STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCES A. OAKES AND DANIEL )

HOLDER, d/b/a OAKES PRODUCE )

COMPANY, )

)

Petitioner, )

)

vs. ) Case No. 97-0807A

) KELLY MARINARO, d/b/a SUNNY FRESH ) CITRUS EXPORT AND SALES COMPANY, ) AND AMERICAN BANKERS INSURANCE ) COMPANY OF FLORIDA, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative, held a formal hearing in this matter on June 23, 1997, in Lakeland, Florida.

APPEARANCES

For Petitioner: Frances A. Oakes, pro se

2722 Edson Avenue

Fort Myers, Florida 33916

For Respondent: Arthur C. Fulmer, Esquire Sunny Post Office Box 2958

Lakeland, Florida 33806

For Respondent: No appearance American

STATEMENT OF THE ISSUE

Has Respondent Kelly Marinaro, d/b/a Sunny Fresh Citrus Export and Sales Company (Sunny) paid Petitioner Frances A. Oakes and Daniel Holder, d/b/a Oakes Produce Company (Oakes) in full

for watermelons (melons) purchased from Oakes during the 1996 melon season which are represented by Sunny/Oakes purchase order numbers 93981/4051, 93905/4063, 93921/4064, 94006/4066, and 93941/4096?

PRELIMINARY MATTERS

By letter dated January 14, 1997, the Department of Agriculture and Consumer Services (Department) advised Respondent Sunny and Respondent American Bankers Insurance Company of Florida (American) that Oakes had filed a complaint alleging that Sunny owed Oakes $9,521.36 for melons delivered to Sunny between June 27, 1996 and July 4, 1996. Sunny timely filed its answer to the complaint denying any indebtedness, and requested a hearing. American did not file an answer to the complaint or request a hearing. By letter dated February 14, 1997, the Department notified Oakes that Sunny had filed an answer to the complaint and had requested a hearing. By letter dated February 14, 1997, the Department referred the matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing, Oakes presented the testimony of Frances A. Oakes. Oakes's Composite Exhibit 1 was received as evidence.

Sunny presented the testimony of Kelly Marinaro and Jean Marinaro. Sunny's Exhibits 2, 3, 4, 4A through 4E, 5, 6, 8, 9,

10, 12, 13, 15, 15A, and 16 through 21 were received as evidence.

There was no transcript of this proceeding filed with the Division. Oakes elected not to file any proposed findings of fact and conclusions of law. Sunny timely filed its proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times pertinent to this proceeding, Oakes was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. Melons come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes.

2. At all times pertinent to this proceeding, Sunny was licensed as a "dealer in agriculture products" as that term is defined in Section 604.15(1), Florida Statutes. Sunny was issued license number 831 by the Department, which is supported by bond number BND-262218 in the amount of $29,000, written by American, as surety, with an inception date of May 1, 1996, and an expiration date of April 30, 1997.

3. The complaint was timely filed by Oakes in accordance with Section 604.21(1), Florida Statutes.

4. Sometime before June 27, 1996, the parties entered into an oral agreement wherein Oakes would harvest and load melons onto trucks furnished by Sunny at locations specified by Oakes. The agreement provided that: (a) Oakes would guarantee the quality of the melons to be the quality required under a "good delivery" standard at the time of delivery to Sunny's customers, subject to any transit problems or delays in arrival at the customer's location; (b) Sunny would pay Oakes Produce 4.5 cents per pound for the melons loaded onto the trailers and delivered to Sunny's customers; (c) Sunny would be responsible for the cost of delivering the melons to its customers; and (d) settlement was to be made by Sunny within a reasonable time.

5. Frances Oakes testified that Sunny agreed to pay 5 cents per pound for the load of melons represented by Sunny/Oakes purchase order number 94006/4066. However, the more credible evidence is that the agreed upon price for this load of melons was 4.5 cents per pound.

6. Likewise, Kelly Marinaro testified that it was agreed that if the melons did not met the agreed upon quality standard upon delivery to its customers that Oakes would be responsible for all cost of delivery, including freight. However, the more credible evidence is that this was not agreed upon and was not part of the oral agreement.

7. Oakes did not advise Sunny that it would give Sunny "full market protection" on the melons, or that Sunny was to

handle the melons "on account" for Oakes. The more credible evidence shows that the watermelons were purchased by Sunny with title to the melons passing to Sunny upon delivery to Sunny's customers and meeting the agreed upon quality standard.

8 Under the terms of the above oral agreement, Oakes

loaded 9 loads of melons onto trucks furnished by Sunny that were shipped to Sunny's customers.

1. Oakes alleged in the complaint that Sunny had failed to pay Oakes for 6 of the 9 loads and owed a balance of $9,521.36. However, at the beginning of the hearing, Oakes withdrew from the complaint the load of melons represented by Sunny Oakes/Oakes purchase order number 93924/4069 in the amount of $1,976.40 leaving an alleged balance owed to Oakes by Sunny of $7,544.96.

2. The 5 loads of melons left in contention are the loads represented by Sunny/Oakes purchase order numbers 93891/4051, 93905/4063, 93921/4064, 94006/4066, and 93941/4096, in the amounts of $1,778.66, $2,044.80, $1,859.40, $91.70, and

   $1,770,40, respectively.

   
   

3. Sunny contends that the melons on the loads represented by Sunny/Oakes purchase order numbers 93891/4051, 93905/4063, 93921/4064, and 93941/4096 arrived at their destination in a condition below the agreed upon quality standard which resulted in prices received by Sunny of less than the agreed upon price of

   4.5 cents per pound. Based on this contention, Sunny deducted the freight, other applicable costs and its sales charge from the

   amount alleged to have been received for the melons represented by Sunny/Oakes purchase order numbers 93905/4063, 93921/4064, and 93941/4096, which resulted in Oakes not receiving any payment from Sunny for those melons. In fact, each of the 3 loads of melons showed a negative balance which was charged against other loads with a positive balance.

4. The price received by Sunny for the load of melons represented by Sunny/Oakes purchase order number 93891/4051 resulted in a balance owed Oakes of $547.50 after deductions for freight and other charges. However, in making payment to Oakes, Sunny charged the negative balances of the loads represented by Sunny/Oakes purchase order numbers 93905/4063, 93921/4064 and 93941/4096 against Sunny/Oakes purchase order number 93891/4051, which resulted in Oakes not receiving any payment for this load.

13 As to the load represented by Sunny/Oakes purchase order number 94006/4066, Sunny paid Oakes $825.30, which represents 4.5 cents per pound for 18,340 pounds without any deduction for loads with negative balances. Oakes has been paid in full for this load.

1. There was insufficient evidence to show that the melons represented by Sunny/Oakes purchase order numbers 93891/4051, 93905/4063, 93921/4064, and 93941/4096 did not meet the agreed upon quality standard upon arrival at their destination.

2. There was no dispute as to the weight of the melons.

3. Sunny furnished Oakes trouble reports on the 4 loads of melons represented by Sunny/Oakes purchase order numbers 93981/4051, 93905/4063, 93921/4064, and 93941/4096, indicating problems with the condition of the melons and that the loads would have to be "worked" in order to "move" the melons. Kelly Marinaro testified that either he or employees of Sunny had discussed at least 3 of these reports with Frances Oakes, and that he had authorized Sunny to do what was necessary to move the loads of melons.

4. Frances Oakes testified that he had seen these trouble reports and had discussed at least some of them with either Kelly Marinaro or Sunny's employees. However, Frances Oakes further testified that he was not aware that there was a severe problem with the melons.

5. The more credible evidence is that Kelly Marinaro or an employee of Sunny's discussed these trouble reports with Frances Oakes, and that Frances Oakes authorized Sunny to find someone to "work" the melons.

6. In disposing of the melons, Sunny received less than the agreed upon price of 4.5 cents per pound. Therefore, Sunny deducted the freight, other applicable costs, and Sunny's sales charge which resulted in a negative balances of $81.84, $582.35, and $345.02 for loads represented by Sunny/Oakes purchase order numbers 93905/4063, 93921/4064, and 93941/4096, respectively.

   There was a positive balance of $547.50 for the load of melons represented by Sunny/Oakes purchase order number 93891/4051.

7. By check dated August 1, 1996, Sunny made an accounting to Oakes which included the loads of melons in dispute and others that were not in dispute. Each purchase order number was listed on the check stub with either a positive or negative amount. The check was in the amount of $4,413.34. This amount was calculated by adding positive amounts and subtracting negative amounts.

   This was clearly shown on the check stub which Oakes received. On the back of this check Kelly Marinaro had clearly printed "Troubled Settlements Payment In Full"

8. Using its deposit stamp which was stamped directly beneath the language "Troubled Settlements Payment In Full," Oakes deposited this check.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, in these proceedings pursuant to Sections 120.57(1) and 604.21(6). Florida Statutes.

10. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation vs. J.W.C. Company, 396 So. 2d 778 (1st DCA Fla. 1981). The parties agree that there was a verbal agreement but disagree as to the terms of that verbal agreement. Therefore, Oakes must prove by a preponderance of the

evidence that the terms of the verbal agreement are as stated by Oakes and that Sunny has defaulted on the agreement by failing to pay Oakes in full under the terms of the verbal agreement.

Thereafter, Sunny has the burden of presenting evidence that Oakes violated the verbal agreement by failing to furnish melons that met the agreed upon quality standard upon arrival at their destination or that by Oakes depositing the check representing payment in full for the loads in dispute there has been accord and satisfaction. Department of Banking and Finance, Division of Securities and Investor Protection vs. Osborne Stern and Company, et al., 670 So. 2d 932, (Fla. 1996). Oakes has met its burden by establishing that the terms of the verbal agreement were as stated by Oakes and that Sunny has failed to pay the agreed upon price for all of Oakes' melon. Sunny has failed to meet its burden to show that the melons involved in the loads in dispute did not meet the agreed upon quality standard. The only evidence concerning the quality of the melons upon arrival was purely hearsay. However, Sunny has met its burden to show that there was accord and satisfaction as to the loads in dispute represented by Sunny/Oakes purchase order numbers 93891/4051, 93905/4063, 93921/4064, and 93941/4096. See 10 Fla Jur 2d,

Compromise, Accord, and Release, Section 8, and the cases cited therein. Furthermore, Sunny has shown that the load of melons represented by Sunny/Oakes purchase order number 94006/4066 has been paid in full.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order dismissing Oakes' complaint.

DONE AND ENTERED this 18th day of July, 1997, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1997.

COPIES FURNISHED:

Honorable Bob Crawford Commission of Agriculture The Capitol, Plaza Level-10

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel Department of Agriculture

and Consumer Services

The Capitol, Plaza Level-10 Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

and Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0810

Frances A. Oakes, pro se 2722 Edson Avenue

Fort Myers, Florida 33916

Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, Florida 33806

Robert Walman

Claims Management Services American Bankers Insurance

Company of Florida 11222 Quail Roost Drive Miami, Florida 33157

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000807

Orders for Case No: 97-000807