STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

R. T. POPPELL AND CARL CARPENTER, JR., )

)

Petitioners, )

vs. ) CASE NO. 94-5393

)

ROGERS BROTHERS FRUIT COMPANY, )

)

Respondent. )

)

1. T. POPPELL, )

   )

   Petitioner, )

   vs. ) CASE NO. 94-5394

   )

   ROGERS BROTHERS FRUIT COMPANY, )

   )

   Respondent. )

   ) JACK P. SIZEMORE )

   )

   Petitioner, )

   vs. ) CASE NO. 94-5395

   )

   ROGERS BROTHERS FRUIT COMPANY, )

   )

   Respondent. )

   ) MAC A. GRECO, JR., JOSEPHINE GRECO, ) and R. T. POPPELL, )

   )

   Petitioners, )

   vs. ) CASE NO. 94-5396

   )

   ROGERS BROTHERS FRUIT COMPANY, )

   )

   Respondent. )

   ) MAPLE HILL GROVES, INC., )

   )

   Petitioner, )

   vs. ) CASE NO. 94-5397

   )

   ROGERS BROTHERS FRUIT COMPANY, )

   )

   Respondent. )

   )

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on July 14, 1995, in Lakeland, Florida.

   
   

   APPEARANCES

   
   

   For Petitioners: Michael S. Edenfield, Esquire

   206 Mason Street Brandon, Florida 33511

   
   

   For Respondent: Michael D. Martin, Esquire

   200 Lake Morton Drive, Suite 300 Lakeland, Florida 33801

   
   

   STATEMENT OF THE ISSUE

   
   

   Whether the Respondent owes payment to the Petitioners for citrus sold by the Petitioners to the Respondent and, if so, what amount of payment is due.

   
   

   PRELIMINARY STATEMENT

   
   

   The Petitioners in these consolidated cases filed complaints with the Florida Department of Agriculture and Consumer Services (Department) related to the alleged underpayment by the Respondent for citrus purchased from the Petitioners. This matter was eventually referred to the Division of Administrative Hearings for further proceedings. The cases involved similar issues of law and fact and were consolidated.

   
   

   At the hearing, the Petitioners presented the testimony of two witnesses and had exhibits 1-27 (including 3A and 11A) admitted. The Respondent presented the testimony of five witnesses and had exhibits 1-8 admitted.

   
   

   No transcript was filed. The parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Rogers Brothers Fruit Company was a licensed Florida citrus dealer in Lakeland, Florida, license #110, and as such posted a dealers bond for the 1992-

      93 production season.

      
      

   2. Rogers Brothers Fruit Company, Incorporated was also a licensed Florida citrus dealer in Lakeland, Florida, license #111, and as such posted a dealers bond for the 1992-93 production season.

      
      

   3. In these cases, both Rogers Brothers Fruit Company and Rogers Brothers Fruit Company, Incorporated dealt interchangeably with, and are equally liable to, the Petitioners.

      
      

      CASE NO. 94-5393

      
      

   4. R. T. Poppell and Carl Carpenter, Jr. are citrus growers in Florida.

      By contract entered into in October, 1992, Poppell and Carpenter sold oranges to

      Rogers Brothers. According to the contract, the price for the oranges was "participation based on Erly Juice contract."

      
      

      CASE NO. 94-5394

      
      

   5. R. T. Poppell is a citrus grower in Florida. By contract entered into in October, 1992, Poppell sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Holly Hill contract."

      
      

      CASE NO. 94-5395

      
      

   6. Jack P. Sizemore is a citrus grower in Florida. By contract entered into in October, 1992, Sizemore sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Holly Hill contract."

      
      

      CASE NO. 94-5396

      
      

   7. Mac A. Greco, Jr., and R. T. Poppell are citrus growers in Florida. By contract entered into in October, 1992, Greco and Poppell sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Erly Juice contract."

      
      

      CASE NO. 94-5397

      
      

   8. Maple Hill Groves, Inc., is in the business of growing oranges in Florida. By contract entered into in November 1992, Maple Hill sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Erly Juice contract."

      
      

   9. Erly Juice was a Florida company in the business of acquiring and processing citrus for juice. Although two of the contracts at issue in this proceeding indicate payment is based on participation in the Holly Hill contract, all parties apparently agree that the Erly Juice contract was the relevant payment reference.

      
      

   10. In this case, Rogers Brothers had entered into agreements with Erly Juice for a specified quantity of oranges. Rogers, in turn, contracted with growers to obtain the fruit Rogers needed to meet the obligation to Erly.

       
       

   11. Payment to the growers was to be based on "participation." Essentially, "participation" payment means that individual citrus growers get a proportionate share of the proceeds obtained by the buyer.

       
       

   12. During the 1993 citrus production season, Erly began experiencing financial difficulties.

       
       

   13. By letter of August 25, 1993, Erly notified citrus suppliers that the Erly plant in Lakeland had been sold and that the company had been reorganized. The letter further states as follows:

       
       

       We have now completed the calculation of the amount due for participants in our early/mid season orange pool. Our interim estimation of the final participation price is $.57 per lb. solid. We are, however, unable to pay

       the 25 percent advance amount due at this time. Negotiations continue with our bank to resolve this problem.

       
       

   14. By letter of September 29, 1993, Erly notified Rogers Brothers that Erly was unable to pay its obligations. The letter states:

       
       

       As we discussed on the phone this morning, ERLY Juice is unable to pay 100 percent of the amount due under our fruit contracts. We have, however, negotiated additional credit to allow us to offer

       75 percent of the amount due in order to settle without litigation expense....

       
       

       ...If you agree to settle our obligations to you for $22,630.54, please sign the attached Settlement Agreement and Release....

       
       

   15. Rogers Brothers accepted the settlement offer.

       
       

   16. The settlement amount was calculated at 75 percent of the originally estimated $.57 lb. solid payment. The resulting payment is $.4275 lb. solid.

       
       

   17. Rogers Brothers, in turn, paid each Petitioner an amount equal to

       $.4275 lb. solid for the fruit obtained from each grower.

       
       

   18. The Petitioners assert that they are entitled to additional funds from Rogers Brothers in the amount of the 25 percent of the original $.57 estimate. The evidence fails to support the assertion.

       
       

       CONCLUSIONS OF LAW

       
       

   19. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 120.57(1) and 601.65, Florida Statutes.

       
       

   20. The Petitioners timely filed complaints with the Florida Department of Agriculture and Consumer Services alleging that Rogers Brothers Fruit Company and Rogers Brothers Fruit Company, Incorporated, have failed to pay for the product sold to it. Section 601.64, Florida Statutes.

       
       

   21. Rogers Brothers was a citrus dealer licensed by the State of Florida, and bonded as required. Section 601.65, Florida Statutes.

       
       

   22. The burden of proof is on the party asserting the affirmative of an issue in an administrative hearing. Florida Department of Transportation v.

       J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). The Petitioners have not met the burden.

       
       

   23. In these cases, the contracts specified that payment for the purchased citrus would be calculated on the "participation" price. Although the original estimate was for $.57 lb. solid for the fruit, Erly Juice did not pay that amount, but eventually paid 75 percent of it, or $.4275 lb. solid. Rogers Brothers paid to each grower a proportionate amount of the "participation" payment.

   24. The Petitioners assert that, notwithstanding Erly's failure to pay the original estimate to Rogers Brothers, that Rogers Brothers should have paid $.57 lb. solid to them, and that Rogers owes a difference of $.1425 lb. solid to each grower for the amount of fruit each sold to Rogers. The language of the contracts does not support the claim.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that:

The Florida Department of Agriculture and Consumer Services enter a Final Order dismissing the Petitions for Relief filed in these cases.

DONE and RECOMMENDED this 16th day of August, 1995, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 16th day of August, 1995.

APPENDIX TO RECOMMENDED ORDER

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioners

The Petitioners' proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

I. Rejected, contrary to the evidence. Two of the contracts specify payment is based on the Holly Hill contract.

1. Rejected, cumulative.

2. Rejected, contrary to the evidence which establishes that the $.57 lb. solid payment was estimated.

P, Q, R. Rejected, irrelevant. The Petitioners had no contract with Erly.

S, T, U, V, W, X. Rejected, unnecessary. The evidence fails to establish that further payment from Rogers Brothers to the Petitioners is due under the terms of the contracts.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel 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

Michael S. Edenfield, Esquire

206 Mason Street Brandon, Florida 33511

Michael D. Martin, Esquire

200 Lake Morton Drive, Suite 300 Lakeland, Florida 33801

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 ten 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: 94-005393

Orders for Case No: 94-005393