STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUN COAST FARMS OF DADE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 86-3988A

) TWIN-ROSE PRODUCE CORPORATION & ) OHIO CASUALTY INSURANCE CO., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Bearing Officer, William J. Kendrick, held a public hearing in the above-styled case on May 19, 1987, in Miami, Florida.

APPEARANCES

For Petitioner: Rosario Estrada

Sun Coast Farms of Dade, Inc. Post Office Box 3064

Florida City, Florida 33034

For Respondent, Leonard Rosenberg

Twin-Rose Produce Twin-Rose Produce Corporation Corporation: Post Office Box 842

Pompano Beach, Florida 33061

For Respondent, Ohio Casualty

Insurance Company: No appearance.

PRELIMINARY STATEMENT

By complaint filed with the Bureau of License and Bond, Florida Department of Agriculture and Consumer Services (Department) on July 2, 1986, and submitted to the Division of Administrative Hearings on October 9, 1986, Petitioners seeks payment for 100 bushels of wax beans sold and delivered to Respondent, Twin-Rose Produce Corporation on March 6, 1986.

At hearing, Petitioner called as witnesses: James B. Joiner, Phylis Ernst, and Rosario Estrada. Petitioner offered exhibits 1-7, and they were received into evidence. Respondent, Twin-Rose Produce Corporation, called Leonard Rosenberg as a witness, and its exhibits 1-7 were received into evidence.

Petitioner's proposed findings of fact have been addressed in the appendix to this recommended order. No proposed findings were filed on behalf of Respondent.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Twin- Rose Produce Corporation (Twin-Rose) was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. Twin-Rose was bonded by Respondent, Ohio Casualty Insurance Company (Ohio Casualty).

   
   

2. On March 6, 1986, Petitioner, Sun Coast Farms of Dade, Inc. (Sun Coast), sold and delivered to Twin-Rose 100 hampers of wax beans at $10.35 per hamper. Twin-Rose has refused to pay, and claims that the quality or condition upon delivery was such as to render the product unmarketable.

   
   

3. The proof establishes that on March 6, 1986, Twin- Rose purchased produce from a number of growers, and loaded the produce on its truck for delivery and resale in Montreal, Canada. Included within this shipment were the

   100 hampers of wax beans Twin-Rose had purchased from Sun Coast, as well as 150 hampers of wax beans it had purchased from another grower, Five Brothers.

   
   

4. Twin-Rose asserts that upon delivery of the produce in Montreal on March 10, 1986, all the produce was in good condition except the 100 hampers of wax beans it had purchased from Sun Coast. Those beans, Twin-Rose asserts, were spotted and of no commercial value. The proof, however, fails to support TwinRose's assertion.

   
   

5. When Twin-Rose took delivery of the wax beans from Sun Coast on March 6, 1986, its driver acknowledged on the truck manifest that they were received in good condition. Each of the 100 hampers was clearly marked to reflect that it was produced by grower number 35, contained wax beans, and grown in Florida City, Florida. There is no evidence of the condition of the 150 hampers of wax beans Twin-Rose purchased from Five Brothers on March 6, 1986, or whether those hampers were marked in any fashion.

   
   

6. To support its assertion that the wax beans purchased from Sun Coast were deficient in quality, as distinguished from those purchased from Five Brothers, Twin-Rose offered in evidence an inspection certificate and a report of travel issued by the Ministry of Agriculture, Canada. (Respondent's exhibits

   3 and 4). This proof was not, however, persuasive.

   
   

7. The inspection certificate contains a significant space in which the inspector is to note any marks on the packages. In this case, the inspection report reflects that none of the hampers were marked. As importantly, the inspection certificate and report of travel offered by Twin-Rose (Respondent's exhibits 3 and 4) have clearly been altered to reflect 100 hampers of wax beans, as opposed to the 103 hampers that appeared on the original documents. 1/ Consequently, the proof offered by Twin-Rose to support its assertion that the beans it purchased from Sun Coast were deficient in quality, as opposed to those purchased from Five Brothers, is unpersuasive and not creditable.

   
   

8. Twin-Rose is indebted to Sun Coast in the sum of $1,035.00 for the purchase of 100 hampers of wax beans at $10.35 per hamper.

   
   

   CONCLUSIONS OF LAW

   
   

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

10. Petitioner has established that Respondent Twin- Rose, a licensed dealer in agricultural products, is indebted to it in the sum of $1,035.00, for failure to pay for agricultural products as defined by Section 604.15(3), Florida Statutes. Consequently, Petitioner is entitled to the entry of an order directing payment pursuant to the provisions of Section 604.21, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department enter a final order directing Respondent, Twin-Rose Produce Corporation, to pay Petitioner, Sun Coast Farms of 0ade, Inc., the sum of $1,035.00. It is further

RECOMMENDED:

That such final order provide that if Respondent, Twin- Rose Produce Company, fails to timely pay the Petitioner that Respondent, Ohio Casualty Insurance Company, be ordered to pay the Department, and that the Department reimburse the Petitioner, all in accordance with Section 604.21(8), Florida Statutes.

DONE AND ORDERED this 5th day of June, 1987, in Tallahassee, Florida.

WILLIAM J. KENDRICK

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 5th day of June, 1987.

ENDNOTE

1/ An examination of Respondent's exhibits 3 and 4 reveals that the documents originally read 103 hampers, but that someone crudely wrote over the digits so they would reflect 100 hampers. For comparison, also examine Petitioner's exhibit 2, which is a copy of the' report of travel furnished to Sun Coast by Twin-Rose before the commencement of this case. That report reflects that 103 hampers of beans were unmarketable.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3988A

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2-6. Addressed in paragraphs 3-8.

COPIES FURNISHED:

Rosario Estrada

Sun Coast Farms of Dade, Inc. Post Office Box 3064

Florida City, Florida 33034

Leonard Rosenberg

Twin-Rose Produce Corporation Post Office Box 842

Pompano Beach, Florida 33061

Ted Helms

Bureau of License and Bond Florida Department of

Agriculture Lab Complex

Mayo Building, Room 418 Tallahassee, Florida 32301

William C. Harris, Esquire Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, Florida 32301

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

Robert Chastain, General Counsel Department of Agriculture and

Consumer Services

Mayo Building, Room 513 Tallahassee, Florida 32301

Docket for Case No: 86-003988

Orders for Case No: 86-003988