STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSARIO AND VITO STRANO, )

d/b/a STRANO FARMS, )

)

Petitioner, )

)

vs. ) Case No. 99-3937A

) KELLY MARINARO, d/b/a SUNNY ) FRESH CITRUS EXPORT & SALES ) COMPANY, AND UNITED PACIFIC ) INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 7, 2000, by video teleconference with the parties appearing from West Palm Beach, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jack Moon

Strano Farms

Post Office Box 343064 Florida City, Florida 33034

For Respondent: Randall Starnes

Sunny Fresh Citrus Export & Sales, Company

2101 15th Avenue

Vero Beach, Florida 32960

STATEMENT OF THE ISSUES

Whether the Respondent is indebted to the Petitioner as stated in the complaint filed by the Petitioner and, if so, in what amount.

PRELIMINARY STATEMENT

This case began on July 13, 1999, when the Department of Agriculture and Consumer Services received a complaint filed on behalf of Petitioner, Rosario and Vito Strano d/b/a Strano Farms. Such complaint alleged that Respondent ordered and received Florida-grown agricultural products without making proper payment for same. More specifically, the complaint alleged Respondent owed $5,876.00 for garden variety tomatoes that were sold on April 2, 1999.

Respondent disputed the amount claimed and alleged that it had tendered full payment for the tomatoes. Respondent maintained that Petitioner had negotiated its check in full settlement of the disputed sale. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on September 20, 1999.

At the hearing, Petitioner presented testimony from Jack Moon, the salesperson who handled the matter on behalf of Strano Farms. Kelly Marinaro testified on behalf of Respondent. All exhibits received into evidence were forwarded to the Division of Administrative Hearings by the court reporter and have been

marked for identification as Joint Exhibit 1, Petitioner’s Exhibit 1, and Respondent’s Exhibits 1, 2, and 3. A transcript of the proceedings has not been filed. The proposed order filed on behalf of Respondent has been considered in the preparation of this Recommended Order. Petitioner did not file a proposed

order.

FINDINGS OF FACT

1. Petitioner, Rosario and Vito Strano d/b/a Strano Farms, is a producer of Florida-grown agricultural products as set forth in Chapter 604, Florida Statutes.

2. Respondent, Kelly Marinaro d/b/a Sunny Fresh Citrus Export & Sales Company, is a dealer of agricultural products doing business at 2101 15th Avenue, Vero Beach, Florida.

3. On April 2, 1999, Respondent purchased garden variety tomatoes from Petitioner. The driver accepting the tomatoes on Respondent’s behalf acknowledged that the tomatoes were received in good condition by signing a truck manifest.

4. The truck manifest provided, in pertinent part, "Any complaint must be made to [sic] Stano Farm in writing, during unloading, and accompanied by U.S.D.A. inspection."

5. Subsequently, Respondent’s agent telephoned Petitioner to advise that there was a problem with the condition of the tomatoes. Respondent did not immediately forward an inspection

   report and did not promptly make an accounting for the tomatoes that were subsequently liquidated.

6. Eventually, Respondent forwarded a copy of an inspection certificate for an inspection done on April 5, 1999. That certificate, while largely illegible, reportedly found the subject tomatoes to be in poor condition.

7. Petitioner requested payment for the tomatoes as originally agreed by the parties. Its invoice for the 1040 tomatoes claimed $6,084.00 as the amount due. The invoice provided that checks should be payable to Homestead Tomato Packing Co., Inc., but that "any complaint must be made to Strano Farms in writing immediately during unloading, and accompanied by U.S.D.A. inspection."

8. On or about June 29, 1999, by check made payable to Homestead Tomato Packing Co., Inc., Respondent forwarded the sum of $208.00 in payment for the subject tomatoes. On the backside of the payment check Respondent had stamped the following: "Acceptance of this check constitutes payment in full for invoice #12819."

9. Subsequently, Homestead Tomato Packing Co., Inc., negotiated the check. Petitioner did not provide a written dispute regarding the subject tomatoes prior to the tender of the partial payment.

10. In July of 1999 Petitioner filed a Complaint in the amount of $5,876.00 with the Department of Agriculture and Consumer Services, Bureau of License and Bond, Division of Marketing. The Complaint acknowledged receipt of the $208.00 partial payment but maintained no account of the sales or inspection report was included with the payment to justify the low return on the subject tomatoes.

11. At the hearing in this cause Respondent provided an accounting for the tomatoes that claimed the subject tomatoes were sold for $2,984.00. The accounting acknowledged that

    $336.00 would have been due to Petitioner. Such amount was not the tendered payment and was not provided to Petitioner at the time of partial payment.

12. To date the parties have been unable to resolve the disputed value of the tomatoes.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

14. Section 604.22, Florida Statutes, provides, in pertinent part:

    1. 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 she or 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 the payment to the producer within 5 days of the licensee's receipt of payment. (Emphasis added.)

       
       

15. In this case the Respondent has provided no credible explanation for its failure to comply with Section 604.22(1), Florida Statutes. Instead, it relies on the claim that since its partial payment was negotiated it is absolved of its responsibility to make full payment for the subject tomatoes.

16. The Petitioner bears the burden of proof in this matter to establish it is entitled to payment as alleged in the Complaint. It has met that burden.

17. Section 672.714, Florida Statutes, provides:

    
    

    Buyer's damages for breach in regard to accepted goods.

    
    

    1. Where the buyer has accepted goods and given notification (s. 672.607(3)) he or she may recover as damages for any nonconformity of tender the loss resulting in the ordinary

       course of events from the seller's breach as determined in any manner which is reasonable.

       
       

    2. The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

       
       

    3. In a proper case any incidental and consequential damages under the next section may also be recovered.

       (Emphasis added.)

       
       

18. Section 672.607(3), Florida Statutes, provides:

    
    

    (3) Where a tender has been accepted:

    
    

    1. The buyer must within a reasonable time after he or she discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; and

       
       

    2. If the claim is one for infringement or the like (s. 672.312(3)) and the buyer is sued as a result of such a breach he or she must so notify the seller within a reasonable time after he or she receives notice of the litigation or be barred from any remedy over for liability established by the litigation.

    (Emphasis added.)

    
    

19. The evidence in this cause established that Respondent failed to comply with the requirements of Section 672.607(3), Florida Statutes. Respondent did not timely notify Petitioner of the alleged problems with the subject tomatoes. Petitioner requested written notice of any claim, Section 604.22, Florida

    Statutes, required a timely accounting, and Respondent supplied neither.

20. Respondent cannot claim accord and satisfaction of this obligation (which was paid to a third party) without complying with the requirements of Section 604.22, Florida Statutes. Section 673.3111, Florida Statutes, does not authorize Respondent to circumvent the requirements of the law. Additionally, the partial payment was not tendered to the claimant. Petitioner did not acknowledge the disputed claim would be resolved for the amount tendered.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services, Bureau of License and Bond, Division of Marketing, enter a final order requiring Respondent to remit

$5,876.00 to Petitioner as provided by law.

DONE AND ENTERED this 13th day of March, 2000, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2000.

COPIES FURNISHED:

United Pacific Insurance Company Three Parkway

Philadelphia, Pennsylvania 19102-1376

Brenda D. Hyatt, Chief Department of Agriculture

and Consumer Services Mayo Building, Room 508

Tallahassee, Florida 32399-0800

Kelly Marinaro

Sunny Fresh Citrus Export & Sales Company

2101 15th Avenue

Vero Beach, Florida 32960

Jack Moon Strano Farms

Post Office Box 343064 Florida City, Florida 33034

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services

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

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0810

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 99-003937

Orders for Case No: 99-003937