STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAYNE STEWART d/b/a CIRCLE S FARMS, )

)

Petitioner, )

)

v. ) CASE NO. 92-3327A

)

J. P. MACH AGRI-MARKETING, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 12 and 13, 1992, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCE

For Petitioner: Wayne and Suzanne Stewart, Pro Se Route 1, Box 64

East Palatka, Florida 32031

For Respondent: Jeffrey P. Mach, Pro Se

J.P. Mach Agri-Marketing, Inc. Post Office Box 7

Plover, Wisconsin 54467 STATEMENT OF ISSUES

The ultimate issue is whether the Respondent, J.P. Mach Agri-Marketing, Inc., (Mach), owes the Petitioner, Wayne Stewart d/b/a Circle S. Farms (Stewart), for various shipments of potatoes for the 1991 growing season, and if so, the amount owed.

PRELIMINARY STATEMENT

Stewart presented the testimony of Suzanne B. Stewart, Timothy Daniels Wells, Jeffery Cribbs, Gene Daniels, Mark Edwards Collins, Rita Stewart, Elbert

1. Tucker, and Wayne A. Stewart. Petitioner's Exhibits 1-13 and 15-24 were admitted in evidence.

   
   

   Mach presented the testimony of Robert Hannigan, Billy Daughdrill, Jr., Lynn Daughdrill, Jeffery P. Mach, Sr., and Wayne Stewart. Respondent's Exhibits 1-5 were admitted in evidence.

   
   

   The transcript of the proceedings was filed on December 10, 1992. Both parties timely filed their proposed findings of fact and conclusions of law on December 21, 1992. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. Wayne and Suzanne Stewart, doing business as Circle S Farms, grow potatoes in East Palatka, Florida. On approximately March 1, 1991, Stewart entered into two contracts with J.P. Mach, Inc., for the sale of potatoes. The terms of the contracts related to potatoes to be shipped between April 28 and May 31, 1991. Stewart agreed to sell 30,000 CWT of Atlantic potatoes guaranteed to chip for $5.75 per CWT and to sell 10,000 CWT of Sebago potatoes 1 and 7/8 inches in diameter for $6.00 per CWT.

      
      

   2. Both contracts provided as follows:

      
      

      If through any act of God, labor disturbance, war or any other circumstances beyond the control of Seller or Buyer, the Seller or Buyer are prevented from full or partial performance of the terms of this agreement, it is agreed that such failure to perform shall be excused and shall not form the basis for any claim of damage or breach.

      
      

   3. As part of the overall arrangement between these parties, Mach provided seed potatoes to Stewart and Stewart was required to reimburse Mach for those seed potatoes.

      
      

   4. In early April, 1991, the financial institutions which had loans to Circle S Farms wanted to see signed contracts between Circle S and licensed and bonded dealers. Stewart found out that J.P. Mach, Inc., and J.P. Mach Agri- Marketing, Inc., were not licensed and bonded in Florida. When Stewart brought this up to Mach, Mach demanded payment for the seed potatoes in order to pay the bond. Stewart was unable to pay for the seed potatoes at that time, but he did eventually pay for some of the seed potatoes. While there was conflicting testimony about the amount of the seed potato bill which remains unpaid, the greater weight of the competent, substantial evidence establishes that Stewart owes Mach $31,943.13 for the seed potatoes.

      
      

   5. Mach finally was licensed and bonded in Florida on April 25, 1991, as

      J.P. Mach Agri-Marketing, Inc.

      
      

   6. Pursuant to a separate verbal agreement, Stewart sold potatoes to Mach between April 22 and 27, 1991, at the established market prices of $19.50 CWT for LaChippers and for Atlantics. Mach never paid Stewart for the following deliveries: (1 load of LaChippers and 3 loads of Atlantics, respectively)

      
      

      4/23	45,540 lbs	@$19.50	$8.880.30
      4/26	47,420 lbs	@$19.50	$9,246.90
      4/27	44,340 lbs	@$19.50	$8.646.30
      4/27	43,880 lbs	@$19.50	$8,556.60
      		TOTAL	$35,330.10

      
      

   7. On April 23, 1991, a devastating tornado, which brought high winds, rain and hail, struck East Palatka and inflicted major damage to the potato crop on Circle S Farms. The damage to the potato crop at Circle S included the complete destruction of the vines, the erosion of the soil from around the roots, the exposure of the potatoes, and the pitting, cracking and splitting of the potatoes.

   8. Stewart immediately harvested the potatoes that could be shipped and covered the roots and potatoes in the field. He did what could be done to save the vines and allow them to regrow. The potatoes shipped to Mach between April

      23 and 28, 1991, were from these salvaged potatoes.

      
      

   9. Between April 23 and 30, 1991, Stewart and Mach renegotiated the contracts based on the severe damage to the potato crop. Finally, on April 30, 1991, they entered into a verbal modification of the contract for the Atlantic potatoes that involved shipments that had been shipped on April 28-30, 1991, at

      $19.00 CWT and 8 shipments of Atlantics at $12.00 CWT, with shipment of late potatoes and those that recovered from the damage in June, 1991, at the contract rate of $5.75 CWT.

      
      

   10. The contract for Sebagoes was not renegotiated because the Sebagoes had vascular rings and could not be salvaged for the making of potato chips. That contract became void based on the destruction of the Sebago crop by the storm. Mach was offered Sebagoes, but turned them down because they were not chipping quality.

       
       

   11. Stewart shipped the Atlantics at $12.00 CWT except that he did not have enough potatoes to completely fill the eighth truck. After the time that the contract for Atlantics was renegotiated, Stewart sold no Atlantic potatoes to any other dealer and he shipped to Mach all of the Atlantic potatoes he had. He fulfilled the renegotiated verbal contract to the extent possible in light of the act of God which had occurred.

       
       

   12. The following shipments of Atlantics were made pursuant to the renegotiated verbal contract:

       
       

       4/30	47,580	lbs	@19.00	CWT	$9,040.20
       4/30	44,360	lbs	@19.00	CWT	$8,428.40
       4/30	46,400	lbs	@19.00	CWT	$8,816.00
       4/30	43,340	lbs	@19.00	CWT	$8,234.60
       4/30	46,060	lbs	@19.00	CWT	$8,751.40
       4/30	47,740	lbs	@12.00	CWT	$5,728.80
       5/1	45,000	lbs	@12.00	CWT	$5,400.00
       5/1	48,280	lbs	@12.00	CWT	$5,793.60
       5/1	45,670	lbs	@12.00	CWT	$5,480.40
       5/2	48,780	lbs	@12.00	CWT	$5,853.60
       5/6	49,080	lbs	@12.00	CWT	$5,889.60
       5/6	40,780	lbs	@12.00	CWT	$4,893.60
       			TOTAL		$82,310.20

       
       

       Mach never paid for these potatoes.

       
       

   13. For the remainder of May, 1991, Stewart had only LaChipper potatoes available. He had no contract with Mach for LaChippers, so Stewart sold the LaChipper potatoes to another dealer. On June 2 and 3, 1991, Stewart shipped five loads of Atlantics to that same dealer. Stewart shipped his last three loads of potatoes, on June 4 and 5, 1991, to that same dealer, but none were Atlantics.

       
       

   14. Mach sent no trucks to Circle S Farms for loading after May 6, 1991. Stewart made calls to Mach regarding the late potatoes he had promised, but Mach did not return the calls. At no time during this period did Mach send a truck to Circle S Farms which was refused potatoes.

   15. By the third week of June, Stewart's crop had recovered and Circle S Farms was again producing for the market. Stewart offered these late potatoes to Mach, but Mach had already left Florida. Stewart sent a FAX to Mach in Wisconsin which stated "I thought you wanted my late potatoes?" Mach never replied. Stewart also sent an invoice for the potatoes which Mach had received, but for which he had never paid.

       
       

   16. Because Stewart believed that the renegotiated verbal contract with Mach promised Mach the late crop of Atlantic potatoes, Stewart left a forty acre field of late Atlantic potatoes in the field rather than harvest them and sell them to someone else. He believed that he needed to do so based on his discussion with Mach about his unpaid bill, during which Mach advised that he thought Stewart had breached his contracts.

       
       

   17. Mach made many allegations in defense of his failure to pay for these potatoes, however the credible evidence at hearing failed to support his claims that Stewart failed to fulfill his obligations under the contracts, original and renegotiated, that Stewart fraudulently breached the contracts, that Stewart intended to breach the contracts all along and used the tornado as an excuse, that the renegotiated contract required delivery of all varieties of potatoes to be applied to the contract or else the price of the delivered loads would revert back to the original contract price, or that Stewart owed to Mach any amount except for $31,943.13 for the seed potatoes. Mach made many outrageous allegations against Stewart, but did not present any credible evidence to support them.

       
       

   18. Mach failed to pay for $117,640.30 worth of potatoes which were delivered to him by Circle S Farms. Circle S Farms owes Mach $31,943.13 for seed potatoes. Therefore it is found that Mach owes Stewart and Circle S Farms

       $85,697.17.

       
       

       CONCLUSIONS OF LAW

       
       

   19. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Sections 120.57(1) and 604.21, Florida Statutes.

       
       

   20. Section 604.21 provides for a hearing for determination of whether an indebtedness exists and for entry of a final order by the Department of Agriculture and Consumer Services as to amount of that indebtedness. The credible, competent and substantial evidence admitted at hearing clearly shows by the preponderance of the evidence that such an indebtedness exists in this case.

       
       

   21. Stewart fulfilled the verbal agreement which was in effect until the written contracts were to begin. He shipped four loads of the salvaged potatoes to Mach on April 30, after the tornado, because on his inability to fully perform under the contract. The act of God resulted in Stewart's failure to perform under the terms of the written contract and therefore, according to paragraph 3 of the written contract, such failure to perform is excused and "shall not form the basis for any claim or damage breach." As was clearly written on the shipping tickets, the four loads shipped on April 30 were at

       $19.00 per CWT.

       
       

   22. Then, on April 30, the contract was renegotiated and Stewart fulfilled his side of the renegotiated agreement. Stewart was prepared to harvest and

       ship the late 40 acre field of Atlantic potatoes to Mach at the contract price, but Mach failed to send trucks for the delivery of those potatoes.

       
       

   23. Based on the evidence presented, it is determined that Mach owes Stewart $85,697.17. This figure does not include interest or any other costs because no evidence of an appropriate interest rate was offered.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order and therein:

1. Determine that J.P. Mach Agri-Marketing, Inc., is indebted to Wayne Stewart d/b/a Circle S Farms in the amount of $85,697.17.

   
   

2. Order J.P. Mach Agri-Marketing, Inc., to pay the indebtedness to Wayne Stewart d/b/a Circle S. Farms within fifteen days after the entry of the Final Order.

   
   

3. Order the payment of the bond of J.P. Mach Agri-Marketing, Inc., in the amount of $50,000 to Wayne Stewart d/b/a Circle S Farms if Mach fails to pay said indebtedness within the fifteen days allotted for said payment.

DONE and ENTERED this 11th day of January, 1993, in Tallahassee, Florida.

DIANE K. KIESLING

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 11th day of January, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3327A

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Wayne Stewart d/b/a Circle S Farms

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1); 4(7); 6(7); 8 & 9(10);10(14); 11(18); and 12(15 & 16).

2. Proposed findings of fact 5 and 7 are subordinate to the facts actually found in this Recommended Order.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, J.P. Mach Agri-Marketing, Inc.

1. The proposed findings of fact offered by Mach are contained in such long and rambling paragraphs that making of specific rulings is extremely difficult. Additionally, Mach has intermixed proposed findings of fact, summaries of testimony and argument so extensively that the actual proposed findings of fact cannot be separated. However, the proposed findings of fact are subordinate to the facts actually found in this Recommended Order, except for those proposed findings of fact which relate to the allegations discussed in Finding of Fact 17, which are rejected as being unsupported by the credible, competent and substantial evidence.

COPIES FURNISHED:

J. P. Mach

J. P. Mach Agri-Marketing, Inc. Post Office Box 7

Plover, WI 54467

Wayne Stewart Circle S Farms Route 1, Box 60

East Palatka, FL 32131

Joyce D. Mahr, Asst. Manager First Performance Bank

Post Office Box 306 Hastings, FL 32145

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

508 Mayo Building Tallahassee, FL 32399-0800

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, FL 32399-0810

Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810

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 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.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICE

WAYNE STEWART d/b/a CIRCLE S FARMS,

Petitioner,

vs. DACS CASE NO. 93-0146

DOAH CASE NO. 92-3327A

J. P. MACH AGRI-MARKETING, INC.,

Respondent.

/

FINAL ORDER

THIS CAUSE, arising pursuant to Florida's Agricultural License and Bond Law (Sections 604.15-604.34, Florida Statutes), is before the Commissioner of Agriculture as head of the Florida Department of Agriculture and Consumer Services (hereafter "the Department"), for final agency action.

Background

On October 17, 1991, Petitioner, WAYNE STEWART, d/b/a Circle S Farms (hereafter "Stewart"), a potato farmer, filed an administrative complaint (which was subsequently amended) with the department pursuant to Section 604.21, Florida Statutes, alleging that Respondent, J.P. MACH AGRI-MARKETING, INC. (hereafter "Mach"), a licensed dealer in agricultural products, owed him

$85,697.17 for potatoes it purchased ate open-market prices (of from $19.50 to

$12.00 per cwt.) pursuant to an oral contract.

Conceding to only $5.75 per cwt. pursuant to a written contract between them (which it already paid), Mach denied Stewart's complaint and requested a formal administrative hearing. Such was subsequently held before a hearing officer of the Division of Administrative Hearings after its referral there pursuant to Section 120.57, Florida Statutes (Supp. 1992).

Recommended Order

A recommended order was ultimately entered in Stewart's favor, to which Mach filed written exceptions.

A critical conclusion of law in the recommended order--the legal effect of an 'act of God clause' in the parties' written contract--was erroneously decided as a matter of law as follows:

"The act of God resulted in Stewart's failure to perform under the terms of the written contract and...such failure to perform is excused."

(Conclusion Of Law No. 21)

This purely legal issue is dispositive of the whole case, as set forth in the Conclusions Of Law below, and is controlled by the Department's earlier decision in Daniel Methvin v. J.P. Mach Agri-Marketing, Inc., and First Performance Bank (LB Case No. 92-0022 rendered May 22, 1992, adopting the hearing officer's recommended order therein at DOAH No. 91-6560A; April 3, 1992), cited to and relied upon by Mach in its Written Exceptions:

--the parties' written contract remained binding to the extent performance was not rendered impossible due to an act of God; and,

--such written contract was not replaced by an oral agreement since the seller's promise not to renege on the written contract was not consideration for the oral one.

As a consequence of so fundamental an error of law, many of the recommended order's findings of fact are rendered irrelevant and immaterial--even where supported by the record. Accordingly, to the extent that such do not appear in the Findings Of Fact immediately below, they are rejected therefor, i.e., as immaterial and irrelevant, as well as subordinate to the pertinent facts.

FINDINGS OF FACT

The following facts are not in dispute, having been taken from Stewart's Exhibits and relied upon by Mach's Written Exceptions.

1. In early March of 1991, Stewart entered into a written agreement to sell Mach 30,000 cwt. of Atlantic potatoes at $5.75 per cwt.

2. The parties' contract provided, among other things: If through any act of God...the Seller or

   Buyer are prevented from full or partial

   performance of the terms of this agreement, it is agreed that such failure to perform shall be excused and shall not form the basis for any claim of damage or breach.

   
   

3. In late March, Stewart entered into a written agreement to sell 5,000 cwt. of Atlantics to a Black Gold, Inc., also at $5.75 per cwt.

4. Stewart made no other written contracts to sell Atlantic potatoes in 1991.

   
   

5. Stewart had planted 200 acres of Atlantics that year, which he projected would produce over 45,000 cwt. (or 10,000 cwt. more than his two written contractual obligations).

   
   

6. However, on April 23 a devastating tornado containing hail and heavy rain struck the state's St. Johns River potato area, including Stewart's East Palatka farm. It destroyed virtually two-thirds of his Atlantic crop, so that he produced a total of only 15,765 cwt. of that variety.

   
   

7. Mach's license with the department was effective the next day, April

   24.

   
   

8. After the storm, Stewart delivered 7,340 cwt. of his reduced production

   to Mach (whose written contract had been for 30,000 cwt.) and 8,425 cwt. to Black Gold (whose written contract had been for 5,000 cwt.).

   
   

9. Subsequently, Stewart filed his Section 604.21 complaint alleging a post-storm oral agreement by Mach to pay open-market prices of from $19.50 to

$12.00 instead of the parties' pre-storm written contract of $5.75 per cwt. because "our original [written] contracts...were nullified as a result of the tornado." (Tr. 73)

CONCLUSIONS OF LAW

The department has jurisdiction over the parties hereto and over the subject matter hereof pursuant to Section 601.24, Florida Statutes, but such does not include deliveries Stewart made to Mach before April 24, 1991, because it was not a licensed dealer under the statute until then. Consequently, the second lot listed on Stewart's 16-lot complaint is outside of the jurisdiction here: Lot #08 (the LaChippers) was delivered on April 23, before Mach was licensed.

1. Methvin's Precedent: 'Act of God' Excuses Only Impossible Performance

   The 'act of God clause' in the parties' written contract only excuses "nondelivery of potatoes he failed to harvest on account of, among other things, tornadoes or hail." Methvin, supra.

   
   

   Consequently, Stewart is not excused with regard to the 15,765 cwt. of Atlantics he did harvest.

   
   

   Methvin correctly states:

   
   

   In order to show entitlement to damages far breach of an agreement [a post-storm oral contract at $19.50 cwt. which allegedly replaced the parties' pre-storm written contract at only $5.75 cwt.], petitioner must first show that an agreement supported by consideration came into existence. (Emphasis added.)

   Methvin the held:

   
   

   Since petitioner was obligated to perform at the [$5.75 cwt. written] contract price, no consideration flowed to the respondent for the [$19.50 cwt.] premium he agreed to pay to keep petitioner from reneging. (Emphasis added and citations omitted.)

   
   

   As Methvin concluded:

   
   

   In the present case, petitioner has failed to prove that a legally binding agreement [of

   $19.50 per cwt.] requiring respondent to pay a premium over and above the contract price [of

   $5.75 per cwt.] existed.

   
   

   Therefore, as a matter of law Stewart is entitled to the written contract price of $5.75 per cwt.--which he has already received--for the potatoes he was not prevented by the storm from delivering to Mach, the 15 lots of Atlantics of his complaint.

   
   

2. Two Additional Rationales Affirm Stewart's Original Obligation

   
   

   1. The Majority Contract View--Performance Was Not Impossible:

      
      

      In addition to the controlling precedent of Methvin, the parties' contract simply provided that Stewart was to sell Mach 30,000 cwt. of Atlantic potatoes. Because the contract did not identify the potatoes as being his crop or from his land, the majority view--albeit harsh--holds that since Stewart's contractual obligation could have been fulfilled by his acquiring potatoes from another source, he was legally obligated to do so. See, Semo Grain Company v. Oliver Farms, Inc., 530 S.W.2d 256 (Mo.Ct.App. 1975).

      
      

      However, despite Stewart's failure to have specifically identified the potatoes as the crop from his fields, nevertheless the 'act of God clause' of the parties' written contract clearly evidences their intent to limit Stewart's duty to deliver to his potatoes and to excuse such duty to the extent that his performance was rendered impossible by an act of God. See, Methvin, supra.

      
      

   2. The U.C.C.--Seller's Duty To Partially Perform Not Excused:

Under provisions of the Uniform Commercial Code clearly the storm did not render the parties' written contract either (1) "impossible" to perform under Section 2-613 or (2) commercially "impracticable" to perform under Section 2-615 (Sections 672.613 and 672.615, Florida Statutes, respectively).

1. Section 2-613: When the specifically identified subject matter of a contract suffers casualty without fault of either party, the contract can be avoided only if the loss--unlike Stewart's here--is total. Otherwise, the buyer has the option to accept part performance "without further right against the seller."

2. Section 2-615: Paragraph (a) provides that non-delivery by a seller "who complies with paragraphs (b) and (c)" is not a breach of contract if the agreed performance has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made.

But, here, even if the parties' original written contract met the condition of paragraph (a)--despite the presence of 'the act of God clause' which implies that the parties foresaw the occurrence (rather than non-occurrence) of the crop damage contingency when they contracted--paragraph (b) critically provides that if the occurring contingency affects only part of the seller's capacity to perform, then he must allocate production and deliveries among his customers in a manner that is "fair and reasonable." Compare, and accord, Methvin, supra.

And the last paragraph--(c)--not only requires the seller to seasonably notify the buyer when allocation is required under paragraph (b), but to estimate the quota "thus made available for the buyer."

Stewart clearly did not comply with either the 'fair and reasonable' allocation condition of paragraph (b) or the quota notification condition of paragraph (c).

Consider: From total Atlantic production of 15,765 cwt., Stewart delivered 8,425 cwt. to Black Gold who had contracted to buy only 5,000 cwt. (or less than

15 percent of Stewart's total contractual obligation of 35,000 cwt.); yet to Mach who had contracted to buy 30,000 cwt. (or more than 85 percent of Stewart's total contractual obligation), Stewart delivered only 7,340 cwt.

In summary, to the extent that Stewart's performance under the parties' original written contract is not otherwise partially excused as set forth in Items I and II A. above, neither U.C.C. Section 2-613 nor 2-615 is applicable to excuse Stewart's performance.

It is, therefore, ORDERED AND ADJUDGED

that upon authority of the department's final order in Methvin, supra, and its application to the facts here, Petitioner Stewart's complaint must be, and it is, denied.

NOTICE OF APPEAL RIGHTS

Any party to these proceedings adversely affected by this Final Order is entitled to seek review hereof 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, Mayo Building--5th Floor, Tallahassee, Florida 32399-08000, and a copy of the same with the appropriate District Court of Appeal within 30 days of rendition of this Final Order.

DONE AND ORDERED this 12th day of April, 1993.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

Ann H. Wainwright Assistant Commissioner

Filed this 13th day of April, 1993.

Leslie McLeod, Jr., Agency Clerk

COPIES FURNISHED:

Mr. Wayne Stewart Circle S Farms Route 1, Box 60

East Palatka, Florida 32131

J.P. Mach Agri-Marketing, Inc. Post Office Box 7

Plover, WI 54467

ATTN: Mr. J.P. Mach, Sr.

First Performance Bank Post Office Box 306 Hastings, Florida 32145 ATTN: Joyce D. Mahr

Asst. Manager

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 ATTN: Diane K. Kiesling, H.O.

================================================================= DISTRICT COURT OPINION

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

WAYNE STEWART d/b/a CIRCLE NOT FINAL UNTIL TIME EXPIRES TO S FARMS, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellant,

CASE NO. 93-1475

vs. DOAH CASE NO. 92-3327A

J. P. MACH AGRI-MARKETING, INC., Appellee.

/

Opinion filed August 26, 1994.

An appeal from an order of the Department of Agriculture and Consumer Services. Ronald W. Brown of Dobson, Christensen & Brown, P.A., St. Augustine, and John Michael Traynor, St. Augustine, for appellant.

No appearance by the appellee.

PER CURIAM.

The issue of applicability of sections 672.209 and 672.201, Florida Statutes, was not raised before the hearing officer or the Department of Agriculture and Consumer Services during the administrative proceedings and therefore, not properly raised for the first time on appeal. Escambia County v. Trans PAC, 584 So.2d 603 (Fla. 1st DCA 1991)

Affirmed.

ERVIN, WOLF and KAHN, J. J., concur.

Docket for Case No: 92-003327

Orders for Case No: 92-003327