STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD R. FOX, JR., and DELORES W. ) FOX d/b/a DON FOX GROVES, )

)

Petitioners, )

)

vs. ) CASE NO. 89-5040A

) 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 Petitioners: Delores W. Fox, pro se

26101 Southwest 207th Avenue Homestead, Florida 33031

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 Petitioners in the amount of $999.40 for limes grown by Petitioners and picked and sold by Respondent southeast?

PRELIMINARY STATEMENT

Petitioners filed a Complaint with the Florida Department of Agriculture and Consumer Services alleging that Respondent Southeast Grove Management, Inc., owes them additional monies for limes grown by them 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 Delores W. Fox testified on behalf of Petitioners Donald R. Fox, Jr., and Delores W. Fox d/b/a Don Fox

Groves, and Petitioners' Exhibits numbered 1-8 were admitted in evidence. Donald Reynolds testified on behalf of Respondent Southeast Grove Management, Inc. Additionally, Joint Exhibit numbered 1 was admitted in evidence.

FINDINGS OF FACT

1. Petitioners Donald R. Fox, Jr., and Delores W. Fox

   d/b/a Don Fox Groves are growers 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 25 and August 5, 1988, Southeast picked

   337.2 bushels of limes grown by Petitioners. There is no dispute as to the number of bushels of Petitioners' limes picked by Southeast.

   
   

4. Petitioners dispute 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.

   No competent, substantial evidence was offered in support of the prices Petitioners claim Southeast received (or should have received) for the limes as to six of the seven separate pickings in question in this cause. In four instances, Southeast paid Petitioners a higher price per bushel than they claim.

   
   

5. Petitioners claim that 100% of each picking was saleable citrus. Southeast's records reflect that Petitioners were given credit for 100% of their limes on one of the seven pickings. For the remainder of the pickings, however, Southeast gave them credit for as little as 33.1% of the bushels picked and as high as 89.4% of the bushels picked. No competent, substantial evidence was offered to justify Petitioners' selection of 100% for all seven pickings. The 100% figure selected by Petitioners 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 100% of them will be marketable.

   
   

6. Petitioners agree that Southeast is entitled to charge them picking and inspection fees to be deducted by Southeast from the sale price of the limes before crediting petitioners with the balance of the sale price. Petitioners further agree that the picking and inspection fees for the pickings involved in this cause should be deducted from the monies they claim Southeast still owes them. No competent, substantial evidence was offered by Petitioners as to the amount of picking and inspection fees Petitioners claim to be correct. The picking and inspection fees charged to Petitioners by Southeast are, therefore, the correct amounts as to six of the seven pickings.

7. As to lime pool #829 for the week ending July 18, 1988, Petitioners claim a sales price of $2.16 for each of the

   86.6 bushels picked by Southeast that week. They also claim that 100% of those limes were marketable. Southeast agrees it picked

   86.6 bushels of Petitioners' limes that week. However, Southeast has no records regarding the price for which it sold those limes, the percentage of those limes which were marketable, and the amount of picking and inspection fees paid by Southeast for Petitioners' limes in lime pool #829. Accordingly, Petitioners are entitled to receive additional payment from Southeast in the amount of $187.06, which represents a sale price of $2.16 for

   each of the 86.6 bushels of limes picked and then sold by Southeast. No deductions for inferior quality limes and no

   deductions for picking and inspection fees are proper since Southeast cannot prove its entitlement to make any deductions.

   
   

   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 Petitioners in this proceeding, and Petitioners have failed to meet that burden as to six of the seven pickings involved in this cause. Except as to lime pool #829, no competent, substantial evidence was offered in support of Petitioners' contention that their limes were of the quality alleged by them, that Southeast was able to sell their

limes for the price they claim, or that the picking and inspection fees charged to them by Southeast were excessive or

erroneous. However, as to lime pool #829, Petitioners have proven they should have received the amount of $187.06, and Southeast has failed to show that it was entitled to make any deductions from that amount.

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 Petitioners Donald R. Fox, Jr., and Delores W. Fox d/b/a Don Fox Groves in the amount of $187.06 and that such monies should be paid to them within fifteen days from the entry of the Final Order.

DONE AND ENTERED in Tallahassee, Leon County, Florida: this 31 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 31 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

Donald R. Fox Delores W. Fox

26101 Southwest 207th Avenue Homestead, Florida 33031

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

DONALD R. FOX, JR., and DELORES W.

FOX d/b/a Don Fox Graves,

Petitioners,

vs.

LB CASE NO. 89-0035

SOUTHEAST GROVE MANAGEMENT, INC., DQAH CASE NO. 89-5040A and FLORIDA FARM BUREAU MUTUAL

INSURANCE CCOPANY,

Co-respondents.

/

FINAL ORDER

This case arises out of Florida's "Agriculture License and Bond Law," Sections 6Q4.15-604.34, Florida Statutes (hereinaftor 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 Departmant following receipt and upon consideration of the Hearing Officer's Recommended Order.

FINDINGS OF FACT

1. The Departient mailed Southeast a Request for Accounting on October 19, 1988, which had been precipitated by request therefor from Petitioners on Septebar 27, 1988.

   
   

2. Southeast received the Departinent'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 May 8, 1989 a sworn complaint was made by Petitioners for $999.40.

   
   

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

   
   

6. Neither Co-respondent answered.

   
   

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 $999.40 as to the unaccounted for limes which they had sold for the account of Petitioners.

   
   

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 Petitioners'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 procds after subtracting all authorized and allowable deductions." See s. 604.15(4), F.S.

    
    

12. Thus, the relationship between Petitioners 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 Petitioners, 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 imposes a statutoiy 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 adjusteents 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 Petitioners' 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 Petitioners did not meet its burden of proof by overcoming.

    
    

18. On the other hand, absent Southeast's late and incomplete "accounting" there is no competent substantial evidence which either ovecomes the Department's prior nonfinal order of August 25, 1989 or which refutes Petitioners'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 as the breach of its statutory duty to have made such not only within 48 hours of 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 maaning of Subparagraph 120.57(1)(b)10, Florida Statutes.

Indeed, contrary to the Hearing Officer's conclusion of law that Petitioners had the burden of proof and failed to meet 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 any fiduciary duty to account to Petitioners and Southeast's pre-complaint statutory duty to account to Petitioners--but, rather, Southeast's waiting until after Petitioners had rested its case before tendering anyv accounting, much less an incomplete accounting contrary to the controlling statute (not to mention Southeast's failure to produce records to the Department)-the evidenceintroduced 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. Casualty Co. v.

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

(1946).

Southeast waived its right to introduce it because it failed to perform 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 overe 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 Petitioners in the amount of $999.40.

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: 89-005040

Orders for Case No: 89-005040