STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIX L'S PACKING COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-4925A

)

DEBRUYN PRODUCE CO., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on January 29, 1993, in Fort Myers, Florida and by telephone on April 8, 1993.

APPEARANCES

For Petitioner: Mark S. London, Esquire

4030-C Sheraton Street Hollywood, Florida 33021

For Respondent: Clayton D. Simmons, Esquire

200 West First Street, Suite 22 Post Office Box 4848

Sanford, Florida 32772-4848

STATEMENT OF THE ISSUE

Whether Respondent owes payment to Petitioner for tomatoes sold by Petitioner to Respondent and, if so, in what amount payment is due.

PRELIMINARY STATEMENT

On June 26, 1992, the Petitioner filed an amended complaint with the Florida Department of Agriculture and Consumer Services (Department) related to the alleged nonpayment by the Respondent for tomatoes purchased from the Petitioner. The Respondent requested hearing on the matter. The Department referred the case to the Division of Administrative Hearings for further proceedings.

At the hearing, the Petitioner presented the testimony of four witnesses and had exhibits 1-11 admitted. The Respondent presented the testimony of one witness and had one exhibit admitted. Two Hearing Officer exhibits were admitted.

A transcript of the January 29 hearing session was filed on March 26, 1993.

A transcript of the April 8 hearing session was filed on April 29, 1993. Both

parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. Six L's Packing Company, Inc., (Six L's) is a corporation doing business in Immokalee, Florida. Insofar as relevant to this case, Six L's produces tomatoes for shipment and sale.

   
   

2. DeBruyn Produce Company (DeBruyn) is a corporation headquartered in Michigan and doing business in Castleberry, Florida. Insofar as relevant to this case, DeBruyn purchases produce for resale to other buyers.

   
   

3. On March 3, 1992, DeBruyn contacted Six L's and inquired about availability of "vine ripe" tomatoes. DeBruyn subsequently placed orders for Six L's tomatoes.

   
   

4. DeBruyn purchased the tomatoes on behalf of and for resale to C. H. Robinson Company. Under the terms of the sales, the tomatoes were purchased F.

   O. B. ("Free On Board") point of shipping.

   
   

5. The term F.O.B. point of shipping means that the buyer assumes responsibility for product in suitable shipping condition at time of delivery from the seller to the buyer. Otherwise stated, Six L's was not responsible for shipment of the tomatoes.

   
   

6. The tomatoes were shipped pursuant to arrangements made by representatives of DeBruyn and C. H. Robinson Company. DeBruyn did not inform Six L's of the final destination of the tomatoes.

   
   

7. DeBruyn asserts that, as to both loads of tomatoes, the tomatoes were defective when shipped and were not in suitable shipping condition. The greater weight of the evidence establishes that during all relevant periods of time, tomatoes shipped by Six L's were inspected pursuant to federal guidelines by a state inspector prior to shipment and were found to be within tolerances allowed by the State of Florida for shipment outside the state.

   
   

8. On March 4, 1992, Six L's sold 640 cartons of tomatoes to DeBruyn. The tomatoes were largely mature green, with some breakers and pinks.

   
   

9. Prior to shipment of the March 4 tomatoes, the Florida inspector noted that the produce displayed internal discoloration (commonly referred to as "gray wall") not exceeding four per cent of the produce examined. Such meets standards for suitable shipping condition of the produce.

   
   

10. Gray wall is a common disorder which occurs throughout agricultural regions. The causes of gray wall are unknown. The malady causes discoloration spreading from the stem through the fruit. If gray wall occurs, it will be found throughout the entire harvest from a specific growing field.

    
    

11. Tomatoes ripen at a temperature between 55 and 75 degrees. Gray wall is exacerbated when tomatoes are chilled to below 50 degrees. The damage will become apparent when the tomatoes become warm and begin to further ripen.

12. DeBruyn took delivery of the produce and shipped it to Salt Lake City, Utah, where it arrived on March 8, 1992. Upon arrival, the quality of the tomatoes was unsatisfactory. An inspection was requested and performed on March 10, 1992.

    
    

13. The inspection at the delivery point indicated gray wall discoloration of approximately 70 per cent of the lot.

    
    

14. The greater weight of the evidence establishes that such damage occurred through improper chilling and shipment of the tomatoes after control of the produce passed to DeBruyn.

    
    

15. On March 6, 1992, Six L's sold 1,120 cartons of tomatoes to DeBruyn. Again, the tomatoes were largely mature green, with some breakers and pinks.

    
    

16. Prior to shipment of the March 6 tomatoes, the Florida inspector noted that the produce displayed internal discoloration (commonly referred to as "gray wall") not exceeding four per cent of the produce examined. As previously stated, such produce meets standards for suitable shipping condition.

    
    

17. DeBruyn took delivery and shipped the produce to Salt Lake City where it arrived on March 10, 1992. Again, the quality of the tomatoes was unsatisfactory upon arrival. An inspection was requested and performed on March 11, 1992.

    
    

18. The inspection at the delivery point found light red to red tomatoes. A large quantity of the tomatoes were bruised and rotting. The greater weight of the evidence establishes that such damage occurred through lack of proper refrigeration of the produce during shipment.

    
    

19. DeBruyn asserts that the March 6 tomato shipment was improperly packed in bulk boxes and should have been packed in layers to prevent bruising during the shipment to Salt Lake City.

    
    

20. There is no evidence that DeBruyn informed Six L's that the tomatoes should have been packed in layered boxes or that the March 6 tomatoes would be shipped a substantial distance.

    
    

21. Six L's was to have received $11,888 for the March 4 shipment. Six L's was to have received $20,167.50 for the March 6 shipment. The total of the two shipments is $32,055.50.

    
    

22. DeBruyn salvaged 354 cartons of the March 4 load of tomatoes and dumped the remainder. The salvaged tomatoes were sold for a total of $6,170. DeBruyn paid to Six L's $4,953.60 for the produce which Six L's rejected.

    
    

23. DeBruyn salvaged 640 cartons of the March 6 load of tomatoes and dumped the remainder. The salvaged tomatoes were sold for a total of

    $10,459.10. DeBruyn paid to Six L's $8,897.50 for the produce which Six L's retained.

    
    

24. Six L's is due a balance of $23,158 for the tomato shipments.

    
    

25. Six L's asserts that, based on the sales invoices, it is due interest on the outstanding balance due at an annual rate of 18 per cent compounded monthly. However, none of the sales invoices relevant to this proceeding

    indicate any agreement between the parties as to interest charges and the evidence fails to establish that any interest is due to be paid.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 120.57(1) and 604.21(6), Florida Statutes.

    
    

27. As a tomato grower, Six L's was a producer of agricultural products, Section 604.15(3) and (5), Florida Statutes, who timely filed a complaint with the Florida Department of Agriculture and Consumer Services alleging that DeBruyn has failed to pay for the product sold to it. Section 604.21, Florida Statutes.

    
    

28. DeBruyn was a dealer in agricultural products licensed by the State of Florida. Sections 604.15(1) and 604.17, Florida Statutes. Although pursuant to Section 604.20, Florida Statutes, DeBruyn is required to be bonded, there was no evidence produced at hearing establishing whether or not such requirement has been met.

    
    

29. The burden of proof is on the party asserting the affirmative of an issue in an administrative hearing. Florida Department of Transportation v.

    J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). Six L's has met the burden. The evidence establishes that the parties had agreed on price, that the sales were made, and that the produce was in suitable shipping condition at the time control of the produce passed from Six L's to DeBruyn.

    
    

30. In addition to the sales price of the produce, Six L's claims that based on invoices it is entitled to an award of interest on the outstanding balance due. As previously stated, the evidence fails to support an award of interest costs.

    
    

31. In the proposed recommended order filed by Six L's, a request for attorney's fees is made. Six L's cites no statutory authority for the request. A hearing officer may award fees and costs only where such is specifically authorized by statute.

    
    

32. An award of fees may be made against a non-prevailing adverse party which has been determined by the Hearing Officer to have participated in the proceeding for an improper purpose. Section 120.59(6), Florida Statutes. There is no evidence that either party participated in this proceeding for an improper purpose.

    
    

33. Fees may also be awarded under the provisions of Section 120.57(1)(b)5, Florida Statutes, for the filing of improper or frivolous pleadings. There is no suggestion that the pleadings filed in this matter are improper or frivolous.

    
    

34. A Hearing Officer may award fees under the provisions of Section 57.111, Florida Statutes, the Florida Equal Access to Justice Act, wherein a party may be entitled to recover attorney's fees incurred in defending against the actions of a state agency "unless the actions of the agency were substantially justified." Section 57.111(4)(a), Florida Statutes. However, no state agency is a party to this proceeding and the cited section is inapplicable to the Petitioner in this case.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that:

The Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent DeBruyn Produce Company to pay to Petitioner Six L's Packing Company, Inc., the sum of $23,158.

DONE and RECOMMENDED this 17th day of June, 1993, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 17th day of June, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4925A

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

3, 7-9, 11, 13-14. Rejected as unnecessary or cumulative.

15. Rejected. Request for fees is not supported by citation to legal authority.

16-17. Rejected, not supported by the greater weight of credible and persuasive evidence.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

6-8, 13, 18. Rejected, contrary to credited evidence. The fact that tomatoes had ripened between inspections does not preclude improper shipping conditions. The greater weight of the evidence establishes that sufficient time passed between initial inspection, shipping, delivery, and subsequent inspection to permit the tomatoes to have continued ripening.

9, 19-21, 23, 29. Rejected, unnecessary.

17, 28. Rejected, immaterial.

22. Rejected, not supported by greater weight of credible and persuasive evidence.

COPIES FURNISHED:

The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel The Capitol, PL-10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

508 Mayo Building

Tallahassee, Florida 32399-0800

Mark S. London, Esq. 4030-C Sheraton Street Hollywood, Florida 33021

Clayton D. Simmons, Esquire

200 West First Street, Suite 22 Post Office Box 4848

Sanford, Florida 32772-4848

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 ten 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 SERVICES

Six L's Packing Company, Inc., Petitioner,

vs DOAH CASE No. 92-4925A

LB CASE NO. 93-0026

DeBruyn Produce Company and Hartford Fire 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 the State of Florida for consideration and final agency action. On June 4, 1992, the Petitioner, Six L's Packing Company, 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 $31,680 for tomatoes it sold to Respondent, 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 the Hartford Fire Insurance Company in the amount of $50,000. The Respondent's answer denied the claim as valid and requested a hearing in this case, so this flatter was subsequently heard in accordance with provisions of Section 120.57 (1), Florida Statutes, as rendered June 17, 1993, a copy of which is attached hereto as Exhibit, to which neither pad filed written exceptions with this Department.

Upon the 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 the Respondent pay Petitioner the sum of $23,158, is hereby modified to reduce the ordered amount by $375.50 to $22,782.50. Temp recorder charges of $23.50 and palletizing charges of $352 totaling $375.50, are hereby deducted from the ordered amount since non- agricultural products do not come within the purview of Florida Statutes, Section 604.15-604.34. The Hearing Officer's Recommendation is further modified

to reflect that Respondent, DeBruyn Produce Company pay Petitioner $22,782.50 within fifteen (15) days after this Order becomes final. This Order is final and effective on the date filed with the Clerk of the Department. Additionally, the Hearing Officer's Recommendation is modified to stipulate that in the event Respondent fails to pay Petitioner $22,782.50 within fifteen (15) days of the Final Order, Hartford Fire Insurance Company, as Surety for Respondent is hereby ordered to provide payment under the conditions and provisions of the bond.

Any Party to these proceedings adversely affected by this Final Order is entitled to seek review of this 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, 5th Floor, Mayo Building, 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 28th day of July, 1993.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture Filed with Agency Clerk, this 28th day of July, 1993.

Agency Clerk

COPIES FURNISHED:

Six L's Packing Company, Inc. Post Office Box 138 Immokalee, Florida 33934

DeBruyn Produce Company Post Office Box 76 Zeeland, MI 49464

Hartford Fire Insurance Company Hartford Plaza

Hartford, CT 06115

Mr. William F. Quattlebaum, Hearing Officer Division of Administrative Hearings

The Desoto Bldg., 1230 Apalachee Parkway Tallahassee, Florida 32399-1550

Mr. Mark S. London, Esquire 4030-C Sheraton Street Hollywood, Florida 33021

Mr. Clayton D. Simmons, Esquire

200 West First Street, Suite 22 Post Office Box 4848

Sanford, Florida 32772-4848

Mr. David Bokan, Field Representative

Docket for Case No: 92-004925

Orders for Case No: 92-004925