STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINE ISLAND FARMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-6460A

) FIVE BROTHERS PRODUCE, INC., ) and FLORIDA FARM BUREAU )

MUTUAL INSURANCE CO., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 22, 1991, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Pine Island

Farms, Inc.: Jack Wishart

Pine Island Farms, Inc. Post Office Box 247 Goulds, Florida 33170

For Five Brothers

Produce, Inc.: Pete Johnson

Five Brothers Produce, Inc. Post Office Box 3592 Florida City, Florida 33034

For Florida Farm Bureau Mutual

Insurance Co.: No appearance

STATEMENT OF THE ISSUES

Whether Respondent Five Brothers Produce Inc. is indebted to Petitioner for agricultural products and, if so, in what amount?

PRELIMINARY STATEMENT

On or about May 16, 1990, Petitioner filed a complaint with the Department of Agriculture and Consumer Services (Department) alleging that Five Brothers Produce Inc. (Five Brothers) had failed to pay Petitioner in full for tomatoes Petitioner had sold to Five Brothers earlier in the year. According to the complaint, Five Brothers owed Petitioner $2,710.25. The Florida Farm Bureau Mutual Insurance Co. was identified in the complaint as surety for Five Brothers.

On or about June 12, 1990, Five Brothers filed an answer to the complaint with the Department. In its answer, Five Brothers denied that it was indebted to Petitioner as a result of the transaction referenced in the complaint. It explained its position as follows:

The tomatoes in question were received at Five Brothers Produce from Pine Island Farms Saturday, 20 Jan. 1990. The tomatoes were rejected immediately because they were too red and soft; Pine Island was notified at once.

Pine Island said they were closing for the weekend and asked Five Brothers to hold them in Five Brothers' cooler. On Monday, 22 Jan. 1990, Five Brothers asked Pine Island if they could sell the rejected tomatoes to another customer. Pine Island said sell them and ask

$20.00; Five Brothers sold the tomatoes to Genecco, who returned $10.75. Five Brothers paid $10.75.

Upon reviewing Five Brothers' answer, the Department determined that there were disputed issues of material fact in the instant case. Accordingly, on October 11, 1990, the Department referred the matter to the Division of Administrative Hearings for formal hearing.

Three witnesses testified at hearing: Jack Wishart, Petitioner's representative; Pete Johnson, Five Brothers' representative; and Robert Barbare, an employee of Five Brothers who was involved in the transaction that led to the instant controversy. In addition to the presentation of the testimony of these witnesses, two exhibits were offered and received into evidence.

At the close of the evidentiary portion of the hearing on February 22, 1991, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than ten days following the close of the hearing. To date, neither party has filed any post-hearing submittal.

FINDINGS OF FACT

1. Petitioner grows tomatoes on its farm in Dade County.

   
   

2. Jack Wishart is in charge of the farm's operations.

   
   

3. Five Brothers Produce, Inc., is a dealer in agricultural products. At all times material hereto, Pete Johnson was responsible for buying and selling produce for Five Brothers. He was assisted by Robert Barbare.

   
   

4. On Friday, January 19, 1990, Johnson met with Wishart at Petitioner's farm. During their meeting, they discussed the possibility of Five Brothers purchasing all of Petitioner's 6x7 tomatoes. They ultimately entered into a verbal agreement concerning the matter. Under the terms of the agreement, Five Brothers agreed to purchase from Petitioner, and Petitioner agreed to sell to Five Brothers, Petitioner's supply of 6x7 tomatoes, which consisted of 293 packages, for $26.00 a package.

5. At the time, tomatoes were in scarce supply because of the damage that had been done to the South Florida tomato crop by the freeze of the prior month. As a result, the market price for U.S.#1 grade 6x7 tomatoes was $32.00 a package. Wishhart agreed to a lower price for Petitioner's 6x7 tomatoes because they were U.S.#2 grade.

   
   

6. The 293 packages of tomatoes were delivered to Five Brothers on the following day, Saturday, January 20, 1990.

   
   

7. Johnson had purchased the tomatoes for Five Brothers to resell to a customer in Atlanta, Georgia. Upon inspecting the tomatoes after their arrival at Five Brothers' loading dock in Florida City, Johnson determined that they did not meet the needs of this particular customer because, in Johnson's opinion, they were too ripe to be shipped out of state. Johnson thereupon telephoned Wishart to tell him that the tomatoes were not suitable for his Atlanta customer.

   
   

8. Later that same day, January 20, 1990, pursuant to Johnson's instructions, Barbare, Five Brothers' "late night clerk," contacted Wishart and advised him that Five Brothers wanted to return the tomatoes to Petitioner. The gates of Petitioner's farm were closed, and Wishart so informed Barbare. He then asked Barbare to store the tomatoes in Five Brothers' cooler until they could be returned to Petitioner's farm. Barbare agreed to do so.

   
   

9. Approximately a day or two later, Barbare again telephoned Wishart. He told Wishart that Five Brothers had found a customer to whom it could sell the tomatoes, which were still in Five Brothers' cooler. Wishart, in response, stated that Petitioner would lower its sale price and "take $20.00," instead of

   $26.00 as previously agreed, for the tomatoes. 1/

   
   

10. On Monday, January 22, 1990, Five Brothers consummated a deal with Leo Genecco & Sons, Inc., (Genecco) of Rochester, New York, which agreed to purchase the tomatoes from Five Brothers. 2/ The tomatoes were priced "open," that is, the price of the tomatoes was to be established after the sale.

    
    

11. Five Brothers ultimately received $3,149.75 ($10.75 a package) for the

    293 packages of 6x7 tomatoes it had sold to Genecco. It thereupon sent a check in that amount to Petitioner as payment for these tomatoes.

    
    

12. In the transaction at issue in the instant case, Five Brothers was not acting as a broker or agent for Petitioner. It purchased the tomatoes from Petitioner. The sales price was initially $26.00 a package and was later reduced to $20.00 a package. Accordingly, for the 293 packages of tomatoes Petitioner sold Five Brothers, it should have received from Five Bothers

    $5,860.00, $2,710.25 more than it was paid.

    
    

    CONCLUSIONS OF LAW

    
    

13. In accordance with Section 604.18, Florida Statutes, a "dealer in agricultural products," as defined in Section 604.15(1), Florida Statutes, must be licensed by the Department of Agriculture and Consumer Services to transact business in the State of Florida. "Before any [such] license is issued, the applicant therefor shall make and deliver to the [D]epartment a surety bond or certificate of deposit in the amount of at least $3,000 or in such greater amount as the [D]epartment may determine, not exceeding the maximum amount of business done or estimated to be done in any month by the applicant." Section 604.20(1), Fla. Stat.

14. A "dealer in agricultural products" is defined in Section 604.15(1), Florida Statutes, as follows:

    
    

    1. ny person, whether itinerant or domiciled within this state, engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer or his agent or representative for resale or processing for sale; acting as an agent for such producer on a net return basis; or acting as a negotiating broker between the producer or his agent or representative and the buyer.

       
       

       At all times material hereto, Five Brothers was a "dealer in agricultural products," as defined in Section 604.15(1), Florida Statutes.

       
       

15. "Agricultural products," as that term is used in Section 604.15(1), Florida Statutes, is defined in Section 604.15(3), Florida Statutes, as follows:

    
    

    [T]he natural products of the farm, nursery, grove, orchard, vineyard, garden, and apiary (raw or manufactured); livestock; milk and milk products; poultry and poultry products; and limes (meaning the fruit Citrus aurantifolia, variety Persian, Tahiti, Bearss, or Florida Key limes) produced in the state, except tobacco, tropical foliage, sugarcane, and citrus other than limes.

    
    

    Tomatoes are "agricultural products," as defined in Section 604.15(3), Florida Statutes.

    
    

16. "Any person claiming himself to be damaged by any breach of the conditions of a bond or certificate of deposit assignment or agreement given by a licensed dealer in agricultural products . . . may enter complaint thereof against the dealer and against the surety, if any, to the [D]epartment, which complaint shall be a written statement of the facts constituting the complaint. Such complaint [must] be filed within 6 months from the date of sale in instances involving direct sales." Section 604.21, Fla. Stat.

    
    

17. A formal hearing on the complaint must be conducted if there are disputed issues of material fact. The complainant has the burden of proving the allegations of the complaint by a preponderance of the evidence. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 415 (Fla. 4th DCA 1974). If the Department determines that the complainant has met his burden of proof, it must "enter its order adjudicating the amount of indebtedness due to be paid by the dealer to the complainant," which order is "final upon issuance." Section 604.21(5) and (6), Fla. Stat.

    
    

18. If payment is not made within 15 days after the issuance of the Department's order, the Department must, "in instances involving bonds, call upon the surety company to pay over to the department out of the bond posted by the surety for such dealer or, in instances involving certificates of deposit,

    call upon the financial institution issuing such certificate to pay over to the [D]epartment out of the certificate under the conditions of the assignment or agreement, the amount called for in the order of the [D]epartment" and, upon receiving such payment, the Department must distribute the proceeds to the complainant. Section 604.21(7) and (8), Fla. Stat.

    
    

19. In the instant case, Petitioner timely filed a complaint against Five Brothers and its surety, Florida Farm Bureau Mutual Insurance Co. pursuant to Section 604.21, Florida Statutes, alleging that Five Brothers had failed to make payment in full for 293 packages of tomatoes it had purchased from Petitioner in January of 1990, for $20.00 a package. In its answer to the complaint, Five Brothers disputed that it had underpaid Petitioner. 3/ The preponderance of the evidence adduced at the formal hearing held in this case, however, demonstrates otherwise and establishes that Five Brothers owes Petitioner

$2,710.25 for the tomatoes in question. Accordingly, the Department should issue an order directing Five Brothers to make payment to Petitioner in this amount.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Agriculture and Consumer Services enter a final order (1) finding that Five Brothers is indebted to Petitioner in the amount of $2,710.25, (2) directing Five Brothers to make payment to Petitioner in the amount of $2,710.25 within 15 days following the issuance of the order, and (3) announcing that, if such payment is not timely made, the Department will seek recovery from the Florida Farm Bureau Mutual Insurance Co., Five Brother's surety.

RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March, 1991.

STUART M. LERNER

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 18th day of March, 1991.

COPIES FURNISHED:

Jack Wishart

Pine Islands Farms, Inc. Post Office Box 247 Goulds, Florida 33170

Pete Johnson

Five Brothers Produce, Inc. Post Office Box 3592 Florida City, Florida 33034

Florida Farm Bureau Mutual Insurance Co. 5700 Southwest 34th Street

Gainesville, Florida 32608

Bob Crawford

Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, Esquire General Counsel

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture and

Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURAL AND CONSUMER SERVICES

PINE ISLAND FARMS, INC.,

petitioner,

vs. DOAH CASE NO. 90-6460A

FIVE BROTHERS PRODUCE, INC., and FARM BUREAU MUTUAL INSURANCE COMPANY,

Respondents.

/

FINAL ORDER

THIS CAUSE, arising under Florida's "Agricultural License and Bond Law" (Sections 604.15 - 604.34, Florida Statutes), came before the Commissioner of Agriculture of Florida for consideration and final agency action. On May 16, 1990 the Petitioner, Pine Island Farms, Inc., a producer of agricultural products as defined by Section 604.15(3), Florida Statutes, timely filed an administrative complaint pursuant to Section 604.21, Florida Statutes, to collect $2,710.25 for tomatoes it sold to Respondent, Five Brothers Produce, Inc., a licensed dealer in agricultural products. Respondent's license for the time in question was supported by a bond required by Section 604.20, Florida Statutes, written by Florida Farm Bureau Mutual Insurance Company. The Respondent's answer denied owing petitioner, so this matter was subsequently heard in accordance with provisions of Section 120.57(1), Florida Statutes, as reflected in the Hearing Officer's Recommended Order, rendered March 19, 1991, a copy of which is attached hereto as Exhibit, to which no party filed written exceptions.

Upon consideration of the foregoing and being otherwise fully advised in the premises, it is

ORDERED:

1. The Hearing Officer's findings of fact are adopted in toto as this agency's findings of fact.

   
   

2. The Hearing Officer's conclusions of law are adopted in toto as this agency's conclusions of law.

   
   

3. The Hearing Officer's recommendation that Respondent is indebted to Petitioner for $2710.25 is, accordingly, hereby approved and adopted as the appropriate disposition of this matter.

Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review

Proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, Room 514, Mayo Building, 407 South Calhoun Street, Tallahassee, Florida 32399-0800, and a copy of the same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE AND ORDERED this 4th day of June, 1991.

BOB CRAWFORD

Commissioner of Agriculture

ANN WAINWRIGHT

Assistant Commissioner

FILED with the Agency Clerk, this 4th day of June, 1991.

CAROL DELANEY, PLS, CLA, Agency Clerk

Copies furnished to:

Jack Wishart

Pine Island Farms, Inc. Post Office Box 247 Goulds, Florida 33170

Pete Johnson

Five Brothers Produce, Inc. Post Office Box 3592

Florida City, Florida 33034

Florida Farm Bureau Mutual Insurance Co. 5700 Southwest 34th Street

Gainesville, FL 32608

Florida Administrative Law Report Hearing Officer, Stuart M. Lerner

1. There was conflicting testimony as to what was said during this telephone

   conversation. The Hearing Officer has resolved the conflict in the testimony in favor of Wishart's version of the conversation because it is more plausible than Barbare's conflicting account, given the unrefuted evidence concerning (1) the then existing market conditions (scarcity of supply), and (2) Wishart's established practice of accepting only firm and definite, rather than negotiable, sale prices for Petitioner's produce.

2. Before the deal was consummated, Johnson was told by Barbare about the telephone conversation Barbare had had with Wishart concerning the price of the tomatoes.

3. Because the only dispute in the instant case concerns whether Petitioner was underpaid by Five Brothers under the terms of their oral agreement, the validity

of that agreement may be presumed and Petitioner may not be denied relief on the ground that enforcement of the agreement is barred by the statute of frauds.

See J.R. Sales, Inc., v. Dicks, 521 So.2d 366, 369 (Fla. 2d DCA 1988).

Docket for Case No: 90-006460

Orders for Case No: 90-006460