STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOYCE MCKINESS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5038A

) SOUTHEAST GROVE MANAGEMENT, INC., ) and FLORIDA FARM BUREAU MUTUAL ) INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of

Administrative Hearings, on December 15, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Joyce McKiness, pro se

20350 Southwest 346th Street Homestead, Florida 3:3034

For Respondent Benjamin S. Schwartz, Esquire Southeast Grove #1 CenTrust Financial Center Management, Inc.: 36th Floor

100 Southeast 2nd Street Miami, Florida 33131

For Respondent Florida Farm

Bureau Mutual Did not appear and Insurance Company: was not represented.

STATEMENT OF THE ISSUE

Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $5,560.08 for limes grown by Petitioner and picked and sold by Respondent Southeast?

PRELIMINARY STATEMENT

Petitioner filed a Complaint with the Florida Department of Agriculture and Consumer Services alleging that Respondent Southeast Grove Management, Inc., owed her additional monies for limes grown by her and picked and sold by Respondent Southeast. Respondent Southeast requested a formal hearing on the allegations contained within that Complaint. This matter was subsequently transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.

Petitioner testified on her own behalf, and Petitioner's Exhibits numbered 1-12 were admitted in evidence. Donald Reynolds testified on behalf of Respondent, and Respondent's Exhibits numbered 1 and 2 were admitted in evidence

FINDINGS OF FACT

1. Petitioner Joyce McKiness is a grower of limes in Homestead, Florida.

   
   

2. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the limes, then brings them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the limes pays Southeast after receipt of the limes, Southeast ascertains what prices were paid for the limes, and then calculates its costs and pays the grower the difference.

   
   

3. Between the weeks ending March 4 and July 8, 1988, Southeast picked 1,165.1 bushels of limes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's limes picked by Southeast.

   
   

4. Petitioner disputes Southeast's calculations as to

   the price which Southeast received for the limes, the percentage of the limes picked by Southeast which `graded out' for sale, and the amount of picking and inspection fees charged by Southeast.

   Petitioner bases the price that she claims Southeast received for the limes, for the eight separate pickings in question in this cause, on her belief that 1988 lime prices were 25% higher than 1987 lime prices. She, therefore, added 25% to the prices of limes picked in 1987 for the same months. No competent, substantial evidence was offered in support of Petitioner's belief. In one instance, Southeast paid her a higher price per bushel than she claims.

   
   

5. Petitioner claims that 80% of each picking was saleable citrus. Southeast's records reflect that Petitioner was given credit for 80% of her limes on one of the eight pickings. For the remainder of the pickings, however, Southeast gave her credit for as little as 45.4% of the bushels picked and as high as 99.7% of the bushels picked. No competent, substantial evidence was offered to justify Petitioner's selection of 80% for all eight pickings. The 80% figure selected by Petitioner allows for no differences in the amount of marketable limes from each picking, and there is no evidence to support the proposition that no matter when during the season the limes are picked exactly 80% of them will be marketable.

6. No competent, substantial evidence was offered as to how Petitioner computed the picking and inspection fees paid by Southeast, which fees were then deducted by Southeast from the sale price of the limes before crediting Petitioner with the balance of the sale price. In two instances, the picking and

   inspection fees charged by Southeast were less than what Petitioner claims they should be.

   
   

7. Southeast admits that for lime pool #809 for the

   week ending March 4, 1988, it owes petitioner the amount of

   $393.36.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

9. The burden of proof is on the petitioner in this proceeding, and Petitioner has failed to meet that burden. No competent, substantial evidence was offered in support of Petitioner's contention that her limes were of the quality alleged by her, that Southeast was able to sell her limes for the price she claims, or that the picking and inspection fees charged to her by Southeast should have been lower than they were. On the other hand, Southeast has admitted that it owes her $393.36 for lime pool #809 for which she has not previously received any payment

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Joyce McKiness in the amount of $393.36 and that such monies should be paid to her within fifteen days from the entry of the Final Order.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January, 1990.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30 day of January, 1990.

COPIES FURNISHED:

Cliff Willis

Florida Farm Bureau Mutual Insurance Company

1850 Old Dixie Highway Homestead, Florida 33033

Don Reynolds

c/o Aaron Thomas, Inc.

11010 North Kendall Drive, Suite 200

Miami, Florida 33176

Joyce McKiness

20350 Southwest 346th Street Homestead, Florida 33034

Clinton H. Coulter, Jr., Esquire Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, Florida 32399-0800

Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor

100 Southeast 2nd Street Miami, Florida 33131

Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and

Consumer Services The Capitol

Tallahassee, Florida 32399-0810

Mallory Horne, General Counsel Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Ben Pridgeon, Chief

Bureau of Licensing & Bond Department of Agriculture and

Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

JOYCE MCKINESS,

Petitioner,

SOUTHEAST GROVE MANAGEMENT, INC. and FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY,

Co-respondents.

/

LB CASE NO. 89-0035 DOAH CASE NO. 89-5038A

FINAL ORDER

This case arises out of Florida's "Agriculture License and Bond law" Sections 604.15-604.34, Florida Statutes (hereinafter referred to as "the law") under the umbrella of Florida's Administrative Procedures Act, Chapter 120, Florida Statutes (hereinafter referred to as "the A.P.A.").

It is here for final agency action by the Department following receipt and upon consideration of the Hearing Officer's Recommended Order.

FINDINGS OF FACT

1. The Department mailed Southeast a Reguest for Accounting on October 19, 1988, which had been precipitated by request therefor from Petitioner on September 27, 1988.

   
   

2. Southeast received the Department's request on October 28, 1988, as indicated by the signed return receipt from Southeast.

   
   

3. Southeast failed to respond to the request for accounting.

   
   

4. On March 28, 1989 a sworn complaint was made by Petitioner for

   $5,560.08.

   
   

5. The Department then sent a Notice of Filing of Complaints to both Co- respondents on May 12, 1989, advising of Petitioner's complaint and noting the Co-respondents' right to answer and request a hearing.

   
   

6. Neither Co-respondent answed.

   
   

7. On August 25, 1989 the Department entered an order under Subsection 604.21(4) of the law for Petitioner on its sworn complaint against the Co- respondents for $5,560.08 as to the unaccounted for limes which they had sold for the account of Petitioner.

8. By letter dated August 30, 1989 Southeast requested, pursuant to Subsections 604.21(5) and (6) of the law a formal section 120.57(1) hearing before DOAH following which the Recommended order here for consideration was issued.

   
   

9. There the Petitioner was not represented by legal counsel; Southeast

   was.

   
   

10. The status of the parties is indisputed: Southeast is a "dealer in

    agricultural products" by virtue of having acted as agent for Petitioner, the "producer" of limes, which Southeast sold to third parties for Petitioner's account on a "net return basis." See s. 604.15(1), F.S.

    
    

11. The law defines "net return basis" as a sale of an agricultural product by an owner's agent, who "pays the owner of such products the net proceeds after subtracting all authorized and allowable deductions." See s. 604.15(4), F.S.

    
    

12. Thus, the relationship between Petitioner and Southeast was not that of seller and buyer, but is one of principal and agent.

    
    

13. Indeed, by operation of the provision of the law which provides that the agent "pays the owner of such products the net proceeds after subtracting all authorized and allowable deductions," Respondent is also trustee for Petitioner, as the owner of the limes at issue, with the trust's property consisting of the gross proceeds from the sale of the limes less "all authorized and allowable deductions." Ibid.

    
    

14. Critically, in addition to Southeast's fiduciary duty as trustee to account for the trust property, Subsection 604.22(1) of the law applicable here explicitly imeoses a statutory duty on Southeast to not only account for sales within 48 hours thereof, but that

    
    

    [s]uch account of sales shall clearly show the sale price of each lot of agricultural products sold; all adjustirents to the original price,

    
    

    along with an explanation of such adjustments; and an itemized showing of all marketing costs deducted by the licensee [agent], along with the net amount due the producer.

    
    

15. In addition, the law explicitly authorizes the Department to examine the records of any dealer in agricultural products on its own initiative, as well as on the complaint of any interested person. S. 604.23, F.S. Here the Department's demand therefor on Southeast was ignored.

    
    

16. Clearly Southeast failed to properly account to Petitioner as required by subsection 604.22(1). Not until presentation of its case at the formal section 120.57(1) hearing did Southeast tender any accounting. And then such was clearly lacking in the requisite specificity of the law, i.e., complete information as to the agent's calculations of the "net return".

17. Yet, as a result of that "accounting" the Hearing Officer found such to be competent substantial evidence which Petitioner did not meet its burden of proof by overccoming.

    
    

18. On the other hand, absent Southeast's late and incomplete "accounting" there is no competent substantial evidence which either overcomes the Department's prior nonfinal order of August 25, 1989 or which refutes Petitioner's sworn complaint as to the amount owed it by Southeast.

CONCLUSIONS OF LAW

They were silent when they ought to have spoken, and will not be allowed to speak now. Ponder v. Moseley, 2 Fla. Rep. 207 (1848) at 231.

The admission into evidence of Southeast's accounting--despite the breach of its fiduciary duty to have made such months earlier, as well asthe breach of its statutory duty to have made such not only within 48 hoursof such sales but with specificity regarding such sales to third parties--clearly reflects that the proceedings on which the Hearing Officer's findings were based do not comply with essential requirements of law within the meaning of Subparagraph 120.57(1)(b)10, Florida Statutes.

Indeed, contrary to the Hearing Officer's conclusion of law that Petitioner had the burden of proof and failed to net it, that burden shifted to the Southeast long before Petitioner's sworn complaint was even filed: it was a breach both of Southeast's fiduciary duty as well as Southeast's statutory duty not to tender an accounting to Petitioner shortly after the sale of each lot of limes.

As a result of Southeast's breach of its pre-complaint fiduciary duty to account to Petitioner and Southeast's pre-complaint statury duty to account to Petitioners--but, rather, Southeast's waiting until after Petitioner had rested its case before tendering any accounting, much less an incomplete accounting contrary to the controlling statute (not to mention Southeast's failure to produce records to the Departmant)--the evidence introduced at the hearing by Southeast should have been--and is--barred as a matter of law.

It is called estoppel or conclusion, because a man's act or acceptance stoppeth or closeth up his mouth to allege or plead the truth. Lord Coke See, U.S. Casualtv Co. v.

Godwin, 158 Fla. 64, 67 So.2d 612

(1946).

Southeast waived its right to introduce it because it failed to perforn its duty to provide such accounting sooner.

A party may waive any rights to which he is legally entitled. 22 Fla. Jur. 2d, Estoppel and Waiver s. 7, citing Mark v. Hahn, 177 So.2d 5 (Fla.

1965).

Absent such "accounting" at the hearing, there was and is no competent substantial evidence of record to overcome Petitioner's sworn amended complaint.

The effect of an estoppel, whether legal or equitable, is the exclusion of evidence, and its existence must always be a question of law for the court

and not of fact for the jury. Camp v. Moseley, 2 Fla. 171

(1848) at 199.

It is, therefore, ORDERED AND ADJUDGED that Co-respondents are indebted to Petitioner in the amount of $5,560.08.

NOTICE OF APPEAL RIGHTS

Pursuant to provisions of Section 120.68, Florida Statutes, any adversely affected party may seek judicial review.

DONE and ORDERED this 27th day of June 1990 at Tallahassee, Florida.

DOYLE CONNER

Commissioner of Agriculture Filed this 27th day of June 1990.

Agency Clerk Copies furnished to all parties and hearing officer.

Docket for Case No: 89-005038

Orders for Case No: 89-005038