STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCUS D. ALSTON d/b/a )

ALSTON GROVES, )

)

)

Petitioner, )

)

vs. ) CASE NO. 89-5041A

) SOUTHEAST GROVE MANAGEMENT, INC.,) and FLORIDA FARM BUREAU MUTUAL ) INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 15, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Marcus D. Alston, pro se

14100 Southwest 232nd Street Goulds, Florida 33110

For Respondent Benjamin S. Schwartz, Esquire Southeast Grove 1 CenTrust Financial Center Management, Inc.: 36th Floor

100 Southeast 2nd Street Miami, Florida 33131

For Respondent Florida Farm

Bureau Mutual Did not appear and Insurance Company: was not represented

STATEMENT OF THE ISSUE

Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $39,167.58 for mangoes grown by Petitioner and picked and sold by Respondent southeast

PRELIMINARY STATEMENT

Petitioner filed a Complaint with the Florida Department of Agriculture and Consumer Services alleging that Respondent Southeast Grove Management, Inc., owes him additional monies for mangoes grown by him and picked and sold by Respondent Southeast. Respondent Southeast requested a formal hearing on the allegations contained within that Complaint. This matter was subsequently transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.

Petitioner testified on his own behalf and presented the testimony of Irving Jones. Donald Reynolds testified on behalf of Respondent Southeast. Additionally, Respondent's Exhibits numbered 1-3 were admitted in evidence.

FINDINGS OF FACT

1. Petitioner Marcus D. Alston d/b/a Alston Groves is a grower of mangoes in Goulds, Florida.

   
   

2. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the mangoes, then takes them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the mangoes pays Southeast after receipt of the mangoes, Southeast ascertain's what prices were paid for the mangoes and then calculates its costs and pays the grower the difference.

   
   

3. Between June 24 and August 9, 1988, Southeast sold 3,861.2 bushels of mangoes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's mangoes sold by Southeast.

   
   

4. Petitioner disputes Southeast's calculations as to the price which Southeast received for the mangoes, the percentage of the mangoes sold by Southeast which "graded out" for sale, and the amount of picking and inspection fees charged by Southeast. Although Petitioner claims he had a verbal contract whereby Southeast agreed to pay him a flat rate of $20 per bushel minus picking charges, his Complaint seeks payment based on prices ranging from $6 to

   $20 per bushel which he also alleges were the market prices quoted to him by Southeast. At final hearing, Petitioner took the position that he is not seeking reimbursement of $20 per bushel but for only the lesser per bushel prices. No competent, substantial evidence was offered to prove that the prices Southeast received for the mangoes were higher than those reflected in Southeast's records.

   
   

5. Petitioner claims that 100% of each picking was high quality, saleable fruit. No competent, substantial evidence was offered to justify Petitioner's selection of 100% for all pickings. The 100% figure selected by Petitioner allows for no differences in the amount of marketable mangoes from each picking, and there is no evidence to support the proposition that no matter when during the season the mangoes were picked exactly 100% of them were marketable as top grade mangoes. Further, during final hearing, Petitioner testified regarding his low cull rate, thereby admitting he knew that his mangoes were not 100% marketable.

6. Although Southeast's records erroneously reflect inspection fees paid by Southeast to be deducted by Southeast from the sale price of the mangoes, no inspection fees were

   actually paid by Southeast, and Southeast has not deducted any inspection fees from Petitioner's account in calculating the net amounts to be paid to Petitioner by Southeast.

   
   

7. The parties have stipulated that Southeast is not entitled to deduct picking fees for those batches of mangoes which Petitioner picked himself and delivered to Southeast. Southeast's records reflect that no picking fees were charged to Petitioner for the mangoes grown by Petitioner and sold by Southeast relating to 19 of the 48 tickets at issue in this proceeding.

   
   

8. As to the mangoes reflected in 13 additional tickets, at the conclusion of the final hearing the parties

   requested and were afforded additional time to jointly review the actual picking tickets (not offered in evidence) for the name of the picker on each ticket to ascertain if the picker was a member of Petitioner's crew, thereby entitling Southeast to no picking fee, or a member of Southeast's crew, thereby entitling Southeast

   to collect a picking fee. The parties were to then file a statement regarding which additional batches of mangoes were

   picked by Petitioner's own employees. The parties have failed to do so, and Petitioner offered no evidence regarding this point on which a Finding of Fact can be made.

   
   

9. Southeast's accounting sheet contains a column entitled "Net Actual" which sets forth the figures Southeast claims it owes Petitioner for the mangoes represented by each

   picking ticket. The total for that column equals $35,874.68, the total figure which Southeast claims it owes Petitioner. Southeast has paid Petitioner a total of $28,888.51 for his

   mangoes. Therefore, Southeast owes Petitioner the additional amount of $6,986.17.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

11. The burden of proof is on the Petitioner in this proceeding, and Petitioner has failed to meet that burden. No

competent, substantial evidence was offered in support of Petitioner's contention that his mangoes were of the quality alleged by him, that Southeast was able to sell his mangoes for

the prices he claims, or that the picking fees charged to him by Southeast should have been lower than they were. On the other hand, Southeast's own records show that it owes him an additional

$6,986.17.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Marcus D. Alston d/b/a Alston Groves in the amount of $6,986.17 and that such monies should be paid to him within fifteen days from the entry of the Final Order.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31 day of January, 1990.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31 day of January, 1990.

COPIES FURNISHED:

Cliff Willis

Florida Farm Bureau Mutual Insurance Company

1850 Old Dixie Highway Homestead, Florida 33033

Don Reynolds

c/o Aaron Thomas, Inc.

11010 North Kendall Drive, Suite 200

Miami, Florida 33176

Marcus D. Alston Alston Groves

14100 Southwest 232nd Street Goulds, Florida 33110

Clinton H. Coulter, Jr., Esquire Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, Florida 32399-0800

Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor

100 Southeast 2nd Street Miami, Florida 33131

Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and

Consumer Services The Capitol

Tallahassee, Florida 32399-0810

Mallory Horne, General Counsel Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Ben Pridgeon, Chief

Bureau of Licensing & Bond Department of Agriculture and

Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

MARCUS D. ALSTON d/b/a ALSTON GROVESS,

Petitioner,

LB CASE NO. 89-0035

1. DOAH CASE NO. 89-5041A

   
   

   SOUTHEAST GROVE MANAGEMENT, INC., and FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY,

   
   

   Co-respondents.

   /

   
   

   FINAL ORDER

   
   

   This case arises out of Florida's "Agriculture License and Bond Law," Sections 604.15-604.34, Florida Statutes (hereinafter referred to as "the law") under the umbrella of Florida's Administrative Procedures Act,Chapter 120, Florida Statutes (hereinafter referred to as "the A.P.A."). It is here for final agency action by the Departeent following receipt and upon consideration of the Hearing Officer's Recommended Order.

   FINDINGS OF FACT

   
   

   1. In two companion cases, decided today--Joyce MdKiness v. Southeast Graves Management, Inc. and Florida Farn Bureau Mutual Insurance Company (LB Case No. 89-0035; DOAH Case No. 89-5038A) and Donald R. Fox, Jr. and Dolores W. Fox d/b/a Don Fox Graves v. Southeast Groves Management, Inc. and Florida Fann Bureau Mutual Insurance Company (LB Case No. 89-0035; DOAH Case No. 89-5040A) -- the Department mailed Southeast a Request For Accounting on October 19, 1988, which had been precipitated by request therefor from the two similarly situated petitioners, whose original complaints against Southeast had been made earlier in 1988, July 25 and September 27, respectively.

      
      

   2. Southeast received the Departeent's request in those companion cases on October 28, 1988, as indicated by the signed return receipt from Southeast.

      
      

   3. Southeast failed to respond to the request for accounting in either compion case.

      
      

   4. In the instant case, on February 28, 1989 a sworn complaint was made by Petitioner (for $68,056.09), which was reduced to $39,167.58 by amended complaint dated March 28, 1989.

      
      

   5. The Department then sent a Notice of Filing of Complaints to both Co- respondents on May 12, 1989, advising of Petitioner's amended complaint and noting the Co-respondents' right to answer and request a hearing.

      
      

   6. Neither Co-respondent answered.

      
      

   7. On August 25, 1989 the Department entered an Order under Subsection 604.21(4) of the law for Petitioner on its sworn amended complaint against the Co-respondents for $39,167.58 (as well as for the companion cases petitioners McKiness and Don Fox Graves on their complaints against Co-respondents) as to the unaccounted for mangos which they had sold for the account of Petitioner.

      
      

   8. By letter dated August 30, 1989 Southeast requested, pursuant to Subsections 604.21(5) and (6) of the law a formal Section 120.57(1) hearing before DOAH following which the Recommended Order here for consideration was issued.

      
      

   9. There the Petitioner was not represented by legal counsel; Southeast

      was.

      
      

   10. The status of the parties is indisputed: Southeast is a "dealer in

       agricultural products" by virtue of having acted as agent for Petitioner, the "producer" of mangos, which Southeast sold to third parties for Petitioner's account on a "net return basis." See s. 604.15(1), F.S.

       
       

   11. The law defines "net return basis" as a sale of an agricultural product by an owner's agent, who "pays the owner of such products the net proceds after subtracting all authorized and allowable deductions." See s. 604.15(4), F.S.

       
       

   12. Thus, the relationship between Petitioner and Southeast was not that of seller and buyer, but is one of principal and agent.

   13. Indeed, by operation of the provision of the law which provides that the agent "pays the owner of such products the net proceeds after subtracting all authorized and allowable deductions," Respondent is also trustee for Petitioner, as the owner of the mangos at issue, with the trust's property consisting of the gross proceeds from the sale of the mangos less "all authorized and allowable deductions." Ibid.

       
       

   14. Critically, in addition to Southeast's fiduciary duty as trustee to account for the trust property, Subsection 604.22(1) of the law applicable here explicitly imposes a statutory duty on Southeast to not only account for sales within 48 hours thereof, but that

       
       

       [s]uch 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 [agent], along with the net amount due the producer.

       
       

   15. In addition, the law explicitly authorizes the Department to examine the records of any dealer in agricultural products on its own initiative, as well as on the complaint of any interested person. S. 604.23, F.S. However, in this case the Department did not make demand therefor on Southeast because it had ignored such in the companion cases of McKiness and Don Fox Graves. Paragraph 3, supra.

       
       

   16. In any case, clearly Southeast failed to properly account to Petitioner as required by Subsection 604.22(1). Not until presentation of its case at the formal Section 120.57(1) hearing did Southeast tender any accounting. and then such was clearly lacking in the requisite specificity of the law, i.e., complete information as to the agent's calculations of the "net return".

       
       

   17. Yet, as a result of that "accounting" the Hearing Officer found such to be competent substantial evidence which Petitioner did not meet its burden of proof by overcoming.

       
       

   18. On the other hand, absent Southeast's late and incomplete "accounting" there is no competent substantial evidence which either overcomes the Department's prior nonfinal order of August 25, 1989 or which refutes Petitioner's sworn amended complaint as to the amount owed it by Southeast.

CONCLUSIONS OF LAW

They were silent when they ought to have spoken, and will not be allowed to speak now. Ponder v. Moseley, 2 Fla. Rep. 207 (1848) at 231.

The admission into evidence of Southeast's accounting--despite the breach of its fiduciary duty to have made such months earlier, as well as the breach of its statutory duty to have made such not only within 48 hours of such sales but with specificity regarding such sales to third parties--clearly reflects that

the proceeings on which the Hearing Officer's findings were based do not comply with essential requirements of law within the meaning of Subparagraph 120.57(1)(b)10, Florida Statutes.

Indeed, contrary to the Hearing Officer's conclusion of law that Petitioner had the burden of proof and failed to maet it, that burden shifted to the Southeast long before Petitioner's sworn complaint was even filed: it was a breach both of Southeast's fiduciary duty as well as Southeast's statutory duty not to tender an accounting to Petitioner shortly after the sale of each lot of mangos.

As a result of Southeast's breach of its pre-complaint fiduciary duty to account to Petitioner and Southeast's pre-complaint statutory duty to account to Petitioners--but, rather, Southeast's waiting until after Petitioner had rested its case before tendering any accounting, much less an incomplete accounting contrary to the controlling statute (not to mention Southeast's failure to produce records to the Department)--the evidence introduced at the hearing by Southeast should have been--and is--barred as a matter of law.

It is called estoppel or conclusion, because a man's act or acceptance stoppeth or closeth up his mouth to allege or plead the truth. Lord Coke See, U.S. Casualty Co. v.

Godwin, 158 Fla. 64, 67 So.2d 612

(1946).

Southeast waived its right to introduce it because it failed to perform its duty to provide such accounting sooner.

A party may waive any rights to which he is legally entitled. 22 Fla. Jur. 2d, Estoppel and Waiver s. 7, citing Mark v. Hahn, 177 5o.2d 5 (Fla.

1965).

Absent such "accounting" at the hearing, there was and is no competent substantial evidence of record to oerome Petitioner's sworn amended complaint.

The effect of an estpppel, whether legal or equitable, is the exclusion of evidence, and its existence must always be a question of law for the court

and not of fact for the jury. Camp v. Moseley , 2 Fla. 171 (1848) at 199.

It is, therefore, ORDERED AND ADJUDGED that Co-respondents are indebted to Petitioner in the amount of $39,167.58.

NOTICE OF APPEAL RIGHTS

Pursuant to provisions of Section 120.68, Florida Statutes, any adversely affected party may seek judicial review.

DONE and ORDERED this 27th day of June 1990 at Tallahassee, Florida.

DOYLE CONNER

Commissioner of Agriculture Filed this 27th day of June 1990.

Agency Clerk Copies furnished to all parties and hearing officer.

Docket for Case No: 89-005041

Orders for Case No: 89-005041