STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA FARM MANAGEMENT, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-2966A

) DEBRUYN PRODUCE CO., and ) PEERLESS INSURANCE COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- captioned matter on July 13, 1990 in Leesburg, Florida.

APPEARANCES

For Petitioner: James E. Wade, III, Esquire

116 Busnell Plaza Busnell, Florida 33513

For Respondent: Clayton D. Simmons, Esquire DeBruyn Produce Stenstrom, McIntosh, et al. Co., Inc. P.O. Box 1330

Sanford, FL 32772-1330

For Co-Respondent: No appearance Peerless Insurance

Company

STATEMENT OF THE ISSUES

Whether Respondent, Debruyn Produce Co. owes Petitioner, Florida Farm Management Inc. the sum of $4,846.00 for watermelons shipped by Petitioner and handled by Respondent as Petitioner's agent during the period from May 30, 1989 through July 5, 1989.

PRELIMINARY STATEMENT

By complaint filed January 22, 1990 with the Bureau of License and Board, Florida Department of Agriculture and Consumer Services (Department), and submitted to the Division of Administrative Hearings on May 14, 1990, Petitioner seeks payment of an alleged balance due on watermelons shipped by Petitioner and handled by Respondent, Debruyn Produce Co. as Petitioner's agent between May 30, 1989 and July 5, 1989.

Petitioner testified in his own behalf and presented the testimony of James

1. Brooks. Petitioner's Exhibits 1 through 6 were received into evidence.

   
   

   Respondent presented the testimony of John B. Lambke. Respondent's Exhibits 1 through 11 were received into evidence.

   
   

   By agreement of the parties the Hearing Officer was to be notified by July 24, 1990 if a transcript was to be ordered. On July 25, 1990 the Respondent advised the Hearing Officer that no transcript was ordered and by prior agreement at the hearing the Proposed Recommended Orders were due August 15, 1990 and the Recommended Order due September 4, 1990. The parties' Proposed Recommended Orders were timely filed in accordance with the extended time. A ruling on each Proposed Finding of Fact has been made as reflected in an Appendix to the Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant fact are found:

   
   

   1. At all times material to this proceeding, Petitioner, Florida Farm Management, Inc. was a "producer" of agricultural products in the state of Florida as that term is defined in Section 605.15(5), Florida Statutes.

      
      

   2. At all times material to this proceeding, Respondent, Debruyn Produce Co. was a licensed "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes. Respondent was issued license number 596 by the Department, and bonded by Peerless Insurance Company (Peerless) for the sum of $47,000.00, bond number R2-27-13, with an effective date of November 13, 1988 and a termination date of November 13, 1989.

      
      

   3. At all times material to this proceeding, Debruyn was authorized to do business in the state of Florida.

      
      

   4. Around the last week of April, 1989, Petitioner and Respondent orally agreed, among other things, for Petitioner to produce certain quantities of Mickey Lee Watermelons and for Respondent to market those watermelons. This oral agreement was reduced to writing, executed by the Respondent and sent to Petitioner to execute. Petitioner, after making certain changes in the agreement and initialing those changes, executed the agreement and returned it to the Respondent. It is not clear if Respondent agreed to the change since they were not initialed by Respondent. However, the parties appeared to operate under this agreement as modified by Petitioner.

      
      

   5. Under the agreement, Respondent was to advance monies for harvesting and packing, furnish containers and labels for packing and agreed to pay certain chemical bills. Petitioner was to reimburse any monies advanced by the Respondent for (a) harvesting or packing; (b) containers and labels and; (c) chemicals, from the proceeds of the sale of watermelons. Any balance owed Petitioner for watermelons was to be paid within 30 days. Additionally, Respondent was to receive a commission of 8% of net FOB, except 30 cent maximum on sales of less than $6.25 per carton and 40 cents per carton for melons delivered on contract to National Grocers Co. The relationship of the parties was to be that of producer and sales agent.

   6. Before entering into the agreement with Respondent, Petitioner had agreed to furnish National Grocers Co. four shipments of melons totalling 8,000 cartons. Respondent agreed to service that agreement.

      
      

   7. Although Petitioner's accounts receivable ledger shows a credit of

      $6,007.13 for chemicals paid for by Respondent, the parties agreed that only

      $3,684.68 was expended by Respondent for chemicals and that Respondent should receive credit for that amount.

      
      

   8. The parties agree that Respondent advanced a total of $18,960.00 for harvesting and packing and the Respondent should be given credit for this amount.

      
      

   9. The parties agree that Respondent paid to Petitioner the sum of

      $12,439.32 and the Respondent should be given credit for this amount.

      
      

   10. Cartons and pads for packing the melons were shipped on two occasions and the total sum paid by Respondent for those cartons and pads was $17,225.00. The cartons were printed with the logo of Respondent on one side and the logo of Petitioner on the other side.

       
       

   11. Petitioner agrees that the number of cartons and pads used by him came to $12,463.78 and the Respondent should be given credit for that amount.

       
       

   12. All cartons and pads in the sum of $17,255.00 were delivered to Petitioner's farm. The amount in dispute for the remainder of the carton is

       $4,762.22.

       
       

   13. The Respondent was responsible under the agreement to furnish cartons and pads (containers). Respondent ordered the cartons and pads after determining from Petitioner the number needed. There were two orders for cartons and pads placed and delivered. There was an over supply of cartons and pads delivered to Petitioner. This over supply was the result of a miscommunication between Petitioner and Respondent as to the amount of cartons and pads needed.

       
       

   14. Petitioner agrees that all of the cartons and pads were delivered to his farm but that he was unable to protect these cartons and pads from the weather. However, Petitioner advised Respondent that the remainder of the carton and pads could be picked up at his farm. Respondent contended that he was denied access to the farm and was unable to pick up the remainder of the cartons and pads and, therefore, they were ruined by exposure to the weather. While there may have been times when Respondent attempted to retrieve the carton and Petitioner was unavailable, there is insufficient evidence to show that Respondent was intentionally denied access to Petitioner's farm to retrieve the cartons.

       
       

   15. Clearly, the ordering, purchasing and storing of the cartons and pads was a joint effort and both Petitioner and Respondent bear that responsibility. Therefore, the Petitioner is responsible for one-half of the difference between the total cost of the cartons ($17,225.00) and the amount used by Petitioner ($12,462.78) which is $2,381.11 and Respondent should be given credit for this amount.

       
       

   16. Petitioner's accounts receivable ledger shows that Petitioner shipped melons to Respondent in the amount of $54,715.63, after adjustments for complaints and commission.

   17. Respondent's accounts payable ledger shows receiving melons from Petitioner in the amount of $51,483.00, after adjustments for complaints and commission.

       
       

   18. The difference in the two ledgers in the amount of is accounted for as follows:

       
       

       1. Invoice No. 210066 - Customer paid $2.00 per carton less on 93 cartons, Petitioner agreed to the reduction. However, Petitioner's account is in error by 9 cents which reduces total amount to $54,715.54.

       2. Invoice No. 210067 - Respondent paid for more melons than Petitioner shows were shipped - $39.60.

       3. Invoice No. 210068 - difference in calculation of commission $13.32

       4. Invoice No. 2100105 - difference due to Petitioner not agreeing to adjustment in price taken by customer.

          $2,886.00

       5. Invoice No. 2100239 - difference of $108.04 due to Respondent allowing customer adjustment which Petitioner did not agree to.

       6. Invoice No. 2100267 - difference of $210.00 for same reason stated in (e) above.

          
          

   19. Petitioner should be allowed the difference due to miscalculation of commission in invoice Nos. 210068, 2100134 and 2100160 in the sum of $68.10 since Petitioner's calculation was in accordance with the agreement.

       
       

   20. There was no dispute as to the condition of melons being as contracted for upon receipt.

       
       

   21. There was insufficient evidence to establish that the melons shipped under invoice Nos. 2100105, 2100239 and 2100267 by Petitioner were not of the size and number contracted for by the customer. As to invoice Nos. 2100239 and 2100267, the adjustments were made after the fact without contacting Petitioner. As to invoice No. 2100105, the Petitioner shipped the melons to Russo Farms, Inc., Vineland, N.J., as per Respondent's order who then unloaded the melons and reloaded on Russo's truck and shipped to another buyer. It was this buyer's complaint that resulted in Russo demanding an adjustment. Respondent granted such adjustment without approval of the Petitioner. Although Respondent did contact Petitioner in regard to this complaint, Petitioner would not authorize a federal inspection, which he could have, but instead, requested that Respondent obtain an independent verification of the basis of the complaint. Instead of an independent verification of the complaint, Respondent had Russo evaluate the load as to size of melons and number of boxes. No complaint was made as to condition of the melons. Petitioner would not accept Russo's evaluation because based on the total weight of the melons shipped, as indicated by the freight invoice, Russo's evaluation could not have been correct. The only evidence presented by Respondent as to size and number of melon in regard to invoice Nos. 2100105, 2100239 and 2100267 was hearsay unsupported by any substantial competent evidence.

       
       

   22. Petitioner should be allowed the difference in invoice Nos. 2100105, 2100239 and 2100267 for a sum total of $3,204.00.

   23. No adjustment should be made for the differences in invoice No. 210067 other than the 9 cent error made by Petitioner because this amount is not used in Petitioner's calculation of the gross amount due for melons shipped. Therefore, the sum total of all melons sold and shipped is $54,715.63 - 0.09 =

       $54,715.54.

       
       

   24. The amount due Petitioner is calculated as follows:

       
       

       Sum total of melons shipped with proper adjustments	$54,715.54
       Subtract from that the
       following:
       Chemicals	3,684.68
       Advances	18,960.00
       Cost of Cartons
       $12,462.78 + 2,381.11	14,773.89
       Payment	12,439.32
       Subtotal of Deductions	49,857.89
       Difference and amount owed	$4,857.65

       
       

       CONCLUSIONS OF LAW

       
       

   25. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

       
       

   26. Respondent, Debruyn Produce Co. was a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes and, as such, was required to be licensed by the Department pursuant to Section 604.17, Florida Statutes. As a requirement of licensing, Debruyn had to show the Department evidence of a security bond or a certificate of deposit in accordance with Section 604.20, Florida Statutes and Rule 5H-1.01, Florida Administrative Code. Debruyn was properly and sufficiently bonded by Peerless for the sum of

       $47,000.00.

       
       

   27. Petitioner, a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes, timely filed a complaint against Debruyn and its surety, Peerless, in accordance with Section 604.21, Florida Statutes, alleging the Respondent had refused to pay for "agricultural products" as defined in Section 604.15(3), Florida Statutes, shipped and sold during the period of May 30, 1989 through July 5, 1989.

       
       

   28. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation

v. J.W.C. Company, Inc., 396 So. 2d 778 (2 DCA Fla. 1981). The Petitioner has met its burden of proof to show that Respondent has failed to pay Petitioner the balance due on Mickey Lee watermelons shipped by Petitioner and handled by Debruyn as agent for Petitioner during the period of May 30, 1989 and July 5, 1989 in the sum of $4,857.65.

RECOMMENDATION

Upon consideration of the foregoing Findings of Fact and Conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED:

That Respondent Debruyn Produce Company, Inc. be ordered to pay the Petitioner Florida Farm Management, Inc. the sum of $4,857.65. It is further RECOMMENDED that if Respondent Debruyn Produce Company, Inc. fails to timely pay Petitioner, Florida Farm Management, Inc. as ordered, the Respondent, Peerless Insurance Company be ordered to pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse the Petitioners in accordance with Section 604.21, Florida Statutes.

DONE and ORDERED this 23rd day of October, 1990, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1990.

APPENDIX TO RECOMMENDED ORDER

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

Rulings on Proposed Findings of Fact Submitted by the Petitioner.

1. Not a finding of fact but the issue in this case. 2.-3. Adopted in findings of fact 2 and 4.

1. Adopted in finding of fact 8.

2. Adopted in finding of fact 4.

3. First sentence adopted in finding of fact 7. The balance is not material but see findings of fact 16-23.

4. Not material but see findings of fact 16-23.

5. Rejected as not being supported by substantial competent evidence in the record but see findings of fact 9-14.

6. Adopted but modified in findings of fact 21 and 22.

7. 10(A), 10(C)(1), 10(E), and 10(F) adopted in finding of fact 24. 10(C)(2)(3), 10(d) rejected as not being supported by substantial competent evidence in the record. See findings of fact 5, ,7, 9 - 15.

Rulings on Proposed Findings of Fact Submitted by Respondent.

1.-7. Adopted in findings of fact 2, 1, 4, 4, 4, 6, and 7 respectively as modified.

1. Not material. This involved invoice Nos. 210066 and 210067 and adjustment were agreed to be Petitioner and is not part of this dispute. See Petitioner's accounts receivable ledger, Petitioner's Exhibit 1.

2. Adopted in finding of fact 21 as modified.

3. Rejected as not being supported by substantial competent evidence in the record.

4. Not material. This involved invoice No. 2100160 and adjustments were granted by Petitioner and is not part of this dispute. See Petitioner's Exhibit 1.

12.-13.Adopted in finding of fact 21 as modified.

1. Adopted in finding of fact 5, and 9-15 as clarified.

2. Rejected as not supported by substantial competent evidence in the record but see findings of fact 9-15.

3. Adopted in finding of fact 13 as clarified.

4. Adopted in finding of fact 23 as clarified but see findings of fact 9-22.

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Copies furnished:

The Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and

Consumer Affairs The Capitol

Tallahassee, FL 32399-0810

Mallory Horne, General Counsel Department of Agriculture and

Consumer Affairs

515 Mayo Building Tallahassee, FL 32399-0800

Charles E. Todd, President Florida Farm Management, Inc.

P.O. Box 279 Webster, FL 33597

Clayton D. Simmons, Esquire

P.O. Box 1330 Sanford, FL 32772

James E. Wade, III, Esquire

116 Busnell Plaza Busnell, FL 33513

Robert D. DeBruyn, President DeBruyn Produce Co.

P.O. Box 76 Zeeland, MI 49464

Docket for Case No: 90-002966

Orders for Case No: 90-002966