STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on January 30, 2009, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Administrative Law Judge June C. McKinney of the Division of Administrative Hearings, pursuant to the authority set forth in Sections 120.569 and 120.57(1), Florida Statutes (2008).

APPEARANCES

For Petitioner: Elizabeth Alvarez, pro se

Cushman Fruit Company, Inc. 3325 Forest Hill Boulevard

West Palm Beach, Florida 33406 For Respondents: No appearance

STATEMENT OF THE ISSUE

Whether Respondent is indebted to Petitioner for Florida- grown citrus products sold to Respondent.

PRELIMINARY STATEMENT

Cushman Fruit company, Inc., (hereinafter Petitioner or Cushman) filed an amended complaint with the Florida Department of Agriculture and Consumer Services (Department) alleging that Carla Dupleich, Brian D. Jerome, d/b/a J and G Citrus Groves (hereinafter Respondent or J and G Citrus) and Great American Insurance Company, as Surety (hereinafter Co-Respondent or Great American) are indebted to Petitioner in the sum of $2,339.00 for Florida-grown citrus products sold to Respondent during the

2006-2007 citrus shipping season. Respondent filed an answer denying the claim. Subsequently, on October 22, 2008, this matter was reopened at the Division of Administrative Hearings to conduct a formal hearing. On November 4, 2008, the undersigned issued an Order scheduling the hearing. This matter was set for hearing on January 30, 2009. On January 28, 2009, the undersigned issued an Amended Notice of Hearing by Video Teleconference. The final hearing was held by video teleconference on January 30, 2009.

At the hearing, J and G citrus and Great American did not appear. Diligent search and inquiry was made to contact Respondent but the phone is disconnected. Neither Respondent nor Co-Respondent's Notices of Hearing were returned. After waiting an appropriate period of time, the hearing was commenced. Petitioner presented the testimony of two witnesses:

Elizabeth Alvarez, Vice President of Finance; and Cushman, the owner. Petitioner’s Exhibits numbered 1 through 3 were admitted into evidence.

The proceeding was recorded but not transcribed.

Petitioner indicated that it would not be filing a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner and Respondent are Florida-licensed citrus fruit dealers operating within the Department's regulatory jurisdiction. Great American was the surety for J and G Citrus' fruit dealer's license for the 2006-2007 citrus shipping season.

2. J and G Citrus is Petitioner's customer. Petitioner ships fruit on behalf of J and G Citrus under their name for a service charge and fee for fruit, the cost of packing, and shipping. Petitioner and Respondent entered a written contract on November 12, 2004, for such services.

3. Cushman's replacements policy provides that a customer should notify Cushman of any problem and the company will refund the monies for the order or replace the package. Cushman guarantees to "honor all replacement requests in a timely manner at no cost to you." J and G Citrus utilized the policy during its contract with Cushman.

4. Cushman delivered the following fruit orders for J and G Citrus from December 22, 2006, to February 16, 2007: 292

   navel fruit trays at $3.35 a tray; 168 grapefruit trays at $3.35 a tray; 87 honeybells trays at $6.88 a tray; and 29 tangerine trays for $6.88 at tray. The costs for the fruit shipped totaled $2,339.00. J and G Citrus was invoiced this amount.

   Accordingly, Respondent was obligated to pay Petitioner the total sum for the fruit.

5. After Cushman Fruit invoiced J and G Citrus for the outstanding balance, no payment was received. On March 28, 2007, Cushman informed J and G Citrus of its bill and told Respondent that "You need to get current." J and G Citrus responded on the same day that it would provide a payment schedule by Monday.

6. On April 23, 2007, J and G Citrus confirmed by email that they were going to start paying and would provide a payment. On May 7, 2007, Cushman requested the payment schedule from J and G Citrus again and informed the company, "I need a response from you today."

7. Cushman never heard further from Respondent regarding payment. To date, the invoices are unpaid and the monies are owed to Cushman.

8. Petitioner performed all of its duties under the contract with J and G Citrus and Respondent failed to pay for the services. J and G Citrus is, therefore, indebted to Petitioner.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2008).

10. Chapter 601, Florida Statutes, is known as "The Florida Citrus Code" and is enforced by the Department.

11. "Citrus fruit" is defined in Subsection 601.041(3),

    
    

    Florida Statutes (2008), as

    
    

    (3) "Citrus fruit" or "fruit" means and includes grapefruit, oranges, tangerines, Temples, tangelos, and murcott honey oranges grown in Florida as defined in and by s. 601.03, and when regulated by the Florida Citrus Commission of the Department of Citrus, all other citrus fruit grown in Florida, including lemons, sour oranges, limes, and citrus hybrids.

    
    

12. A "citrus fruit dealer" is defined in Subsection 601.03(8), Florida Statutes (2008), as

    (8) "Citrus fruit dealer" means any consignor, commission merchant, consignment shipper, cash buyer, broker, association, cooperative association, express or gift fruit shipper, or person who in any manner makes or attempts to make money or other thing of value on citrus fruit in any manner whatsoever, other than of growing or producing citrus fruit, but the term shall not include retail establishments whose sales are direct to consumers and not for resale or persons or firms trading solely in citrus futures contracts on a regulated commodity exchange;

13. Both Petitioner and J and G Citrus are citrus fruit dealers under this definition.

14. Subsection 601.55, Florida Statutes (2008), provides that citrus fruit dealers be licensed by the Department in order to transact business in Florida. Subsection 601.61(3), Florida Statutes (2008), sets forth the requirements to obtain licensure and provides that such dealers provide a cash bond, appropriate certificate of deposit, or surety bond in an amount to be determined by the Department "for the use and benefit of every producer and of every citrus fruit dealer with whom the dealer deals in the purchase, handling, sale, and accounting of purchases and sales of citrus fruit."

15. Section 601.65, Florida Statutes (2008), provides that "[i]f any licensed citrus fruit dealer violates any provision of this chapter, such dealer shall be liable to the person allegedly injured thereby for the full amount of damages sustained in consequence of such violation." This liability may be enforced in an administrative action brought before the Department or in a "judicial suit at law in a court of competent jurisdiction."

16. Subsection 601.64(4), Florida Statutes (2008), defines as an "unlawful act" by a citrus fruit dealer the "fail[ure] or refus[al] truly and correctly to account and make full payment promptly in respect of any such transaction in any such citrus

    fruit to the person with whom such transaction is had, or to fail[ure] or refus[al] on such account to make full payment of such amounts as may be due thereon."

17. Subsection 601.66(1), Florida Statutes (2008), provides that any person may file a complaint with the Department alleging a violation of the provisions of

    Chapter 601, Florida Statutes (2008), by a citrus fruit dealer.

    
    

18. Subsection 601.66(5), Florida Statutes (2008), provides that the Department is charged with the responsibilities of determining whether the allegations of the complaint have been established and adjudicating the amount of indebtedness or damages owed by the citrus fruit dealer. If the complaining party proves its case, the Department shall "fix a reasonable time within which said indebtedness shall be paid by the [citrus fruit] dealer."

19. Subsections 601.66(5) and (6), Florida Statutes (2008), provide that if the dealer does not pay within the time specified by the Department, the Department shall obtain payment of the damages from the dealer's surety company, up to the amount of the bond.

20. Petitioner bore the burden of proving the allegations of its complaint against J and C Citrus by a preponderance of the evidence. See Florida Department of Transportation v J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

21. Petitioner carried its burden of proving that J and G Citrus failed and refused to pay, as agreed, for citrus fruit that Petitioner shipped on behalf of Respondent in the amount of

$2339.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a final order be entered requiring Respondent pay to Petitioner the sum of $2,339.00

DONE AND ENTERED this 11th day of February, 2009, in Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2009.

COPIES FURNISHED:

Elizabeth Alvarez

Cushman Fruit Company, Inc. 3325 Forest Hill Boulevard

West Palm Beach, Florida 33406

Rob Brehm

Great American Insurance Company Post Office Box 2119

Cincinnati, Ohio 45201

Christopher E. Green, Esquire Department of Agriculture and

Consumer Services

Office of Citrus License and Bond Mayo Building, M-38

Tallahassee, Florida 32399-0800

Brian D. Jerome Carla Dupleich

J & G Citrus Groves 5781 Seminole Way

Fort Lauderdale, Florida 33314

Honorable Charles Bronson Commissioner of Agriculture Department of Agriculture and

Consumer Services

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

Richard D. Tritschler, General Counsel Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800

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: 08-005359

Orders for Case No: 08-005359