STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BBC & F CORPORATION, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 94-5399

) JIM ROBINETTE AND AETNA CASUALTY )

AND SURETY COMPANY, as surety )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Richard Hixson, held a formal hearing in this case on April 5, 1995, in Lakeland, Florida.

APPEARANCES

For Petitioner: Allan L. Casey, Esquire

Post Office Box 7146

Winter Haven, Florida 33883-7146

For Respondent: Jim Robinette

2025 Sylvester Road, Suite J4 Lakeland, Florida 33803

For Co-Respondent: No appearance

STATEMENT OF THE ISSUES

The issues for determination in this case are whether Respondent, as a licensed citrus fruit dealer, breached an agreement with Petitioner relating to the purchase of citrus fruit during the 1993-1994 citrus shipping season; and further whether the breach of such agreement constitutes a violation of the Florida Citrus Code for which the proceeds of the citrus fruit dealer's bond executed by Co-Respondent should be paid to Petititioner pursuant to Section 601.66, Florida Statutes.

PRELIMINARY STATEMENT

On or about June 17, 1994, Petitioner, BBC & F Corporation, Inc., in accordance with Section 601.66, Florida Statutes, filed a verified complaint with the Department of Agriculture and Consumer Services (Department) alleging that Respondent, Jim Robinette, had breached an oral contract for the purchase of valencia oranges during the 1993-1994 citrus shipping season.

On or about August 5, 1994, Respondent filed with the Department a verified answer to the complaint acknowledging an agreement with Mr. Chuck Young relating to the sale of citrus fruit during the 1993-1994 shipping season, but disputing

the purchase price of the fruit, and further disputing the amount remaining due under the terms of the agreement. Respondent requested a formal hearing on the allegations of the complaint.

By letter dated August 2, 1994, Co-Respondent, Aetna Casualty & Surety Company, responded to the filing of the complaint by stating that the matter was being referred to their Tampa claim office, and further stating that "...since our information is limited, our attention to this matter is without prejudice to the interest of all parties." No other response was filed by Co-Respondent.

On September 26, 1994, the Department referred the case without objection to the Division of Administrative Hearings. On October 4, 1994, an Initial Order was entered by the Division requiring the parties to file a joint response for purposes of establishing the hearing procedure in this case. Petitioner and Respondent complied with the Initial Order. Co-Respondent did not respond to the Initial Order, and has not otherwise appeared in this case.

At hearing, Petitioner presented the testimony of Charles J. "Chuck" Young and Nancy Young. Petitioner also introduced two composite exhibits: the first consisting of six trip tickets relating to the delivery of the citrus fruit in question, and the second exhibit consisting of copies of checks and records relating to this transaction. Respondent testified in his own behalf. No transcript of the hearing was filed. Petitioner filed a proposed recommended order. Respondent did not file a proposed recommended order. Specific determinations of Petitioner's proposed findings of fact are attached as an Appendix hereto.

FINDINGS OF FACT

1. Petitioner, BBC & F Corporation, Inc., is a Florida corporation located in Zolfo Springs, Florida, which is in the business of buying and selling citrus fruit. Charles J. "Chuck" Young is the vice-president and a director of Petitioner.

   
   

2. Respondent, Jim Robinette, is a citrus fruit dealer with an office in Lakeland, Florida, who was licensed during the 1993-1994 citrus shipping season by the Florida Department of Agriculture and Consumer Affairs.

   
   

3. Co-Respondent, Aetna Casualty and Surety Company, is a surety company qualified to do business in Florida, which pursuant to Section 601.61, Florida statutes, executed Respondent's citrus fruit dealer's bond for the 1993-1994 citrus shipping season in the amount of $5,000.00.

   
   

4. On or about March 1, 1994, Petitioner, by and through its director and representative, Charles J. "Chuck" Young, entered into an oral contract with Respondent for the sale and delivery of certain citrus fruit from Petitioner's grove in Dundee, Florida. At that time, Respondent had made a prior agreement with the Redi-Made Foods Corporation to supply citrus fruit to Redi-Made's facility in Tampa, Florida. Specifically, the contract between Petitioner and Respondent provided for the purchase of valencia oranges to be used as salad fruit. The fruit was to be delivered by Petitioner to Redi-Made's facility in Tampa, Florida.

   
   

5. The initial terms of the contract provided for a purchase price of $10 per box for fruit delivered to Redi-Made. Of the $10 contract price, $7 was for the grower (Petitioner), $1.90 was to cover the harvesting costs, $.25 was a

   brokerage fee paid to James Porter of Redi-Made, and $.85 was for Respondent. The first few loads were delivered to Redi-Made and paid for at the contract price of $10 per box.

   
   

6. Subsequent to the delivery of the initial few loads, the terms of the contract were amended to incorporate a deduction of $.20 per box of fruit delivered for the purpose of expediting the processing of the payments from

   Redi-Made. The Petitioner and Respondent agreed to share equally this reduction from the original price. Accordingly, under the amended terms of the contract, Petitioner would receive $6.90 per box delivered, the harvesting costs remained at $1.90 per box delivered, the payment to James Porter remained at $.25 per box delivered, and the Respondent would receive $.75 per box delivered.

   
   

7. In accordance with the terms of the amended contract, Petitioner during March of 1994, delivered six loads of valencia oranges totalling 2210 boxes to Redi-Made for which payment has not been made by Respondent. Under the terms of the amended contract, Petitioner is owed $15,249 for the fruit delivered.

   
   

8. In addition, Petitioner paid for the harvesting costs of the fruit, for which under the terms of the amended contract, Petitioner is owed $4,199.

   
   

9. Respondent was paid by Redi-Made for three of the six loads. These loads are evidenced by trip tickets 70144, 70146 and 82960, and show that 930 boxes of fruit were delivered by Petitioner to Redi-Made; however, Redi-Made paid Respondent for only 890 boxes of this fruit, and did not pay Respondent for the remainder of the 2210 boxes of fruit delivered by Petitioner. There is an ongoing dispute between Respondent and Redi-Made regarding Redi-Made's failure to make payment for the remainder of the fruit; however, resolution of the Respondent's dispute with Redi-Made is independent of, and does not affect the obligations of the Respondent with respect to Respondent's contract with Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Sections 120.57(1),and 601.66, Florida Statutes.

    
    

11. Respondent breached an oral contract with Petitioner for the sale and delivery of citrus fruit during the 1993-1994 shipping season.

    
    

12. Respondent's breach of contract by failing to make full payment promptly with respect to a citrus fruit transaction constitutes a violation of Section 601.64(4), Florida Statutes.

    
    

13. The amount of indebtedness owed to Petitioner by Respondent is

    $19,488.00.

    
    

14. Pursuant to Section 601.66, Florida Statutes, failure of the Respondent to satisfy the indebtedness owed to Petitioner subjects the proceeds of the citrus fruit dealer's bond executed by Co-Respondent to payment of Petitioner's claim.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Department of Agriculture and Consumer Services enter a final order adjudicating that the amount of indebtedness owed to Petitioner from Respondent is $19,488.00, that Respondent shall have thirty (30) days in which to satisfy such indebtedness, and that upon failure of the Respondent to make satisfaction of this claim, the proceeds of the citrus fruit dealer's bond executed by Co-Respondent shall be distributed to Petitioner.

RECOMMENDED in Tallahassee, Leon County, Florida, this 9th day of May, 1995.

RICHARD HIXSON

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 9th day of May, 1995.

APPENDIX

Petitioner's Findings

1.-3. Adopted and Incorporated

COPIES FURNISHED:

Commissioner Bob Crawford Commissioner of Agriculture The Capitol, P1-10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief Department of Agriculture

and Consumer Services Mayo Building, Room 508

Tallahassee, Florida 32399-0800

Richard Tritschler, Esquire Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Allan L. Casey, Esquire Post Office Box 7146

Winter Haven, Florida 33883-7146

Jim Robinette

2025 Sylvester Road, Suite J4 Lakeland, Florida 33803

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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.

Docket for Case No: 94-005399

Orders for Case No: 94-005399