STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LENARD POWELL, )

)

Petitioner, )

)

vs. ) Case No. 97-0658A

) JOE MARINARO, d/b/a ATLANTIC ) FRUIT COMPANY, )

)

Respondent. )

)

SUPPLEMENTAL RECOMMENDED ORDER ON REMAND

This cause came before the undersigned after the Department of Agriculture and Consumer Services entered its Order of Remand on March 3, 1998. That order remanded this case for the purpose of "further proceedings" to "determine the amount of commissions to be deducted from the amounts found to be due Petitioner from Respondent in findings of fact 24, 32, and 39 and conclusion of law 44 of the Recommended Order" entered on November 18, 1997.

By order dated March 9, 1998, the parties were directed to confer and advise the undersigned within fifteen days if they could stipulate to the amount of commissions to which Respondent would have been entitled for the shipments discussed in Findings of Fact 24, 32, and 39, and which were summarized in Conclusion of Law 44. After various extensions of time were authorized, Respondent filed his calculations on April 17, 1998. Petitioner

filed an Objection to Respondent's Calculations on Commission Claim on April 22, 1998, and he offered alternative calculations in a separate paper filed the same date.

Paragraph 44 of the Conclusions of Law concluded that Petitioner was entitled to $26,437.45, less any commissions due Respondent. In Respondent's proposed calculations, he has suggested that he is entitled to commissions totaling $4,213.94, which represents a twenty percent commission on the gross selling price on eight loads of watermelons sold directly to third parties by Petitioner. This would reduce the amount due Petitioner to $22,223.51. However, the undersigned has previously found in Finding of Fact 23 that "Petitioner is only obligated to pay a one cent per pound commission on seeded watermelons and two cents per pound on seedless watermelons sold by Respondent." Therefore, the suggested twenty percent commission is inappropriate.

With respect to the eight sales referred to in Finding of Fact 24, which are sales by Petitioner to third parties on which Respondent is entitled to receive a commission, Respondent should receive a total commission of $2,916.50. This amount has been derived by applying a one cent per pound commission to sales of seeded watermelons made on June 3, 8, 9, 11, 12, and 14, 1996, or commissions of $363.80, $491.20, $477.40, $20.50,

$414.00, and $475.00, respectively. For sales of seedless

watermelons made on June 10 and 23, Respondent is entitled to commissions of two cents per pound, or $322.40 and $352.20, respectively. This reduces the amount due Petitioner from

$14,503.18 to $11,586.68.

As to the moneys due Petitioner for five shipments discussed in Finding of Fact 32, which are attributable to weight differences between the bill of lading and the weight the buyer received, Respondent may offset that amount by $455.80.

That figure has been calculated by applying one cent per pound to the one shipment of seeded watermelons documented in Petitioner's Exhibit 40. Two other shipments (Petitioner's Exhibits 4 and 21) were sold by Howard Bailey, Respondent's agent, who has already deducted a commission from the gross sales, and thus Respondent's remedy is seek reimbursement from his agent. As to the remaining shipments in this category, which are documented in Petitioner's Exhibits 9 and 16, Respondent has already collected a twenty percent commission on those shipments at the time of sale, and Petitioner's claim was only for the difference between the twenty percent commission and the one cent per pound that Respondent should have received. Thus, Petitioner is entitled to receive $4,420.53, as previously recommended, less the $455.80 commission, or a total of

$3,964.73.

Finally, as to the commissions due Respondent for the

unaccounted for watermelons discussed in Finding of Fact 39, Respondent is due $955.96. This amount is derived by applying two cents per pound to the 47,798 pounds of unaccounted for produce shipped to the cooler in White Springs, Florida. For purposes of making this calculation, the undersigned has assumed that all unaccounted for watermelons were seedless. This reduces the amount due Petitioner from $7,513.74 to $6,557.78.

In summary, Findings of Fact 24, 32, and 39 and Conclusion of Law 44 are clarified to reflect that Petitioner is entitled to $26,437.45, which is the sum of $14,503.18, $4,420.53, and

$7,513.74, less commissions due Respondent in the amount of

$4,328.26, which is the sum of $2916.50, $455.80, and $955.96, or a total of $22,109.19. In all other respects, the Recommended Order entered on November 18, 1998, is reaffirmed.

DONE AND ORDERED this 28th day of April, 1998, at Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1998.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

Felix M. Adams, Esquire

138 Bushnell Plaza, Suite 201 Bushnell, Florida 33513

Richard D. Sneed, Esquire

Mardi Executive Center, Suite 206 1905 South 25th Street

Fort Pierce, Florida 34947-4739

Brenda Hyatt, Chief

Bureau of Licensing and Bond

508 Mayo Building

Tallahassee, Florida 32399-0800

Nick Cerulli, Esquire Bond Claim Department Reliance Insurance Center

4 Penn Center Plaza

Philadephia, Pennsylvania 19103

Richard D. Tritschler, Esquire Department of Agriculture and

Consumer Services

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Supplemental Recommended Order on Remand within fifteen days.

Any exceptions to this Supplemental Recommended Order should be filed with the Department of Agriculture and Consumer Services.

Docket for Case No: 97-000658

Orders for Case No: 97-000658