STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREEN GRASSING COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-1532A

) TRY FRESH PRODUCE, INC., AND ) FLORIDA FARM BUREAU GENERAL ) INSURANCE COMPANY, AS SURETY, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings held a formal hearing in this matter on June 20, 1995, in Fort Meade, Florida.

APPEARANCE

For Petitioner: J. Ragon Barnett, III

Qualified Representative

6 East Broadway Street Ft. Meade, Florida 33841

For Respondent: Hank Cord, Qualified Representative Try Fresh Post Office Box 995

Produce, Inc. Zolfo Springs, Florida 33890

For Respondent: No appearance Florida Farm

Bureau General Insurance Co.

STATEMENT OF THE ISSUE

Has Respondent Try Fresh Produce, Inc. (Try Fresh) made proper accounting to Petitioner Green Grassing Company, Inc. (Green Grassing) in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Try Fresh from November 13, 1994, through December 9, 1994, by Green Grassing to be handled by Try Fresh as agent for Green Grassing on a net return basis as defined in Section 604.15(4), Florida Statutes?

PRELIMINARY STATEMENT

By letter dated March 6, 1995, the Department of Agriculture and Consumer Services (Department) advised Try Fresh and Respondent Florida Farm Bureau General Insurance Company (Farm Bureau) that Green Grassing had filed a Complaint. Try Fresh filed an answer to the complaint and requested a hearing within the prescribed time. Farm Bureau did not file an answer to the Complaint

or request a hearing. By letter dated March 30, 1995, the Department notified Green Grassing that Try Fresh had filed an answer to the Complaint and requested a hearing. By letter dated March 30, 1995, the Department referred the matter to the Division of Administrative Hearings (Division) for the assignment of a hearing officer and the conduct of a hearing.

At the hearing, Green Grassing presented the testimony of J. Ragon Barnett,

III. Green Grassing's exhibits 1 through 5 were received as evidence. Try Fresh presented the testimony of George W. Locklear. Try Fresh's exhibits 1 and

2 were received as evidence.

There was no transcript of this proceeding filed with the Division. The parties elected not to file posthearing proposed findings of fact and conclusions of law as allowed by Section 120.57(1)(b)(4), Florida Statutes.

FINDINGS OF FACT

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

1. At all times pertinent to this proceeding, Green Grassing was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statute, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes.

   
   

2. At all times pertinent to this proceeding, Try Fresh was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8839 issued by the Department, supported by bond number BD 0694273 in the amount of $75,000, written by Florida Farm Bureau General Insurance Company with an inception date of September 23, 1994, and an expiration date of September 22, 1995.

   
   

3. Green Grassing delivered certain quantities of agricultural products (squash) to Try Fresh during the fall and winter growing season of 1994-95. However, it is the accounting of the squash that was delivered between November 13, 1994, and December 9, 1994, inclusive, that is in dispute. It was verbally agreed between Try Fresh and Green Grassing that Try Fresh would act as Green Grassing's agent in the sale of the squash delivered to Try Fresh for the account of Green Grassing on a net return basis.

   
   

4. There is no dispute as the quantity of squash or size of squash delivered by Green Grassing to Try Fresh during the above period of time. Furthermore, there is no dispute as to the charges made by Try Fresh for handling the squash, including but not limited to the commission charged by Try Fresh. There is some disagreement concerning the quality of the squash delivered by Green Grassing. However, none of the witnesses had personal knowledge as to the quality of the squash delivered by Green Grassing.

   
   

5. Upon delivering the squash to Try Fresh, Green Grassing was given a numbered delivery receipt listing Green Grassing as owner of the squash showing the number of cartons delivered, the date delivered, the initials of the employee receiving the squash and the kind and size of squash delivered. On most of these receipts there were four blank squares located just above the line for the date on the receipt. Starting from the left side of the receipt, the squares represent average, below average, poor and very poor quality, respectively. It was the responsibility of the employee receiving the squash

   for Try Fresh to place a check mark in one of the squares to indicate the quality of the squash upon delivery.

   
   

6. Only the accounting for the squash from delivery receipt ticket numbers 086 dated November 13, 1994; 005 dated November 15, 1994; 017 dated November 16, 1994; 047 dated November 17, 1994; 451 dated November 18, 1994; 463 dated November 19, 1994; 500 dated November 23, 1994; 501 dated November 25, 1994; 397 dated December 5, 1994, and 329 dated December 9, 1994, is being contested in this proceeding. The delivery receipts being contested are included in Petitioner's composite exhibit 1 and Respondent's composite exhibit 1. A compilation of those delivery receipts is attached to the Complaint in Petitioner's composite exhibit 2.

   
   

7. Once Try Fresh found a market for the squash, a pre-numbered billing invoice was prepared by Try Fresh showing its customer's name and the quantity, description and price of the squash sold. In any given sale, the quantity of the squash sold may include squash furnished by Green Grassing and other producers. Therefore, under description on the billing invoice Try Fresh would show the size and type of squash being sold, the initials of the producer, the quantity of squash being sold for that producer and the producer's receipt number for example, med. s/n GGI 68/086.

   
   

8. In its accounting to Green Grassing, Try Fresh prepared a statement which included the delivery receipt number, the quantity of squash sold, description of the product, i.e. med, s/n squash, the price per carton of squash and the total amount for the quantity sold. The statements also noted when a certain quantity of a squash had been transferred to another ticket number or if a trouble memo number (T number) was involved in a particular sale. Payment for the squash was made by Try Fresh to Green Grassing from these statements. Sometimes payment was for only one delivery receipt while at other times for several delivery receipts for different dates. The statements are included as part of Petitioner's composite exhibit 5.

   
   

9. Petitioner's composite exhibit 4 is the Florida Vegetable Report, Volume XIV, Nos. 21 - 25 and 27 - 39, dated November 10, 14, 15, 16, 17, 21, 22, 23, 28, 29, 30, 1994 and December 1, 2, 5 - 9, 1994, which establishes prices paid during this period of time for small and medium straight neck squash. The report does not list prices paid for large straight neck squash. There is no evidence that the quality of the squash delivered to Try Fresh by Green Grassing during this period of time was the same quality of squash from which the prices in the report were derived.

   
   

10. On November 13, 1994, Green Grassing delivered 32 cartons of small, straight neck squash (sm s/n squash), 145 cartons of medium, straight neck squash (med s/n squash), and 42 cartons of large, straight neck squash (lg s/n squash) to Try Fresh as reflected in delivery receipt number 086 dated November 13, 1994, showing Green Grassing as owner of the squash. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 086 to indicate the quality of the squash at the time of delivery to Try Fresh on November 13, 1994. There is no dispute as to accounting of the 145 cartons of medium, straight neck squash reflected on delivery receipt 086.

    
    

11. Try Fresh's statement of accounting to Green Grassing dated November 25, 1994 (page 5 of Petitioner's composite exhibit 5) indicates that the 32 cartons of small , s/n squash listed on receipt number 086 were transferred to receipt number 258 with the price left open and no payment made to Green Grassing. The next entry concerning these 32 cartons of squash appears on a

    statement dated December 2, 1994 (page 13 of Petitioner's composite exhibit 5) with the price left open and no payment made to Green Grassing. The next entry concerning these 32 cartons of squash appears on an undated statement (page 21 of Petitioner's composite exhibit 5) with reference made to trouble memo (T number 0040) with the price is left open and no payment made to Green Grassing. There is no further reference to these 32 cartons of squash (delivery receipt 086, ticket 258 or T number 0040) in the statement of accounting. There is no evidence that Green Grassing was paid for the 32 cartons of sm s/n squash as reflected by delivery receipt number 086.

    
    

12. There is no indication on billing invoice number 065562 that the 32 cartons of sm, s/n squash from delivery receipt number 086 were included in the

    240 cartons of sm, s/n squash shipped to Georgia Vegetable Co. as was the normal practice by Try Fresh as set out in Finding of Fact 7. Furthermore, there is insufficient evidence to show that the 32 cartons of squash were found to be below quality by a federal inspection (Certificate No. M-460187-8) on November 17, 1994, which resulted in Try Fresh receiving a reduced price of $1.71 per carton as shown on T number 0017 (trouble memo). This amount was paid to Green Grassing as shown by statement of accounting dated December 23, 1994, (see page

    28 Petitioner's composite exhibit 5). However, those 32 cartons of squash were identified as transfer ticket number 259 which relates to delivery receipt number 005 dated November 15, 1994, not delivery receipt number 086 (see pages 9 and 13 of Petitioner's composite exhibit 5).

    
    

13. Try Fresh has failed to account to Green Grassing for the 32 cartons of sm, s/n squash delivered on November 13, 1994, as reflected by delivery receipt number 086. Based on the prices Try Fresh billed and was paid for sm, s/n squash by its customer (including sm s/n squash belonging to Green Grassing) during this period, a price of $8.00 per carton would be reasonable price. Try Fresh owes Green Grassing for 32 cartons of sm s/n squash at $8.00 per carton for a total of $256.00.

    
    

14. Try Fresh's statement of accounting dated November 25, 1994, (page 5 Petitioner's composite exhibit 5) shows 10 cartons of lg, s/n squash from delivery receipt number 086 as being transferred to ticket number 258 with a note of trouble memo (T number 0036) with the price left open and no payment to Green Grassing. The same page of the statement shows 21 cartons of lg, s/n squash from delivery receipt number 086 being dumped due to poor quality without payment to Green Grassing. The same page shows 11 cartons of lg, s/n squash being transferred to ticket number 258 without any explanation or payment to Green Grassing. These 11 cartons are accounted for at $2.00 per carton for a total of $22.00 on page 21 of Petitioner's composite exhibit 5. There is no evidence (testimony, trouble memo or federal inspection) to show why the 11 cartons of squash brought only $2.00 per carton when lg s/n squash from delivery ticket number 086 were billed out at $8.00 per carton on November 19, 1994 (see billing invoice number 065593). Likewise, there was no evidence as to who purchased these squash. Try Fresh's billing invoice number 065593 shows 50 cartons of lg, s/n squash being billed to G & B at 8.00 per carton which included 10 cartons of lg, s/n squash belonging to Green Grassing from delivery receipt number 086. Trouble Memo (T number 0036) shows a problem with the 50 cartons of lg, s/n squash shipped to G & B Produce on November 19, 1994, and reported on November 23, 1994, which resulted in the price being reduced to

    $2.50 per carton.

    
    

15. Although sketchy, Respondent's accounting for the 10 cartons of squash on T number 0036 and the 21 cartons of squash dumped is sufficient. However, there is insufficient accounting for the 11 cartons of squash. Try Fresh owes

    Green Grassing $6.00 per carton, the difference between the billed price of

    $8.00 per carton and the $2.00 per carton paid, for 11 eleven cartons of squash for a total of $66.00.

    
    

16. On November 15, 1994, Green Grassing delivered 198 cartons of med, s/n squash and 118 cartons of sm, s/n squash to Try Fresh as evidence by delivery receipt number 005 dated November 15, 1994. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 005 to indicate the quality of the squash at the time of delivery to Try Fresh on November 15, 1994. There is no dispute as to 98 cartons of med, s/n squash and

    9 cartons of sm, s/n squash.

    
    

17. Try Fresh paid $1.00 per carton for the balance of 100 cartons of med, s/n squash listed on delivery receipt number 005 that is in dispute on February 3, 1995, by check number 2217 (see pages 35 and 36 of Petitioner's composite exhibit 5). However, there is no evidence to show that at the time these med, s/n squash were received by Try Fresh's customer, who allegedly reduced the price to Try Fresh, that the squash was of inferior quality and would demand a price of only $1.00 per carton when those same squash brought an average of

    $11.00 per carton from other Try Fresh customers. Try Fresh has failed to make a proper accounting for the 100 cartons of med, s/n squash. Try Fresh owes Green Grassing the difference of $10.00 per carton for 100 cartons of squash for a total amount of $1,000.00.

    
    

18. The 99 cartons of sm, s/n squash reflected on delivery receipt number 005 that are in dispute were paid for by Try Fresh at the rate of $10.40 per carton for 77 cartons and $1.71 per carton for 32 cartons. Although 77 cartons were billed out at $12.00 per carton (see billing invoice number 065592), there is sufficient evidence (T number 0022) to support the reduction in price to

    $10.40 per carton. However, there is insufficient evidence to show the reduction in price to $1.71 per carton for the 32 cartons. Try Fresh has failed to make proper accounting for the 32 cartons. Try Fresh owes Green Grassing

    $8.69 per carton, the difference between $10.40 per carton that was paid for the

    77 cartons and the $1.71 paid for the 32 carton for a total amount of $278.08.

    
    

19. On November 16, 1994, Green Grassing delivered 64 cartons of med, s/n squash and 25 cartons of sm, s/n squash to Try Fresh as reflected by delivery receipt number 017. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 017 to indicate the quality of the squash at the time of delivery to Try Fresh on November 16, 1994. On November 25, 1994, Try Fresh paid Green Grassing $12.00 per carton for 21 cartons of med, s/n squash and $12.00 per carton for 25 cartons of sm, s/n squash by check number 1447 as shown on pages 4 through of Petitioner's composite exhibit 5. However, page 28 of Petitioner's composite exhibit shows a zero amount for 25 cartons of sm, s/n squash reference to delivery receipt number 017. This is apparently an error, as is T number 0033 (Trouble Memo). Try Fresh also paid

    $12.00 per carton for the 43 cartons of med, s/n squash by check number 2009 dated January 6, 1995 (see pages 31 and 32 of Petitioner's composite exhibit number 5). There has been proper accounting by Try Fresh of the squash reflected by delivery receipt number 017.

    
    

20. On November 17, 1994, Green Grassing delivered 93 cartons of sm, s/n squash and 161 cartons of med, s/n squash to Try Fresh as reflected by delivery receipt number 047. None of the squares are checked and there is nothing in the remarks section of delivery receipt 047 to indicate the quality of the squash at the time of delivery to Try Fresh on November 17, 1994. Only the accounting of the 93 cartons of the sm, s/n squash is disputed.

21. On November 18, 1994, Try Fresh billed out 13 cartons of sm, s/n squash from delivery receipt number 047 to Georgia Vegetable on billing invoice number 065592 at $12.00 per carton. Try Fresh was advised by Georgia Vegetable of a problem. Trouble memo (T number 0022) was prepared by Try Fresh which indicated that after working with Georgia Vegetable a price of $10.40 per carton was agreed upon. Green Grassing was paid $10.40 per carton (see page 30 of Petitioner's composite exhibit number 5). Try Fresh has made proper accounting of these squash.

    
    

22. On November 19, 1994, Try Fresh billed out 80 cartons of sm, s/n squash from delivery receipt number 047 to Phil Lucks on billing invoice number 65596 at an undetermined price (the price had been redacted on the billing invoice). Although trouble memo (T number 0032) indicates a problem (brown & decay) with 100 cartons of sm, s/n squash shipped on November 22, 1994, there was no evidence that these were the same squash billed on billing invoice number 065596. Try Fresh has failed to present sufficient evidence to show why these squash did not bring the same price the other sm, s/n squash on delivery receipt number 047 brought. Try Fresh has failed to properly account for these 80 cartons of squash. Therefore, Try Fresh owes Green Grassing $10.40 per carton for 80 cartons of squash for a total of $832.00.

    
    

23. On November 18, 1994, Green Grassing delivered 33 cartons of lg, s/n squash, 41 cartons of med, s/n squash and 20 cartons of sm, s/n squash to Try Fresh as evidenced by delivery receipt number 451 dated November 18, 1994. The delivery receipt indicates that the squash was of very poor quality when delivered. The 20 cartons of sm, s/n squash was billed to T & M at $6.00 per carton. Although there is a trouble memo (T number 0025), it appears that Green Grassing was paid $6.00 per carton for these 20 cartons of squash. There is no evidence that these squash were of the same quality as those referenced in the Florida Vegetable Report for this period of time which could demand a price of

    $12.00 per carton as argued by Green Grassing. Furthermore, Green Grassing has produced no evidence that Try Fresh received $12.00 per carton for these squash. Try Fresh has made proper accounting of the 20 cartons of sm, s/n squash reflected in delivery receipt number 451.

    
    

24. The 33 cartons of lg, s/n squash from delivery ticket number 451 required re-grading by Try Fresh. After re-grading, 16 cartons were not fit for sale. The 17 cartons of lg, s/n squash remaining after re-grading were sold by Try Fresh for $6.00 per carton. This amount was paid to Green Grassing by check number 1812 dated December 23, 1994, (see pages 27 and 28 of Petitioner's composite exhibit 5). Try Fresh has made proper accounting for the 33 cartons of squash reflected in delivery receipt number 451.

    
    

25. The 41 cartons of med, s/n squash from delivery ticket number 451 was invoiced at an undetermined price (priced appeared to be redacted from the invoice) on billing invoice number 065582. Trouble memo (T number 0033) indicates that the 41 cartons of med, s/n squash from billing invoice number 065582 were brown and decayed and were rejected by Lucks. Try Fresh has made proper accounting of these 41 cartons of squash reflected in delivery receipt number 451.

    
    

26. On November 19, 1994, Green Grassing delivered 32 cartons of sm, s/n squash, 54 cartons of med, s/n squash and 3 lg, s/n squash to Try Fresh as reflected by delivery receipt number 463. The delivery receipt indicates that the squash were of poor quality when delivered to Try Fresh on November 19, 1994. There is no dispute as to the accounting of the 54 cartons of med, s/n

    squash. On December 2, 1994, by check number 1568, Try Fresh paid Green Grassing $16.00 per carton for 25 cartons of sm, s/n squash from delivery receipt number 463 for a total of $400.00 (see pages 12 and 15 Petitioner's composite exhibit 5). On January 5, 1995, by check number 2009, Try Fresh paid Green Grassing $4.00 per carton for 25 cartons of sm, s/n squash from delivery receipt number 463 for a total of $100.00 (see pages 31 and 32 of Petitioner's composite exhibit 5). On December 2, 1994, by check number 1568, Try Fresh paid Green Grassing $1.00 per carton for 7 cartons of sm, s/n squash for a total of

    $7.00 from delivery ticket number 463. Try Fresh has paid Green Grassing a total of $507.00 for the sm, s/n squash from delivery receipt number 463.

    However, thirty two cartons of sm, s/n squash at $16.00 per carton would total

    $512.00. Since there is no evidence to support a price less than the $16.00 per carton paid by Try Fresh on December 2, 1994, Try Fresh owes a Green Grassing a balance of $5.00. There is sufficient evidence to show that the 3 cartons of lg, s/n squash from delivery receipt number 463 were re-graded and none were salvaged. Other than the $5.00 above, Try Fresh has made proper accounting of the squash reflected in delivery receipt number 463.

    
    

27. On November 23, 1994, Green Grassing delivered 16 cartons of sm, s/n squash, 44 cartons of med, s/n squash and 5 cartons of lg, s/n squash to Try Fresh as reflected in delivery receipt number 500 dated November 23, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on November 23, 1994. There is no dispute as to the 16 cartons of sm. s/n squash or the 44 cartons of med, s/n squash. The 5 cartons of lg, s/n squash from delivery receipt 500 were sold to American Growers by Try Fresh for $4.00 per carton as reflected in billing invoice number 065628 dated November 25, 1994. Green Grassing was paid this amount by Try Fresh (see pages 19 and 23 Petitioner's composite exhibit 5). Try Fresh has made proper accounting of the squash reflected in delivery receipt number 500, notwithstanding the prices listed in the Florida Vegetable Report for this period of time.

    
    

28. On November 25, 1994, Green Grassing delivered 18 cartons of sm, s/n squash, 68 cartons of med, s/n squash and 5 cartons of lg, s/n squash to Try Fresh as reflected in delivery receipt number 501 dated November 25, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on November 25, 1994. There is no dispute as to the accounting for the 18 cartons of sm, s/n squash or the 68 cartons of med, s/n squash. The 5 cartons of lg, s/n squash were sold to American Growers for $4.00 per carton by Try Fresh as reflected in billing invoice number 065628 dated November 25, 1994. Green Grassing was paid this amount by Try Fresh (see pages 19 and 23 of Petitioner's composite exhibit 5). Try Fresh has made proper accounting of the squash reflected in delivery receipt number 501, notwithstanding the price listed in the Florida Vegetable Report for this period of time.

    
    

29. On December 5, 1994, Green Grassing delivered 2 cartons of sm, s/n squash, 68 cartons of med, s/n squash and 16 cartons of lg, s/n squash to Try Fresh as reflected in the delivery receipt number 397 dated December 5, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on December 5, 1994. The 2 cartons of sm, s/n squash were sold on December 6, 1994, at $8.00 per carton as reflected in billing invoice number 065749 dated December 6, 1994. Sixteen cartons of the med, s/n squash were sold on December 6, 1994, to K & M South for $8.00 per carton as reflected in billing invoice number 065003 dated December 6, 1994. Twenty seven cartons of the med, s/n squash were sold to Tom Lange Co. for $10.00 per carton as reflected in an

    unnumbered billing invoice dated December 9, 1994 with customer order no. 23- 4020. Twenty five cartons of the med, s/n squash were sold to G & B for $10.00 per carton as reflected in an unnumbered billing invoice dated December 10, 1994, with customer order number 8130. Sixteen cartons of lg, s/n squash were sold to Erenbaum for $5.00 per carton as reflected in an unnumbered billing invoice dated December 6, 1994 with customer number 9472. Although these prices are below prices quoted in the Florida Vegetable Report for December 6 - 9, 1994, for small and medium s/n squash (no prices quoted for large, s/n squash), the prices are consistent with prices Try Fresh was receiving during this same period for small, medium and large s/n squash that it handled for other producers. Try Fresh has made proper accounting for the squash reflected in delivery receipt number 397, notwithstanding the prices listed in the Florida Vegetable Report for this period of time.

    
    

30. On December 9, 1994, Green Grassing delivered 2 cartons of sm, s/n squash, 31 cartons of med, s/n squash and 17 lg, s/n squash to Try Fresh as reflected in delivery receipt number 329 dated December 9, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on December 9, 1994. There is no dispute as to the accounting of the 2 cartons of small and

    31 cartons of medium squash. The 17 cartons of large, s/n squash were billed to Erenbaum in billing invoice number 065035 dated December 9, 1994. It appears that the price originally billed to Erenbaum's was redacted and zero per carton written on billing invoice. A federal inspection was called for and the squash were found to be below quality. This resulted in a zero return on the squash. Try Fresh has made proper accounting for the squash reflected in delivery receipt number 329.

    
    

31. From a review of Try Fresh's records placed into evidence that its accounting to Green Grassing was not always in accordance with Section 604.22(1), Florida Statutes. Particularly, there was no record of the quality of the squash, no explanation of the adjustments to the original price, or if an explanation was given, it was not clear and no record of when payment was received by Try Fresh from the purchaser making it difficult to determine the timeliness of the accounting of the sales and payment.

    
    

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Sections 120.57(1) and 604.21(6), Florida Statutes.

    
    

33. 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 (Fla. 2d DCA 1981). To meet this burden Green Grassing must establish facts upon which its allegations are based by a preponderance of the evidence. Green Grassing has met its burden in regard to delivery receipt numbers 086, 005, 047 and 463, either wholly or partially but has failed to meet its burden in regard to delivery receipt numbers 017, 451, 500, 501, 397 and 329.

    
    

34. Section 604.22(1), Florida Statutes, provides as follows:

    
    

    Each licensee, while acting as agent for a producer, shall make and preserve for at least 1 year a record of each transaction, specifying the name and address of the producer for whom he acts

    as agent; the date of receipt; the kind, quality, and quantity of agricultural products received; the name and address of the purchaser of each package of agricultural products; the price for which each package was sold; the amount and explanation of any adjustments given; and the net amount due from each purchaser. An account of sales shall be furnished each producer within 48

    hours after the sale of such agricultural products. Such account of sales shall clearly show the sale price of each lot of agricultural products sold; all adjustments to the original price, along with an explanation of such adjustments; and an itemized showing of all marketing costs deducted by the

    licensee along with the net amount due the producer. The licensee shall make payment to the producer within 5 days of the licensee's receipt of payment. (Emphasis supplied)

    
    

35. From the record, it is clear that Try Fresh has failed to properly account to Green Grassing for the following:

Delivery Receipt number 086:

32 cartons of sm, s/n squash at $8.00 per carton for atotal of $256.00.

11 cartons of lg, s/n squash at $6.00 per carton for a total of $66.00.

Delivery receipt number 005:

100 cartons of med, s/n squash at $10.00 per carton for a total of $1,000.00.

32 cartons of sm, s/n squash at $8.69 per carton for a total of $278.08.

Delivery receipt number 047:

80 cartons of sm, s/n squash at $10.40 per carton for a total of 832.00.

Delivery receipt number 463:

Try Fresh has paid for all the squash reflected on this delivery receipt with the exception of $5.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Try Fresh Produce Co., be ordered to pay Petitioner Green Grassing Co., Inc. the sum of $2,437.08.

DONE AND ENTERED this 28th day of July, 1995, in Tallahassee, Florida.

WILLIAM R. CAVE, 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 28th day of July, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1532A

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted jointly by the Respondents Aetna and Naples in this case.

Both Petitioner Green Grassing Co., Inc. and Respondent Try Fresh Produce, Co. elected not to file proposed findings of fact and conclusions of law as allowed under Section 120.57(1)(b)(4), Florida Statutes.

COPIES FURNISHED:

J. Ragon Barnett, III

6 East Broadway Street Ft. Meade, Florida 33841

Hank Cord

Post Office Box 995

Zolfo Springs, Florida 33890

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

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel

Department of Agriculture and Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing & Bond Department of Agriculture and

Consumer Services 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: 95-001532

Orders for Case No: 95-001532