STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIX L'S PACKING COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-7116A

) SUNSHINE PRODUCE EXCHANGE, INC., ) and LAWYERS SURETY CORPORATION, )

)

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 April 21, 1993, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Peter Dessak, pro se

Six L's Packing Company, Inc. Post Office Box 138 Immokalee, Florida 33934

For Respondent: Peter R. Goldman, Esquire

Bunnell, Woulfe & Keller, P.A. 1080 South East Third Avenue Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

The issue presented is whether Respondents are indebted to Petitioner in the amount of $25,776.50.

PRELIMINARY STATEMENT

Petitioner Six L's Packing Company, Inc., filed a Complaint with the Department of Agriculture and Consumer Services alleging that Respondent Sunshine Produce Exchange, Inc., and Respondent Lawyers Surety Corporation, Sunshine's surety, are indebted to Petitioner in the amount of $36,700.00 for peppers purchased from Petitioner. Respondents timely denied the allegations of that Complaint and requested a formal hearing. Thereafter, Petitioner filed an Amendment to its Complaint alleging that as a result of additional payments, the amount due for the peppers was reduced to $25,776.56.

Peter Dessak testified on behalf of Petitioner, and Jim Sutton and Brad Ferguson testified on behalf of Respondent Sunshine Produce Exchange, Inc.

Additionally, Petitioner's Exhibits numbered 1 and 2 and Respondent Sunshine's Exhibits numbered 1-6 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Thursdays are pricing days in the produce industry.

   
   

2. On Thursday, April 16, 1992, Jim Sutton, a salesman for Respondent Sunshine Produce Exchange, Inc., began his day making telephone calls to check the prices of agricultural products. When he called Petitioner Six L's Packing Company, Inc., he spoke with Steve Oldock, a salesman for Six L's. Oldock told Sutton that Six L's had an "unbelievable amount of pepper" which it needed to sell. Oldock further told Sutton, "Today is the day you have to support us." When Sutton asked the price, Oldock responded with the word "cuff." In the industry, "cuff" means consignment.

   
   

3. As they further talked, Sutton and Oldock agreed that Sunshine would take some of the peppers that Six L's had and place the peppers with companies who would sell the peppers. When Sunshine received "the returns" from the receiver companies, Sutton and Oldock would then agree on a fair brokerage to be paid by Six L's to Sunshine.

   
   

4. Sutton told the others working with him at Sunshine that Six L's needed help in placing its peppers, and Sutton's co-workers assisted him in trying to consign Six L's peppers.

   
   

5. Sunshine arranged with two receivers it used for each to take a load of peppers from Six L's. Those receivers were Mutual Produce in Boston, a commissioned receiver which distributes produce to wholesalers and chain stores in the Boston area, and Jos. Notarianni & Co., Inc., a produce firm in Scranton, Pennsylvania, which distributes to chain stores. Sutton advised Oldock he would be placing the peppers in Boston with Mutual Produce and in northern Pennsylvania with Notarianni. Oldock had no objection to using those receivers; Oldock's only concern was that not too many peppers be sent to the same market so as to damage that market. Both companies are reputable companies with the highest Blue Book ratings.

   
   

6. On Saturday, April 18, 1992, Mutual's trucks picked up the two loads of peppers from Six L's. At hearing, Six L's admitted that the product was not priced between Sunshine and Six L's before it was shipped.

   
   

7. On Monday, April 20, Sutton talked to Mutual and was advised that the market was slipping.

   
   

8. On Tuesday, April 21, Sutton talked to Oldock. Sutton advised Oldock that the market had been slipping but that the peppers were in good hands. Oldock still expressed no objection to the arrangements that Sunshine had made.

   
   

9. Oldock did, however, advise Sutton that Oldock had to price the tickets for the peppers which had been shipped and that he wanted to put $21.00 per box on the invoices. Sutton advised Oldock that such invoicing was not acceptable, that such pricing would indicate a fixed price FOB transaction, and that Sunshine had not guaranteed any market price and had not purchased the product. Oldock explained that for internal reasons at Six L's Oldock had to price the invoices but that the invoices would be "adjusted" when the time came.

10. Invoices were issued by Six L's on April 29, 1992, reflecting a price of $18.00 a box for the extra large red peppers and $5.00 a box for the extra large bell peppers. That price was never agreed to by Sunshine which had agreed to act as an agent of Six L's for the transaction in question and had not purchased the peppers.

    
    

11. In May Sunshine received the returns from the two receivers. Sutton contacted Oldock to discuss the "fair brokerage" which Sunshine would deduct from the returns from the receivers before forwarding the balances to Six L's. Oldock and Sutton agreed to the commission to be paid to Sunshine.

    
    

12. By checks dated July 9 in the amounts of $7,023.50 and $7,000.00, Sunshine forwarded to Six L's the monies paid to Sunshine by Notarianni minus the commission paid to Sunshine by Six L's. Those checks settled the account for that load of peppers.

    
    

13. By check dated July 23, 1992, Sunshine forwarded to Six L's the monies returned to Sunshine by Mutual Produce minus the commission paid to Sunshine by Six L's. That check in the amount of $3,900.00 settled the account for that load of peppers.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Petitioner has failed to prove that Sunshine is indebted to it for any sums in excess of those monies already paid by Sunshine to Six L's. The only testimony offered by Petitioner in support of its position as to the agreement entered into between Sunshine and Six L's was hearsay. Oldock, the salesman for Six L's who entered into the agreement in dispute in this cause, did not testify. Although Petitioner's witness did testify as to his understanding of Oldock's arrangements based on his own conversations with Oldock, that testimony was inconsistent with Petitioner's business records admitted in evidence and was contrary to statements made by Six L's in writing to the United States Department of Agriculture regarding the transaction in question. That hearsay testimony is, accordingly, not corroborative of any non-hearsay evidence and cannot support any finding of fact in Petitioner's favor. Section 120.58(1)(a), Florida Statutes.

    
    

16. Petitioner also offered evidence of Sunshine's failure to comply with certain provisions of the federal Perishable Agricultural Commodities Act, such as Sunshine's failure to timely provide copies of the returns and accountings which Sunshine received from Mutual Produce and from Notarianni. Petitioner's complaint regarding Sunshine's failure to timely provide Six L's with accountings is inconsistent with the position of Six L's that it sold the produce in question to Sunshine for a fixed price. Moreover, Sunshine's compliance or non-compliance with the Perishable Agricultural Commodities Act has not been shown to be a matter within the jurisdiction of this forum. Similarly, the claim of Six L's that Sunshine failed to timely object in writing to the terms as set forth on the invoices of Six L's within 5 days of the shipment date is without merit since the evidence reveals that Six L's did not present Sunshine with invoices until well after the shipping date, thereby precluding written objections to the invoices within 5 days of the shipping date.

17. In September of 1992, Six L's filed its Complaint with the Department of Agriculture and Consumer Services alleging that Sunshine was indebted to Six L's in the amount of $36,700.00 as a result of the two loads in question in this case. In October Six L's amended that Complaint. The amendment states that Six L's had received from Sunshine the amount of $3,900.00 as payment toward one invoice, a check in the amount of $7,023.50 toward the other invoice, and a check in the amount of $7,000.00. The amendment alleged that the $3,900.00 check and the $7,023.50 check had cleared, but Six L's was waiting for the

    $7,000.00 check to be released. Six L's, accordingly, reduced its claim to the amount of $25,776.50, with that amount to be further reduced once the $7,000.00 check had cleared.

    
    

18. Although the amendment filed by Six L's suggested that it was waiting for clearance on the $7,000.00 check from Sunshine, no evidence was presented regarding that check except that a copy of the front of it was admitted in evidence as part of Petitioner's Exhibit numbered 1. That evidence proves Petitioner's statement in its amendment to its Complaint that it had received an additional check for $7,000.00 which Petitioner had not yet credited against the monies Petitioner claimed were owing from Sunshine as a result of the transaction in question herein. As part of its post-hearing proposed recommended order, Petitioner filed the original $7,000.00 check. By letter dated July 6, 1993, that original check was returned to Petitioner, with a copy retained by the Division of Administrative Hearings to show that the document had been filed with the Division.

    
    

19. The original check was not submitted as part of the evidence in this cause, and no testimony concerning that check was offered by either party. In its proposed recommended order, Petitioner asserts that it was not able to cash that check but offers no reason as to why that might be. No evidence was offered that Petitioner attempted to cash the check but was unable to do so. The implication of Petitioner's argument that the check may have been worthless is not supported by any evidence, documentary or testimonial; rather, the evidence is uncontroverted that Sunshine sent Six L's the $7,000.00 check and that Six L's received it.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Complaint filed by

Six L's Packing Company, Inc., against Sunshine Produce Exchange, Inc., and its surety Lawyers Surety Corporation.

DONE and ENTERED this 4th day of August, 1993, at Tallahassee, Florida.

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 4th day of August, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-7116

1. Petitioner's proposed findings of fact numbered 1-3, 5, 7-9, and 11 have been rejected as not being supported by the weight of the credible, competent evidence in this cause.

2. Petitioner's proposed findings of fact numbered 4 and 10 have been rejected as not constituting findings of fact but rather as constituting argument, conclusions of law, or recitation of the testimony.

3. Petitioner's proposed finding of fact numbered 6 has been rejected as being irrelevant to the issues involved herein.

4. Respondent Sunshine's proposed findings of fact numbered 1, 2, and 4 have been rejected as not being supported by the weight of the evidence in this cause.

5. Respondent Sunshine's proposed findings of fact numbered 3 and 5 have been adopted in substance in this Recommended Order.

6. Respondent Sunshine's proposed finding of fact numbered 6 has been rejected as being subordinate to the issues herein.

COPIES FURNISHED:

Peter Dessak

Six L's Packing Company Inc. Post Office Box 138 Immokalee, Florida 33934

Peter R. Goldman, Esquire Bunnell, Woulfe & Keller, P.A. 1080 S.E. Third Avenue

Fort Lauderdale, Florida 33316

Lawyers Surety Corporation Legal Department

1025 S. Semoran, Suite 1085 Winter Park, Florida 32792

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, Esquire Department of Agriculture and

Consumer Services The Capitol PL-10

Tallahassee, Florida 32399-0810

Brenda D. Hyatt, Chief Department of Agriculture and

Consumer Services

Bureau of License and Bond Mayo Building, Room 508

Tallahassee, Florida 32399-0800

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: 92-007116

Orders for Case No: 92-007116