STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REDLAND BROKERS EXCHANGE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-3343A

)

1. D. BUDD FARMS, INC., and ) OHIO FARMERS INSURANCE COMPANY, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Plant City, Florida, on September 10, 1996.

   
   

   APPEARANCES

   
   

   For Petitioner: Frank Basso

   Iori Farms

   Post Office Box 3271

   Key Largo, Florida 33037

   
   

   For Respondent: H. D. Budd

   H. D. Budd Farms, Inc. 3701 East Trapnell Road Plant City, Florida 33567

   
   

   STATEMENT OF THE ISSUE

   
   

   The issue is whether Petitioner is entitled to additional compensation for tomatoes that it sold Respondent.

   
   

   PRELIMINARY STATEMENT

   
   

   By Complaint dated May 22, 1996, Petitioner claimed that, on April 4, 1996, it sold 810 boxes of tomatoes to Respondent H. D. Budd Farms, Inc. at a price of

   $14,580. The Complaint alleges that Respondent H. D. Budd Farms, Inc. paid only

   $12,150 for the tomatoes.

   
   

   At the hearing, Petitioner called one witness and offered into evidence three exhibits. Respondent called two witnesses and offered into evidence two exhibits. All exhibits were admitted.

   
   

   The hearing was recorded by camcorder provided by Respondent. The Administrative Law Judge retained possession of the four videotapes of the hearing.

   FINDINGS OF FACT

   
   

   1. On April 4, 1996, Frank Basso of Petitioner talked to H. D. Budd of Respondent H. D. Budd Farms, Inc. (Respondent). Petitioner represents 31 food brokers in South Florida, of which eight handle tomatoes.

      
      

   2. Respondent purchases tomatoes for Publix and other chain supermarkets. Respondent and Petitioner have done business in the past, and Mr. Basso knew that Mr. Budd would require tomatoes of the highest quality. In the past, Mr. Basso would ship tomatoes to Mr. Budd, who would take only those tomatoes that met his high standards.

      
      

   3. During their telephone conversation on April 4, Mr. Budd asked Mr. Basso how many of the tomatoes would make U. S. Grade Number 1. Mr. Basso told him that 85 percent of them would. They agreed on a price of $17 per box, but Mr. Budd warned Mr. Basso that he would only pay $17 per box if the tomatoes graded out at 85 percent U. S. Grade Number 1; if they did not, Mr. Budd stated that he would pay Mr. Basso an unspecified lesser amount.

      
      

   4. In the past, Mr. Basso has allowed Mr. Budd to retain nonconforming tomatoes and try to sell them for whatever he could. In those cases, the parties' agreement was that Mr. Budd would not pay the asking price for the tomatoes, but the amount he owed Mr. Basso would be based on what he could sell the tomatoes for.

      
      

   5. The two parties agreed that Petitioner would ship 810 25-pound boxes of tomatoes to Respondent. Petitioner shipped the tomatoes on the evening of April

      4 for the six-hour trip to Plant City.

      
      

   6. The only documentation accompanying the shipment, or in existence at the time, was a shipping manifest. The document contains few conditions of the sale. It describes the tomatoes as vine ripe, extra large. It states that the shipment, which is free on board at the shipper's warehouse, consists of 810 25- pound boxes. The shipping manifest does not refer to any conditions of sale, such as warranties or procedures if the tomatoes are unsatisfactory to Respondent.

      
      

   7. The tomatoes arrived at Respondent's plant during the early-morning hours of April 5. As soon as the plant opened, Respondent's employees began unloading the tomatoes. Mr. Basso telephoned Mr. Budd first thing in the morning, and Mr. Budd said that he would call back Mr. Basso as soon as they had finished grading the shipment.

      
      

   8. Later in the day, Mr. Budd and Mr. Basso spoke again on the phone. Mr. Budd informed Mr. Basso that the tomatoes had not graded out as promised. Instead, they were only 70 percent U. S. Grade Number 1.

      
      

   9. Two days later, Mr. Basso sent Mr. Budd a fax of an invoice showing the shipment of April 4 of 810 25-pound boxes. Unlike the shipping manifest, this invoice showed a price of $18 per box and total price of $14,580. This invoice also contained disclaimers requiring inspections prior to claims and imposing a federal trust interest in the tomatoes pending full payment. These were not conditions of the agreement between Mr. Budd and Mr. Basso.

      
      

   10. Petitioner has failed to prove that Respondent mishandled the tomatoes under their agreement. Consistent with their past practice, Respondent sold the nonconforming tomatoes for the best prices that it could get. Mr. Budd

       accurately calculated that Respondent owed Petitioner $12,150, and Respondent sent Petitioner a check in that amount on April 19, 1996.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.57(1) and 604.21(6), Florida Statutes. (All references to Sections are to Florida Statutes.)

       
       

   12. Petitioner has failed to prove that Respondent owes additional money for the 810 25-pound boxes of tomatoes shipped on April 4, 1996.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the Complaint.

ENTERED on October 9, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this October 9, 1996.

COPIES FURNISHED:

Frank Basso Iori Farms

Post Office Box 3271

Key Largo, Florida 33037

H. D. Budd

3701 East Trapnell Road Plant City, Florida 33567

Ohio Farmers Insurance Company Legal Department

One Park Circle

Westfield Center, Ohio 44251-5001

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

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 within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Redland Brokers Exchange, Inc.

Petitioner,

DOAH CASE NO. 96-3343A

vs. LB CASE NO. 96-0044

FINAL ORDER

1. D. Budd Farms, Inc., and Ohio Farmers Insurance Company,

   
   

   Respondents.

   /

   FINAL ORDER

   
   

   THIS CAUSE, arising under Florida's "Agricultural License and Bond Law" (Sections 604.15 - 604.34), Florida Statutes, came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On May 30, 1996, the Petitioner, Redland Brokers Exchange, Inc., as an Agent for producers of Florida agricultural products, timely filed an administrative complaint pursuant to Section 604.21, Florida Statutes, to collect $14,580 for tomatoes it sold to Respondent, a licensed dealer in agricultural products.

   Respondent's license for the time in question was supported by a bond required by Section 604.20, Florida Statutes, written by Ohio Farmers Insurance Company in the amount of $75,000. The Respondent filed an answer to the complaint wherein they denied the claim as valid. A hearing was not requested by the Respondent, but was requested by the Department due to disputed issues of fact. Therefore, this matter was referred to the Division of Administrative Hearings (DOAH) for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. An administrative hearing was scheduled in this matter for September 10, 1996. The Administrative Law Judge ("Judge") rendered his Recommended Order on October 9, 1996, a copy of which is attached hereto as Exhibit A, to which neither party filed written exceptions with this Department.

   
   

   Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is

   
   

   ORDERED:

   
   

   1. The Judge's findings of fact are adopted in toto as this agency's findings of fact.

      
      

   2. The Judge's conclusions of law are adopted in toto as this agency's conclusions of law.

      
      

   3. The Judge's recommendation that the Department of Agriculture and Consumer Services enter a Final Order dismissing the complaint of Redland Brokers Exchange, Inc., is hereby approved and adopted as the appropriate disposition of this matter.

      
      

   4. The file be closed without further action.

Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.100, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5th Floor, Mayo Building, Tallahassee, Florida 32399- 0800, and a copy of same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE AND ORDERED this 11 day of December, 1996.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture

Filed this 11 day of December, 1996.

Agency Clerk

COPIES FURNISHED TO:

Mr. Frank T. Basso, Jr., Mr. H. D. Budd, President President H. D. Budd Farms, Inc.

Redland Brokers Exchange, Inc. 3701 East Trapnell Road Post Office Box 3271 Plant City, Florida 33567 Key Largo, Florida 33037

Mr. Robert E. Meale Ohio Farmers Insurance Company

Administrative Law Judge Legal Department Division of Administrative One Park Circle

Hearings Westfield Center, OH 44151-5001 The Desoto Bldg.

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Messrs. Mark Moritz and Raphael Impellizzeri Field Representatives

Docket for Case No: 96-003343

Orders for Case No: 96-003343