STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOMESTEAD TOMATO PACKING COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-4093A

)

MACDONALD IMPORT COMPANY, INC. )

and SENTRY INDEMNITY COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- styled case on February 19, 1985 in Florida City, Florida.

APPEARANCES

For Petitioner: Rosario Strano, President

Homestead Tomato Packing Company, Inc. Post Office Box 3064

Florida City, Florida 33030

For Respondent: No appearance for either respondent.

By complaint filed July 25, 1984 petitioner seeks payment of a balance due it on tomatoes sold and delivered to respondent MacDonald Import Company, Inc., (MacDonald) on December 30, 1983. Petitioner alleges that on December 30, 1983, respondent MacDonald ordered tomatoes in 20 pound flats to be delivered to respondent MacDonald's warehouse on the Florida City Farmer's Market. The invoices for the tomatoes indicated 880-20 pound flats were delivered for a total amount of 6,468.00, including $132.00 for palletizing. Upon the tomatoes being delivered to respondent MacDonald's customer, a problem arose concerning their condition. Respondent MacDonald discussed this matter with petitioner's office manager and a reduction in price of a $1.50 per flat was agreed upon by both parties. The total reduction was $1,320.00. On March 12, 1984, MacDonald paid petitioner $3,344.00 leaving a balance due of $1,804.00 which respondent MacDonald has refused to pay.

In support of the allegations, petitioner presented the testimony of Phyllis Ernst and James H. Maynard, Jr. Petitioner's Exhibits Nos. 1-6 were received into evidence.

Neither respondent MacDonald nor Sentry Indemnity Company were present and no testimony or exhibits were received on their behalf.

Neither petitioner nor respondents submitted post hearing Proposed Findings of Fact and Conclusions of Law as allowed by Section 120.57(1)(b)(4), Florida Statutes (Supp. 1984).

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found.

1. At all times pertinent to these proceedings, respondent MacDonald was a licensed dealer in agricultural products, licensed by the State of Florida, and bonded by Sentry Indemnity Company in the sum of $10,000.00.

   
   

2. At all times pertinent to these proceedings, petitioner was a producer of agricultural products produced in the State of Florida.

   
   

3. At all times pertinent to these proceedings, respondent Sentry Indemnity Company was authorized to transact business in the State of Florida.

   
   

4. At all times pertinent to these proceedings, Rosario Strano was president of Homestead Tomato Packing Company, Inc.

   
   

5. On December 30, 1983, petitioner at respondent MacDonald's request, loaded 704-20 pound flats of Poppas Famous tomatoes, size "5 x 6", and 88-20 pound flats of Poppas Famous tomatoes, size "6 x 7", onto the truck of respondent MacDonald's customer, V. F. Lanasa, Inc., and loaded 88-20 pound flats of Poppas Famous, size "6 x 6", tomatoes on respondent MacDonald's truck. Respondent MacDonald was billed $7.50, $6.50, and $5.50 per flat for size "5 x 6", "6 x 6", and "6 x 7", respectively, plus $132.00 for palletizing, for a total invoice of $6,1460.00.

   
   

6. All tomatoes (880 flats) loaded by petitioner on respondent MacDonald's truck and the truck of V. F. Lanasa, Inc. had been inspected by a federal inspector and graded as "U. S. COMB." prior to loading and each flat was stamped as having been inspected.

   
   

7. Upon the tomatoes arriving at the warehouse of V. F. Lanasa, Inc., in Richmond, Virginia, they were inspected by USDA Inspector C. E. Short on January 3, 1984. The inspection report indicated some damage. Respondent MacDonald contacted petitioner's business manager, Phyllis Ernst and she, without seeing the inspection report, but relying on respondent MacDonald as to its contents, agreed with respondent MacDonald to a reduction of $1.50 per flat on all sizes. This reduced the original invoice to $5,118.00.

   
   

8. On March 12, 1984, respondent MacDonald paid petitioner $3,344.00 leaving a balance of $1,804.00 which respondent MacDonald has refused to pay.

   
   

   CONCLUSION OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. Respondent MacDonald was a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes (1983) and, as such, was required to be licensed by the Department of Agriculture and Consumer Services (Department) pursuant to Section 604.17, Florida Statutes (1983) and, as a requirement of licensing, had to show the Department evidence of a surety bond

    or a certificate of deposit in accordance with Section 604.20, Florida Statutes (1983) and Rule 58-1.01, Florida Administrative Code. Respondent, MacDonald was properly and sufficiently bonded by respondent, Sentry Indemnity Co. for the sum of $10,000.00.

    
    

11. The petitioner a "producer" of agricultural products as defined by Section 604.15 (5), Florida Statutes (1983) filed a timely complaint on July 25, 1984, against respondent MacDonald and its surety Sentry Indemnity Co. in accordance with Section 604.21, Florida Statutes (1983) alleging, among other things, that respondent MacDonald had refused to pay for "agricultural products" as defined by Section 604.15 (3), Florida Statutes (1983) sold and delivered to respondent MacDonald on December 30, 1983.

    
    

12. The evidence is clear that petitioner sold and delivered to respondent MacDonald on December 30, 1983, 880-20 pound flats of Poppas Famous tomatoes of various sizes at an agreed upon price per flat for each size for a total price of $6,468.00. The evidence shows that petitioner and respondent agreed to reduce the price by $1.50 per flat due to the condition of the tomatoes upon arrival at the warehouse V. F. Lanasa, Inc. as indicated by the inspection report (Petitioner's Exhibit No. 6) for a total reduction of $1,320.00. The evidence shows that respondent, MacDonald paid the sum of $3,344.00 on March 12, 1984 leaving a balance due the petitioner of $1,804.00 which respondent, MacDonald has refused to pay.

RECOMMENDATION

Based upon the Findings of Fact and Conclusion of Law recited herein, it is RECOMMENDED that respondent MacDonald Import Company, Inc. be ordered to pay to the petitioner, Homestead Tomato Packing Co., Inc., the sum of $1,804.00. It is further RECOMMENDED that if respondent, MacDonald Import Company, Inc. fails to timely pay the petitioner as ordered, then respondent, Sentry Indemnity Company be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the petitioner in accordance with Section 604.21, Florida Statutes (1983).

DONE and ORDERED this 10th day of May, 1985, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1985.

COPIES FURNISHED:

Rosario Strano, President

Homestead Tomato Packing Company, Inc.

P. O. Box 3064

Florida City, Florida 33030

Doyle Conner, Commissioner Department of Agriculture and

Consumer Services The Capitol

Tallahassee, Florida 32301

Robert Chastain, General Counsel Department of Agriculture and

Consumer Services Mayo Building, Room 513

Tallahassee, Florida 32301

Mr. Glenn Bissett Room 418

Mayo Building

Tallahassee, Florida 32301

Homestead Packing Company, Inc. Post Office Box 3064

P. O. Box 3064 Florida City, FL

MacDonald Import Company, Inc.

P. O. Box 97134 Miami, FL

Docket for Case No: 84-004093

Orders for Case No: 84-004093