STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD SAPP FARMS, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-5240A

) CONSOLIDATED SERVICES, INC. and ) NEW YORK SURETY COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on May 19, 1999, in Plant City, Florida. The formal hearing was continued but was concluded on July 20, 1999, by telephone conference.

APPEARANCES

For Petitioner: David H. Galloway, P.A.

Attorney at Law

506 North Alexander Street Post Office Box 848

Plant City, Florida 33564-0848

For Respondent: Robert E. Goldman, Esquire Consolidated 1543 Seventh Street, Suite 202 Services, Inc. Santa Monica, California 90401

For Respondent: No appearance New York

Surety Company

STATEMENT OF THE ISSUE

Does Respondent Consolidated Services, Inc. (CSI) owe Petitioner Richard Sapp Farms, Inc. (Sapp Farms) $24,677.66 as alleged in the Amended Complaint filed herein by Sapp Farms?

PRELIMINARY STATEMENT

By an Amended Complaint filed with the Bureau of License and Bond, Florida Department of Agriculture and Consumer Services (Department), on September 16, 1998, Sapp Farms seeks payment of an alleged balance due on squash and eggplant sold and delivered to CSI by Sapp Farms on June 10 1998, through July 8, 1998.

CSI filed an answer to the Amended Complaint denying the alleged balance due and requested a formal hearing. By letter dated November 30, 1998, 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 formal hearing.

At the hearing, Sapp Farms presented the testimony of Richard Sapp, Michelle Sapp, Kent Howell, John Haire, and Harry Guice. On July 20, 1999, by telephonic conference, Sapp Farms presented the testimony of Mark Moritz. Petitioner's Exhibits numbered 1-17A and 17B-19 were admitted in evidence. CSI presented the testimony of Robert "Bo" Allen. CSI did not offer any documentary evidence.

There was no transcript of this proceeding filed with the Division. Sapp Farms and CSI filed their Proposed Recommended Orders.

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 times pertinent to this proceeding, Sapp Farms was a "producer," as defined in Section 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Squash and eggplant come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes.

2. CSI is a Florida Corporation, owned entirely by Robert "Bo" Allen, and located in Pompano Beach, Florida. At times pertinent to this proceeding, CSI was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. CSI was issued License Number 8873 by the Department, which is supported by Bond Number L&P 66186 in the amount of

   $25,000.00 written by Respondent New York Surety Company, as Surety, with an Inception Date of November 18, 1997, and an Expiration Date of November 17, 1998.

3. Sometime in early April or May 1998, Sapp Farms entered into a verbal contract with CSI, through its agents, to furnish CSI with fresh vegetables during the spring and summer of 1998. From early May 1998 through July 1998, Sapp Farms furnished CSI

   with eggplant and squash. From June 1, 1998 through August 8, 1998, CSI paid Sapp Farms a total of $51,300.00 for eggplant and squash furnished to CSI.

4. The Complaint was timely filed by Sapp Farms in accordance with Section 604.21(1), Florida Statutes. Sapp Farms alleges in its Complaint that CSI owes Sapp Farms $24,677.06 for eggplant and squash furnished to CSI from early May 1998 through July 1998, for which CSI has not made any payment or has only made partial payment.

5. Sapp Farms failed to present sufficient evidence to establish facts to show an accurate or reliable market price for eggplant or squash during the period in question. Michelle Sapp, the person who gathered the information concerning the market prices, testified that she: (a) did not view the market reports for each day in question; (b) did not remember what geographic area the market reports she viewed pertained to; (c) did not know whether the market prices she viewed were "shipping point" or "terminal point" prices; (d) did not know what the range was for market price each day; and (e) did not know where in the range she chose to establish the market price.

6. Sapp Farms contends that CSI agreed to pay a minimum price of $4.00 for squash and $5.00 for eggplant. Richard Sapp testified that CSI agreed to pay Sapp Farms a minimum price of

   $4.00 for squash and $5.00 for eggplant. However, I find that Richard Sapp's testimony lacks credibility in this regard due to

   the fact that this alleged "minimum price" applied regardless of the grade, which is highly unlikely. There is insufficient evidence to establish facts to show that CSI agreed to pay Sapp Farms a minimum price for eggplant and squash.

7. The following is a listing of the eggplant and squash delivered to CSI by Sapp Farms for which CSI has failed to pay Sapp Farms:

   Date	Product	Grade Quantity	*Price	Amount Owed	Ticket
   6/10/98	Eggplant	Fancy 208	$ 4.75	$ 988.00	422
   6/10/98	Squash (CN)	No. 2 4	$ 6.75	$ 27.00	425
   6/15/98	Eggplant	Fancy 160	$ 4.40	$ 704.00	443
   6/16/98	Squash (SN)	Fancy 80	$ 6.25	$ 500.00	447
   6/16/98	Squash (SN)	Medium 80	$ 4.25	$ 340.00	447
   6/16/98	Squash (CN)	No. 1 10	$ 8.50	$ 85.00	447
   6/20/98	Squash (SN)	Medium 47	$ 4.50	$ 211.50	466
   6/27/98	Squash (CN)	No. 1 126	$ 4.90	$ 617.40	497
   6/27/98	Squash (CN)	No. 2 59	$ 3.75	$ 221.25	497
   6/29/98	Squash (CN)	No. 1 113	$10.00	$1,130.00	502
   6/29/98	Squash (SN)	Fancy 154	$ 2.00	$ 308.00	502
   7/07/98	Squash (CN)	No. 2 20	$ 5.25	$ 105.00	509
   7/08/98	Squash (CN)	No. 1 13	$ 9.50	$ 123.50	515
   7/08/98	Squash (CN)	No. 2 20	$ 5.75	$ 115.00	515
   Total				$5,475.65
   *Prices	used in this	calculation are	the same	as the price	paid

   by CSI to Sapp Farms for the same product, with the same grade, on the same day or the nearest day to that day.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

9. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Company, Inc.,

   396 So. 2d 778 (Fla. 2d DCA 1981). The parties agree that there was a verbal agreement but disagree as to the terms of that verbal agreement. Sapp Farms contends that CSI agreed to pay Sapp Farms a minimum price of $4.00 for squash and $5.00 for eggplant, regardless of the grade. CSI denies that it agreed to pay any minimum price to Sapp Farms. Sapp Farms also contends that CSI has failed to pay market price for the vegetables furnished by Sapp Farms and, in some instances, CSI has failed to pay Sapp Farms any monies for certain vegetables furnished to CSI by Sapp Farms. Therefore, Sapp Farms must prove by a preponderance of the evidence that the terms of the verbal agreement are as stated by Sapp Farms and that CSI has failed to pay Sapp Farms the full amount due under the verbal agreement. Department of Banking and Finance, Division of Securities and Investor Protection vs. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

10. Sapp Farms has failed to meet its burden to show that the market prices used by CSI to pay Sapp Farms for its produce

were not the prices being paid on the market on the days in question, or that CSI agreed to pay Sapp Farms a minimum price of

$4.00 for squash and $5.00 for eggplant on those days the market price fell below those prices. However, Sapp Farms has met its burden to show that CSI failed to pay Sapp Farms for certain eggplant and squash in the amount of $5,475.65.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating circumstances, it is recommended that the Department enter a final order granting Sapp Farms relief by ordering CSI to pay Sapp Farms the sum of $5,475.65.

DONE AND ENTERED this 27th day of August, 1999, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1999.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner 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 32399-0800

David H. Galloway, P.A. Attorney at Law

506 North Alexander Street Post Office Box 848

Plant City, Florida 33564-0848

Robert E. Goldman, Esquire 1543 Seventh Street, Suite 202

Santa Monica, California 90401

Joseph Monahan

New York Surety Company

123 William Street

New York, New York 10038-3804

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 98-005240

Orders for Case No: 98-005240