STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES R. and SALLY L. BEALE, )

)

Petitioners, )

)

vs. ) CASE NO. 95-2120A

) KROME AVENUE BEAN GROWERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 12, 1995, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: James R. Beale

975 Blackberry Hill Road Silver Point, Tennessee 38582

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent is indebted to Petitioners for agricultural products and, if so, in what amount?

PRELIMINARY STATEMENT

On or about March 20, 1995, Petitioners filed a complaint with the Department of Agriculture and Consumer Services (Department) alleging that Respondent had failed to pay Petitioners in full for cherry tomatoes Petitioners had sold to Respondent on January 23, 1995, and on January 27, 1995. According to the complaint, Respondent owes Petitioners a total of $2,884.20. The Florida Farm Bureau General Insurance Co. (Farm Bureau) was identified in the complaint as surety for Respondent.

By separate letters, each dated April 7, 1995, the Department notified both Respondent and the Farm Bureau of the filing of Petitioners' complaint and of their opportunity to file a written answer to the complaint. In its letter to the Farm Bureau, the Department further advised that the Farm Bureau was "also entitled to request a hearing in the matter."

On or about April 17, 1995, Respondent filed with the Department an answer to Petitioners' complaint. The answer was filed on the Department's License and Bond Form 14. In its answer, Respondent denied that it owed Petitioners

anything as a result of the two transactions referenced in the complaint. The Farm Bureau neither filed an answer to the complaint nor requested a hearing on the matter.

Upon reviewing Respondent's answer, the Department determined that there were disputed issues of material fact in the instant case. Accordingly, on May 3, 1995, the Department referred the matter to the Division of Administrative Hearings to conduct a formal hearing to resolve the dispute that existed between Petitioners and Respondent.

The hearing was originally scheduled for September 15, 1995. At Petitioners' request, the hearing was continued and rescheduled for December 12, 1995, commencing at 9:00 a.m.

Petitioners and Respondent were provided with written notice 1/ of the December 12, 1995, hearing in accordance with Section 120.57(1)(b)2, Florida Statues. Petitioner James R. Beale appeared at the December 12, 1995, hearing on behalf of both Petitioners. Respondent did not make an appearance at the hearing, either through counsel or an authorized representative.

At hearing, Petitioners presented the testimony of James R. Beale and his daughter, Heather Beale, who acted as Petitioners' sales agent in the two transactions involved in the instant controversy. In addition, Petitioners offered into evidence two exhibits (Petitioner's Exhibits 1 and 2), which were received by the Hearing Officer.

At the close of the evidentiary portion of the hearing on December 12, 1995, the Hearing Officer announced on the record that proposed recommended orders had to be filed no later than ten days following the close of the hearing. To date, neither party has filed a proposed recommended order.

On January 2, 1996, however, the Hearing Officer received a letter dated December 13, 1995, from Respondent's representative, Mark A. Underwood. In his letter, Underwood stated the following:

In regards to the Case #95-2120A before your office, please consider this letter an apology for missing the hearing. This is a very busy time in the South Florida produce industry, and I didn't realize the date for the hearing had arrived. The case had been postponed once for Mr. Beale[']s convenience, from Sept. 28 [sic].

The last time I talked to Mr. Beale, I was under the impression that we would work out a settlement, as there was some information that he was not aware of.

I also thought your office would remind me of the Hearing date, by phone, as was done in a previous case. I'm not making excuses, for

I realize it is my responsibility to be present at the appointed time. I'm just asking for leniency in re-scheduling or making a settle- ment by telephone conference call.

Any consideration that could be given, would be greatly appreciated. Thank you.

On January 4, 1996, the Hearing Officer issued an order indicating that he would "treat Underwood's letter as a motion requesting a new evidentiary hearing." The order further provided as follows:

Upon consideration, it is hereby ORDERED:

1. As soon as is practicable, but in no event later than January 17, 1996, Petitioners and Respondent, at a mutually convenient time, shall confer and discuss in good faith the possibility of settlement of the instant controversy. Respondent shall initiate the arrangements for the settlement conference.

2. On or before January 22, 1996, each party shall file with the Hearing Officer a written advisement indicating the status of settlement negotiations and whether a settlement has been reached.

3. If the Hearing Officer does not timely receive such a written advisement from either Petitioners or Respondent, the Hearing Officer will assume that the parties have resolved their dispute and he will issue an order closing the file of the Division of Administrative Hearings in the instant case and returning the matter to the Department with the recommendation that a final order of dismissal be entered.

4. If a settlement has not been reached and it therefore is still necessary for the Hearing Officer to rule on Respondent's motion for a new evidentiary hearing, Respondent shall also include in its written advisement a statement fully describing, with specificity, what evidence it would elicit at such a hearing if its motion was granted. Respondent shall list all exhibits it would offer into evidence and the names of all witnesses it would call to testify on its behalf. The anticipated testi- mony of each listed witness shall be described in detail. A copy of each listed exhibit shall be appended to Respondent's written advisement.

5. Respondent's failure to supplement its motion for a new evidentiary hearing with the information and materials required by the immediately preceding paragraph will result in the entry of an order denying the motion.

6. Any written response that Petitioners desire to file in opposition to Respondent's motion for a new evidentiary hearing shall be filed on or before January 29, 1996. If Petitioners do not timely file such a written response, the Hearing Officer will assume that they do not oppose the motion.

7. If the Farm Bureau would like to parti- cipate in any new evidentiary hearing that may he held in the instant case it shall, in writing, on or before January 29, 1996, so

   advise the Hearing Officer and indicate the extent to which it desires to participate.

   If the Farm Bureau does not timely file such a written advisement, the Hearing Officer will assume that the Farm Bureau does not now, nor did it at the time of the December 12, 1995, hearing, 2/ desire to participate in an evidentiary hearing on the disputed issues of fact raised by Petitioners' complaint and Respondent's answer to the complaint.

8. Any pleading or other document Petit- ioners or Respondent file with the Hearing Officer in connection with the instant case shall be simultaneously served by mail or personal delivery on the opposing party and

on the Farm Bureau and a certificate attesting to such service shall be included in or attached to such pleading or other document.

Any pleading or other document the Farm Bureau files with the Hearing Officer in connection with the instant case shall be simultaneously served on Petitioners and on Respondent and a certificate attesting to such service shall

be included in or attached to such pleading or other document.

On January 23, 1996, the Hearing Officer received a letter from Petitioners in which they indicated that they and Respondent had engaged in unsuccessful settlement negotiations. Petitioners further stated in their letter that they were "opposed to any future hearings." Not having received any pleading or document from either Respondent or the Farm Bureau in response to theJanuary 4, 1996, order, the Hearing Officer, on January 31, 1996, issued an order denying Respondent's motion for a new evidentiary hearing and indicating that he would "base his recommendation in this case upon the evidence presented at the December 12, 1995, hearing," and no other evidence.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

The Parties

1. Petitioners are producers and sellers of tomatoes. They own and operate Sunfresh Farms in Florida City, Florida.

   
   

2. Respondent is a dealer in agricultural products.

   
   

   The Controversy

   
   

3. The instant case involves two separate transactions involving the sale of tomatoes pursuant to verbal agreements between Petitioners (as the sellers) and Respondent (as the buyer). Both transactions occurred in January of 1995.

   
   

   The First Transaction (Petitioners' Invoice Number 5270)

4. Under the terms of the first of these two verbal agreements (First Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 96 boxes of cherry tomatoes for $12.65 a box (which was the market price at the time).

   
   

5. In accordance with the terms of the First Agreement, Petitioners delivered 96 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 23, 1995. Respondent accepted the delivery.

   
   

6. Respondent sold these 96 boxes of cherry tomatoes to a local produce house, which subsequently sold the tomatoes to another local produce house. The tomatoes were eventually sold to a company in Grand Rapids, Michigan.

   
   

7. On January 28, 1995, five days after Petitioners had delivered the 96 boxes of cherry tomatoes to Respondent, the tomatoes were inspected in Grand Rapids, Michigan. According to the inspection certificate, the inspection revealed: "Decay (3 to 28 percent)(mostly early, some advanced stages);" "Checksum;" and "Average approximately 85 percent light red to red."

   
   

8. Petitioners have yet to be paid any of $1,214.40 Respondent owes them (under the terms of the First Agreement) for the 96 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the agreement.

   
   

   The Second Transaction (Petitioners' Invoice Number 5299)

   
   

9. Under the terms of the second verbal agreement at issue in the instant case (Second Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 132 boxes of ("no grade") cherry tomatoes for $12.65 a box.

   
   

10. In accordance with the terms of the Second Agreement, Petitioners delivered 132 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 27, 1995. Respondent accepted the delivery.

    
    

11. Respondent sold 84 of these 132 boxes of cherry tomatoes to a Florida produce house, which subsequently sold the tomatoes to a company in Houston, Texas.

    
    

12. These 84 boxes of cherry tomatoes were inspected in Houston, Texas, on January 31, 1995, four days after Petitioners had delivered them to Respondent. The defects found during the inspection were noted on the inspection certificate.

    
    

13. Petitioners have yet to be paid in full for the 132 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the Second Agreement. Respondent tendered payment (in the form of a check) in the amount of $811.20, but Petitioners refused to accept such payment because it did not represent the full amount ($1,669.80) Respondent owed them (under the terms of the Second Agreement) for these cherry tomatoes. (Although they have not endorsed or cashed the check, Petitioners are still holding it in their possession.)

    
    

    CONCLUSIONS OF LAW

    
    

14. 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 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.

    
    

15. A "dealer in agricultural products" is defined in Section 604.15(1), Florida Statutes, as follows:

    
    

    1. ny person, whether itinerant or domiciled within this state, engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer or his agent or representative for resale or processing for sale; acting as an agent for such producer in the sale of agricultural products for the account of the producer on a net return basis; or acting as a negotiating broker between the producer or his agent or representative and the buyer.

       
       

       At all times material hereto, Respondent was a "dealer in agricultural products," as defined in Section 604.15(1), Florida Statutes.

       
       

16. "Agricultural products," as that term is used in Section 604.15(1), Florida Statutes, is defined in Section 604.15(3), Florida Statutes, as follows:

    
    

    [T]he natural products of the farm, nursery, grove, orchard, vineyard, garden, and apiary (raw or manufactured); livestock; milk and milk products; poultry and poultry products;

    and limes (meaning the fruit Citrus aurantifolia, variety Persian, Tahiti, Bearss, or Florida Key limes) produced in the state, except tobacco, tropical foliage, sugarcane, and citrus other than limes.

    
    

    Tomatoes are "agricultural products," as defined in Section 604.15(3), Florida Statutes.

    
    

17. "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. Such complaint [must] be filed within 6 months from the date of sale in instances involving direct sales." Section 604.21, Fla. Stat.

    
    

18. 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). If the Department determines that the complainant has met his burden of proof, it must "enter its order adjudicating the amount of indebtedness due to be paid by the

    dealer to the complainant," which order is "final upon issuance." Section 604.21(4), (5) and (6), Fla. Stat.

    
    

19. If payment is not made within 15 days after the issuance of the Department's order, the Department must, "in instances involving bonds, call upon the surety company to pay over to the [D]epartment out of the bond posted by the surety for such dealer or, in instances involving certificates of deposit, call upon the financial institution issuing such certificate to pay over to the [D]epartment out of the certificate under the conditions of the assignment or agreement, the amount called for in the order of the [D]epartment" and, upon receiving such payment, the Department must distribute the proceeds to the complainant. Section 604.21(7) and (8), Fla. Stat.

    
    

20. In the instant case, Petitioners timely filed a complaint against Respondent and its surety, the Farm Bureau, pursuant to Section 604.21, Florida Statutes, alleging that Respondent had failed to make payment in full for a total of 228 boxes of cherry tomatoes it had purchased from Petitioners in January of 1995, (96 that were delivered on January 23, 1995, and 132 more that were delivered on January 27, 1995) for an agreed-upon price of $12.65 a box. In its answer to the complaint, Respondent disputed that it was indebted to Petitioners. The preponderance of the evidence adduced at the formal hearing held in this case, however, demonstrates otherwise and establishes that Respondent owes Petitioner $2,884.20 for the cherry tomatoes in question. Accordingly, the Department should issue an order directing Respondent to make payment to Petitioner in this amount. 3/ In its order, the Department should indicate that the $811.20 check that was previously tendered to Petitioners by Respondent (and is still in Petitioners' possession) will be considered partial payment of this $2,884.20 indebtedness, if Respondent advises Petitioners, in writing, that it desires the check to be used for such purpose and if it provides Petitioners written assurance that the check is still a valid negotiable instrument.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order (1) finding that Respondent is indebted to Petitioners in the amount of $2,884.20, (2) directing Respondent to make payment to Petitioners in the amount of $2,884.20 within 15 days following the issuance of the order, (3) indicating that the $811.20 check that was previously tendered to Petitioners by Respondent (and is still in Petitioners' possession) will be considered partial payment of this $2,884.20 indebtedness, if Respondent advises Petitioners, in writing, that it desires the check to be used for such purpose and if it provides Petitioners written assurance that the check is still a valid negotiable instrument; and (4) announcing that if payment in full of this $2,884.20 indebtedness is not timely made, the Department will seek recovery from the Farm Bureau, Respondent's surety.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February, 1996.

STUART M. LERNER, 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 2nd day of February, 1996.

ENDNOTES

1/ Such notice was in the form of a Notice of Hearing that was mailed to Petitioners and Respondent on October 6, 1995.

2/ The Farm Bureau did not receive written notice of, nor did it appear at, the December 12, 1995, hearing.

3/ At hearing, for the first time in this proceeding, Petitioners formally requested that they be awarded $300.00 "in interest" and $1,000.00 for the costs they have incurred in attempting to collect the monies Respondent owes them.

Even if Petitioners had requested such relief in a timely manner, the Department would be without statutory authority to grant their request. Accordingly, the Department's order should not contain any provision for such relief.

COPIES FURNISHED:

James R. and Sally L. Beale Sun Fresh Farms

29775 Southwest 172nd Avenue Homestead, Florida 33030

James R. and Sally L. Beale Sun Fresh Farms

Post Office Box 492 Hartsville, Tennessee 37074

James R. and Sally L. Beale 975 Blackberry Hill Road Silver Point, Tennessee 38582

Krome Avenue Bean Growers, Inc. Post Office Box 343536

Florida City, Florida 33034

Florida Farm Bureau General Insurance Co. Post Office Box 147030

Gainesville, Florida 32614

Bob Crawford

Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture and

Consumer Services

508 Mayo Building

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 of time 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: 95-002120

Orders for Case No: 95-002120