STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case on March 19, 2009, in Winter Haven, Florida, before Jeff B. Clark, the duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Marvin Hajos, pro se

3510 Northwest 94th Avenue Hollywood, Florida 33024

For Respondent: Hans Katros, pro se

Citrus Direct, LLC 1406 Palm Drive

Winter Haven, Florida 33884

For Respondent State Farm Fire and Casualty Company:

No Appearance

STATEMENT OF THE ISSUE

Whether Respondent, Citrus Direct, LLC, owes Petitioner, Marvin Hajos, the sum of $5,397.00 for citrus that was purchased, but not harvested.

PRELIMINARY STATEMENT

On or about September 4, 2008, Petitioner filed a Complaint with the Florida Department of Agriculture and Consumer Services ("DACS"), Division of Fruit and Vegetables, that alleged Respondent, Citrus Direct, LLC ("Citrus Direct"), had failed to comply with a written contract resulting in damages to Petitioner in the amount of $5,400 (later amended to $5,397).

According to the Complaint and the Amended Complaint later filed, Citrus Direct owed Petitioner for fresh fruit that was to be harvested and marketed by Citrus Direct in accordance with a variety and volume depicted on the Purchase Contract.

Respondent, State Farm Fire and Casualty Company, was identified in the Complaint as the surety for Citrus Direct.

Thereafter, Citrus Direct filed an answer to Petitioner's claim and maintained that due to the lateness in the season, there was not much fruit in the grove and that Petitioner had been paid for all the fruit that had been picked. Citrus Direct denied it was indebted to Petitioner. DACS determined that the Amended Complaint was timely filed and that Citrus Direct's answer denying the claim was also timely filed. Consequently,

DACS referred the matter to the Division of Administrative Hearings to conduct formal proceedings in accordance with Section 601.66, Florida Statutes (2008).

On January 9, 2009, an Initial Order was sent to all parties. Based on the responses, the case was scheduled for final hearing on February 16, 2009, in Winter Haven, Florida. On February 6, 2009, the parties requested that the case be postponed. The Request for Postponement was granted, and the case was rescheduled for March 19, 2009.

The hearing took place as rescheduled. Both Petitioner, Marvin Hajos, the grove owner, and Hans Katros, the owner of Citrus Direct, were present and offered testimony.

Unfortunately, neither party had been to the grove in question during the relevant time period, May and June 2008; and as a result, neither had any first-hand information about the amount and quality of fruit. Mrs. Jamie Katros, the wife of Hans Katros, was present at the hearing. Mrs. Katros serves as bookkeeper for Citrus Direct. The only witness with first-hand information about the amount and quality of the fruit was Jesus Aguilar. Mr. Aguilar is an independent fruit-picking contractor. Both parties offered two exhibits that were received into evidence and marked Petitioner's Exhibits 1 and 2 and Citrus Direct's Composite Exhibit 1 and Exhibit 2.

At the close of the evidentiary portion of the hearing, the undersigned announced on the record that proposed recommended orders had to be filed within ten days of the hearing or within ten days of the filing of the transcript. A transcript was not filed. Neither party filed a proposed recommended order.

All statutory references are to the Florida Statutes Florida Statutes (2008), unless otherwise stated.

FINDINGS OF FACT

1. At all times material to the instant case, Petitioner and Citrus Direct were involved in the growing and marketing of citrus fruit in the State of Florida.

2. On June 12, 2008, Citrus Direct agreed to purchase fruit from Petitioner. The terms of their agreement were reduced to writing. The "Fresh Fruit Contract" provided that Citrus Direct would purchase from Petitioner all of the varieties of citrus fruits of merchantable quality as delineated in the contract.

3. More specifically, Citrus Direct was entitled to purchase "Valencia" oranges from Petitioner for "$3.00 on tree net" per box.

4. The terms of the contract suggests that it is for "citrus fruit for the year 2005/2006 and merchantable at the time of picking. . . ." The contract does not identify a total amount of fruit expected from the grove.

5. Prior to entering into the above-referenced contract, Petitioner had made arrangements with an unidentified third party to have the grove picked, but for some reason, that agreement fell through. Jason Cooper, known in the citrus business as a "bird dog," brought the parties together.

   Mr. Cooper is an independent contractor who finds grove owners who need to have their groves picked and refers them to buyers.

6. The "Fresh Fruit Contract" was signed on June 12, 2008.

   
   

   The grove was picked on June 15, 17, 26 and 30, 2008. Two hundred and sixty-four boxes of fruit were picked from Petitioner's grove. Petitioner received payment of $603.00. Citrus Direct forwarded an additional check for $189.00 to Petitioner; however, Petitioner did not receive the check.

7. No admissible evidence was received regarding the number of boxes of fruit that were anticipated from the grove. However, on June 30, 2008, all the fruit that was reasonably available to be picked in the grove had been picked.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.57 and 120.60, Fla. Stat.

9. Chapter 601, Florida Statutes, is known as the "The Florida Citrus Code of 1949" ("the Code").

10. The Code, among other things, regulates the activities of "citrus fruit dealers."

11. "Citrus fruit," as that term is used in the Code, is defined in Subsection 601.03(7), Florida Statutes, as follows:

    "Citrus fruit" means all varieties and regulated hybrids of citrus fruit and also means processed citrus products containing

    20 percent or more citrus fruit or citrus fruit juice, but, for the purposes of this chapter, shall not mean limes, lemons, marmalade, jellies, preserves, candies, or citrus hybrids for which no specific standards have been established by the Department of Citrus . . . .

    
    

    The "Valencia" referenced in the parties' agreement are "citrus fruit," as defined in Subsection 601.03(7), Florida Statutes.

12. A "citrus fruit dealer," as that term is used in the Code, is defined in Subsection 601.03(8), Florida Statutes, as follows:

    "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 . . . .

    
    

    Citrus Direct is a "citrus fruit dealer" as that term is defined.

13. Pursuant to Subsection 601.55(1), Florida Statutes, a "citrus fruit dealer," as defined in Subsection 601.03(8), Florida Statutes, must be licensed by the Department of Citrus to transact business in the State of Florida. At all times material to the instant case, Citrus Direct was licensed as required by Subsection 601.55(1), Florida Statutes.

14. With certain exceptions not applicable to the instant case, Subsection 601.61(1), Florida Statutes, states in pertinent part:

    [P]rior to the approval of a citrus fruit dealer's license, the applicant therefore must deliver to [DACS] a good and sufficient cash bond, appropriate certificate of deposit, or a surety bond executed by the applicant as principal and by a surety company qualified to do business in this state as surety, in an amount as determined by the Department of Citrus.

    
    

15. Subsection 601.61(3), Florida Statutes, states:

    
    

    Said bond shall be to the Department of Agriculture [and Consumer Services], 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.

    
    

16. Section 601.64, Florida Statutes, describes "unlawful acts" in which "citrus fruit dealers" may not engage "in connection with, any transaction relative to the purchase, handling, sale, and accounting of sales of citrus fruit." Among these "unlawful acts" is the failure to "make full payment

    promptly in respect of any such transaction in any such citrus fruit to the person with whom such transaction is had. "

17. Subsection 601.66(1), Florida Statutes, states:

    
    

    Any person may complain of any violation of any of the provisions of [the Code] by any citrus fruit dealer during any shipping season, by filing of a written complaint with [DACS] at any time prior to May 1 of the year immediately following the end of such shipping season.

    
    

18. A hearing held in accordance with Subsection 120.57(1), Florida Statutes, on the Complaint must be conducted if there are disputed issues of material fact. The complainant has the burden of proving the allegations of the Complaint by a preponderance of the evidence. Department of Banking and

    Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996)("'The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue'"); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

19. If DACS determines that the complainant has met its burden of proof, it must "make its findings of fact accordingly and thereupon adjudicate the amount of indebtedness or damages due to be paid by the dealer to the complainant. The administrative order [must] fix a reasonable time within which

    said indebtedness shall be paid by the dealer." See

    
    

    § 601.66(5), Fla. Stat.

    
    

20. If the dealer fails to comply with the Order, the Department must:

    [C]all upon the surety company to pay over to the [DACS], out of the bond theretofore posted by the surety for such dealer, the amount of damages sustained but not exceeding the amount of the bond. The proceeds to the [DACS] by the surety company shall, in the discretion of the [DACS], be either paid to the original complainant or held by the [DACS] for later disbursement, depending upon the time during the shipping season when the complaint was made, when liability was admitted by the dealer, when the proceeds were so paid by the surety company to the [DACS], the amount of other claims then pending against the same dealer, the amount of other claims already adjudicated against the dealer, and such other pertinent facts as the [DACS] in its discretion may consider material.

    
    

    See § 601.66(6), Fla. Stat.

    
    

21. If the surety company fails to comply with the Department's demand for payment, the Department must "within a reasonable time file in the Circuit Court in and for Polk County, an original petition or complaint setting forth the administrative proceedings before [DACS] and ask for final order of the court directing the surety company to pay the proceeds of the said bond to [DACS] for distribution to the claimants."

    § 601.66(7), Fla. Stat.

22. In the instant case, Petitioner timely filed a Complaint against Citrus Direct.

23. At the hearing, Petitioner did not meet his burden of proof to establish that Citrus Direct failed to remit the funds as contemplated by the parties' written agreement.

24. Citrus Direct acknowledges that the $189.00 check it tendered to Petitioner has not been negotiated and that amount is owed to Petitioner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Department Agriculture and Consumer Services enter a final order dismissing Petitioner, Marvin Hajos', Amended Complaint, but requiring Respondent, Citrus Direct, LLC, to pay Petitioner $189.00, if that amount has not already been paid.

DONE AND ENTERED this 27th day of April, 2009, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 27th day of April, 2009.

COPIES FURNISHED:

Honorable Charles H. 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

Christopher E. Green, Esquire Department of Agriculture and

Consumer Services

Office of Citrus License and Bond Mayo Building, Mail Station 38 Tallahassee, Florida 32399-0800

Marvin Hajos

3510 Northwest 94th Avenue Hollywood, Florida 33024

State Farm Fire and Casualty Company One State Farm Plaza

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: 09-000108

Orders for Case No: 09-000108