STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORKY FOODS CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2062A

) GEORGIA TOMATO COMPANY, INC. ) and THE CONTINENTAL INSURANCE ) COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, hold a public hearing in this case on October 3, 1985, in Boynton Beach, Florida.

APPEARANCES

For Petitioner: Roger C. Lambert, Esquire

250 South County Road, Suite 201 West Palm Beach, Florida 33480

For Respondent: Glenn Vaughn, General Manager (Georgia Tomato Co.) Georgia Tomato Company, Inc.

Building F, State Farmers Market Forest Park, Georgia 30050

ISSUE

The issue presented for decision herein is whether or not the Petitioner is entitled to an award of $11,952 for payment of a shipment of tomatoes made to Respondent, Georgia Tomato Company, Inc.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, including the proposed ore tenus requests by Petitioner's counsel, I hereby make the following relevant factual findings.

   
   

2. Petitioner, Corky Foods Corporation, is a diversified agri-business company engaged in, among other things, the sale of produce from one of its warehouses in Boynton Beach, Florida.

   
   

3. On January 21, 1985, Pat Adams, a broker for Adams brokerage company in Bonita Springs, Florida, placed an order with Petitioner's salesman, Daniel Garcia, for a load of tomatoes from Georgia Tomato Company. The tomatoes were sold to Respondent, Georgia Tomato Company, on January 21, 1985. The invoice of these products (No. 18917) was dated January 23, 1985 and contained a total of 1,440 boxes. Respondent was allowed a $1 credit under the market price which amount reflects the amount of the initial claim by Petitioner against Respondent, Georgia Tomato Company; i.e., $25,560 less the credit of $1,440 for a total claim of $24,120.

   
   

4. During this period of time, there was a freeze in South Florida which occurred on January 20, 1985 and the price of produce dropped substantially for products picked after January 20, 1985. The market value for tomatoes picked on January 19, 1985 was as follows:

   
   

   5 x 6 #1 @	$18.00
   6 x 6 #1 @	$16.00
   6 x 7 #1 @	$14.00

   
   

   This amount, less the $1 credit given to Respondent, Georgia Tomato Company, by Petitioner represents the amount initially claimed by Petitioner; i.e., $24,120.

   
   

5. Respondent, Georgia Tomato Company, failed to pay Petitioner's invoiced amount which resulted in a complaint being filed by Petitioner against Respondent, Georgia Tomato Company, on March 4, 1985. Once that complaint was filed, Respondent, Georgia Tomato Company, tendered to Petitioner an amount of $12,168 which reduced the complaint by that amount leaving a balance now due and owing Petitioner of $11,952 based on its amended claim filed herein dated April 24, 1985.

   
   

6. Respondent, Georgia Tomato Company, contends that it was overcharged on the amount of this shipment of tomatoes and attempted to substantiate its position by showing several invoices for tomatoes that it purchased subsequent to January 21, 1985.

   
   

7. Daniel Garcia, Petitioner's vice-president in charge of marketing, determined the market price for the tomatoes shipped to Respondent, Georgia Tomato Company, on January 21, 1985. In doing so, he called brokerage houses in Homestead, Bonita Springs, and other brokers, including Pat Adams, the broker who purchased the tomatoes here in question on behalf of Adams Brokerage House, and established the market price as per the invoice sent to Respondent, Georgia Tomato Company. In addition, Mr. Garcia referred to the Southeastern Fruit and Vegetable Report, Volume 30, No. 17, which is a guide to the pricing information for fruit and vegetables in the southeast and which is relied upon to ascertain fruit and vegetable prices in this area. (Petitioner's Exhibit 1) This data supports Petitioner's claim for the amount invoiced to Respondent, Georgia Tomato Company.

   
   

8. Respondent, Georgia Tomato Company, did not dispute the quality of the tomatoes shipped by the Petitioner. Respondent offered no other defenses against the amount claimed by Petitioner. Based thereon, it is herein concluded that the Petitioner is entitled to an award of the amount in its amended claim of $11,952.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction ever the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

10. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

11. Respondent, Georgia Tomato Company, Inc., is a dealer in agricultural products under the provisions of the agricultural bond and license law, Sections 604.15 through 604.30, Florida Statutes. As such, Respondent is subject to the authority of Section 604, Florida Statutes. Petitioner timely filed its complaint herein pursuant to Section 604.21, Florida filed its complaint herein pursuant

    to Section 604.21, Florida Statutes. Thereafter, Respondent, Georgia Tomato Company, timely requested a hearing pursuant to Section 604.21(4), Florida Statutes. The hearing herein was conducted pursuant to Section 604.21(6), Florida Statutes.

    
    

12. Competent and substantial evidence was offered herein to establish that the Respondent, Georgia Tomato Company, Inc., owes Petitioner, Corky Foods Corporation, the amount set forth in its amended complaint for $11,952.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Georgia Tomato Company, Inc., be ordered to pay Petitioner, Corky Foods Corporation, the amount of $11,952 as set forth in its amended complaint filed herein dated April 24, 1985, within fifteen (15) days of the date of entry of the Final Order by the Department of Agriculture and Consumer Services, Bureau of License and Bond.

DONE and ORDERED this 9th day of October, 1985, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 9th day of October, 1985.

COPIES FURNISHED:

Roger C. Lambert, Esquire

250 South County Road, Suite 201 West Palm Beach, Florida 33480

Glenn Vaughn, General Manager Georgia Tomato Company, Inc.

Building F

State Farmers Market

Forest Park, Georgia 30050

Joe Kight, Chief

Bureau of License & Bond Department of Agriculture and

Consumer Services Mayo Building, Room 418

Tallahassee, Florida 32301

Continental Insurance Company Legal Section (License & Bond)

80 Maiden Lane

New York, New York

Robert Chastain, Esquire Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, Florida 32301

Doyle Conner Commissioner

Department of Agriculture The Capitol

Tallahassee, Florida 32301

Docket for Case No: 85-002062

Orders for Case No: 85-002062