STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORKY FOODS CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2061A

) MID-SOUTH DISTRIBUTORS, INC. ) and PEERLESS INSURANCE COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this case on October 7, 1985, in West Palm Beach, Florida.

The issue for determination at the final hearing was whether the Respondents, Mid-South Distributors and Peerless Insurance Company, were obligated to pay the Petitioner, Corky Foods Corporation, an additional

$3,168.00 on a contract for the sale of tomatoes.

PROCEDURAL BACKGROUND

On March 7, 1985, Petitioner filed a complaint with the Department of Agriculture and Consumer Services alleging that Respondents owed $24,717.60 on a contract for the sale of tomatoes. Thereafter, on April 19, 1985, Petitioner filed an amended complaint with the Department of Agriculture stating that subsequent to the filing of the initial complaint, Respondent tendered payment in the amount of $21,549.60, and therefore, Respondents' alleged debt was decreased to $3,168.00.

At the final hearing, neither party was represented by counsel. Claude Bowen, Office Manager for Corky Foods Corporation, and Daniel Garcia, Vice President of Sales for Corky Foods Corporation, testified on behalf of the

Petitioner. In addition, Petitioner's exhibits 1, 2, 3, and 4 were received into evidence. Don Phillips, Vice President of Mid-South Distributors, Inc. and Tommy P. Adams, a tomato broker, testified on behalf of Mid-South Distributors. In addition, Respondents' exhibits 1(A)-(H), 3, 4, 5, and 6 were admitted into evidence. (No exhibit 2 was offered or admitted.) Peerless Insurance Company was duly noticed of the final hearing but did not send a representative.

FINDINGS OF FACT

1. Shortly before January 21, 1985, Tommy P. Adams, on behalf of Mid-South Distributors, placed an order with salesman Daniel Garcia, of Corky Foods Corporation, for the purchase of tomatoes. Mid-South Distributors was to purchase one hundred and forty-four (144) 5x6, eight hundred and sixty-four (864) 6x6, and five hundred and seventy-six (576) 6x7 boxes of tomatoes from Corky Foods. The parties agreed that the price of each unit would be fixed at $1.00 less than "market price." However, no price was established at the time of sale because tomato prices were unstable due to a freeze which passed through the area on January 19 and 20, 1985. Mid-South Distributors and Corky Foods had used this type of billing arrangement satisfactorily in past business transactions.

   
   

2. On January 21, 1985, the tomatoes were shipped to Mid-South Distributors from the packing house in Boynton Beach, Florida. Thereafter, on January 23, 1985, an invoice was sent by Corky Foods to Mid-South Distributors establishing the price of the tomatoes as follows:

   
   

   $19.15 per unit for the 5x6 containers;

   $17.15 per unit for the 6x6 containers; and

   $15.15 per unit for the 6x7 containers.

   
   

3. Mid-South Distributors remitted payment to Corky Foods based on the following assumed market prices:

   
   

   $16.00 for the 5x6;

   $14.00 for the 6x6; and

   $12.00 for the 6x7 boxes of tomatoes.

   
   

4. Corky Foods Corporation sold 5x6 boxes of tomatoes to other dealers during the period in question for 519.15 per unit; 6x6 boxes of tomatoes during the period in

   question for $17.15; and 6x7 boxes of tomatoes during the time in question for $15.15.

   
   

5. Adams Brokerage (Tommy P. Adams) purchased 5x6 boxes of tomatoes from area sellers during the time in question for $16.00; 6x6 boxes of tomatoes from area sellers during the time in question for $14.00; and 6x7 boxes of tomatoes from area sellers during the time in question for $12.00.

   
   

6. The Southeastern Fruit and Vegetable Report, printed in Thomasville, Georgia on Thursday, January 24, 1985, set market prices on tomatoes in "South and Central Florida" at $20.00 for 5x6, $18.00 for 6x6, and $16.00 for 6x7. The Southeastern Fruit and Vegetable Report is often used as a guideline in establishing prices for the industry; the prices reported are based in part on information or "quotes" received from different shippers in the area under consideration. Notably, a shipper's quoted price for a particular day may not be the same price at which the shipper actually sells the commodity.

   
   

7. The Southeastern Fruit and Vegetable Report used the geographical area of "South and Central Florida" in establishing market prices for tomatoes. The south and central Florida area is a reasonable geographical boundary to consider in establishing market prices for tomatoes sold at individual locations within those boundaries. The customary way in which Corky Foods Corporation determines market prices is by calling other large area packing houses, and by referring to the Southeastern Fruit and Vegetable Report. In establishing the prices for the tomatoes herein discussed, Corky Foods Corporation consulted (among other area packers) Florida Tomato Packers, a large tomato packer located in Homestead, Florida.

   
   

8. The locations at which Tommy P. Adams purchased tomatoes for the lower prices included Lantana, Naples, Bonita Springs, Boca Raton, and Immokalee.

   
   

9. Area market prices for tomatoes immediately prior to the freeze were as low as $11.00 for 5x6; $10,00 for 6x6; and $8.00 for 6x7. Generally, severe weather conditions, such as a freeze, will cause market prices for tomatoes to rise.

10. The Respondents did not dispute the quality or condition of the tomatoes; market price was the sole source of disagreement between the parties.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

12. Section 604.21, Florida Statutes (1983) provides that any person who claims to be damaged by a breach of the conditions of an agreement given by a licensed dealer in agricultural products may file a complaint seeking redress. Here, Petitioner has availed himself of that right and seeks an additional $3,168.00 for the shipment of tomatoes to Respondent on January 21, 1985.

    
    

13. In administrative proceedings, as in court proceedings, the burden of proof is upon the party asserting the affirmative. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Accordingly, Petitioner has the burden of proving, by a preponderance of the evidence, that market prices for tomatoes in the area during the period in question were

    $19.15 for 5x6; $17.15 for 6x6; and $15.15 for 6x7. This burden, Petitioner has not met. Competent and substantial evidence was admitted into the record establishing that Petitioner sold tomatoes to other dealers at the amount alleged by Petitioner to be market price and that at least one other area packing house quoted those prices. However, competent and substantial evidence admitted at the formal hearing established that other packing houses were selling tomatoes for much lower prices than the figures asserted by Petitioner to be "market price."

    
    

14. Market price is defined in Black's Law Dictionary, 5th Edition, as "the price at which a seller is ready and willing to sell and a buyer ready and willing to buy in the ordinary course of trade." At best, the evidence is equal with nothing to tip the scales in favor of Petitioner. While relevant and useful, the Southeastern Fruit and Vegetable Report is not legally conclusive in establishing market prices.

From the foregoing, it is concluded that Petitioner has failed to prove, by a preponderance of the evidence, that the market prices of tomatoes during the relevant period were $19.15 for 5x6; $17.15 for 6x6; or $15.15 for 6x6.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a Final Order be entered dismissing Corky Foods Corporation's Amended Complaint herein.

DONE AND ORDERED this 8th day of November, 1985 in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1985.

APPENDIX

Pursuant to Section 120.59(2), Florida Statutes (1983), following is submitted in response to Petitioner's and Respondent's Proposed Findings of Fact:

Petitioner's Proposed Findings of Fact Paragraph: Ruling:

1. Accepted; see paragraphs 1 and 2, Recommended Order.

2. Rejected as a conclusion of law and not supported

   by the evidence.

3. Partially accepted; see paragraph 7, Recommended

   Order.

4. Partially accepted; see paragraphs 6 and 7, Recommended Order. Facts not included therein were rejected as not being established by evidence presented at the

   hearing.

5. Rejected; irrelevant and not supported by the evidence.

6. Accepted; see paragraph 4, Recommended Order.

7. Accepted; see paragraphs 1 and 2, Recommended Order.

8. Accepted; see paragraph 10, Recommended Order.

9. Rejected; not a finding of fact.

Respondent's Proposed Findings of Fact Paragraph: Ruling:

a law.

1 Partially accepted; see paragraphs 1-10, Recommended Order. Rejected to the extent that the majority of this paragraph contains

statement of the issues and conclusions of

COPIES FURNISHED:

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Robert Chastain, Esquire General Counsel

Mayo Building Room 513

Tallahassee, Florida 32301

Mr. Joe W. Kight

Bureau of Licensing & Bond Department of Agriculture Mayo Building

Tallahassee, Florida 32301

Donna L. Fuller Vice-President

Corky Foods Corporation Post Office Box 1019

Boynton Beach, Florida 33425

Mid-South Distributors, Inc. 2601 South Blossom Trail Orlando, Florida 32805

Docket for Case No: 85-002061

Orders for Case No: 85-002061