STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOMESTEAD TOMATO PACKING )

COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 85-3923A

) SEYMOUR COHEN, d/b/a SEYMOUR ) COHEN BROKERAGE COMPANY and ) FIDELITY AND DEPOSIT COMPANY OF ) MARYLAND, )

)

Respondents. )

)

RECOMMENDED ORDER

For Petitioner: Alexander J. Pires, Jr., Esquire Washington, D.C.

No Appearance for Respondent Seymour Cohen, d/b/a Seymour Cohen Brokerage Company

For Fidelity and

Deposit Company Murray H. Dubbin, Esquire of Maryland Miami, Florida

This matter was heard in Coral Gables, Florida, on July 24, 1986, by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. The transcript of the proceedings was filed and the parties each filed proposed findings of fact and conclusions of law. Rulings of the proposed findings of fact are found in the appendix to this recommended order.

ISSUES

This matter began with the filing of a complaint by Homestead Tomato Packing Company, Inc., (Homestead Tomato) with the Florida Department of Agriculture asserting that it was due $9,502.50 for tomatoes sold January 21, 1985, to Seymour Cohen Brokerage Company (Cohen Brokerage). While Cohen Brokerage did not appear, due to

the death of the owner, Seymour Cohen, the surety on its Agricultural Products Bond, Fidelity and Deposit Company of Maryland did appear. Because it represents the interest of Cohen Brokerage, in this order its position will be characterized as that of Cohen Brokerage. Cohen had already paid $16,360.00 for the tomatoes. The dispute centers upon the agreement between the parties as to the price of the tomatoes. The parties agree that the price was to be set after the tomatoes were shipped, due to an impending freeze which had caused volatility in the price for tomatoes. Homestead Tomato contends that other purchasers bought tomatoes at about the same time and agreed to the price which Homestead Tomato claims is due from Cohen Brokerage. Cohen Brokerage maintains that the price claimed is excessive, and that the payment made was full payment.

FINDINGS OF FACT

1. Homestead Tomato Packing Company, Inc., sells tomatoes as agent for Strano Farms of Florida City, Florida, which produces tomatoes.

   
   

2. Cohen Brokerage is a licensed dealer in agricultural products holding license number 3047, which is supported by a bond written by the Fidelity and Deposit Company of Maryland, number 9634509.

   
   

3. Seymour Cohen died, apparently before the complaint in this action was filed. See the Verified Suggestion of Death of Party and Motion to Dismiss filed on June 26, 1986.

   
   

4. On Thursday, January 17, 1985, Rosario Strano, the President of Homestead Tomato, learned that a freeze would occur in South Florida on or about January 22, 1985.

   
   

5. Strano notified Homestead Tomato's sales staff, including Thomas Banks, that beginning January 19, 1985, all sales were to be made at prices to be determined following the freeze.

   
   

6. On January 21, 1985, Cohen Brokerage, acting through Rick Cohen (the son of Seymour Cohen, now deceased), purchased 1,600 boxes of Strano Pride #25, 6X7 (medium) tomatoes. Both parties testified that the price was not established on Monday, January 21, but that it would be established "sometime in the middle of the week" (Testimony of T. Banks, Transcript 177)) on or about Wednesday, January 23, 1985 (Testimony of R. Cohen, Transcript 225). This is consistent with the brokerage confirmation from Cohen Brokerage dated January 21, 1985, which was belatedly

   submitted to Homestead Tomato, stating that the tomatoes were "to be priced on or about Wednesday, 1/23/85, in line with Florida Tomato industry Market". The parties intended that the tomatoes would be priced by Wednesday, January 23, 1985, in accordance with the market price for U.S. number one tomatoes 85 percent or better.

   
   

7. The freeze did occur on January 21 and 22, 1985, which caused a shortage of high quality unfrozen tomatoes. The expectation of the freeze had caused uncertainty in the market price for tomatoes during the period January 19 through January 25, 1985.

   
   

8. From January 19 through January 22, 1985, Homestead Tomato sold 43 loads of tomatoes to buyers at prices to be determined later.

   
   

9. On Wednesday, January 23, 1985, Rosario Strano set his price for 6x7 Strano Pride tomatoes at $16.00 a box and told sales staff to inform those who had purchased from Homestead Tomato before the $16.00 per box price had been set that they could return the tomatoes if they were dissatisfied with his price. According to Mr. Strano, he was unable to compare his prices the week after the freeze to what competitors were charging for like quality, unfrozen tomatoes because there were not enough others with tomatoes to make a price comparison. (Transcript 44-45).

   
   

10. On January 23, Homestead Tomato's salesman Banks called Rick Cohen and gave him the price.

    
    

11. The Florida Fruit and Vegetable Report is a market quotation service for agricultural commodities published by the United States Department of Agriculture, Agricultural Marketing Service, Fruit and Vegetable Division and the Florida Department of Agriculture and Consumer Services, Division of Marketing, Bureau of Market News. It is used and generally relied on by those in agriculture. It shows that tomatoes sold January 21, 1985, were sold with sales prices to be established later. The January 24th edition of the report shows that on January 23, 6x7 tomatoes sold for $16.00 per box. Homestead Tomato also introduced evidence that other buyers purchased 6 x 7 tomatoes which were shipped between January 19 and January 23, 1985, who were invoiced at $16.00 per box and paid that amount. This evidence of price is undercut, however, by the testimony of Rosario Strano with respect to disputes he had with other tomato purchasers, such as acme Pre-Pack over his price of $16.00 for medium tomatoes. Under cross-examination about whether he had

    reduced his billing or given a discount to protesting purchasers, Mr. Strano testified:

    
    

    The only -- Way back last -- latter part of February, I told them I would not give rebates. I told

    Mr. -- when they bought future tomatoes, when we got back in the tomatoes, we would work out an arrangement. I never quoted $2. I heard quoted $2, 4, 6, 8. I never quoted the price.

    
    

    I told them that I understood their plight but that I was not -- they had to take that then and there, settle and pay in full, or I was not going to do anything, and [there] was a reason for that, [which] was to expedite the collections of some very, very serious money, as you can see in this [case] right here. Transcript pages 165-166.

    
    

12. Cohen Brokerage was invoiced $16.00 per box on January 25, 1986, for the tomatoes it had received on January 21, 1985. The total amount of the bill was $25,862.50.

    
    

13. Cohen Brokerage made a payment on the invoice in the amount of $16,360.00 which then caused Homestead Tomato to file the instant complaint for the balance billed of $9,502.50.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over this matter pursuant to Section 120.57(1), Florida Statutes (1905).

    
    

15. Homestead Tomato has the burden to prove that $16.00 per box was the market price of 6 x 7 tomatoes on January 23, 1985, but has failed to meet its burden of proof. See, Balino vs. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Homestead Tomato contends (1) that the

    $16.00 per box price was established on Wednesday, January 23, 1985, by the Florida Fruit and Vegetable Report and the prices it charged to others who paid that price, and (2) that Cohen

    Brokerage has attempted to vary the contract by now claiming that it is liable only for a price determinable after the market settled subsequent to January 23, 1985. The market price is generally the price which a seller under no compulsion to sell receives from a buyer under no compulsion to buy.

    
    

16. The Florida Fruit and Vegetable report is some evidence of a market price. Section 90.803(17), Florida Statutes (1985), permits as an exception to the hearsay rule market quotations generally used and relied upon by persons in particular occupations if the sources of information and method of preparation justify their admission. This exception to the hearsay rule was not pointed out during the hearing. To the extent that research has revealed a basis for the admission of these reports, the exclusion of the reports for January 24, 25 and 28, (Petitioner's Exhibits 28, 29 and 30), was erroneous and they are now admitted. The fact that such quotations are admissible does not mean that they are conclusive, however. The report dated January 24, 1985, which reports prices of January 23, 1985, is the first issue containing prices following the freeze, but even that report hedges on the market price stated by saying "some sales prices to be established later".

    
    

17. Accepting Mr. Strano's testimony that he was the only source of tomatoes after the freeze, Mr. Strano's price of $16.00 per box for medium tomatoes was an asking price, but not necessarily the market price. Purchasers who objected to the price were offered a concession on a later purchase if they would pay the $16.00 per box Mr. Strano wanted to charge. Were there no promise of a future concession, $16.00 per box could have been the market price. That promise of a future concession shows that the market price was below $16.00. It is not clear from the evidence how much below $16.00 (taking into account the future concession on price) the asking price had to go to gain the assent of buyers.

    
    

18. Because the market price on January 23, 1985, was not

$16.00 per box as Homestead Tomato contends, Homestead Tomato has failed to carry its burden of proof.

RECOMMENDATION

It is RECOMMENDED that the complaint filed by Homestead Tomato against Cohen Brokerage be dimissed.

DONE AND ORDERED this 2nd day of February, 1987, in Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

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 2nd day of February, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3923A

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Covered in Finding of Fact 9.

2. Covered in Finding of Fact 10.

3. Covered in Findings of Fact 9 and 11.

4. Covered in Finding of Fact 11.

5. Rejected as argument.

6. Covered in Finding of Fact 11.

7. Covered in Finding of Fact 11.

8. Rejected as inconsistent with the more significant testimony of Mr. Strano relied on in Finding of Fact 9.

9. Rejected as unnecessary.

10. Rejected as inconsistent with other evidence, see for example Petitioner's Exhibit #29.

11. Covered in Finding of Fact 12.

12. Covered in Finding of Fact 13.

13. Rejected as unnecessary.

14. Rejected as unnecessary.

15. Covered in Finding of Fact 6.

16. Covered in Finding of Fact 6.

17. Rejected because the prices quoted were asking prices but not necessarily market prices. See Conclusion of Law 3.

18. Rejected as a recitation of evidence.

19. Rejected as a recitation of evidence.

20. Rejected as a recitation of evidence.

21. Rejected as unnecessary.

Rulings on Proposed Findings of Fact Submitted by Respondent (Seymour Cohen Brokerage Company)

1. Covered in Finding of Fact 1.

2. Covered in Finding of Fact 3 and the statement of the issues.

3. Covered in Finding of Fact 6.

4. Covered in Finding of Fact 7.

5. Covered in Finding of Fact 9.

6. To the extent relevant, covered in Finding of Fact 11.

7. Covered in Finding of Fact 12.

8. Covered in Finding of Fact 13.

9. Covered in Finding of Fact 6.

10. Rejected as a conclusion of law.

11. To the extent necessary, covered in Finding of Fact 11.

12. Covered in Finding of Fact 11.

13. Rejected because the testimony of Mr. Scherer was unpersuasive because the methodology implied to determine the price of $10.00 per box for 6x7 tomatoes was not adequately explained.

14. Rejected as unnecessary.

15. Sentence 1 rejected as unnecessary. Sentence 2 covered in Finding of Fact 9.

16. Rejected as unnecessary.

COPIES FURNISHED:

Alexander J. Pires, Jr., Esquire 2501 M. Street, N.W., Suite 400

Washington, D.C. 20037

Murray H. Dubbin, Esquire 1000 Rivergate Plaza

444 Brickell Avenue Miami, Florida 33131

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

HOMESTEAD TOMATO PACKING COMPANY, INC.,

Petitioner,

vs. LB CASE NO.

DOAH CASE NO. 85-3923A

SEYMOUR COHEN, D/B/A SEYMOUR COHEN BROKERAGE COMPANY,

and

FIDELITY AND DEPOSIT COMPANY OF MARYLAND,

Respondents.

/

FINAL ORDER

THIS CAUSE came on before me the agency head for rendition of final agency action upon the Hearing Officer's Recommended Order in favor of the Respondents dated February 2, 1987 (copy attached hereto) and the Petitioner's timely filed exceptions thereto.

At issue--as in the recent case of Homestead Tomato Packing Company v Dade Tomato Company, Inc. and State Automobile Insurance Company (Department of Agriculture, License and Bond Case No. 86- 0027; Division of Administrative Hearings Case No. 85-3087A; and, Third District Court of Appeal Case No. 86-2207, dated February 1O, 1987, per curiam affirmed)--is the market price as of Wednesday, January 23, 1985 of U.S. #1 medium tomatoes contracted for by the parties on January 21, 1985.

I concur with and adopt all of the Hearing Officer's Findings of Fact.

However, under authority of Subparagraph 12O.57(1)(a)9., Florida Statutes, I reject the Conclusion of Law which rejected the $16.00 per box price of The Florida Fruit And Vegetable Report's January 2, 1985 edition as the market price for the tomatoes at issue.

The parties contracted that the mid-week (January 23) market price would control the contract price (Findings of Facts, paragraph 6), and the Report's January 24th edition showed a market price of $16.00 for January 23 (Findings of Facts, paragraph 11).

I conclude that The Florida Fruit And Vegetable Report--a market quotation service for agricultural commodities jointly published by the Department and the United States Department of Agriculture and "used and generally relied on by those in agriculture" (Findings of Fact, paragraph 11)-- is a recognized "industry guideline." See and accord Recommended Order adopted as Final Order, Per Curiam Affirmed in Homestead Tomato Packing Company v Dade Tomato Company, Inc. and State Automobile Insurance Company, supra. And accordingly, Petitioner did meet its burden of proof in relying upon The Report to establish the, market price.

It is acknowledged that Respondent Cohen was deceased at the time Petitioner's Complaint was filed. Despite his absence however, Petitioner's case has properly proceeded against his Surety, Fidelity And Deposit Company Of Maryland, who appeared at the hearing.

Accordingly, Petitioner is entitled to recover from Respondent Surety $16.00 per box for 1,600 boxes less $16,360 previously paid by Surety's principal, Cohen; and Surety shall pay Petitioner the balance of $9,240. IT IS SO ORDERED.

DONE AND ORDERED this 28th day of October, 1987 at Tallahassee, Leon County, Florida.

DOYLE CONNER

Commissioner

Copies Furnished to:

Alexander J. Pires, Jr., Esquire Attorney for Petitioner

Murray H. Dubbin, Esquire Attorney for Respondent, Surety

William R. Dorsey, Jr. Hearing Officer

Docket for Case No: 85-003923

Orders for Case No: 85-003923