FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

January 17, 2003

THOMAS K. KAHN

CLERK

*

 Honorable Donald C. Pogue, Judge, United States Court of International Trade, sitting by

designation. 

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

_________________________

No. 02-10576

_________________________

D.C. Docket No. 00-01511-CV-PAS

ADAN ARES,

Plaintiff-Appellant,

versus

MANUEL DIAZ FARMS, INC., 

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 17, 2003)

Before EDMONDSON, Chief Judge, ANDERSON, Circuit Judge, and POGUE *

,

Judge. 

POGUE, Judge:

Appellant Adan Ares challenges the district court’s determination, upon

granting defendant’s motion for summary judgment, that Ares was an exempt

agricultural employee under the Fair Labor Standards Act, 29 U.S.C. § 213(b)(12),
2

 In his appeal, Ares also challenges the district court’s denial of his motion to issue opt-in

notices in order to treat his action to recover unpaid wages under 29 U.S.C. § 216(b) as a class

action. Order Denying Pl.’s Renewed Mot. to Issue Opt-In Notices, App. D. The court declined

to issue such notices on the ground that Appellant offered no evidence establishing the existence

of similarly situated employees. As we decide that Appellant is an exempt agricultural

employee, this second claim is moot, and we do not reach it. 

3

 Diaz also owns land individually, some of which is cultivated by Diaz Farms, and he is a

partner in the Manuel Diaz and Amelia Diaz Partnership, which leases land to Diaz Farms. 

2

and therefore not entitled to claim overtime wages.2 This Court exercises jurisdiction

over this appeal under 28 U.S.C § 1291. For the reasons expressed below, we affirm

the district court’s decision. 

I. 

Adan Ares was employed by Diaz Landscaping and Nursery, Inc. (“Diaz

Landscaping”), a Florida corporation owned and operated by Manuel Diaz (“Diaz”).

Diaz also owns Diaz Farms, Inc. (“Diaz Farms”), a Florida corporation engaged in the

business of cultivating, harvesting, and selling plants and trees.3

Diaz Landscaping owns land used for agricultural purposes, all of which is

leased to Diaz Farms for use in its plant cultivation operations. Additionally, Diaz

Landscaping was the employer of record of all employees working at Diaz Farms

from 1997 through 1999. Diaz Landscaping paid payroll expenses for employees

working at Diaz Farms, and Diaz Farms reimbursed Diaz Landscaping for those costs.

Diaz Landscaping was not actively involved in agriculture and had no function or

activity other than to lease land and employees to Diaz Farms. 
4

 The deposition testimony indicated that perhaps twice in six years Diaz Farms purchased plants

to fill a customer’s order. The plants were native to California and Diaz Farms did not grow

them. Dep. of Lourdes Rodriguez at 8.

3

Diaz Farms cultivates trees, including palm and fruit trees, and ornamental

plants. The “mainstay of the farm is raising field grown trees,” Dep. of Manuel Diaz

at 22, and the farm sells trees and plants in Florida and at times in other states and

foreign countries. Diaz Farms sells only its own produce; it does not purchase plants

to resell.4

 The farm includes a plant nursery, areas for tree cultivation, numerous

animals, and stables. Manuel Diaz and his family live in a house surrounded by the

farm. Diaz receives the farm’s clients at the house and manages the farm’s business

from a home office. 

Ares asserted that the Diaz enterprises employed approximately 90 employees

who worked fifty to sixty hours each week and were not paid overtime wages. Ares

claimed that Diaz Landscaping was an independent corporation engaged in leasing

land and employees, rather than in agricultural work, and therefore its employees did

not fall within the agricultural employee exception to the overtime wage provisions

of 29 U.S.C. § 207(a). 

The district court found that Diaz Farms and Diaz Landscaping were so

intertwined as to constitute a single agricultural enterprise which is exempt from the

requirement to pay overtime wages, and that Ares was employed in agriculture within
4

the meaning of 29 U.S.C. § 213(b)(12). 

 This Court reviews de novo the district court’s grant of summary judgment.

Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). 

II.

Under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., an employee

“engaged in commerce or in the production of goods for commerce,” or “employed

in an enterprise engaged in commerce or in the production of goods for commerce”

must be paid for hours worked over forty hours per week “at a rate not less than one

and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1).

Title 29 U.S.C. § 213(b)(12) provides that the requirements of section 207 shall not

apply to “any employee employed in agriculture.” 

Agriculture, within the meaning of the Act, has two distinct branches: “(1) a

primary meaning which includes farming in all its branches, such as cultivation and

tillage of soil, growing and harvesting of crops, and (2) a secondary meaning which

includes other farm practices, but only if they are performed by a farmer or on a

farm.” Hodgson v. Idaho Trout Processors Co., 497 F.2d 58, 59 (9th Cir. 1974) (citing

Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 762-63 (1949)). The

secondary practices must be performed “incidently to or in conjunction with such
5 As to stock purchased from other farmers and packaged for sale at the Jackson & Perkins

storage center, however, the agricultural exemption did not apply. With regard to that stock,

Jackson “acted as a jobber rather than as a farmer” because it did not grow the products and

the work done to prepare it for sale was not incidental to its agricultural activities. Jackson

& Perkins Co. at 51; see also Adkins v. Mid-Am. Growers, Inc., 167 F.3d 355 (7th Cir. 1999)

(to the extent that a nursery purchased plants from other growers for resale, it was acting as a

wholesaler rather than a farmer, and such activity is not exempt from the FLSA).

5

farming operations.” Farmers Reservoir & Irrigation Co., 337 U.S. at 763. Farming

includes horticulture. 29 U.S.C. § 203(f).

No Eleventh Circuit case addresses the issue before us. Other circuits, however,

have addressed this issue. In Wirtz v. Jackson & Perkins Co., 312 F.2d 48 (2d Cir.

1963), defendant Jackson & Perkins Company, a nursery which operated farms in

several states and a storage center in New York, received shipments of products from

the farms and prepared them for sale. 312 F.2d at 49-50. Several farms were operated

as wholly-owned subsidiary corporations. Id. at 50. As the company “employ[ed]

subsidiary corporations whose functions [were] uniquely integrated into the over-all

agricultural enterprise,” id., the agricultural exemption applied equally to the several

farms and to the work done at the storage center.5

 Id. at 51. The court stated, “[w]e

find nothing in the language or history of the Fair Labor Standards Act to suggest that

Congress intended the availability of the agricultural exemption to turn upon the

technicalities of corporate organization within which farming operations or practices

performed incidental thereto were conducted.” Id. at 50. 
6

Similarly, in Dofflemyer v. NLRB, 206 F.2d 813 (9th Cir. 1953), the Ninth

Circuit found that the operations of a grape packing shed and storage plant fell within

the agricultural exception. The shed and plant were operated to pack the grapes grown

on the adjoining farm. The proprietors of both the farm and the packing operation

were three partners who were also family members, and the shed and plant packed

only the produce from the partners’ farm. The court found that these packing

operations were carried on “by farmers and on a farm. They were carried on in

conjunction with and incidental to the farming operations.” Id. at 814; see also

Maneja v. Waialua Agric. Co., Ltd., 349 U.S. 254, 260-62 (1955) (holding that

railroad workers who transported workers, tools, and sugar cane on a sugar cane

plantation were exempt agricultural employees); Brennan v. Sugar Cane Growers

Coop. of Fla., 486 F.2d 1006, 1007-08, 1011 (5th Cir. 1973) (holding that cooks and

attendants who prepared meals and maintained living facilities at a camp for sugar

cane plantation workers, which camps were located at or adjacent to the plantations,

were within the agricultural exemption). 

By contrast, courts have declined to extend the agricultural exemption to

entities that perform separate, self-contained services and operate independently from

the agricultural enterprises they serve. See Farmers Reservoir & Irrigation Co., 337

U.S. at 767-68; see also Hodgson v. Idaho Trout Processors Co., 497 F.2d at 60;
7

Goldberg v. Crowley Ridge Fruit & Vegetable Growers Ass’n, 295 F.2d 7 (8th Cir.

1961).

In the instant case, Manuel Diaz owns both Diaz Farms and Diaz Landscaping.

Diaz lives on the farm, manages the farm from a home office, and entertains farm

clients at his house. Diaz’s deposition testimony indicates that he considers the house,

farm, and corporations as part of a single farm enterprise. The record shows that the

sole function of Diaz Landscaping is to lease land and employees to, and thereby

support the operations of, Diaz Farms. Additionally, Diaz Farms sells only its own

products. Cf. Marshall v. Gulf & Western Indus., Inc., 552 F.2d 124, 126 (5th Cir.

1977) (holding that because a tomato packing plant packed tomatoes grown by other

producers in addition to its own products, it could not claim the agricultural

exemption). Here, as in Jackson & Perkins, the separate entities are “uniquely

integrated into the over-all agricultural enterprise.” 312 F.2d at 50. As in Dofflemyer,

“[w]hat we have here is little more than an informal family enterprise. The same

[individual] . . . appear[s] as the sole moving character[]” in all its operations.

Dofflemyer, 206 F.2d at 814. Contrary to the situation in Farmers Reservoir &

Irrigation Co., the employees of Diaz Landscaping were in a “real sense” employees

of the sole proprietor of the organization by which they were hired. It is unrealistic

to view Diaz Landscaping as an independent entity, separate from Diaz Farms.
6

 The fact that some of the fumigating was done in the area around Diaz’s house does not defeat

the exemption, as the house is situated on the farm, houses the farm’s business management

office, and is used to receive the farm’s clients. 

8

Rather, these entities are essentially interdependent components of a family business.

We are persuaded by the reasoning of the Second Circuit in Wirtz v. Jackson &

Perkins Co. that the availability of the agricultural exemption should not “turn upon

the technicalities of corporate organization.” 312 F.2d at 50. As Diaz Landscaping

and Diaz Farms are integrated components of an agricultural enterprise, we hold that

the agricultural exemption provision of 29 U.S.C. § 213(b)(12) applies to the

employees of Diaz Landscaping. 

III.

As an employee of the Diaz enterprise, Ares’s duties included fumigating the

entire area of the farm, including the house, and treating weeds around the plants on

the farm. Fumigation to protect plants from pests is an activity performed incidently

to and in conjunction with farming practices. As Ares’s tasks were performed on a

farm and involved farm practices incidental to the primary agricultural tasks of

cultivation, they fell within the definition of secondary agriculture. Consequently,

Ares was an agricultural employee within the meaning of the Fair Labor Standards

Act, and exempt from the overtime wage provisions under 29 U.S.C. § 213(b)(12).6

For the foregoing reasons, the judgment of the district court is 
9

AFFIRMED.