The Issue The issues presented are whether Respondent, George Mason Citrus, Inc. (Mason), owes Petitioner $10,000 for citrus fruit that Mason purchased from Petitioner and, if so, whether the surety is liable for any deficiency in payment from Mason.
Findings Of Fact Petitioner is a Florida corporation licensed by the Department as a “citrus fruit dealer,” within the meaning of Subsection 601.03(8), Florida Statutes (2005) (dealer).1 The business address for Petitioner is 1103 Southeast Lakeview Drive, Sebring, Florida 33870. Mason is a Florida corporation licensed by the Department as a citrus fruit dealer. The business address for Mason is 140 Holmes Avenue, Lake Placid, Florida 33852. Western is the surety for Mason pursuant to bond number 42292005 issued in the amount of $100,000 (the bond). The term of the bond is August 1, 2004, through July 31, 2005. Petitioner conducts business in Highlands County, Florida, as a dealer and as a “broker” defined in Subsection 601.03(3). In relevant part, Petitioner purchases white grapefruit (grapefruit) for resale to others, including Mason. Mason conducts business in Highlands County as either an “agent,” “broker,” or “handler” defined in Subsections 601.03(2), (3), and (23). On January 31, 2003, Mason contracted with Petitioner to purchase grapefruit from Petitioner pursuant to Fruit Contract number 03-307 (the contract). Mason drafted the contract. The terms of the contract require Petitioner to sell grapefruit to Mason for the 2003, 2004, and 2005 “crop years.” The 2003 crop year began in the fall of 2002 and ended at the conclusion of the spring harvest in 2003. The 2004 and 2005 crop years began in the fall of 2003 and 2004 and ended in the spring of 2004 and 2005, respectively. Only the 2005 crop year is at issue in this proceeding. The contract required Petitioner to deliver grapefruit to a person designated by Mason. Mason designated Peace River Citrus Products, Inc. (Peace River), in Arcadia, Florida, for delivery of the grapefruit at issue. Mason was required by the terms of a Participation Agreement with Peace River to deliver 30,000 boxes of grapefruit to Peace River during the 2005 crop year. In an effort to satisfy its obligation to Peace River, Mason entered into the contract with Petitioner for an amount of grapefruit described in the contract as an “Approximate Number of Boxes” that ranged between 12,000 and 14,000. Petitioner delivered only 2,128 boxes of grapefruit to Peace River. The production of grapefruit was significantly decreased by three hurricanes that impacted the area during the 2005 crop year. The parties agree that Mason owed Petitioner $19,070.03 for the delivered boxes of grapefruit. The amount due included a portion of the rise in value over the base purchase price in the contract caused by increases due to market conditions and participation pay out after the parties executed the contract (the rise).2 On or about October 26, 2005, Mason mailed Petitioner a check for $9,070.03. The transmittal letter for the check explained the difference between the payment of $9,070.03 and the amount due of $19,070.03. Mason deducted $10,000 from the $19,070.03 due Petitioner, in part, to cover the cost of grapefruit Mason purchased from other dealers or growers to make up the deficiency in grapefruit delivered by Petitioner (cover). The $10,000 sum also includes interest Mason claims for the cost of cover and Mason's claim for lost profits. Petitioner claims that Mason is not entitled to deduct lost profits and interest from the amount due Petitioner. If Mason were entitled to deduct interest, Petitioner alleges that Mason calculated the interest incorrectly. The larger issue between the parties is whether Mason is entitled to deduct cover charges from the amount due Petitioner. If Mason were not entitled to cover the deficiency in delivered boxes of grapefruit, Mason would not be entitled to interest on the cost of cover and lost profits attributable to the deficiency. The parties agree that resolution of the issue of whether Mason is entitled to cover the deficiency in delivered boxes of grapefruit turns on a determination of whether the contract was a box contract or a production contract. A box contract generally requires a selling dealer such as Petitioner to deliver a specific number of boxes, regardless of the source of grapefruit, and industry practice permits the purchasing dealer to cover any deficiency. A production contract generally requires the selling dealer to deliver an amount of grapefruit produced by a specific source, and industry practice does not permit the purchasing dealer to cover any deficiency. The contract is an ambiguous written agreement. The contract expressly provides that it is a "Fruit Purchase Contract" and a "delivered in" contract but contains no provision that it is either a box or production contract. The contract is silent with respect to the right to cover. Relevant terms in the contract evidence both a box contract and a production contract. Like the typical box contract, the contract between Mason and Petitioner prescribes a number of boxes, specifically no less than 12,000, that are to be delivered pursuant to the contract. However, the typical box contract does not identify the number of boxes to be delivered as "Approximate No. of Boxes" that ranges between 12,000 and 14,000 boxes. Unlike a production contract, the contract does not identify a specific grove as the source of the required grapefruit. Best practice in the industry calls for a production contract to designate the grove by name as well as the number of acres and blocks. However, industry practice does not require a production contract to identify a specific grove as the source of grapefruit. In practice, Mason treated another contract that Mason drafted with a party other than Petitioner as a production contract even though the contract did not identify a specific grove as the source of grapefruit. The absence of a force majure clause in the contract may evidence either type of contract.3 A box contract typically requires the selling dealer to deliver the agreed boxes of grapefruit regardless of weather events, unless stated otherwise in the contract. However, the absence of such a clause may also be consistent with a production contract because "acts of God" are inherent in a production contract. Such acts, including hurricanes, necessarily limit grapefruit production, and a production contract obligates the selling dealer to deliver only the amount of grapefruit produced. The contract between Petitioner and Mason did not contain a penalty provision for failure to deliver the prescribed boxes of grapefruit (box penalty). The absence of a box penalty in the contract evidences a production contract. The contract identifies Petitioner as the "Grower." A grower typically enters into a production contract. A box contract does not limit the source of grapefruit to be delivered, and the selling dealer in a box contract may obtain grapefruit from anywhere in the state. The contract between Petitioner and Mason limits the source of grapefruit to grapefruit grown in Highlands County, Florida. Mason knew that Petitioner sold only grapefruit from groves in Highlands County, Florida, identified in the record as the Clagget Taylor groves. During the 2003 and 2004 crop years, Petitioner sold only grapefruit from the Clagget Taylor groves. Mason received trip tickets and other documentation related to the delivery of no less than 24,000 boxes of grapefruit, all from the Clagget Taylor groves. The boxes of grapefruit delivered during the 2005 crop year came only from the Clagget Taylor groves. Mason received documentation showing the grapefruit came from the Clagget Taylor groves. Ambiguous written agreements are required by judicial decisions discussed in the Conclusions of Law to be construed against the person who drafted the agreement. Mason drafted an ambiguous agreement with Petitioner. The agreement must be construed against Mason as a production contract. Mason owes Petitioner $10,000 for the delivered grapefruit during the 2005 crop year. The terms of the bond make Western liable for any deficiency in payment from Mason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order directing Mason to pay $10,000 to Petitioner, and, in accordance with Subsections 601.61 and 601.65, requiring Western to pay over to the Department any deficiency in payment by Mason. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 22nd day of August, 2007.
Findings Of Fact Forrest and Charles Joseph, trading as C. Joseph Grocery, hold alcoholic beverage license No. 26-28, Series 2- APS. The licensed premises is located at 3323 Evergreen Avenue, Jacksonville, Florida. The charges herein arose from a public assistance fraud investigation conducted by the State Attorney, Fourth Judicial Circuit. "Confidential informants" were utilized on February 17 and 26, 1981, to exchange United States Department of Agriculture food stamps for cash with the owners or employees of C. Joseph Grocery. The transactions took place on the licensed premises. On February 17, 1981, a confidential informant, Dennis Rawlins, entered the licensed premises with 3265 in food stamps which he turned over to Respondents' employee, Jordan. Upon receiving the food stamps, Jordan approached Charles Joseph, Jr., who was then supervising the store. Joseph gave Jordan $150 for the stamps. Jordan kept $50 for himself and gave the remaining $100 to Rawlins in exchange for the food-stamps. On February 26, 1981, a confidential informant, Ronald Wampler, entered the licensed premises with $300 in food stamps which he traded for $100 cash. Wampler received the cash in exchange for the food stamps from a person he knew from previous visits to the store as Charles Joseph, Sr. Wampler represented the stamps as stolen property to this buyer.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondents guilty of allegations contained in Counts One and Two of the Administrative Complaint and suspend alcoholic beverage license No. 26-28, Series 2-APS, for a period of ninety (90) days. DONE AND ENTERED this 7th day of April, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1982. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Lacy Mahon, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue This is an action filed by the Petitioner pursuant to Section 120.56, Florida Statutes, challenging the validity of the existing Rule 7A-4.13, Florida Administrative Code, by alleging that the Rule is an invalid exercise of delegated legislative authority.
Findings Of Fact On August 2, 1979, the Petitioner, Jax Liquors, Inc., filed its Petition pursuant to Section 120.56, Florida Statutes, challenging the validity of Rule 7A-4.13, Florida Administrative Code. This Rule is a rule promulgated by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Respondent. Subsequent to the filing of the Petition, the Director of the Division of Administrative Hearings assigned the case to this Hearing Officer for consideration. On August 17, 1979, the Intervenor, Beer Industry of Florida, Inc., ("BIF") filed a Motion for Leave to Intervene and that intervention was allowed. On November 13, 1979, a formal hearing in this matter was conducted through the process of the introduction of a Prehearing Stipulation entered into between the parties, the introduction of supplemental evidence, and the presentation of oral argument designed to augment the legal Memoranda submitted by the parties. One of the aspects of the Prehearing Stipulation was the submittal of an agreed statement of admitted facts. These facts are in Section V. In accordance with the Stipulation, the facts are established as follows: Jax Liquors, Inc., has standing to attack the validity of Rule 7A- 4.13, Florida Administrative Code. State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco and Beer Industry of Florida, Inc., have standing to participate in this action and defend Rule 7A- 4.13. Exhibit A attached hereto is an accurate copy of Rule 7A-4.13, Florida Administrative Cede, which makes the wholesale price of malt beverages sold by any one distributor a matter of public record. Rule 7A-4.13, Florida Administrative Code (hereinafter "the Rule"), requires that a distributor of malt beverages file his selling price with the Division ten days in advance of the effective date of such price. In other words, if a distributor wishes to sell beer at a certain price, he must file that price in the central office of the Division of Alcoholic Beverages and Tobacco and also in the appropriate (his distribution area) district office, and then wait ten days before actually selling at that price. Wholesalers, including but not limited to the members of BIF, routinely change the price at which retail vendors may purchase beer for resale. These changes may occur on a daily basis and result from shifts in supply and demand for the product, special promotions by the manufacturer, volume purchases by vendors, and other circumstances occurring in the marketplace. The price posted by a distributor must be available to all retailers who wish to purchase similar quantities at the same time. The Rule does not require a retailer to sell at any particular price. The retailer is free to sell at any price he may set. Rule 7A-4.13 is used by the Division to monitor the price at which beer wholesalers sell to retailers. The posted price provides a record of wholesale prices. Therefore, the Division can compare a wholesaler's or retailer's invoices, checks, etc., to the posted price to determine if a violation of Rule 7A-4.13 has occurred. This system also gives retailers a way in which to discover if prohibited transactions have occurred. Subject to the time restriction set forth in Rule 7A-4.13, JAX is free to negotiate the price at which it may buy beer from the wholesaler, provided that the product must be made available by the wholesaler to all retail vendors buying similar quantities of the product at the same time. Intervenor's exhibits of rules and statutes are accurate exhibits of such rules and statutes which were validly enacted and uniformly enforced for the period during which same were in effect. During license year October 1, 1977, to September 30, 1978, the State of Florida had issued 6,710 retail liquor licenses and 27,918 retail beer licenses. During calendar year 1978, 25,267,559 gallons of liquor were sold in Florida. During fiscal year 1978-79, 19,349,229.78 gallons of wine were sold in Florida. During calendar year 1978, 225,855,202 gallons of beer (based on 2.25 gallons per case of 24-12 ounce and 15.5 gallons per 1/2 bbl.) were sold in Florida. In the Prehearing Stipulation there was another category of facts to which the parties stipulated as being uncontroverted, but relevancy was not admitted. Of the statement of facts, the following facts stipulated to are herein reported and made a part of the Findings of Fact section of this Order. They are: packaged. Beer generally begins to deteriorate 60 to 120 days after it is Beer that has reached its expiration date is removed from the shelves of the retailer by the wholesaler and is destroyed. In its original sealed container, wine has a shelf life of from 120 days to many years. In its original sealed container, liquor has a shelf life of many years. Wine and liquor are generally presold (i.e., contract between the wholesaler and retailer is entered in advance of delivery). Beer is sometimes presold, but usually is sold by a truck driver who makes sales from his vehicle at the time he calls upon a retailer. The parties by their Prehearing Stipulation further agree that there are no issues of fact which remain to be litigated and there are no issues of fact which remain for determination by the Hearing Officer. Therefore, the legal conclusions reached in this matter are premised upon a consideration of the fact stipulations reported above; the items of evidence presented as exhibits to the Prehearing Stipulation, as amended November 14, 1979, by correction to Exhibit J, and other exhibits presented in the course of the hearing, to include the Petitioner's Composite Exhibit No. 2 not presented as a part of the Prehearing Stipulation. The facts related in the Petitioner's Exhibit No. 1 and the Petitioner's Composite Exhibit No. 2 are made a part of the Findings of Fact section of this Order by incorporating the exhibits by reference and attaching copies to this Order.
The Issue The issues in this cause are whether respondent is guilty of violating F.S. 561.42(1) in that it did assist four retail vendors by giving gifts and/or guilty of violating F.A.C. Rule 7A-4.45 in that it failed to reflect on four invoices the complete addresses of four vendors and their signatures, and if so, whether a civil penalty should be assessed against respondent's license or such license should be suspended or revoked, pursuant to F.S. S. 561.29.
Findings Of Fact Having considered the testimony and evidence presented at the hearing, the following findings of fact are made: On or about June 1, 1975, Mr. George C. Gould went to respondent's place of business and obtained six to eight boxes containing 12,000 to 15,000 invoices. Four of these invoices form the basis for the present charges against respondent. Invoice No. 5327, dated January 23, 1975, contains the information, inter alia, that items were sold to "Magic Market number 139, Apal Pkway," License Number 47-164, and also that one bottle of Boones Farm Strawberry Wine was delivered as a promotional item at no charge. Invoice No. 5331, dated January 23, 1974, is for "Inland Quick Stop, Hwy 20 and Cap. Circle", License No. 47-175, and indicates that one bottle of Boones Farm Strawberry Wine was delivered at no charge as a promotional item. Invoice No. 5332, dated January 23, 1974, is for "Tempo, W. Tenn. St." License No. 47-17, and indicates that one bottle of Boones Farm Strawberry Wine was delivered as a promotional item at no charge. Invoice No. 6512, dated February 6, 1974, is for "Subway, W. Tenn. St.", License No. 47-145, and indicates that one bottle of Rhine was delivered as a sample at no charge. None of the above invoices contained the signature of the vendors. Mr. Monty Myers, President of respondent, acknowledged that technical breaches occurred when the bottles of wine were given to the vendors above listed. In mitigation, Mr. Myers stated that the giving of promotional gifts had been going on for some time, especially with the beer distributors. In May of 1975, Mr. Myers, other distributors and five persons with the Division of Beverage had a meeting. At this meeting Mr. Myers acknowledged that he had in the past given promotional items to vendors. Members of the Division of Beverage informed Myers and the others that after this May meeting, charges would be brought against those who gave away promotional items or gifts. No promotional items have been given by respondent since the May meeting. Myers further testified that he did not understand the extent of the address requirement, that the number 47 in the license number represents Leon County and that he would now be able to comply with the address requirements.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating F.S. s. 561.42(1) and F.A.C. Rule 7A-4.45, and that a civil penalty in the amount of $80.00 be imposed. Respectfully submitted and entered this 17th day of November, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Johns Building 725 South Bronough Street Tallahassee, Florida J. Klein Wigginton, Esquire 504 East Jefferson Street Tallahassee, Florida
Findings Of Fact Alvin Vickers and Homer Green, t/a Blue Grass Gardens Tallahassee, Florida, hold beverage license 1-COP #75-59. Notice to Show Cause was served by Certified Mail on the address of the Respondents on file with the Division of Beverage. Exhibit 3, certified copy of the Judgment of the United States District Court for the Northern District of Florida shows that on November 16, 1976 Homer Green was convicted of possessing chattels of a value in excess of $100 stolen from interstate shipment of freight in violation of Title 18, U.S. Code Section 659 as charged. Exhibit 4, Judgment of the United States District Court for the North District of Florida shows that on December 6, 1976 Alvin Vickers was convicted of transporting in interstate commerce a stolen motor vehicle knowing the motor vehicle to have been stolen, in violation of Title 18, U.S. Code, Sections 2312 and 2 as charged. Both Vickers and Green were sentenced to serve 18 months in prison. From the foregoing Findings of Fact it is concluded that the licensees, Green and Vickers, violated the laws of the United States.
The Issue The issue is whether an administrative fine should be imposed on Respondent for unlawfully selling "spirituous beverages" on its licensed premises, as alleged in the Administrative Action served by Petitioner on March 17, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary action, Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), seeks to impose penal sanctions on the license of Respondent, Polpo Mario, Inc., doing business as Polpo Mario Ristorante, on the ground that on February 24, 1999, an employee of the establishment served a Division special agent a shot of vodka and a shot glass containing a mixture of vodka and amaretto, none of which could be lawfully sold under Respondent's license. After this proceeding began, the restaurant was voluntarily closed by the owner. Respondent has denied the charge and requested a formal hearing to contest this allegation. In his request for a hearing, Respondent contended that the employee who served the drinks was actually a bus boy and had no authority to wait on customers; that the bus boy was pressured into making the sale; that the employee was "slightly retarded"; and that the chef occasionally used amaretto in preparing a special dessert. Except for the latter assertion, none of these defenses was established at the final hearing. Respondent is subject to the regulatory jurisdiction of the Division, having been issued license no. 68-01763, Series 2COP. That license allows Respondent to make sales of beer and wine for consumption on the premises of its restaurant located at 3131 Clark Road, Sarasota, Florida. The license does not, however, authorize the sale of "spirituous beverages," such as vodka, whiskey, and liquors, which contain more than six percent of alcohol by volume. Besides the above license, Respondent also holds licenses from the Division for three other restaurants, including a Series 4COP, SRX license, which authorizes the sale of all types of alcoholic beverages in conjunction with food sales. This type of license has an annual fee of $1,820.00. On November 6, 1998, a Division auditor, Eileen O'Shea (O'Shea), performed a routine audit of Respondent's corporate offices. Such audits are required to be performed at least once every three years. During the course of the audit, O'Shea examined various invoices from liquor dealers, including one which suggested that liquor may have been transferred from one of the restaurants holding a Series 4COP, SRX license to Polpo Mario Ristorante. O'Shea cautioned Respondent's president, Joseph Casadio (Casadio), and his wife, that under a Series 2COP license, they were not authorized to sell or have alcoholic beverages on the licensed premises. She also gave them a copy of the state statutes which contained this restriction, and O'Shea suggested that if any liquor was kept in the kitchen for food prepration purposes, that the bottle be marked with a "K." She further advised them that if they intended to use alcoholic beverages for preparing certain special dishes, they must obtain written approval from the Division to do so. There is, however, no statutory or rule authority for this requirement. Finally, she referred her findings to a Division special agent. Both Casadio and his wife acknowledged to O'Shea that they now understood the requirements and that no laws were being violated. Casadio also told her that he had once served customers an after dinner expresso with Sambuca (a liquor) without charge, but he no longer did so. Around 6:15 p.m. on February 24, 1999, and presumably in response to O'Shea's referral, Division special agent Samuel J. Funaro (Funaro) visited the licensed premises of Respondent for the purpose of attempting to purchase spirituous beverages. Funaro was greeted by Gerard Woel (Woel), an employee who seated Funaro at a table near the bar and handed him a menu. Besides Woel, there were two other female waitresses on duty that evening, including Kim Mitchell (Mitchell). None of these former employees, or any others, testified at the final hearing; however, their out-of-court statements have been treated as admissions by employees of a party and therefore an exception to the hearsay rule. Although there were several special entrees shown on a display board at the entrance to the restaurant, none were desserts. Funaro ordered an Eggplant Parmigiana as his entree and a bottle of Budweiser beer to drink. He also asked Woel for a whiskey chaser to go with his beer. Woel departed and returned from the kitchen a few minutes later with a shot glass containing a clear liquid. The parties have stipulated that the liquid was vodka. Woel remarked that the vodka came from a bottle kept by the chef in the kitchen. By serving that drink, Respondent exceeded the authority under its license. At a later point in his meal, Funaro ordered a second bottle of beer and another whiskey chaser. A few minutes later, Woel returned with a shot glass containing a brownish colored liquid and explained that it represented the last vodka in the chef's bottle along with a small amount of amaretto, which was the only other alcoholic beverage in the kitchen. Although Funaro did not retain a sample of the drink, based on his experience, he concluded that the shot glass did in fact contain vodka and amaretto. By serving the drink, Respondent exceeded the authority under its license. Shortly before 8:00 p.m., Funaro completed his meal. Woel was busy with other customers, so the bill was presented by Mitchell, another waitress on duty. The bill totaled $17.91, including tax, and besides the food charge, contained a charge for one beer (even though two had been ordered) and an item for $5.50 entitled "2-Open Food Lunch." As to the latter item, Mitchell explained that this was the way liquor sales were rung up on the cash register because the cash register did not have a specific key for liquor sales. On March 10, 1999, O'Shea and Funaro returned to Respondent's restaurant for the purpose of conducting an inspection of the premises. They found a bottle of Bols Amaretto in the kitchen used for preparing desserts. At that time, the chef on duty told them that after dinner drinks were served at one time but the practice was discontinued. He also stated that the previous chef had kept a bottle of vodka on the premises for preparing a pasta sauce. On March 16, 1999, Funaro met with Casadio and explained the violations he had noted during his previous visit and inspection. Casadio explained again that he had once given a complimentary after dinner drink to patrons but discontinued that practice after O'Shea had given him a verbal warning during her audit. He also explained that the amaretto found in the kitchen on the March 10 inspection was used to prepare desserts for patrons. In mitigation, Casadio established that he had been in the restaurant business for some 20 years, and there is no evidence that he has ever been charged with, or convicted of, violating any Division regulations or state law. He pointed out that he would never risk his license for the price of two drinks ($5.50), that he has always attempted to comply with all relevant requirements, and that he immediately fired Woel after learning of his actions. Given the extremely small amount of liquor involved, the minimal amounts kept on hand in the kitchen for cooking purposes, and the fact that Respondent was obviously not engaged in this conduct on a widespread, continuing basis, a reduction in the fine is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order determining that Respondent has violated Section 562.12(1), Florida Statutes, as charged in the Administrative Action, and that an administrative fine in the amount of $750.00 be imposed. DONE AND ENTERED this 30th day of December, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 30th day of December, 1999. COPIES FURNISHED: Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Charles D. Peters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Joseph Casadio 3131 Clark Road, Suite 103 Sarasota, Florida 34231 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not Petitioner (complainant) is entitled to recover $1,340.50 or any part thereof against Respondent dealer and Respondent surety company.
Findings Of Fact Petitioner is a grower of watermelons and qualifies as a "producer" under Section 604.15(5) F.S. Respondent Steve Helms Fruit Co., Inc. is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S. Respondent Ohio Casualty Insurance Co. is listed as surety for Steve Helms Fruit Co., Inc. The amount and period of the bond have not been established. The time material to the amended complaint is June, 1994. Two or three weeks before Petitioner's melons were ready for harvest, Steve Helms personally came to Petitioner's home and requested to ship Petitioner's melons for ultimate retail sale. Petitioner requested to be paid "up front." Mr. Helms would not agree to pay all the money "up front" but agreed to pay some. He also agreed to pay within 14 days of the first shipment. Petitioner had had a bad experience two years previously, so he got Mr. Helms to promise to "clean up" his field. This expression is subject to some interpretation, and although Petitioner initially stated that the agreement was for Respondent broker-shipper to buy all his melons regardless of condition, Petitioner later modified his statement to say that Mr. Helms only promised not to take the best melons and leave the rest. Harvesting began May 15, 1994. Until June 10, 1994, Petitioner's usual contact with Respondent broker- shipper was Frank Favuzza, who oversaw all weighing and loading and assessed the Petitioner's melons on behalf of Respondent broker-shipper. On June 10, 1994, Mr. Helms was again personally in the field. Petitioner told Mr. Helms that he had to get the remainder of the melons off the field by Sunday, otherwise the heat would ruin them. Mr. Helms said he would wait until Monday. Petitioner believes that if the melons had been harvested by Sunday, June 12, 1994, three truckloads could have been harvested. On Monday, less than a full truckload was in good enough condition to be loaded onto a truck. A lot of melons were going bad and were left in the field to rot. On Tuesday, June 14, 1994, Petitioner's melons were weighed at Romeo, Florida and the poundage established at 29,330 pounds. Frank Favuzza estimated to Petitioner that his melons would only bring $.04/lb. From this conversation, related by Petitioner, it may be clearly inferred that Petitioner knew he would not be paid until after Respondent broker-shipper received payment from the ultimate retailer at the other end of the transaction. Petitioner's amended complaint alleged the amounts due as follows: "On June 1, 1994, #92111, 700 lbs. at $.07 equals $49.00, not $490.00; June 3, 1994, #92117, 900 lbs. at $.07 equals $63.00, not $630.00; and June 3, 1994, #92120, 790 lbs. at $.07 equals $55.30, not $553.00. Therefore Item (12) Complaint Total is amended to $1,340.00." The amendments did not alter the original claim for 6-14-94, invoice 92157 for 29,330 lbs. of melons at $.04 for $1,173.20. There was no claim for the melons that rotted in Petitioner's field. Weight tickets and Respondent's corresponding broker-shipper's bills of lading were admitted in evidence. These showed the following amounts were received by Respondent broker-shipper: 6/1/94 INVOICE 92111 46,020 net weight melons 6/3/94 INVOICE 92117 45,580 net weight melons 6/3/94 INVOICE 92120 44,720 net weight melons 6/14/94 INVOICE 92157 29,330 net weight melons Petitioner testified, without refutation, that he was present at each weighing and that he had agreed to take $.07 per pound on all loads except for the June 14, 1994 load for which he was claiming $.04 per pound. The bills of lading support Petitioner's testimony as to the price per pound. The bills of lading also clearly show that the price per pound was "to farm minus labor." This notation means that the net amount to be paid Petitioner by Respondent was subject to a prior deduction for labor, but it cannot reasonably be inferred to include a deduction for shipping. Petitioner's last load of 29,330 lbs. of melons weighed on June 14, 1994 was less than a full truckload, so Respondent added melons from another farm to that truck to make up a full load. Respondent broker-shipper did not pay Petitioner for 700 pounds of the June 1, 1994, invoice 92111 truckload; for 900 pounds of the first June 3, 1994 invoice 92117 truckload; for 790 pounds of the second June 3, 1994 invoice 92120 truckload; or for any (29,330 pounds) of the June 14, 1994 invoice 92157 truckload, upon grounds that those melons were not saleable at their destination. Petitioner put in evidence Exhibit P-3 which is an accounting Respondent had sent him. It shows that Respondent broker-shipper had deducted $690.30 for labor on invoice 92111 and claimed 700 pounds could not be sold; had deducted $683.70 for labor on invoice 92117 and claimed 900 pounds could not be sold; had deducted $670.80 for labor on invoice 92120 and claimed 790 pounds could not be sold; and had paid Petitioner nothing on a June 14, 1994 truckload, invoice 92159. Invoice 92157, which corresponds to Petitioner's June 14, 1994 partial truckload of 29,330 pounds of melons, is not listed or otherwise explained in the exhibit. The exhibit is conclusionary and inexplicably is dated 1993. There is no back-up evidence to support Respondent's making these deductions. No inspection certificate or labor charges are in evidence. Petitioner's initial complaint, which he put in evidence as P-1, constitutes an admission by him. In the complaint, Petitioner contended (1) that he was selling "direct" to Respondent broker-shipper; (2) that he was selling "f.o.b."; and (3) that he was selling "Fob shipping point excectance (sic) after final inspection." Petitioner also stated therein that he was given an inspection sheet showing 46,310 lbs. of watermelons had failed inspection and he did not feel the melons that failed inspection were his melons because Frank Favuzza approved of all melons loaded from Petitioner's field and the inspection sheet did not say that the bad melons were Petitioner's melons. Somewhat contrariwise, Petitioner testified at formal hearing that he had asked Respondent broker-shipper for a government inspection certificate showing that his melons were bad and never got it. From the credible evidence as a whole, it is inferred that Petitioner sold his watermelons on the June 14, 1994 truckload at $.04 per pound contingent upon the melons arriving at their ultimate destination in saleable condition per a federal inspection. It is further inferred that the prior three loads at issue also were sold contingent upon their arriving in saleable condition. The evidence as a whole also supports a finding that Petitioner's melons left the weigh station in a condition capable of being sold for the respective prices agreed upon between Petitioner and Respondent broker-shipper. Any deterioration of melons between June 10, 1994 when Petitioner requested that the broker-shipper take the last load and June 14, 1994 when the last load actually was weighed and shipped is attributable to Respondent broker-shipper, but that fact is not significant since the lesser rate of $.04/lb. was agreed upon prior to shipping and after Respondent broker-shipper had seen and approved the loaded melons. Petitioner's foregoing evidence of delivering saleable quality melons to Respondent broker-shipper is unrefuted. The presumption is thereby created that but for some failure of Respondent broker-shipper, the melons would have arrived at their ultimate destination in saleable condition. There is no evidence of record to support Respondent's deductions for "labor," or for melons which allegedly could not be sold upon delivery at the ultimate destination. Petitioner moved ore tenus to further amend his complaint to include a prayer for reimbursement for the cost of the melons which rotted in his field and became unsaleable between June 10 and June 14, 1994 due to Respondent broker-shipper's delay in loading and to assert a claim for interest on the $1,340.50 claim. This motion was denied as too late.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture enter a final order awarding Petitioner $1,340.50, and binding Respondents to pay the full amount of $1,340.50, which in Ohio Casualty Insurance Co.'s case shall be only to the extent of its bond. RECOMMENDED this 2nd day of June, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1995. APPENDIX TO RECOMMENDED ORDER 94-6189A The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-2 Accepted. Rejected as unnecessary Rejected as subordinate and mere argumentation. 5-6 Rejected as mere argumentation. Rejected as these were not the dates testified. Rejected as mere argumentation. Respondent Steve Helms Fruit Co., Inc.'s PFOF: 1 Accepted. 2-4 Rejected as not proven. Accepted as to the June 10-14, 1994 load. Rejected as not proven. Not proven in whole. Covered to the extent proven. While one inference might be that a different invoice number was assigned to the combined load, that is not the only reasonable inference based on the evidence submitted. Likewise, although Petitioner apparently got some inspection certificate, that certificate is not in evidence. There is no record evidence as to what it covered. It is not reasonable to infer or guess that it covered four loads on four trucks on three dates or that there is any way to calculate from it that the only bad melons were Petitioner's melons and not those mixed in from another farm on June 14, 1994. See FOF 19-20. 8-15 Rejected as not proven. Respondent Ohio Casualty Insurance Co.'s PFOF: None filed COPIES FURNISHED: Frank Favuzza, President Steve Helms Fruit Co., Inc. Post Office Box 1682 Auburndale, Florida 33823 Tom Morton Ohio Casualty Insurance Co. Post Office Box 94-5010 Maitland, Florida 32794-5010 L. C. Stevenson 333 NW 46th Avenue Ocala, Florida 34482 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol PL-10 Tallahassee, Florida 32399-0810 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL 10 Tallahassee, Florida 32399
The Issue Whether Respondents' alcoholic beverage license should be disciplined for the reasons stated in Petitioner's Notice to Show Cause dated September 14, 1982.
Findings Of Fact Based on the evidence presented, the following facts are determined: The Long Branch was operating under DABT License No. 74-878 in License Series 4-COP-SRX. This type of license requires food and nonalcoholic beverage sales to constitute at least 51 percent of all sales. Audit of the Long Branch's records, which were examined on a month-by- month breakdown of the sales for the period July 1 1981, to July 1, 1982, showed food and non- alcoholic beverage sales at 7.7 percent and alcoholic beverage sales at 92.3 percent of total sales. For the period July 1 through July 27, 1982, the ratio was 4.3 percent to 95.7 percent. At no time during the more than one year period audited did the food sales reach the required 51 percent.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondents' License No. 74-878 be revoked. RECOMMENDED this 31st day of March, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1983. COPIES FURNISHED: Thomas M. and Sandra J. Spera Long Branch 600 South Yonge Street Ormond Beach, Florida Mr, Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
