STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAYNE SULLIVAN, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3015A

) FANCY FARMS SALES, INC., AND ) GULF 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 September 12, 1995, in Arcadia, Florida.

APPEARANCE

For Petitioner: Wayne Sullivan

49 Myrtle Bush Lane Venus, Florida 33960

For Respondent: James A. Crocker, Qualified Representative Fancy Farms 1305 West Martin Luther King, Jr. Boulevard Sales, Inc. Plant City, Florida 33564-9006

For Respondent: No appearance Gulf Insurance

Company

STATEMENT OF THE ISSUE

Has Respondent Fancy Farms Sales, Inc. (Fancy Farms) made proper accounting to Petitioner Wayne Sullivan in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Fancy Farms from November 8, 1994, through December 10, 1994, by Wayne Sullivan to be handled by Fancy Farms as agent for Wayne Sullivan on a net return basis as defined in Section 604.15(4), Florida Statutes?

PRELIMINARY STATEMENT

By letter dated May 18, 1995, the Department of Agriculture and Consumer Services (Department) advised Fancy Farms and Respondent Gulf Insurance Company (Gulf) that Wayne Sullivan had filed a Complaint alleging that Fancy Farms owed Wayne Sullivan $3,716.25 for an agricultural product delivered to Fancy Farms between November 8, 1994 and December 10, 1994. Fancy Farms filed an answer to the Complaint denying any indebtedness and requested a hearing within the prescribed time. Gulf did not file an answer to the Complaint or request a

hearing. By letter dated June 14, 1995, the Department notified Wayne Sullivan that Fancy Farms had filed an answer to the Complaint and had requested a hearing. By letter dated June 14, 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, Wayne Sullivan testified in his own behalf and presented the testimony of Lonnie Pearce, Tracy Pearce and Carrie Sullivan. Fancy Farms presented the testimony of Salvatore Toscano. Petitioner's exhibit one through seven were received as evidence. Respondent Fancy Farm's exhibit one was received as evidence, after being filed late.

There was no transcript of this proceeding filed with the Division. The time for filing posthearing findings of fact and conclusions of law were extended due to the late filing of Respondent Fancy Farm's exhibit one.

However, the parties did not file posthearing proposed findings of fact and conclusions of law as allowed by Section 120.57(1)(b)(4), Florida Statutes, under the extended time frame.

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, Wayne Sullivan was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes.

   
   

2. At all times pertinent to this proceeding, Fancy Farms 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 8453 issued by the Department, supported by bond number 57 92 20 in the amount of $75,000, written by Gulf Insurance Company with an inception date of September 1, 1994, and an expiration date of August 31, 1995.

   
   

3. From November 8, 1994, through December 10, 1994 Wayne Sullivan delivered certain quantities of an agricultural product (zucchini) to Fancy Farms. It is the accounting for these zucchini (zukes) that is in dispute. It was stipulated by the parties that Fancy Farms was acting as agent in the sale of the zukes delivered to Fancy Farms for the account of Wayne Sullivan on a net return basis.

   
   

4. There is no dispute as the quantity or size of the zukes delivered by Wayne Sullivan to Fancy Farms during the above period of time. Furthermore, there is no dispute as to the charges made by Fancy Farms for handling the zukes, including but not limited to the commission charged by Fancy Farms. The agreed upon commission was ten per cent (10 percent) of the price received by Fancy Farms from its customers. There is no evidence that Fancy Farms found any problem with the quality of the zukes delivered to Fancy Farms by Wayne Sullivan during the above period of time.

   
   

5. Upon delivering the zukes to Fancy Farms, Sullivan was given a prenumbered delivery receipt ticket (delivery ticket) showing Wayne Sullivan as Grower number 116 and containing the following additional information: (a) date and time of delivery; (b) produce number, i.e., 37 indicating fancy zukes and 38 indicating medium zukes; (c) description of the produce, i.e., zukes, fancy; (d)

   a lot number containing number of delivery ticket, grower number and produce number, i.e. 2074-116-37 and; (e) the number of units of zukes received by Fancy Farm.

   
   

6. The accounting for the zukes from the following delivery receipt ticket numbers is being contested in this proceeding: (a) 2127 dated November 8, 1994, lot nos. 2127-116-37 and 2127-116-38; (b) 22145 dated November 10, 1994, lot nos. 2145-116-37 and 2145-116-38; (c) 2181 dated November 15, 1994, lot nos. 2181-116-37 and 2181-116-38; (d) 2242 dated November 29, 1994, lot nos. 2242- 116-37 and 2242-116-38; (e) 2254 dated December 1, 1994, lot nos. 2254-116-37 and 2254-116-38; (f) 2289 dated December 7, 1994, lot nos. 2289-116-37 and 2289- 116-38 and; (g) 2313 dated December 10, 1994, lot nos. 2313-116-37 and 2313-116- 38.

   
   

7. Once Fancy Farms found a customer for the zukes, Fancy Farms prepared a prenumbered billing invoice. Additionally, a bill of lading and load sheet was prepared and attached to the invoice. The bill of lading and load sheet would have the same number as the invoice. Basically, the invoice and bill of lading contained the customer's name and address, produce number, description of produce, number of units ordered, number of units shipped and the price per unit. The load sheet contains the customer's name, produce number, description of produce, units ordered, units shipped and the lot number for the units that made up the shipment.

   
   

8. On numerous occasions Fancy Farms made adjustments to the selling price after the price had been quoted and accepted but before the invoice was prepared. Fancy Farms did not make any written notations in its records showing the adjustments to the price or the reasons for the adjustments to the price. Salvatore Toscano testified, and I find his testimony to be credible, that this usually occurred when there was a decrease in the market price after Fancy Farms made the original quote. Therefore, in order to keep the customer, Fancy Farms made an adjustment to the price. Sullivan was never made aware of these price adjustments.

   
   

9. In accounting for the zukes delivered by Sullivan, Fancy Farms prepared a Grower Statement which included the delivery ticket number, the date of delivery, the lot number, grower number, produce number, description of the produce, quantity (number of units), price per unit and total due. Payment for the zukes was made to Wayne Sullivan from these statements by Fancy Farms. Sometimes payment may be for only one delivery ticket while at other times payment would be for several delivery tickets for different dates.

   
   

10. A portion of Petitioner's composite exhibit 1 is the Florida Vegetable Report (Market Report), Volume XIV, Nos. 19, 21, 23, 31, 33, 37 and 40, dated October 28, 31, 1994, November 8, 10, 15, 29, 1994, and December 7, 12, 1994, respectively. The Market Report is a federal-state publication which reports the demand (moderate), market (steady), volume (units) sold and prices paid per unit for numerous vegetables, including zucchini, on a daily basis. The prices quoted for zucchini is for 1/2 and 5/9th bushel cartons and includes palletizing. The average cost for palletizing in the industry is 65 per carton. Fancy Farms receives and sells zukes in one-half (1/2) bushel cartons. Fancy Farms does not palletize the cartons for handling at its warehouse or for shipment.

    
    

11. On November 8, 10, 15, 1994, Sullivan delivered a combined total of

    130 units of fancy zukes and a combined total 206 units of medium zukes represented by delivery receipt ticket nos. 2127, 2145 and 218l, for a combined

    total of fancy and medium zukes of 336 units for which Fancy Farms paid Sullivan the sum of $1,171.00 as evidenced by the Grower Statement dated November 25, 1994. Forty eight units of fancy zukes represented by lot no. 2127-116-37 was billed out by Fancy Farms to P. H. Lucks, Inc. for $5.00 per unit. Without an explanation, Fancy Farms reduced the price to $2.50 per unit. However, Fancy Farms paid Sullivan $5.00 per unit for the 48 units of fancy zukes. Five units of medium zukes represented by lot no. 2145-116-38 were not accounted for by invoice. Thirty two units of fancy zukes represented by lot no. 2181-116-37 were not accounted for by invoice. Nineteen units of medium zukes represented by lot no. 2242-116-38 were not accounted for by invoice. Where there is no invoice the price quoted in the Market Report is used to calculate the amount due Sullivan. The amount due Sullivan from the Grower Statement dated November

    25, 1994,	is:
    	Lot No. 2127-116-37: $5.00 per unit x 48	units	(Invoice 3814)	=	$ 240.00
    	Lot No. 2127-116-38: $3.50 per unit x 45	units	(Market Report)	=	$ 157.50
    	$3.50 per unit x 35	units	(Invoice 3783)	=	$ 122.50
    	Lot No. 2145-116-37: $5.00 per unit x 12	units	(Invoice 3818)	=	$ 60.00
    	$5.00 per unit x 38	units	(Invoice 3822)	=	$ 190.00
    	Lot No. 2145-116-38: $3.00 per unit x 13	units	(Invoice 3820)	=	$ 39.00
    	$3.00 per unit x 22	units	(Invoice 3822)	=	$ 66.00
    	$3.00 per unit x 5	units	(Market Report)	=	$ 15.00
    	Lot No. 2l81-116-37: $8.00 per unit x 32	units	(Market Report)	=	$ 256.00
    	Lot No. 2181-116-38: $3.50 per unit x 86	units	(Invoice 3778)	=	$ 301.00
    Total owed to Sullivan			=		$1,447.00
    Less: Amount paid Sullivan			=		$1,171.00
    Ten per cent commission			=		144.70
    Net due Sullivan			=		131.30

    
    

12. On November 29, 1994, Sullivan delivered 53 units of fancy zukes and

    69 units of medium zukes as represented by delivery ticket no. 2242 for a combined total of 112 units for which Sullivan was paid $472.00 by Fancy Farms as represented by the Grower Statement dated December 7, 1994. The prices of

    $3.25 and $3.00 as indicated by invoice nos. 3941 and 3947, respectively are not indicative of the market for fancy zukes as established by the Market Report for December 1, 1994. The Market Report established an average price of $8.00 per unit for fancy zukes. Likewise, the price of $3.00 per unit for medium zukes as indicated by invoice no. 3927 is not indicative of the market for medium zukes as established by the Market Report for December 1, 1994. The Market Report established an average price of $6.00 per unit for medium zukes. The amount due Sullivan from the Grower Statement dated December 7, 1994, is:

    Lot no. 2242-116-37: $8.00 per unit x 53 units	(Market	Report)	=	$ 424.00
    Lot no. 2242-116-38: $6.00 per unit x 69 units	(Market	Report)	=	$ 414.00
    Total owed Sullivan			=	$ 838.00
    Less: Amount paid Sullivan			=	$ 472.00
    Ten Percent Commission			=	$ 83.80
    Net due Sullivan			=	$ 282.20

    
    

13. On December 1, 7, 1994, Sullivan delivered a combined total of 51 units of fancy zukes and a combined total of 87 units of medium zukes for a combined total of 138 units of fancy and medium zukes represented by delivery ticket nos. 2254 and 2289 and was paid $516.00 for these zukes by Fancy Farms as represented by the Grower Statement dated December 15, 1994. There was no invoice for lot nos. 2254-116-37 or 2254-116-38. The Market Report established a market price of $8.00 and $6.00 per unit for fancy and medium zukes, respectively. The amount due Sullivan from the Growers Statement dated December 15, 1994, is:

    
    

    Lot No. 2254-116-37:

    $8.00 per unit x 39 units (Market Report) = $ 312.00

    
    

    Lot No. 2254-116-38:

    $6.00 per unit x 20 units (Market Report) = $ 120.00

    
    

    Lot No. 2289-116-37:

    $6.00 per unit x 12 units (Invoice 4049) = $ 72.00

    
    

    Lot No. 2289-116-38:

    $3.50 per unit x 67 units (Invoice 3946) = $ 234.50 Total owed Sullivan = $ 738.50

    
    

    Less:

    Amount paid Sullivan = $ 516.00

    Ten Percent Commission = $ 73.85

    
    

    Net due Sullivan = $ 148.65

    
    

14. On December 10, 1994, Sullivan delivered 27 units of fancy zukes and

    18 units of medium zukes for a combined total of 45 units as represented by delivery ticket no. 2313 and was paid $211.50 for those zukes by Fancy Farms as represented by Growers Statement dated December 23, 1994. The 18 units of medium zukes represented by lot no. 2313-116-38 are not covered by an invoice. The Market Report established a unit price of $6.00 for the fancy zukes. Invoice no. 4075 billed the fancy zukes at zero without any explanation. Fancy Farms paid Sullivan $5.50 per unit for the fancy zukes. The Market Report established a per unit price of $8.00 for the fancy zukes which is more in line with the market than is the $5.50 per unit paid by Fancy Farms. The amount due Sullivan from the Grower Statement dated December 23, 1994, is:

    
    

    Lot No. 2313-116-38:

    
    

    $6.00 per unit x 18 units (Market Report) = $ 108.00

    Lot No. 2313-116-37:

    $8.00 per unit x 27 units (Market Report) = $ 216.00 Total owed Sullivan = $ 324.00

    
    

    Less:

    Ten percent commission = $ 32.40

    Amount received by Sullivan = $ 211.50

    Net due Sullivan = $ 80.10

15. The net amount owed to Sullivan by Fancy Farms: From Grower Statements dated:

    November 25, 1994 $ 131.30

    December 7, 1994 $ 282.20

    December 15, 1994 $ 148.65

    December 23, 1994 $ 80.10

    Total owed to Sullivan $ 642.25

    
    

    CONCLUSIONS OF LAW

    
    

16. 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.

    
    

17. 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 adjust- ments; 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)

    
    

18. It is clear from the record that Respondent Fancy Farms Sales, Inc. failed to comply with the above in that it failed to record the amount of adjustments and explanations, give Sullivan an account of the sales timely, itemize all marketing costs (commission), and record the name and address of the purchaser of all of Sullivan's zucchini.

19. 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 Wayne Sullivan must establish facts upon which his allegations are based by a preponderance of the evidence. Wayne Sullivan has met his burden to show that Fancy Farms has failed to properly account to him for the sum of $642.25 but has failed to meet his burden to show that Fancy Farms failed to account to him for the balance of the $3,716.25 alleged in the Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Fancy Farms Sales, Inc. be ordered to pay Petitioner Wayne Sullivan the sum of $642.25.

DONE AND ENTERED this 28th day of November, 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 November, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3015A

The parties elected not to file any proposed findings of fact and conclusions of law.

COPIES FURNISHED:

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

Wayne Sullivan

49 Myrtle Bush Lane Venus, Florida 33960

James A. Crocker Qualified Representative Fancy Farms Sales, Inc.

1305 W. Dr. M. L. King, Jr., Blvd.

Plant City, Florida 33564-9006

Gulf Insurance Company Legal Department

4600 Fuller Drive

Irving, Texas 75038-6506

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: 95-003015

Orders for Case No: 95-003015