STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEROME N. MATTHEWS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2385A

) FLORIDA LIME GROWERS, INC., ) and COMMUNITY BANK OF HOMESTEAD, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on July 9, 1992, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

APPEARANCES

FOR PETITIONER: Mr. Jerome N. Matthews

5365 Southwest 78th Street Miami, Florida 33143

FOR RESPONDENT: Rena K. Magolnick, Esquire

Marcus & Marcus, P.A.

317 North Krome Avenue Homestead, Florida 33030

STATEMENT OF THE ISSUE

The issue in this case concerns whether the Respondent Florida Lime Growers, Inc., is indebted to the Petitioner for agricultural products and, if so, in what amount.

PRELIMINARY STATEMENT

This is a case under the Agricultural Bond and Licensure Law, Sections

1. through 604.34, Florida Statutes, in which the Petitioner asserts that the Respondent Florida Lime Growers, Inc., is indebted to the Petitioner for agricultural products. At the formal hearing in this case the Petitioner testified on his own behalf and offered one exhibit that was received in evidence. 1/ The Petitioner did not call any other witnesses, but did cross- examine the witnesses called by the Respondents. The Respondents presented the testimony of two witnesses and offered twelve exhibits that were received in evidence.

   
   

   At the conclusion of the formal hearing, the parties advised the Hearing Officer that none of them intended to order a transcript of the hearing. The parties were allowed fifteen days from the date of the hearing within which to file their proposed recommended orders.

   The Petitioner did not file a proposed recommended order, but did submit a one-page letter in which he addresses several issues in the case. Attached to the letter is a photocopy of a recent decision by a United States District Judge. Even though not specifically designated as proposed findings of fact, I have treated the factual assertions in the Petitioner's post-hearing letter as proposed findings. Those assertions are specifically addressed in the Appendix to this Recommended Order.

   
   

   The Respondents filed timely proposed findings of fact and conclusions of law. Specific rulings on the Respondents' proposals are also contained in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. On May 29, 1991, Petitioner entered into an agreement with Florida Lime Growers, Inc., for the handling of the sale of his fruit on consignment. The terms of that agreement included the following:

      
      

      1. Florida Lime Growers, Inc., agreed to grade Petitioner's fruit, pack that which met quality standards, and use its best efforts to sell the packed fruit for the benefit of Petitioner on a pooled basis at market price.

         
         

      2. No specified price was guaranteed by or agreed to be paid to Petitioner by Florida Lime Growers, Inc.

         
         

      3. Florida Lime Growers, Inc., was entitled to charge a fee for packing Petitioner's fruit and a commission on the sale of the fruit.

         
         

      4. Florida Lime Growers, Inc., agreed to pay to Petitioner that portion of the sale proceeds received attributable to Petitioner's share of the pool, less all expenses of sale. Florida Lime Growers, Inc., also agreed to pay Petitioner a portion of the anticipated return prior to actual receipt of payment by Florida Lime Growers, Inc., from the ultimate purchaser.

         
         

   2. At no time did Petitioner contract with Florida Lime Growers, Inc., for the outright purchase by it of all of Petitioner's mangos and avocados, regardless of quality.

      
      

   3. The terms of Petitioner's agreement with Florida Lime Growers, Inc., are substantially similar to the agreement he entered into with another packing house, Limeco, Inc., on May 28, 1991.

      
      

   4. When Petitioner or his employees delivered mangos or avocados to Florida Lime Growers, Inc., the load of fruit would be weighed and a receiving ticket would be given to the Petitioner or to his employee showing the date, type of produce, number of bin boxes brought, and the total weight expressed in pounds and bushels (55 pounds per bushel).

      
      

   5. Florida Lime Growers, Inc., would then take the fruit and grade it, that is, separate out the fruit of good enough quality to be packed and sold. Petitioner was offered the opportunity to pick up the culls (the fruit not good enough to be packed), so that he might attempt to sell them on his own, but he declined to do so as he felt it was too much of a bother to be worth the effort.

      
      

   6. Florida Lime Growers, Inc., would then sort Petitioner's fruit by size and pack it for sale. Florida Lime Growers, Inc., kept a record of the quantity

      of Matthews' fruit, by type and size, as well as the proportion of the pool of fruit available for sale which Petitioner's fruit represented.

      
      

   7. Florida Lime Growers, Inc., sold Petitioner's mangos and avocados at market price. Market prices fluctuate, which is why Florida Lime Growers, Inc., as well as Petitioner's other dealer, Limeco, did not guarantee a rate of return or agree to pay a specified price.

      
      

   8. Petitioner's rates of return per bushel for sales of his packed mangos and avocados by Florida Lime Growers, Inc., can be determined by dividing the net return by the total weight packed (in pounds) to get a per pound return, then multiplying the result by 55 to arrive at the per bushel return. Applying this formula to the information contained in the account sales reports contained in Respondent's Composite Exhibit 8, the rates of return to Petitioner were as follows:

      
      

      Type of Fruit	To be Packed Receipt #	Total Weight Packed	Total Net Return	Per Bushel Return
      Mango	610	8,280	2,584.58	17.05
      Mango	617	4,600	1,435.88	17.05
      Mango	623	8,987	3,303.23	20.35
      Mango	630	3,102	1,073.95	19.25
      Mango	635	2,629	935.79	19.80
      Mango	641	3,597	1,311.14	19.80
      Mango	651	3,680	1,201.16	15.40
      Mango	654	6,083	1,138.35	10.45
      Mango	676	1,540	340.14	12.10
      Avocado	689	3,800	2,783.91	40.15
      Mango	692	220	50.44	12.65
      Avocado	696	925	692.56	41.25
      Mango	727	15,455	1,666.98	6.05
      Mango	740	13,728	2,002.61	8.25
      Mango	747	10,021	1,399.91	7.70
      Mango	753	7,953	1,159.16	8.25

      
      

   9. Petitioner presented no evidence to show that the prices obtained for his fruit by Florida Lime Growers, Inc., were below the market.

      
      

   10. The only evidence of price other than Respondents' sales was the net return paid to Petitioner by Limeco for mangos delivered by him to that dealer on May 28 and 29, 1991, and after July 1, 1991. That evidence shows that there was a substantial decrease in sales price between May 28, 1991, and July 1, 1991. For instance, Exhibit 2 reflects a net return for mangos delivered at the end of May of $17.85 per bushel. Exhibit 5 reflects a net return for mangos delivered on July 3, 1991, of $9.78 per bushel, with $6.20 per bushel for "No. 2's." Exhibit 4 reflects a net return for mangos delivered between July 5 and July 11 of $6.08 per bushel, with $4.59 per bushel for "No. 2's."

       
       

   11. The last sale of mangos by Florida Lime Growers, Inc., which included those of the Petitioner, was to Amerifresh, a broker. Amerifresh selected and arranged for the trucking company to transport the shipment to Seattle, Washington. Upon arrival, the shipment of mangos was rejected as a "failed" shipment. The shipment was inspected by a U.S.D.A. inspector and a copy of the

       U.S.D.A. inspection certificate was obtained by Florida Lime Growers, Inc., maintained in its records, and offered to Petitioner.

   12. Florida Lime Growers, Inc., received payment for only the small portion of the shipment which was salvageable. The funds received representing that portion of the shipment comprised of Petitioner's mangos, less his proportionate share of the expenses of sale, were paid to Petitioner.

       
       

   13. Petitioner presented no evidence to show that Florida Lime Growers, Inc., received any money for his mangos and avocados that it did not pay to him, after deducting the costs of sale and the advances or prepayments made in accordance with their agreement.

       
       

   14. Petitioner was provided with an accounting with the final check issued for payment from each pool. With respect to the final payment on September 10, 1991, in the amount of $233.07, Matthews received an accounting, including a letter of explanation, and the opportunity to review the records of Florida Lime Growers, Inc.

       
       

   15. Petitioner spoke with both William Planes and Rachel Trant of Florida Lime Growers, Inc., at unspecified times, but he was not satisfied with the information that either of them provided.

       
       

   16. The computerized accounting system used by Florida Lime Growers, Inc., is also used by several other businesses in the produce industry. Florida Lime Growers, Inc., employees have offered to explain the printed reports to its customers and have done so on request. 2/

       
       

   17. Although he had the opportunity to do, Petitioner never requested assistance or an explanation from the employee of Florida Lime Growers, Inc., who ran the computerized accounting system and who calculated the adjustments and final return to be made on the Amerifresh shipment.

       
       

   18. Petitioner made no attempt to communicate with anyone from Florida Lime Growers, Inc., after he received his final payment on September 10, 1991.

       
       

   19. July 1, 1991, was the last date on which Petitioner brought mangos to Florida Lime Growers, Inc., which were accepted by the latter.

       
       

   20. The last load of Petitioner's mangos brought to Florida Lime Growers, Inc., was refused due to the poor quality.

       
       

   21. Petitioner's first effort at filing a complaint was on November 18, 1991, when he filed a complaint against "Bill Planes d/b/a Florida Lime Growers, Inc." William "Bill" Planes is the president of, and is one of two directors of, Florida Lime Growers, Inc. Mr. Planes is the person with whom the Petitioner had most of his dealings involving Florida Lime Growers, Inc. Mr. Planes, in his individual capacity, was not a dealer pursuant to Chapter 604, Florida Statutes. Petitioner was notified by the Department of Agriculture and Consumer Services by letter dated January 7, 1992, that his complaint could not be processed until he amended it to name Florida Lime Growers, Inc., as the Respondent.

       
       

   22. The actual date Petitioner filed the amendment to his complaint is unclear from the documents, but it was not until some time after March 2, 1991, the date on which it was notarized.

       
       

   23. The first notice of Petitioner's complaint that the Department of Agriculture and Consumer Services sent to Respondent, Florida Lime Growers, Inc., was on March 11, 1992.

       CONCLUSIONS OF LAW

       
       

   24. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Sec. 120.57(1), Fla. Stat.

       
       

   25. Petitioner was a producer of mangos and avocados in Dade County, Florida, during 1991. Mangos and avocados are "agricultural products" within the meaning of Section 604.15.(3), Florida Statutes.

       
       

   26. Respondent Florida Lime Growers, Inc., was a licensed dealer in agricultural products during 1991.

       
       

   27. Section 604.21, Florida Statutes, requires that a

       
       

       . . . complaint shall be filed within 6 months from the date of sale in instances involving direct sales or from the date on which the agricultural product was received by the dealer in agricultural products, as agent, to be sold for the producer.

       
       

   28. The Respondents argue that this case should be dismissed on the grounds that the complaint against Florida Lime Growers, Inc., was filed more than six months after the last date on which Florida Lime Growers, Inc., received agricultural products from Petitioner. An essential element of the Respondents' argument is the contention that the original complaint timely filed on November 18, 1991, was only against an individual, Mr. Bill Planes, and was not against Florida Lime Growers, Inc. The matter is, at best, ambiguous. The Petitioner's original complaint, which was timely filed, identified the Respondent (Dealer) as "Bill Planes d/b/a Florida Lime Growers, Inc." During the course of the business relationship between Petitioner and Florida Lime Growers, Inc., Mr. Bill Planes was an officer of Florida Lime Growers, Inc., and was the person at Florida Lime Growers, Inc., with whom the Petitioner primarily dealt. Accordingly, in the most general sense of the phrase, from the Petitioner's point of view Bill Planes was "doing business as" Florida Lime Growers, Inc. And, although from a strict legal analysis the individual Bill Planes was not "doing business as" Florida Lime Growers, Inc., the Petitioner's designation of "Bill Planes d/b/a Florida Lime Growers, Inc.," was sufficient to give reasonable notice to Mr. Bill Planes, to Florida Lime Growers, Inc., and to the Florida Department of Agriculture and Consumer Services as to who he was seeking to proceed against. To conclude otherwise would be to glorify form over substance. Under these types of circumstances, the Florida Courts have held that amendment shall be freely allowed to state the correct name of the party complained against, and that such amendments relate back in time to the date of the original complaint. 3/ Accordingly, the Petitioner's complaint against Florida Lime Growers, Inc., should be treated as having been timely filed.

       
       

   29. Turning now to the substance of the Petitioner's complaint, in accordance with Section 604.18, Florida Statutes, a "dealer in agricultural products," as defined in Section 604.15(1), Florida Statutes, must be licensed by the Department of Agriculture and Consumer Services to transact business in the State of Florida. "Before any [such] license is issued, the applicant therefor shall make and deliver to the [D]epartment a surety bond or certificate of deposit in the amount of at least $3,000 or in such greater amount as the

       [D]epartment may determine, not exceeding the maximum amount of business done or estimated to be done in any month by the applicant." Section 604.20(1), Fla.

       Stat.

       
       

   30. Section 604.20(1), Florida Statutes, goes on to provide that the required bond or deposit "shall be conditioned to secure the faithful accounting for and payment to producers or their agents or representatives of the proceeds of all agricultural products handled or purchased by such dealer."

       
       

   31. "Any person claiming himself to be damaged by any breach of the conditions of a bond or certificate of deposit assignment or agreement given by a licensed dealer in agricultural products . . . may enter complaint thereof against the dealer and against the surety, if any, to the [D]epartment, which complaint shall be a written statement of the facts constituting the complaint." Section 604.21, Fla. Stat.

       
       

   32. A formal hearing on the complaint must be conducted if there are disputed issues of material fact. The complainant has the burden of proving the allegations of the complaint by a preponderance of the evidence. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 415 (Fla. 4th DCA 1974).

       
       

   33. The Petitioner in this case has failed to meet his burden of proof. To the contrary, the greater weight of the evidence is to the effect that Florida Lime Growers, Inc., has accurately accounted for, and has paid, all proceeds due to the Petitioner for agricultural products. Therefore, the Respondent Florida Lime Growers, Inc., is not indebted to the Petitioner for agricultural products.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order in this case dismissing the Petitioner's complaint, as amended, and denying the relief requested by the Petitioner.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of September 1992.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of September 1992.

ENDNOTES

1/ Other exhibits offered by the Petitioner were withdrawn because they duplicated exhibits offered by the Respondents.

2/ The explanations are probably necessary because the computerized accounting system used by Florida Lime Growers, Inc., is not a model of clarity.

3/ See such cases as RHPC, Inc. v. Gardner, 533 So.2d 312 (Fla. 2d DCA 1988); Barone v. Scandinavian World Cruises (Bahamas), Ltd., 531 So.2d 1036 (Fla. 3d DCA 1988); Thomas v. Taylor Creek Marina of Fort Pierce, Inc., 520 So.2d 708 (Fla. 4th DCA 1988); Sexton v. Panning Lumber Co., 260 So.2d 898 (Fla. 4th DCA 1972).

APPENDIX

The following are my specific rulings on the proposed findings of fact submitted by all parties.

Findings proposed by Petitioner:

As noted in the preliminary statement, the Petitioner did not file a proposed recommended order or other similar document with any proposed findings of fact designated as such. The factual assertions in the Petitioner's post- hearing letter have, nevertheless, been treated as proposed findings of fact and are addressed below paragraph by paragraph in the order in which they appear.

First paragraph: This paragraph merely references a recent court decision attached to the Petitioner's post-hearing letter in order to ". . . help establish a personality for Mr. Planes." While no specific finding is proposed, the obvious thrust of this paragraph is to encourage the Hearing Officer to find, based on evidence that was not produced at hearing, that Mr. Planes is, in general, a dishonest person who is not worthy of belief. The Hearing Officer cannot and will not make findings of fact based on evidence that was not presented at the hearing. Accordingly, the proposed findings implicit in the first paragraph are rejected.

Second paragraph: The substance of the first sentence of this paragraph is rejected as contrary to the greater weight of the evidence. The remainder of this paragraph is rejected as constituting speculation and argument for which there is no persuasive competent substantial evidence.

Third paragraph: This paragraph is rejected as constituting speculation and argument for which there is no persuasive competent substantial evidence. The accounting system used by Florida Lime Growers, Inc., is no model of clarity, but it has not been shown to have the characteristics attributed to it in this paragraph.

Fourth paragraph: First two sentences accepted in substance. Third sentence rejected as subordinate and unnecessary details. Last two sentences rejected as argumentative and as not supported by persuasive competent substantial evidence.

Fifth paragraph: The first two sentences are rejected as constituting rhetorical questions rather than factual assertions. The last sentence is rejected as constituting legal argument, rather than factual assertions.

Findings proposed by Respondent:

With the exception of a few details specifically addressed below, I have adopted and incorporated into the Findings of Fact in this Recommended Order all of the proposed findings of fact submitted by the Respondents. The Respondents'

proposed findings that have been so adopted and incorporated are all supported by persuasive competent substantial evidence. The exceptions are:

Paragraph 1: Omitted as unnecessary procedural details. The essence of this is covered in the Preliminary Statement.

Paragraph 2: Omitted as subordinate and unnecessary details.

Paragraph 6: Most details omitted as subordinate, unnecessary, or irrelevant to disposition of this case.

Paragraph 12: First sentence accepted. Second sentence rejected as constituting argument, rather than proposed findings of fact.

COPIES FURNISHED:

Mr. Jerome N. Matthews 5365 Southwest 78th Street Miami, Florida 33143

Rena K. Magolnick, Esquire Marcus & Marcus, P.A.

317 North Krome Avenue Homestead, Florida 33030

Community Bank of Homestead Legal Department

Post Office Box 379

Homestead, Florida 33090-0379

Richard Tritschler, Esquire Department of Agriculture

and Consumer Services The Capitol PL-10

Tallahassee, Florida 32399-0800

Honorable Bob Crawford Commissioner of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

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.

Docket for Case No: 92-002385

Orders for Case No: 92-002385