STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD VREELAND, )

)

Petitioner, )

)

vs. ) CASE NO. 85-3921A

) GOPHERBROKE FARMS PACKINGHOUSE, ) INC. and HARTFORD INSURANCE ) COMPANY OF THE SOUTHEAST, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above-styled case on March 7, 1986 in Ft.

Pierce, Florida.

APPEARANCES

For Petitioner: Richard Vreeland, Pro Se

Post Office Box 1803

Ft. Pierce, Florida 33454

For Respondent: Robert G. Neill, Qualified Representative 3479 South U.S. #1, Unit 1, Stall 7-17 Ft. Pierce, Florida 33450

No appearance for Hartford Insurance Company of the Southeast.

By complaint filed with the Bureau of License and Bond, Florida Department of Agriculture and Consumer Service (Department) on September 16, 1985, and submitted to the Division of Administrative Hearings on November 19, 1985 for hearing, Petitioner seeks payment of a balance due on zucchini squash sold and delivered to Respondent Gopherbroke Farm Packinghouse, Inc. (Gopherbroke) on April 11 - 17, 1985.

In support of the allegation, Petitioner testified on his own behalf and presented the testimony of Mrs. Richard Vreeland and Bobby Vreeland. Petitioner's exhibits 1-3 were admitted into evidence. Respondent presented the testimony of Robert G. Neill and Tommy York. Respondent's Exhibits 1-4 were received into evidence. Respondent's Exhibit 5 was late filed and received into evidence as agreed at the hearing.

Neither Petitioner nor Respondents submitted post-hearing proposed findings of fact and conclusions of law as allowed by Section 120.57(1)(b)(4), Florida Statutes (Supp. 1984).

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983)

   
   

2. At all times pertinent to this proceeding, Respondent Gopherbroke was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4528 by the Department, and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of

   $25,000.

   
   

3. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida.

   
   

4. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1) Florida Statutes (1983).

   
   

5. Prior to April 1, 1985, Petitioner and Robert Neill, President of Gopherbroke, verbally agreed for Respondent Gopherbroke to act as agent in the sale of certain zucchini squash produced by Petitioner in 1985 on a net return basis, i.e. Petitioner to receive the gross sale price of the squash minus a handling fee of $0.50 per carton and a sales commission of 1/

   6.5 per cent of the gross sales price.

   
   

6. Between April 1, 1985 and April 12, 1985 Petitioner through Tommy York delivered to Respondent Gopherbroke 84, 107 and

   19 cartons of small, medium and large zucchini squash respectively for a total of 210 cartons represented by receipt tickets numbers 276-282 issued by Respondent Gopherbroke.

   
   

7. Petitioner and Tommy York (York) had an agreement whereby York would harvest, clean, grade, package and deliver the zucchini squash produced by Petitioner to Respondent Gopherbroke for a percentage of the net proceeds derived from the sale of the squash. Respondent Gopherbroke was not a party to the agreement between Petitioner and York and was not authorized to withhold any money derived from the sale of Petitioner's squash to be paid to York under York's agreement with Petitioner.

   
   

8. The net return on the 210 cartons of zucchini squash referred to in paragraph 6 above was $698.17 of which Petitioner has received only $349.09, the balance of $349.08 was paid to York by Respondent Gopherbroke.

   
   

9. After April 12, 1985 York was no longer involved in the harvesting of Petitioner's squash due to a disagreement between York and Petitioner.

   
   

10. On April 15 and 17, 1985 Petitioner delivered 30, 62 and

    3 cartons of small, medium and large zucchini squash, respectively to Respondent Gopherbroke.

    
    

11. The net return on the 95 cartons of zucchini squash referred to in paragraph 10 above was $127.35 which has been paid to Petitioner in two separate checks. However, Petitioner was not paid for 5 cartons of medium zucchini squash that Respondent Gopherbroke shows on its exhibit 2 (4/19 - 8731) as being dumped and on 21 cartons of medium zucchini squash Respondent Gopherbroke shows on its exhibit 2 (4/17 - 87298) as open but later shows a gross sale of $47.25 with charges of $10.50 for handling and $3.07 commission and an adjustment of $43.29 for a minus net proceeds to Petitioner of $9.61. The evidence is clear that the zucchini squash delivered to Respondent Gopherbroke by Petitioner on April

    15 and 17, 1985 were harvested, cleaned, graded and packaged by Petitioner and his family and were of good quality when delivered. Respondent Gopherbroke presented no testimony or documentary evidence to support the dumping of the 5 cartons of squash or any justification for the adjustment on the 21 cartons of squash.

    
    

12. On at least one occasion, Petitioner advised Respondent Gopherbroke that it was not authorized to pay York any of moneys owed to Petitioner by Respondent Gopherbroke for zucchini squash delivered by York.

    
    

13. The price of medium zucchini squash during the period that the 5 cartons were dumped was $2.00 per carton for a gross

    amount of $10.00 minus the handling fee of $2.50 for a net return of $7.50. A sales commission of $0.65 had been deducted in Respondent Gopherbroke's earlier calculation.

    
    

14. Petitioner was not furnished an account of sales within

    48 hours after Respondent Gopherbroke sold the squash and the earliest payment for the squash was made 9 days after Respondent Gopherbroke had collected for Petitioner's squash.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding.

    
    

16. Respondent Gopherbroke was a "dealer in agricultural products" as defined in Section 604.15 (1), Florida Statutes (1983) and, as such1 was required to be licensed by the Department pursuant to Section 604.17, Florida Statutes (1983), and, as a requirement of licensing, had to show the Department evidence of a surety bond or a certificate of deposit in accordance with Section 604.20, Florida Statutes (1983) and Rule 5H-1.01, Florida Administrative Code. Respondent Gopherbroke was properly and sufficiently bonded by Respondent Hartford for the sum of

    $25,000.00

    
    

17. The Petitioner, a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes (1983) filed a timely complaint against Respondent Gopherbroke and its surety, Respondent Hartford in accordance with Section 604.21, Florida Statutes (1983) alleging, among other things, that Respondent Gopherbroke had refused to pay for "agricultural products" as defined by Section 604.15(3), Florida Statutes (1983) sold and delivered to Respondent Gopherbroke on April 1 - 17, 1985.

    
    

18. The evidence is clear that Respondent Gopherbroke was acting as Petitioner's agent in the sale of the squash in question. Respondent Gopherbroke knew that Petitioner was the producer and owner of the squash delivered to it by York and that Petitioner had not transferred title to York before or after delivery. It is equally clear that Respondent Gopherbroke was not authorized by Petitioner to withhold any of the proceeds of the sale for York and on at least one occasion was informed by Petitioner not to pay any of the proceeds to York. Therefore, Respondent Gopherbroke still owes Petitioner the sum of $349.08. Any moneys owed to York by Petitioner remains Petitioner's responsibility, as it remains Respondent Gopherbroke's responsibility to collect any moneys paid to York in error.

    
    

19. Section 604.22, Florida Statutes requires that a licensee, while acting as agent for a producer, furnish each producer an account of sales within 48 hours after the sale of the agricultural product and, among other things, the account of sales shall clearly show all adjustments to the assigned price, along with an explanation of such adjustments. Additionally, this subsection requires payment to producer by licensee within 5 days of licensee's receipt of payment.

    
    

20. The evidence clearly shows that the account of sales was not furnished within the required time frame nor was there a sufficient explanation furnished in regard to the 5 cartons of squash dumped or the adjustment made on the 21 cartons of squash. Therefore, Respondent Gopherbroke owes Petitioner, in addition to the $349.08 paid to York in error, the sum of $50.79 for a total of $399.87.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Gopherbroke be ordered to pay to the Petitioner the sum of $399.87. It is further RECOMMENDED that if Respondent Gopherbroke fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21, Florida Statutes 1983 and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983).

Respectfully submitted and entered this 8th day of April, 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 day of April, 1986.

ENDNOTE

1/ At the time of the verbal agreement the sales commission figure was not firm but it was understood between the parties that it would be approximately 6.5 per cent, which was the final figure.

COPIES FURNISHED:

Doyle Conner, Commissioner Department of Agriculture and

Consumer Services The Capitol

Tallahassee, Florida 32301

Robert Chastain, General Counsel Department of Agriculture and

Consumer Services

Mayo Building, Room 513 Tallahassee, Florida 32301

Ron Weaver, Esquire Department of Agriculture and

Consumer Services Mayo Building

Gopherbroke Farms Packinghouse, Inc. 3479 South U.S. 1

Ft. Pierce, Florida 33482

Richard Vreeland Post Office Box 1803

Ft. Pierce, Florida 33454

Docket for Case No: 85-003921

Orders for Case No: 85-003921