that nearly three-quarters of the 369 violations it was charged with by the state Agriculture Department are based on a misinterpretation of Ag-Mart's records.

And they said that, no matter how many violations the Florida-based company is accused of, the state has no authority to fine more than $500.

The Agriculture Department levied the $184,500 fine, the largest in state history, after the department's pesticide section found Ag-Mart endangered hundreds of tomato pickers by forcing them to work in freshly sprayed fields. The agency also says the company harvested tomatoes too soon after spraying, violating rules designed to keep consumers safe from pesticide residue in their food.

Overall, the case against the company is "lacking in common sense," Mark Ash, a Raleigh lawyer hired by Ag-Mart, told the judge.

The arguments came during a preliminary hearing in front of Administrative Law Judge Beryl Wade, but few answers emerged in a case that the Agriculture Department has been working on for a year and a half. Wade won't rule on Ag-Mart's motion for several weeks.

However, the hearing provided a glimpse into the defense that the company will mount.

Assistant Attorney General Barry Bloch, representing the state pesticide section, said that, while state inspectors didn't see Ag-Mart spraying workers with pesticides, the state has "a strong, solid case of circumstantial evidence." He argued that the judge should allow all the evidence to be aired at a full hearing, rather than granting Ag-Mart's motion to throw out much of it in advance.

The bulk of the state's evidence comes from Ag-Mart's own records. Pesticide officials looked at work records, which show where workers were picking crops, and spray records, which document the fields where pesticides were applied. Those documents, when cross-referenced, often placed workers in fields less than 48 hours after chemicals were sprayed, even though the fields were not yet safe to reenter.

Ash argued that the work records simply aren't accurate. He said the company doesn't keep precise records of which fields each employee worked in. Instead, it keeps only vague notations of the fields that tomato pickers were working on a given day.

For instance, the company's records show one worker laboring in 18 fields scattered over two counties during a single day. He said that is simply impossible -- and that it's not fair to use those records as proof that workers were exposed to pesticides.

"It doesn't make any sense that we would be willfully exposing our workers," Ash said. "We need them to pick our tomatoes."

The company also argued that the fine should be thrown out.

Until September 2004, the state Pesticide Board, which is appointed by the governor and approves all fines, took the view that state law allowed only a $500 fine per case. Since then, the board has changed its interpretation. It now fines up to $500 per violation.

Ag-Mart's lawyers argued that the change is illegal, and Ash called the fine levied against Ag-Mart "extortion."

Ash also asked that the judge throw out a deposition from Francisca Herrera, a former Ag-Mart employee whose child was born with no arms and legs. She is now suing the company, claiming that she was regularly doused in Ag-Mart fields with pesticides during her pregnancy. Ash said Herrera was not on the state's witness list, so her testimony should be barred.

"Here comes Ms. Herrera and her $20 million lawsuit," Ash said, "an obvious reason to say what she said."

He pointed to an affidavit taken by the Florida Agriculture Department in May 2005. That document, written in English and signed by Herrera, says she was never sprayed with pesticides. Her lawyer, Andrew Yaffa, has said that Herrera doesn't speak English and never would have knowingly signed such a document.