I·

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

J.D.I. FARMS, INC.,

Petitioner,

vs. Case No. 97-4387A

FOUR SEASONS PRODUCE, INC. 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), is before the Florida Commissioner of Agriculture ;for final agency action.

Background

As a result of the sale of agricultural products during June of the 1997 watermelon season, J.D.I. FARMS, INC. ("the Grower") filed a complaint against FOUR SEASONS PRODUCE, INC. ("the Dealer") pursuant to Section 604.21, Florida Statutes, alleging Dealer owed it $16,680.09.

Dealer's license was supported by a surety bond written by Hartford Fire Insurance Company.

Proceedings and Ruling Below

Following written answer and reqq.est therefor, an administrative hearing was held December 17, 1997, where the

Filed June 1, 2009 2:43 PM Division of Administrative Hearings.

witnesses were the Grower's owner and the Dealer's buyer and his assistant. On December 30, 1997, the administrative law judge (ALJ) issued his recommended order in favor of the Grower. (Copy attached as "Exhibit.")

Dealer filed written exceptions--accompanied by neither the Transcript nor citations thereto--as well as moved to abate until disposition of Grower's similarly-based "PACA" claim.

At the Department's direction, Dealer filed amended excep­ tions, with citations to the Transcript, and the Transcript itself. Because Grower's PACA and Chapter 604 remedies are not mutually exclusive, this case may proceed.

Legal Standards, for Findings of Fact and Written Exceptions Findings of Fact--The administrative law judge has recommended against the Dealer's position. Paragraph 120.57 (1)(j) of Florida's new Administrative Procedure Act (the APA)

mandates that "[t]he agency may not reject or modify the [ad­

ministrative law judge's] findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or

that the proceedings on which the findings were based did not comply with essential requirements of law." (E.S.)

Thus, when an agency adopts--not rejects or modifies-­ the findings of fact in its final order, the law no longer

requires the agency to review the complete record. Compare, old APA s. 120.59(2) and Iturralde v. Dept. Prof. Reg., 484 So.2d 1315 (Fla. 1st DCA 1986)(requiring the agency's final order to deal explicitly with each exception. But, see, Britt

1. Dept. Prof. Reg., 492 So.2d 697 (Fla. 1st DCA 1986), not

   
   

   requiring such but disapproved on other grounds by Dept. Prof. Reg. v. Bernal, 531 So.2d 967 (Fla. 1989))

   Findings of fact cannot be changed if there is any

   
   

   competent substantial evidence to support them. [The converse is equally true: if there is no competent substantial evidence

   to support a finding of fact, it must be changed.]

   
   

   Moreover, the case law is clear when testimony is at odds: it is the ALJ's prerogative to choose which testimony to believe, and that choice cannot be changed even if there is competent substantial evidence to the contrary. Heifetz v. Dept. Banking & Finance, 475 So.2d 1277 (Fla. 1st DCA 1985). Here, Dealer's exceptions are disposed of in accordance with these cited statutory and decisional authorities. None of its exceptions, disposed of in the Appendix hereto, is

   adopted.

   It Is, Therefore, ORDERED and ADJUDGED that:

   1. The Administrative Law Judge's findings of the Recommended Order are adopted in toto as this agency's

      findings of fact;

      
      

   2. The Administrative Law. Judge's conclusions of law in the Recommended Order are adopted in toto as this agency's

      conclusions of law; and,

   3. The Administrative Law Judge's recommendation that Dealer be ordered to pay Grower $16,680.09 is approved and adopted as the appropriate disposition of this cause. And in accordance with Subsections 604.21(7)-(8), Florida Statutes (1997), Dealer shall remit this indebtedness to Grower within

15 days, failing which the payment thereof shall become the responsibility of Dealer's surety, Hartford Fire Insurance Company, payable to the Department for distribution to the successful claimant(s), as provided by Subsection 604.21(8), Florida Statutes (1997).

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, FL 32399-0800, and a copy of the same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Final Order.

DONE AND ORDERED this ndayof :f,,\7

, 1998.

FILED thisa]day of ::fv 7\

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

+1.t:J ..

H.WAINWRIGHT

Assistant Commissioner

, 1998.

Harry Pf, (fosmap

-----l--l ,¼--=-c ,:3::....u....s =----...

Copies furnished to:

Petitioner - J.D.I. Farms, Inc., 1300 State Road 31, Punta Gorda, Florida 33982, ATTN: Mr. Ralph Chastain, Pres.;

Respondent - Four Seasons Produce, Inc., 1975 North Reading Road, Denver, Pennsylvania 17517, ATTN: Mr. David L. Hollinger, Pres.;

Attorney for Respondent - Scott R. Tech, Esq., 2590 Golden Gate Parkway-Suite 109, Naples, Florida 34105;

Surety - Hartford Fire Insurance Company, Hartford Plaza, Hartford, Connecticut 06115;

Division of Administrative Hearings, 1230 Apalachee Park­ way, Tallahassee, Florida 32399-3060, ATTN: Robert

E. Meale, Administrative Law Judge; and,

Messrs. Jim Brooks and David Bokan, Field Representatives, Bureau of License & Bond, Florida Department of Agriculture and Consumer Services.

APPENDIX TO FINAL ORDER

"Disposition of Respondent's Amended Written Exceptions"

Prologue. It is the ALJ's prerogative to choose which testimony to believe. Heifetz, supra, and Venetian Shores Home

& Prop. Own. v. Ruzakawski, 336 So.2d 399 (Fla. 3rd DCA 1976), cited to and relied upon by Dealer.

In Paragraph 3 of the Recommended Order, the ALJ opines: "Petitioner's version of the [parties' oral] agreement is credited [sic: creditable] "

By Paragraph 5, the ALJ finds, in pertinent part, that 11 [f]or the reasons already noted, it is impossible to credit Respondent's version of the agreement, so there was no legitimate basis for any deductions, except for actual payments." That is to say: based upon the credibility, vel non, of the witnesses, here Grower wins and Dealer.loses.

And, unless there is no competent substantial evidence to support the ALJ's findings of fact, they may not be changed as

a matter of law. Ibid.

1. Exceptions to Findings of Fact Due to Noncompliance

   with Essential Requirements of Law: Paragraph Nos. 5-11.

   --The Counterclaim Issue: Ex. Nos. 5-6. Contrary to

   
   

   Dealer's contention, Florida's Agricultural License & Bond Law does not allow for counterclaims, i.e., a claim by a

   respondent back against a petitioner. Cf., Full Circle

   
   

   Service v. Dept. of Agr., 556 So.2d 757 (Fla. 2nd DCA 1990). Rather, Chapter 604's administrative remedy involves a

   complaint, which if successful is secured by a bond posted by the respondent dealer. But it neither provides for, nor permits, a counterclaim, which, if successful, would not be secured by a bond.

   Who, then, may be a complainant under Chapter 604? "Any person claiming ...to be damaged by any breach of the condition of a bond.... 11 See, Subsection 604.21(1), F.S. (1997).

   --The Premature Recommended Order: Ex. 7. Dealer contends

   
   

   that the ALJ did not consider its timely filed (12/30) proposed Recommended Order before issuing his Recommended Order December 30. Consideration would not have been impossible. [Note. DOAH Procedural Rule 60Q-2.031, Florida Administrative Code, provides only 10 days following a hearing within which to timely file a proposed recommended order, which here would have been not later than December 27 rather than the December 30 date that the ALJ gave the parties. (Tr. 134, Lns. 30-31)] .

   --The Tardy Service of Grower's Exhibits: Ex. 8-9. Because

   
   

   the parties' hearing was a video one- -with one party in Tallahassee and the other one in Fort Myers--logistics required an exchange of Exhibits after the hearing. At the conclusion of the hearing, the ALJ ruled that the Exhibits be

   
   

   filed by "a week from today...by December 24th.... 11 (Tr. 136, Lns. 5 and 16) Thus, Dealer's complaint now that Grower did not serve its Exhibits until December 24 is without merit.

   And, the ALJ was not obligated to comment upon any rebuttal offered by Dealer in its Proposed Recommended Order. Nor does Dealer cite any authority to support its contention that such did not comply with "essential requirements of law."

   - -The Absence of an Explicit Finding of the Contract's

   
   

   Terms: Ex. 10. In Finding of Fact No. 2, the ALJ found that

   
   

   Dealer, through its authorized agent, agreed to buy Grower's watermelons. Period. In Finding of Fact No. 3, the ALJ opined that under the parties' oral agreement, the unsatisfactory watermelons were to be treated as Grower's--not Dealer's-­ representative testified. And, under Finding of Fact No. 5, the Grower delivered watermelons to Dealer "at an agreed-upon price of $71,335.70 11 --w ithout any deductions (except for pay­ ments) in light of the testimony of the Grower's--not Dealer's--representative.

   --Whether Field Reports, Not Grower's Testimony, Costitute

   
   

   The Contract: Ex. 11. What was the parties' agreement?

   
   

   Dealer posits the 24 "field reports" and that the ALJ failed to make a finding "on the essential issue of this dispute." But, as set forth above, the ALJ determined the terms of sale based on the testimony of Grower's representative, which was A-3

   
   

   that under the parties' oral contract, Dealer agreed to purchase Grower's watermelons field-side for $71,335.70--with no deductions for diseased or decayed ones. Indeed, in Paragraph 12 of its First Affirmative Defense in its Answer, Dealer admitted that "[o]n all the shipments in question, JDI and Four Seasons orally agreed to a price term."

   When Dealer filed that pre-hearing pleading, its theory as to what constitutued the parties' contract was the same as Grower's witness, their oral agreement--not 24 "field reports" as now.

   Note. The ALJ had earlier found that the Grower had insisted

   
   

   that one of the Dealer's two representatives "always be pre­ sent during the loading of the watermelons." See, Finding of Fact No. 2.

2. Exceptions to Conclusions of Law - Paragraphs 12-23.

   --Again, The Contract: Exs. 12-13. Exceptions to the

   
   

   parties' contract was previously raised and disposed of.

   • -Federal Law: Exs. 14-15. "PACA" is not applicable here, and PACA decisions do not control in this proceeding under

     Florida's Agricultural License & Bond Law, provisions of Chapter 604, Florida Statutes.

   • -Dealer's Indebtedness: Ex. 16. This was previously

   
   

   raised and disposed of, both as to amount and PACA.

   A-4

   
   

   --Yet, Again, The Contract: Exs. 17-22. Previously raised several times and disposed of. See, Exs. 11 and 12-13.

   Note. The ALJ has stated that his findings regarding the

   
   

   parties' agreement is based on the testimony of Grower's representative. Under Heifetz, supra, such is subject to great weight, entitling the ALJ to disregard Dealer's con­ flicting present contention that 24 "field orders" and 11 FO B 1 s 11

   and blank "Terms" constitute 24 separate contracts between the

   
   

   parties. Merely because "purchase after inspection" was not an explicit finding of the ALJ does not render nonadoption of

   11 FOB II reversible error. And, nor does the Parole Evidence Rule render invalid the ALJ's finding that the parties' oral

   -

   agreement- -not 24 11 field reports 11 -constituted the contract

   
   

   between them.

   --Again, Field Reports and Counterclaim: Ex. 23. Here

   
   

   Dealer rehashes its "field reports" and counterclaim conten­ tions without overcoming the correctness of the ALJ's rulings thereto- -the former based on competent substantial record evidence in light of Heifetz, supra, and the latter grounded upon the limitation in the subject Statute, itself, as to who

   may be a complainant.

   
   

   A-5

   STATE OF FLORIDA

   DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   JDI FARMS' INC. I

   Petitioner,

   vs. Case No. 97-4387A

   FOUR SEASONS PRODUCE, INC. and HARTFORD FIRE INSURANCE COMPANY,

   Respondent.

   
   

   
   

   RECOMMENDED ORDER

   Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference on December 17, 1997. The administrative law judge and attorney and witness for Respondent Four Seasons Produce, Inc. attended in Tal ahassee, Florida. The court reporter and witness for Petitioner participated by videoconference in Fort Myers, Florida.

   APPEARANCES

   For Petitioner: Ralph Chastain, President

   JDI Farms, Inc. 1300 State Road 31

   Punta Gorda, Florida 33982

   For Respondent Four Seasons Produce, Inc.:

   Scott R. Teach

   Meuers, Dressler & Kerr, LLP

   2590 Golden Gate Parkway, Suite 109

   Naples, Florida 34105

   
   

   
   

   STATEMENT OF THE ISSUE

   The issue is whether Respondent Four Seasons Produce, Inc., owes Petitioner money for watermelons and, if so, how much.

   PRELIMINARY STATEMENT

   By Complaint dated June 16, 1997, Petitioner alleged that Respondent owed it the $16,680.09 for watermelons delivered during June 1997. Respondent demanded a formal hearing.

   At the hearing, each party called one witness.

   Petitioner offered into evidence 10 exhibits. Respondent offered into evidence 17 exhibits. All exhibits were admitted.

   The parties did not order the transcript.

   FINDINGS OF FACT

   1. Around April 1, 1997, Ralph Chastain, as Petitioner's president, met with Chad Barnett and Larry Bullock to discuss the possible sale of watermelons. Mr. Bullock was a buyer for Respondent Four Seasons Produce, Inc. (Respondent), and Mr. Barnett was his assistant.

   2. With apparent and actual authority to act for Respondent, Mr. Bullock agreed to purchase Petitioner's watermelons. Petitioner required Respondent to pay a deposit of $40,000 to ensure that Respondent would take delivery, and Respondent would then pay all balances weekly. At Mr. Chastain's insistence, one of the two men representing

      Respondent would always be present during the loading of watermelons.

   3. The case turns on the conditions of the oral agreement concerning unsatisfactory watermelons. Petitioner's witness, Mr. Chastain, could testify, based on direct knowledge, to the conditions of the agreement. Respondent's witness was Mr. Bullock's supervisor and could only testify, based on direct knowledge, as to what he told Mr. Bullock. Petitioner's version of the agreement is credited. This version of the agreement controls because there is no question that Mr. Bullock had the apparent, if not actual, authority to enter in an agreement upon the conditions described by Mr. Chastain.

   4. Petitioner delivered a total of 24 loads of watermelons to Respondent from April 19-28, 1997. Sometime in the second week, Respondent did not timely pay the balance for watermelons. After some inconclusive exchanges between Mr. Chastain and Mr. Bullock, it became apparent that Respondent believed that it could deduct from the balance the value of watermelons that were unsatisfactory to the wholesaler to which Respondent had shipped them.

   5. Petitioner delivered watermelons at an agreed-upon price of $71,335.70. For the reasons already noted, it is impossible to credit Respondent's version of the agreement, so there was no legitimate basis for any deductions, except for actual payments. Respondent paid the $40,000 deposit and

      $14,655.61. The remaining balance is thus $16,680.09.

      CONCLUSIONS OF LAW

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

   7. Petitioner has proved that Respondent owes it

$16,680.09 for watermelons.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and

Consumer Services enter a final order determining that Respondent owes Petitioner $16,680.09.

DONE AND ENTERED this 3O day of December, 1997, in Tallahassee, Leon County, Florida.

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings

this JD day of December, 1997.

COPIES FURNISHED:

Ralph Chastain, President JDI Farms, Inc.

1300 State Road 31

Punta Gorda, Florida 33982

Scott R. Teach

Meuers, Dressler & Kerr, LLP

2590 Golden Gate Parkway, Suite 109

Naples, Florida 34105

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture and

Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services

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

Hartford Fire Insurance Company Hartford Plaza

Hartford, Connecticut 06115

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-004387

Orders for Case No: 97-004387