State Agency to Sue Growers Over Tainted Watermelons

Three months ago, when the misuse of a powerful pesticide temporarily shut down California’s watermelon industry and cost its growers $1.5 million in lost sales and ruined crops, an angry state food and agriculture Director Clare Berryhill vowed that the state would “nail to a cross” any growers who were found responsible.

“I am going to use all the police powers I have to put them away,” he said.

But now Berryhill’s agency has decided against trying to send growers to jail. Instead, in an attempt to collect substantial financial penalties, civil lawsuits will be filed against three farmers suspected of having applied the pesticide aldicarb to their melon fields.

The Department of Food and Agriculture said Friday that it had completed a two-month investigation of the watermelon contamination and concluded that it can achieve a “greater deterrent” by fining growers, rather than criminally prosecuting them.

Relatively Weak Penalties

Victoria Gall, the agency’s staff counsel, said one reason for the decision was the relatively weak criminal penalties of the state Food and Agriculture Code, which make violations punishable by no more than a $500 fine or six months in jail, or both.

By contrast, she said, the state can seek civil penalties of $1,000 for each violation of the agriculture code and $2,500 for each violation of the state’s Business and Professions Code.

The state attorney general’s office, which will file the suits, has not determined how many violations it will allege were committed by the three growers--Jimmie Icardo, Gary Icardo and Tim Yaksitch--whose farms are about 25 miles south of Bakersfield.

In the past, state officials have suggested that each contaminated melon could represent a single violation.

Berryhill was not available for comment Friday, but a government source familiar with the case said the state wants to make sure that its attempt to discipline the growers is successful. The source said the department anticipates that the federal Food and Drug Administration, which is conducting its own investigation, later this month will ask the Justice Department to file criminal charges against the growers.

The reason for this strategy is that federal law makes criminal prosecution easier. According to the federal standard of “strict liability,” the FDA would have to prove only that aldicarb-contaminated watermelons crossed state lines.

Question of Intent

A criminal case brought by the state attorney general would have to prove in court that the growers intentionally applied aldicarb--a risk state agriculture officials are not willing to take. The state’s civil penalty lawsuit will have to prove only that watermelons were contaminated through negligence by the growers.

Aldicarb is the active ingredient in Temik, a popular Union Carbide Corp. pesticide that is used to kill worms and mites in numerous crops, including cotton and potatoes. However, aldicarb is not registered for use on watermelons. A pesticide is registered for use on a crop only when it can be proven that the crop will not accumulate enough residue to make consumers sick.

Numerous sources in California agriculture believe that some watermelon farmers took the risk of applying aldicarb because it is regarded as highly effective and was not believed to be dangerous if applied long enough before harvest.

Several hundred people in California, two other Western states and Canada became ill in early July after eating aldicarb-contaminated watermelons. The state ordered the destruction of all harvested melons and told growers that they would not be allowed to continue harvesting until their fruit had been cleared by a special inspection program.

The two Icardos and Yaksitch were the only growers who failed to pass inspection. Aldicarb was found in two fields of melons operated by the Icardos (who are father and son) in the community of Mettler, and in five fields owned by Yaksitch in the community of Lamont. The three growers have declined to comment.

Kern County agriculture records show that the three growers earlier this year obtained annual “restricted materials” permits required to purchase Temik, indicating that they would apply it to cotton fields.

In a related matter, Gov. George Deukmejian earlier this week signed two bills that resulted from the melon contamination case.

The measures:

- Substantially strengthen criminal penalties for misuse of agricultural chemicals. The bill allows a prison sentence of up to a year and a fine as high as $50,000 for intentional misapplication, and it also increases the civil penalty for violation of the Food and Agriculture Code to $10,000 from $1,000. The bill was an urgency measure and took effect immediately, although it is not expected to be applied to earlier violations.

State agricultural officials have complained that existing civil penalties were so low that some growers could break the law and still enjoy enough profit to afford to pay the fine.

- Allow watermelon growers, brokers and markets that lost money from the watermelon recall to file claims with the state Board of Control. A state analysis showed that about 6,000 tons of watermelons were destroyed at wholesale outlets and 4,500 tons were destroyed at retail outlets.