STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TELLO FARMS, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-4121A

) S & G SALES, INC., and NEW ) YORK SURETY COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on December 21, 1998.

The parties, attorney for Respondent, witnesses, and court reporter participated by videoconference in Fort Myers, Florida.

APPEARANCES

For Petitioner: Juan Tello

Qualified Representative Tello Farms, Inc.

Post Office Box 8154 Naples, Florida 34101-8154

For Respondent S & G Sales, Inc.:

Carolann A. Swanson Roetzel & Andress

2320 First Street, Suite 1000 Fort Myers, Florida 33901

STATEMENT OF THE ISSUE

The issue is whether Respondent S & G Sales, Inc., owes money to Petitioner in connection with the purchase of agricultural products.

PRELIMINARY STATEMENT

By Complaint dated June 18, 1998, Petitioner alleged that Respondent S & G Sales, Inc., owed it $15,368.70 for pickles that it had purchased in April and May 1998. Respondent S & G Sales, Inc., denied owing the money.

At the hearing, Petitioner called one witness and offered into evidence one exhibit. Respondent called two witnesses and offered into evidence six exhibits. All exhibits were admitted. However, Petitioner did not file its exhibit following the hearing, so the exhibit is deemed withdrawn.

The parties did not order a transcript.

FINDINGS OF FACT

1. Petitioner produces agricultural products in Naples, Florida. Petitioner and Respondent S & G Sales, Inc. (Respondent) entered into an agreement in which Respondent would market Petitioner's pickles for the best available price.

2. However, the agreement did not require Respondent to sell the pickles only for market price. The agreement required only that Respondent use its best efforts in marketing the pickles.

3. In April and May 1998, Petitioner delivered to Respondent numerous shipments of pickles pursuant to the parties' agreement. Quality and sizing problems in the pickles prevented Respondent from being able to obtain market price.

4. Pickles are perishable. They can go from acceptable quality to rotten in as little as two days. Respondent's representative weekly informed Petitioner's representative of the below-market prices that he was obtaining for the pickles.

5. The record is somewhat confusing because Petitioner seeks additional payment for some, but not all, shipments of pickles, and Respondent made periodic advances for all the pickle shipments plus shipments of squash also. However, the evidence is clear that Respondent was required to get only the best available price and, due to quality and size problems did so.

   The evidence is also clear that Respondent paid at least as much as it owed Petitioner for the pickle shipments covered in the present claim.

   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. (All references to Sections are to Florida Statutes.)

7. Petitioner bears the burden of proof. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

8. Petitioner's claim for $15,368.70 ignores the parties' agreement and the condition and size of the pickles that Petitioner supplied Respondent. Respondent used its best effort to sell the pickles at the best available price and has paid what

it owes Petitioner. Respondent's counterclaim for additional sums due is outside the jurisdiction of this proceeding.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing Petitioner's complaint.

DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1999.

COPIES FURNISHED:

Mr. Joseph Monahan

New York Surety Company

123 William Street

New York, New York 10038-3804

Juan Tello

Qualified Representative Tello Farms, Inc.

Post Office Box 8154 Naples, Florida 34101-8154

Carolann A. Swanson Roetzel & Andress

2320 First Street, Suite 1000 Fort Myers, Florida 33901

Honorable Bob Crawford Commissioner

Department of Agriculture and Consumer Services

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

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: 98-004121

Orders for Case No: 98-004121