STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUNIOR MARTIN, d/b/a JUNIOR )

MARTIN FARMS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2495A

)

BASTISTA MADONIA, d/b/a )

EAST COAST BROKERS AND )

PACKERS and TRAVELERS )

INDEMNITY COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cause on August 19, 1986, at Plant City, Florida.

APPEARANCES

For Petitioner: John A. Yaun, Esquire

848 West Ventura Avenue Clewiston, Florida 33440

For Respondent: Olga Madruga-Forti

2501 M Street N.W., 4th Floor Washington, D.C. 20037.

By COMPLAINT dated May 7, 1986, Junior Martin, d/b/a Junior Martin Farms, Petitioner, alleges he is owed $18,401.91 by Bastista Madonia d/b/a East Coast Brokers and Packers, Respondent, and by Madonia's surety, Travelers Indemnity Company. As grounds therefor it is alleged that the Petitioner delivered agricultural products to the Respondent as a broker and was not fully reimbursed for those agricultural products.

At the hearing Petitioner and his wife testified in his behalf, Respondent testified in his behalf and twenty-one (21) exhibits were admitted into evidence.

Proposed findings have been submitted by the parties. To the extent not included herein, reasons for rejecting those proposed findings are contained in the appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Junior Martin, Petitioner, is a farmer d/b/a/ Junior Martin Farms in the State of Florida. Bastista Madonia is a farmer doing business in Florida and West Virginia and a licensed broker in Florida and packer of agricultural

   products d/b/a/ East Coast Brokers and Packers. Madonia holds Florida license no. 3906 supported by bond no. 743F4618 written by Travelers Indemnity Company as surety.

   
   

2. In the summer of 1984 James DiMare, Bastista Madonia, and Junior Martin entered into a Farming Agreement (Exhibit 1) to establish a joint venture to grow cherry tomatoes in the fall 1984 farming season and, if successful, to continue this agreement into the spring season.

   
   

3. Pursuant to this agreement approximately fifty (50) acres of tomatoes would be grown by Martin. DiMare and Madonia agreed to supply all plants and

   $500 cash per acre for which they would own 25 percent of the crop and the profits derived therefrom. East Coast Brokers (Madonia) was to supply picking bins and advance all picking money. Two dollars ($2) per package was to be charged for packing and thirty cents ($.30) per package for selling.

   
   

4. Costs for growing the tomatoes was approximately $2,250 per acre. With their advance of $500 per acre and providing plants DiMare and Madonia financed approximately 25 percent of the growing cost of which they were to receive 25 percent of the profits. They were also to advance funds to harvest the tomatoes and deliver them to the packing house. In addition, Madonia paid for two (2) deliveries of tomato stakes to Martin's farm.

   
   

5. The tomato crop planted in the fall of 1984 froze and was a total loss. DiMare then pulled out of the agreement. The agreement provided that if both parties are satisfied and things are going well by October 15, all parties will continue this venture by planting a spring crop. Madonia offered to contribute DiMare's share as well as his own for a spring Crop and Martin agreed to plant the spring crop.

   
   

6. The spring crop was harvested from late March 1985 through late May 1985 (exhibit 4) at a profit. It is from this venture only that Martin bases his claim.

   
   

7. In auditing the records, the Department of Agriculture investigator did not consider the transactions involving the fall crop because that had occurred more than nine (9) months before Martin's complaint. Section 604.21(1) Florida Statutes limits the time frame in which a complaint may be brought.

   
   

8. Following the harvesting of the spring crop, Martin and Madonia went to Virginia to look into the feasibility of planting a summer crop in Virginia. They obtained suitable land to lease and, under a modification of their agreement, Madonia would put up most of the money required for the land, fertilizer, etc., and would be entitled to 50 percent of the profits. This venture was unsuccessful and resulted in a large loss, none of which has been paid by Martin. This endeavor was not included in the Department of Agriculture's audit because it occurred outside Florida and beyond the jurisdiction of the Florida Department of Agriculture.

   
   

9. The parties discussed a fall 1985 crop after the debacle in Virginia and the Respondent advanced $10,000 to Petitioner for this crop (exhibit 16). This crop was never planted and the Petitioner has rendered no accounting for this advance.

   
   

10. The endeavors by Madonia and Martin to grow fall and spring crops in Florida and a summer crop in Virginia were ongoing farming operations carried out pursuant to the Farming Agreement (Exhibit 1). As such, the endeavor was a

    joint farming venture with Martin providing the land (in Florida) and the farming expertise while Madonia provided plants and funds equal to one-fourth of the expenses and the marketing experience to sell the crops. Accordingly this endeavor was exempt from the provisions of Section 604.15-604.34 Florida Statutes, by Section 604.16(1) (Florida Statutes).

    
    

11. The audit conducted by the Department of Agriculture (exhibit 6) showed Petitioner was owed $18,401.91 by Madonia as a buyer for the 1985 spring crop only. This figure does not include any advances over and above the $500 per acre advanced to Martin by Madonia for the fall crop 1984, or the advances for the Virginia operation in excess of the amount agreed to be provided by Madonia. Nor does this figure reflect the 25 percent of the profits due Madonia pursuant to the Farming Agreement.

    
    

12. The amount Petitioner claims is owed to him by the Respondent for the spring crop is $60,632.86 (exhibit 7). This balance was prepared by Mrs. Martin from her records. Numerous checks endorsed by Petitioner which he received from Madonia were not included in those figures. Although cashed by Petitioner, they did not get into Mrs. Martin's bookkeeping records. Mrs. Martin acknowledged that she was not sure that she properly credited all of the checks she did receive from Madonia to the spring crop account. Accordingly, this figure is totally unreliable.

    
    

13. Disregarding the fall 1984 crop and the Virginia episode, and accepting the Department of Agriculture's audit figures of $18,401.91 as the profits on the spring crops, 25 percent should go to Respondent pursuant to the Farming Agreement. This would leave $13,801.43 owed to Petitioner. From this should be deducted, at least, the $10,000 advance given to the Petitioner for the fall crop of 1985 which was never planted.

    
    

14. The parties are engaged in civil litigation to resolve the disputes engendered by the farming activities above discussed. In those proceedings, all of the activities in which they participated pursuant to the Farming Agreement can be considered by the tribunal and resolved. Accordingly, that is the proper forum to resolve the disputes here in issue.

    
    

    CONCLUSIONS OF LAW

    
    

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

16. Section 604.16, Florida Statutes, provides in pertinent part: Except for s. 604.22(2) the provision of ss.

    604.15-604.34 do not apply to:

    1. Farmers or groups of farmers in the sale of agricultural products grown by themselves.

       
       

17. The activities that formed the basis for the complaint filed herein was certainly a joint venture with the Petitioner providing the farming expertise and Respondent providing plants and funds to defray approximately 25 percent of the cost associated with growing the tomatoes. Additionally, Respondent advanced "picking" funds to get the tomatoes harvested and delivered to the packing house. Petitioner planted the tomatoes and supervised their growing. Petitioner's contention that he was an independent producer in the growing of the spring crop, and that a partnership agreement did not exist between Petitioner and Respondent, is without merit.

18. Not only did a partnership agreement exist, it also continued for three (3) plantings. The first planting (fall crop 1984) included DiMare while the other two (2) (spring crop and Virginia summer crop) included only Petitioner and Respondent. The partnership grew and sold the agricultural products (tomatoes) with each partner responsible for the functions for which he had the expertise.

    
    

19. From the forgoing, it is concluded that the agreement between Junior Martin and Bastista Madonia was a joint farming venture and involved the growing and sale of one product with Martin supervising the growing and Madonia supervising the marketing. As such, this venture was exempt from the provisions of section 604.15-604.34 Florida Statutes. It is

RECOMMENDED THAT THE COMPLAINT of Junior Martin d/b/a Junior Martin Farms, be dismissed.

ENTERED this 28th day of October 1986, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 28th day of October 1986.

Appendix

Treatment accorded Petitioner's proposed Findings of Fact.

1. Included in Hearing Officer's #2.

2. Included in Hearing Officer's #5.

3. Included in Hearing Officer's #5 and 6.

4. Included in Hearing Officer's #3.

5. Rejected insofar as inconsistent with Hearing Officer's #4.

6. Rejected insofar as inconsistent with Hearing Officer's #4.

7. Accepted insofar as this connotes a successful harvest.

8. Accepted insofar as consistent with Hearing Officer's #2 and #6.

9. Rejected.

10. Accepted.

11. Rejected as unsupported by the evidence.

12. Included in Hearing Officer's #11.

13. Included in Hearing Officer's #12.

14. Rejected as unsupported by credible evidence. 15A. Accepted.

15B. Rejected as unsupported by the evidence. 15C. Rejected.

15D. Accepted.

15E. Rejected as inconsistent with the terms of the agreement.

16A. Irrelevant.

16B. Irrelevant.

16C. Accepted. However other checks were admitted which went to defray expenses for the Spring crop.

16D. Rejected.

17A. Rejected as irrelevant. 17A. (1) Rejected as irrelevant. 17A. (2) Rejected as irrelevant. 17A. (3) Rejected as irrelevant. 17A. (4) Rejected.

17A. (5) Rejected as irrelevant.

17A. (6) Rejected as unsupported by the evidence.

17A. (7) Rejected. Evidence presented indicates this check paid for tomato stakes delivered to Martin.

17B. Rejected as unsupported by the evidence and immaterial to the conclusions reached.

17C. Accepted, however, this figure was rejected in Hearing Officer's #12.

1. Rejected as a legal conclusion.

2. Rejected as a legal conclusion.

3. Rejected as a legal conclusion.

4. Included in Hearing Officer's #7.

5. Included in Hearing Officer's #8.

6. Rejected as an incorrect legal conclusion.

Treatment accorded Respondent's Proposed Findings.

1. Included in Hearing Officer's #1.

2. Included in Hearing Officer's #1.

3. Included in Hearing Officer's #1.

4. Included in Hearing Officer's #2.

5. Included in Hearing Officer's #3.

6. Included in Hearing Officer's #3.

7. Accepted.

8. Accepted.

9. Accepted.

10. Accepted insofar as included in Hearing Officer's #5.

11. Included in Hearing Officer's #5.

12. Included in Hearing Officer's #5.

13. Included in Hearing Officer's #5.

14. Accepted in Hearing Officer's #4.

15. Accepted.

16. Accepted insofar as included in Hearing Officer's #8.

17. Accepted insofar as included in Hearing Officer's #8.

18. Accepted insofar as included in Hearing Officer's #8 and #10.

19. Accepted.

20. Accepted.

21. Included in Hearing Officer's #8.

22. Included in Hearing Officer's #9.

23. Included in Hearing Officer's #9.

24. Accepted.

25. Accepted.

26. Included in Hearing Officer's #7.

27. Accepted.

28. Included in Hearing Officer's #7 and #11.

29. Included in Hearing Officer's #11.

30. Included in Hearing Officer's #13.

31. Included in Hearing Officer's #13.

32. Included in Hearing Officer's #13.

COPIES FURNISHED:

John A. Yaun

848 West Ventura Avenue Clewiston, Florida 33440

Olga Magruda-Forti 2501 M. Street, N.W.

Washington, D. C. 20037

Joe W. Knight, Chief Bureau of License and Bond Department of Agriculture

Consumer Services Mayo Building, Room 418

Tallahassee, Florida 32301

Junior Martin, d/b/a Junior Martin Farms

182 Ft. Thompson Avenue LaBelle, Florida

East Coast Brokers & Packers

P. O. Box 2636 Plant City, Florida

Travelers Indemnity Company One Tower Road

Hartford, Connecticut 06115

Honorable Doyle Connor Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Docket for Case No: 86-002495

Orders for Case No: 86-002495