STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LEAH RAULERSON, )
)
Petitioner, )
)
vs. ) CASE NO. 92-5753A
) DIXIE GROWERS, INC. and U.S. ) FIDELITY & GUARANTY COMPANY, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell held a formal hearing in this case on March 25, 1993, in Lakeland, Florida.
APPEARANCES
For Petitioner: Leah Raulerson
Post Office Box 51
Center Hill, Florida 33514
For Respondent: Linda Terry Lawton Dixie Growers, Post Office Box 1686
Inc. Plant City, Florida 33564
For Respondent: No Appearance
U.S. Fidelity & Representative Present Guaranty Company
STATEMENT OF THE ISSUE
Whether or not Respondent, Dixie Growers, Inc., is indebted to Petitioner, Leah Raulerson, for agriculture produce purchased and not paid for in the amount of $3,722.49.
PRELIMINARY STATEMENT
By its Administrative Complaint filed July 7, 1992 against Respondent, Dixie Growers, Inc., Petitioner seeks an Order to be paid $3,722.49 for nonpayment of produce.
Respondent, Dixie Growers, Inc., denies that it is indebted to Petitioner and asserts that it has overpaid Petitioner based on the amounts that it received for the produce that it purchased from Petitioner.
Petitioner testified on her behalf and introduced the testimony of two of her co-workers, Laura Johnson and Donna Brown. Respondent, Dixie, presented the
testimony of Linda Terry Lawton and Deborah Lawton. The parties did not file proposed recommended orders.
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, I make the following relevant factual findings.
During times material, Petitioner, Leah Raulerson, was an agricultural producer within the meaning of Section 604.15(5), Florida Statutes and concentrated primarily in the production of peppers.
During times material, Respondent, Dixie Growers, Inc., was an agricultural dealer within the meaning of Section 604.15(1), Florida Statutes, and wholesaler and purchased peppers from Petitioner during May and June, 1992.
Respondent, U.S. Fidelity & Guaranty Company, issued a surety bond to Respondent Dixie during times material.
During late May and June, 1992, Petitioner sold various types of pepper including hungarian wax, finger hots, long hots, bell pepper, fancy cubanelle and jalopeno to Respondent Dixie.
During times material, Petitioner inquired of one of Respondent Dixie's owners, Charles Lawton, what the wholesale market was bringing for the type of peppers that she produced and desired to sell. Respondent Dixie advised that the average wholesale price was $8.00 per box. Petitioner told Respondent Dixie, that she could sell her peppers for that price but if the market deteriorated to the point where the price was $4.00 or less per box that she should be advised whereupon she would cease picking the peppers as her labor and other related costs would be below her breakeven point of $4.00 per box. Respondent Dixie, advised Petitioner that he (Charles Lawton) would let her know if the market declined. The agreement was struck and Petitioner was advised by Respondent Dixie to "bring the peppers on." Based on their agreement, Petitioner continued picking the peppers.
Petitioner delivered to Respondent Dixie, a load of the various types of peppers that she produced and expected to be compensated at the rate of an average of $8.00 per box for her produce. Petitioner was not paid for the peppers at that time nor was she told that she should not bring any more peppers to Respondent's warehouse.
Approximately two weeks from the date of delivery, Petitioner was paid an average of $1.03 per box by Respondent Dixie.
Petitioner provided copies of the wholesale market reports for the types of peppers that she produced and sold to Respondent, Dixie, during May and June, 1992. The reports reflect an average wholesale price of $8.00 per box.
Petitioner is owed by Respondent Dixie, the sum of $3,722.49 for nonpayment of produce (peppers) that she delivered to Respondent Dixie during May and June, 1992.
Respondent Dixie, has countered that Petitioner's produce was bad and that the market had declined to the point whereupon they (Dixie Growers) were only able to obtain approximately $1.03 per box for the produce that Petitioner
sold to Respondent Dixie. However, Respondent Dixie, failed to present any credible evidence which would establish that either Petitioner's produce was bad or that they were only able to obtain $1.03 as contended. No evidence was presented that the market declined or situation was anything different from the prices Petitioner was quoted and as reflected by the prices shown in the wholesale market reports.
It is more probable than not that Respondent Dixie received the amounts reflected in the wholesale market reports for the produce that it purchased from Petitioner during May and June, 1992.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Subsection 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to Chapter 120, Florida Statutes.
The authority of the Department of Agriculture and Consumer Services, Bureau of License and Bond, is derived from Chapter 604, Florida Statutes.
During times material, Petitioner, Leah Raulerson, was an agricultural producer within the meaning of Subsection 604.15(5), Florida Statutes.
During times material, Respondent, Dixie Growers, Inc., was an agricultural dealer within the meaning of Subsection 604.15(1), Florida Statutes.
During May and June, 1992, Petitioner sold to Respondent, Dixie Growers, Inc., various types of peppers that were produced by Petitioner and purchased at an agreed price of an average of $8.00 per box. Petitioner was paid approximately 14 days after the date of sale, approximately $1.03 per box versus the agreed price of $8.00 per box.
Petitioner has timely filed a complaint against Respondent Dixie and its surety, U.S. Fidelity & Guaranty Company, seeking to be paid for the produce that it sold to Respondent Dixie during May and June, 1992. To date, Respondent Dixie and its surety has failed to pay Petitioner the amount claimed in the amount of $3,722.49.
During times material, Respondent Dixie was issued a surety bond by
U.S. Fidelity & Guaranty Company.
Respondent Dixie owes Petitioner $3,722.49 for produce that it purchased from Petitioner during May and June, 1992. Respondent Dixie failed to present credible evidence which would establish that it received only $1.03 per box as contended. Moreover, Respondent requested, and was never advised, that the market had declined to the point where it was below the agreed price of
$8.00 per box on average. Finally, Petitioner requested that Respondent Dixie advise her if the market conditions declined below the breakeven point of her labor and other production costs of approximately $4.00 per box. Petitioner was never advised of such conditions by Respondent Dixie despite his agreement to so advise.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:
The Department of Agriculture, Bureau of License and Bond, issue a Final Order requiring that Respondent, Dixie Growers, Inc., pay to Petitioner the sum of $3,722.49 as claimed for agricultural produce purchased from Petitioner.
In the event that Respondent Dixie fails to pay Petitioner, within 30 days of the date of the Department's Final Order, the sum of $3,722.49, that Respondent, U.S. Fidelity & Guaranty Company, as surety, remit to the Department that sum which should then be timely remitted to Petitioner.
DONE AND ENTERED this 17th day of May, 1993, in Tallahassee, Florida.
JAMES E. BRADWELL
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 17th day of May, 1993.
COPIES FURNISHED:
Linda Terry Lawton
P. O. Box 1686
Plant City, Florida 33564
U.S. Fidelity & Guaranty Company Legal Department
P. O. Box 1138
Baltimore, Maryland 21203-0000
Richard Tritschler, Esquire Department of Agriculture The Capitol - PL-10
Tallahassee, Florida 32399-0810
Brenda Hyatt, Chief
Bureau of Licensing and Bond Department of Agriculture
508 Mayo Building
Tallahassee, Florida 32399-0800
Dixie Growers, Inc.
P. O. Box 1686
Plant City, Florida 33564
Honorable Bob Crawford Commissioner of Agriculture The Capitol - PL 10
Tallahassee, Florida 32399 0350
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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
In Re: Complaint of LEAH RAULERSON, Claimant,
vs. CASE NO. 92-5753A
DIXIE GROWERS, INC., and U.S. FIDELITY & GUARANTY COMPANY.,
Respondents.
/
FINAL ORDER
Procedural Background:
THIS CAUSE, arising under Chapter 604, Florida Statutes, came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On or about July 7, 1992, the Claimant, filed a written complaint against Respondent, a Dealer in Agricultural Products, licensed by the Department pursuant to Sections 604.15 - 604.34, Florida Statutes, for indebtedness to Claimant in the amount of $3,518.29 for peppers purchased from Claimant. Respondent's license for the subject period of time is supported by bond pursuant to statute and written by U.S. Fidelity and Guaranty Company, Co- Respondent. The complaint was subsequently amended to reflect indebtedness in the amount of $3,722.49. Respondent filed an answer to the Complaint and
requested a hearing. The file was referred to the Division of Administrative Hearings for assignment of a hearing officer pursuant to 120.57(1) because factual allegations were at issue. Co-Respondent did not file an answer to the Complaint.
After the hearing and a review of the evidence, the Hearing Officer found in favor of the Petitioner. The Hearing Officer's Recommended Order was rendered on May 17, 1993, a copy of which is attached hereto as Exhibit "A". On or about May 27, 1993, Respondent filed exceptions to the Recommended Order. No other party filed exceptions.
Standard of Review:
Section 120.57(1)(B)10 establishes the standard for review of a Recommended Order. It reads:
The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.
The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action....
It is well established that a Hearing Officer's findings of fact may not be discarded by the reviewing agency unless they are "not based on competent substantial evidence." Section 120.57(1)(b)102; Venetian Shores Home & Prod. Own. v. Ruzakawski, 336 So.2d 399 (Fla. 3d DCA 1976). When an agency does substitute its own findings, a reviewing court
will naturally accord greater probative force to the hearing officer's contrary findings when the question is simply the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof, or when concerning those facts the agency may not rightfully claim special insight. [but]
where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer's findings in determining the
substantiality of evidence supporting the agency's substituted findings. McDonald v. Department of Banking and Finance, 346 So.2d 569, 579 (Fla, 1st DCA 1977).
It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other. The agency may not reject the hearing officer's finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred.
Heifetz v. Debt. of Business Regulation, 475 So.2d 1277, 1282 (Fla. 1st DCA 1985).
A Hearing Officer's recommended conclusions of law and interpretation of administrative rules, may be rejected or modified by an agency. Section 120.57(b)(10), Florida Statutes. There is no question in this case that the proceedings complied with the essential requirements of law. Competent substantial evidence on which to base finding of fact "need not be enough to support the finding but there must be some competent evidence supporting or corroborating the incompetent evidence upon which a finding is bottomed. It is the evidence, not the competent evidence, that must be substantial." Florida Administrative Practice, Section 2.44 (citing Schwartz, Administrative Law, 340 (1976) and De Groot v. Sheffield, 95 So.2d 912 (Fla 1957)) (emphasis added). A finding of fact cannot be based upon hearsay alone, unless that hearsay would be admissible over objection in a civil action, but hearsay can be used to supplement or explain other evidence. Section 120.58(1)(a), Florida Statutes; Florida Min. & Materials Corp. v. Florida Unemployment Aeals Commission, 530 So.2d 426 (Fla. 1st DCA 1988); Spicer v. Metro Dade County, 458 So.2d 792 (Fla. 3rd DCA 1984). An agency cannot substitute its view for that of the hearing officer if the recommended order and the findings thereunder are supported by substantial competent evidence. School Bd. of Leon County v. Hargis, 400 So.2d
103 (Fla. 1st DCA 1981); AFL-CIO Local 1010 v. Anderson, 401 So.2d 824 (Fla. 5th DCA 1981).
Consideration of Respondent's Exceptions:
The first two pages of exceptions are more argument than exceptions. On the third page the Respondent begins to set out specific statements in the Recommended Order to which exception is taken.
1(a). Petitioner first takes exception to a statement in the Hearing Officer's letter of May 17, 1993, wherein he stated that there were no exhibits or transcripts. The exception taken is that "[n]o exhibits were asked for at hearing." First, it is only exceptions to the Recommended Order which are permitted; however, in an abundance of caution it should be pointed out that the Notice of Hearing filed by the hearing officer on February 15, 1993, states that "[t]he parties shall arrange to have all witnesses and evidence present at the time and place of hearing. Nowhere does Respondent assert that it was denied an opportunity to present its case. In fact, on three occasions the Respondent was
specifically asked to present its case. (Tr. page 30, lines 10-11; page 6, line 19; and page 28, lines 20-23). If respondent failed to present it exhibits or any other evidence, the responsibility for that failure is Respondent's and no ground for exceptions to the Recommended Order.
1(b). Respondent next observes that there was a person transcribing the hearing. Although a transcript could have been made, neither party secured one for the Hearing Officer. The securing of a transcript of a hearing is the responsibility of the parties to the suit. Rule 28-5.306, Florida Administrative Code reads, in pertinent part: "[a]t hearings during which the services of a court reporter have been retained, any party who wishes a written transcript of the testimony shall order the same at its own expense." The state is not charged with purchasing transcripts which can be used by the parties to press their cause. Respondent cannot fail to order a written transcript from the court reporter and use its failure as grounds for an exception to a Recommended Order.
Respondent next turns its attention to the Recommended Order itself, and specifically paragraph two. Respondent insists it is "classified" as a "shipper located at growing points." There is no such classification under Florida Statutes. Respondent applied for and received a license as a "Dealer in Agricultural Products" and provided a bond, required of such dealers.
Respondent takes issue with the Hearing Officer's conclusion that Respondent bought the produce from Petitioner. Respondent's exceptions numbered 2, 4 and 17 all address that issue. Under the Florida Statute, such a dealer may buy, handle or sell agricultural products for a producer. Although Respondent asserts that it did not purchase peppers from petitioner, but received the peppers for the account of Petitioner, there is competent substantial evidence in the record to support the Hearing Officer's conclusion that Respondent bought the Petitioner's produce. (Tr. page 4, lines 7-25; page 5, line 8 to page 6, line 18) Although Respondent asserted, in essence, that to purchase this produce at $8.00 would not be a rational business decision, that does not establish that an irrational or poor business decision was not made. (Tr. page 6, line 20 to page 7, line 22) It was also established in the record that Respondent had been asked to let the Petitioner know if the price dropped below $4.00, because Petitioner could not break even at that price. (Tr. page 4, lines 20-24; page 6, lines 11-18) It was also established that Respondent did not tell them that the price was lower than $8.00. (Tr. page 4, lines 23 and 24; page 7 line 23 to page 8, line 5; page 9 lines 8 to 10). And it was not until June 5th that Petitioner was told to stop picking Hungarian peppers. (Tr. page 22, lines 1 to page 23, line 10) It was established that it would not have been a rational business decision on the part of Petitioner to pick and sell this produce for less than $4.00, that does not establish that an irrational or poor business decision was not made by Petitioner.
The Hearing Officer is required to weigh conflicting evidence, and determine what the facts are. He is the only impartial observer at the hearing, and it is his responsibility to observe the witnesses and their demeanor while testifying, review the record and make a determination about the facts. If the facts are uncontroverted the job is easy, but in a case such as this when one side of the dispute asserts one set of facts and the other side asserts the opposite facts, the Hearing Officer's must determine which version is correct.
That is the Finding of Fact. In the instant case the Hearing Officer found that the Respondent purchased peppers from the Petitioner. Based on the standard of review permitted, this agency cannot substitute findings when there is competent substantial evidence in the record to support the findings of the Hearing
Officer. In the instant case the statements of Petitioner and the absence of any account of sale introduced by the Respondent is competent substantial evidence to back-up the finding.
Respondent asserts in Exceptions to paragraphs 5, 6, 8 and 17, that it did not agree to purchase the various peppers of Petitioner at $8.00 a box. The gravamen of these assertions is the price as distinct from the agreement to purchase. In addition to a flat denial that such an agreement was reached, Respondent appears to argue that the fact that the products are different and subject to different market prices makes it impossible to believe the assertions of Petitioner. Respondent submitted documents that show what they paid Petitioner, but submitted no documents which support its assertion that the market deteriorated to the degree claimed. Even if they had submitted evidence to show a market deterioration, the submission of evidence at this time is not proper and no such evidence was before the Hearing Officer.
The Hearing Officer is charged with making a determination based upon the evidence before him. To second guess him based on information not presented to him, especially when it cannot be asserted that the information was not available at the time of hearing, would make a mockery of the hearing process. Respondent was told to bring its evidence to the hearing. If it failed to bring it or failed to present it, it cannot now complain.
Respondent takes exception to paragraph 7, 10 and 20 in so far as they assert that the Petitioner was paid an average of $1.03 per box for peppers. Respondent asserts that amount was paid for one delivery only. A review of the accounting filed as part of the complaint reveals that the average amount paid per box for peppers was not $1.03; however, it is of no importance what the "average price paid" was. Whatever the "average price" paid to Respondent, be it $1.03 or $7.99, once it was established that Respondent purchased the product from Petitioner, and paid petitioner less than the agreed price, the actual average amount paid is of no consequence.
Respondent states that it denies nonpayment of produce in its exception to paragraph 9 of the Recommended Order. Respondent then references explanatory paragraphs on the first two pages of its exceptions and certain attachments. A review of the record shows that the Respondent filed exhibits with its answer which establish that Petitioner was paid $216.50 in cash for 126 boxes of Hungarian wax peppers delivered on May 22, 1992. The accounting filed with Petitioner's complaint does not reflect such a payment. This evidence which controverts the petitioner's assertion was not brought to the attention of the Hearing Officer during the hearing. Never-the-less it was established, so the amount due Petitioner should and shall be reduced by that amount.
Respondent objects to all of paragraph 11 of the Recommended Order, but states no basis for its objection. It is true that the Respondent testif ied to a different interpretation of the wholesale market reports, but the Hearing Officer had substantial competent evidence on which to base his finding that Respondent more probably than not got the amounts reflected therein. It is clear that Respondent submitted no documents other than those created by Respondent to substantiate its assertion of receipt of some lesser amount.
Finally the Respondent takes exception to the conclusion of law in paragraph 20, but fails to take exception to the pertinent finding therein, namely that Petitioner is owed $3,722.49, which is the basis of the recommendation of the Hearing Officer. It is that conclusion which is not based
upon the competent substantial evidence in this case. The Respondent is indebted to Petitioner but in a lesser amount as explained below.
Based upon the consideration of the foregoing and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED:
The Hearing Officer's Findings of Fact are adopted in toto as this Agency's Findings of Fact.
The Hearing Officer's Conclusions of Law are adopted in toto as this Agency's Conclusions of Law with the exception of paragraph 20 which is amended to read:
20. Respondent Dixie owes Petitioner an amount equal to an average of $8.00 per box for peppers purchased during May and June of 1992, less that already paid. Respondent purchased a total of 2,489 boxes. At an average price of $8.00 per box, Respondent should have paid Petitioner $19,912.00. Petitioner admits to receipt of $11,264.76 and, as concluded earlier, $216.50 should be added to this amount to reflect payment for
126 boxes of Hungarian wax peppers delivered on May 22, 1992, as explained in paragraph 6 above, for a total receipt of $11,481.26. In addition Petitioner had received advances of
$2,835.00 and purchased boxes from Respondent in the amount of $2,492.00. Therefore Petitioner had received a total return of
$16,808.26. Leaving a balance due of
$3,103.74.
Respondent shall pay Petitioner $3,103.74 within 15 days of the filing of this Final Order, as required by Florida Statutes, 604.21(7). The Hearing Officer recommended that payment be made within 30 days of the date of the final order, but the statute does not permit anything more than a 15 day period in which to comply with this order.
Should Respondent fail to timely pay such sum, demand for payment shall be made upon U.S. Fidelity and Guaranty Company, the surety underwriting Respondent's bond, with the proceeds therefrom to be held for distribution pursuant to the provisions of Florida law.
Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the Clerk, 515 Mayo Building, Tallahassee, Florida 32399-0800, and a copy of the same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.
DONE AND ORDERED this 27th day of July, 1993.
BOB CRAWFORD
COMMISSIONER Of AGRICULTURE
Ann H. Wainwright Assistant Commissioner
FILED with the Clerk, this 27th day of July, 1993.
Clerk
COPIES FURNISHED:
Claimant:
Leah Raulerson Post Office Box 51
Center Hill, Florida 33514
Co-Respondent
U.S. Fidelity and Guaranty Co. Legal Department Inc.
Post Office Box 1138
Baltimore, Maryland 21203-0000
Respondent:
Dixie Growers, Inc.
Post Office Box 1686
Plant City, Florida 33289
Brenda Hyatt, Chief
Bureau of License and Bond
James E. Bradwell Hearing Officer
Division of Administration Hearings 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
| Issue Date | Proceedings |
|---|---|
| Aug. 16, 1993 | CC Letter to Leah Raulerson from Brenda D. Hyatt (re: complaint filed on July 7, 1992 against the dealer) filed. |
| Jul. 28, 1993 | Final Order filed. |
| May 17, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 03/25/93. |
| Feb. 15, 1993 | Notice of Hearing sent out. (hearing set for 3-25-93; 1:30pm; Lakeland) |
| Nov. 04, 1992 | Letter to DOAH from Leah Raulerson (re: statement) filed. |
| Oct. 15, 1992 | Ltr. to JEB from Leah Raulerson re: Reply to Initial Order filed. |
| Oct. 06, 1992 | Initial Order issued. |
| Sep. 25, 1992 | Agency referral letter; Agency Action letter; Answer of Respondent; Supporting Documents; Notice of Filing of An Amended Complaint; Complaint; filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 27, 1993 | Agency Final Order | |
| May 17, 1993 | Recommended Order | Respondent owes Petitioner for agricultural products purchased. |
