Findings Of Fact During January, February, and early March, 1982, Respondent entered into several oral contracts for the purchase of tomatoes from Petitioner. Specifically, orders were placed by Respondent on January 28, February 3 and 5, and March 3, 1982, for US. No.3 grade tomatoes to be shipped f.o.b. origin to receivers in Puerto Rico and Alabama. The first three orders were shipped by boat to Puerto Rico and the fourth by truck to Alabama. The shipment of January 28, 1982 (Shipment #1), consisted of 1,296 boxes, and the invoice cost was 9,288.90. Payment was due on or before February 17, 1982, per the handwritten note placed on the invoice by Ms. Ernst before it was mailed out. A similar notice as to payment due date was placed on each of the other invoices before they were mailed out. The shipment of February 3, 1982 (Shipment #2), consisted of 1,368 boxes; the invoice cost was $9,188.10; and "payment was due on or before February 22, 1982. The shipment of February 5, 1982 (Shipment #3), also consisted of 1,368 boxes; was priced at $9,188.10; and payment was due on or before February 24, 1982. The shipment to Alabama of March 3, 1982 (Shipment #4), consisted of 1,178 boxes; the invoice cost was $7,748.70; and payment was due on or before March 23, 1982. Shipment #1 was inspected by a United States Department of Agriculture (USDA) inspector in the receiver's cool room in Puerto Rico on February 5, 1982, eight days after it was shipped. At that time, the inspector noted that the condition of the tomatoes was "approximately 40 percent green and breakers, 45 percent turning pink, 10 percent light red and red. Decay ranges from 2 to 6 percent, average 3 percent, Bacterial soft rot in early stages." The grade was noted: "Fails to grade US. No. 3, account of grade defects." Quality was noted as: "Mature fairly clean to clean, well developed, generally fairly smooth to slightly rough. Grade defects ranges 40 to 56 percent, average 47 percent, mostly scars, catfaces, cuts and rough texture." Shipment #2 was inspected by a USDA inspector in the receiver's cool room on February 16, 1982, 13 days after shipment. At that time, the inspector noted as to condition: "Average approximately 95 percent red. From 2 to 8 percent, average 4 percent decay; Bacterial soft rot and Gray Mold rot in various stages." Quality was listed as: . . . grade defects ranges 12 to 28 percent, average 19 percent, mostly growth [sic] crack, catfaces, cuts and scars. Grade was noted: "Fails to grade US. No. 3 account of grade defects." Shipment #3 was inspected by a USDA inspector in the receiver's cool room on February 17, 1982, 12 days after shipment. On the inspection report, condition was noted: "Average approximately 85 percent red. Decay ranges 5 to 24 percent, average 14 percent. Gray Mold rot and Bacterial soft rot in various stages." Quality was listed as: . . . From 12 to 32 percent, average 18 percent grade defects, mostly scars, catfaces, mechanical damage and rough texture." Grade was listed as: "Fails to grade US. No. 3 account of grade defects." Shipment #4 was inspected by a USDA inspector in the receiver's warehouse in Alabama on March 5, 1982, two days after shipment. Upon inspection, condition was noted as: "Strano's Pride lot: Average approximately 30 percent green, 5 percent breakers, 20 percent turning, 20 percent pink, 15 percent light red, 10 percent red." As to Select Lot: "Average approximately 20 percent green, 20 percent breakers, 15 percent turning, 20 percent pink, 10 percent light red, and 15 percent red." Each lot was average 1 percent decay. Grade was not quoted, nor was quality. Ordinary shipping time by ship from the Port of Miami to Puerto Rico is four to five days. Inspections under the USDA Perishable Agricultural Commodities Act rules must be conducted within 24 hours after delivery. The USDA inspector is generally accepted as the only nonpartisan means of determining grade, condition, and quality of produce. While the condition of a shipment may change during transit, the grade of the produce normally will not. When the delivery inspections on Shipments #1, #2, and #3 were conducted in Puerto Rico and the receivers complained to Respondent about the produce they received, Elliott, who had been in daily telephone contact with his dissatisfied customers and had verified the condition of the shipments in conversations with the inspectors in question, contacted Tom Banks, Sales Manager for Petitioner, who authorized adjustments in payment saying, "Work it out and get back what you can, or words to that effect. Discussion between these two men as to the adjustments included such topics as charges for gassing and freight to the gashouse, along with the fact that the tomatoes failed to grade out at destination as US. No. 3, as ordered. Mr. Banks failed to get the approval of Mr. Strano before authorizing those adjustments, however Respondent had ordered green tomatoes without gassing so that there would be less chance of spoilage during the several days it took in transit for the tomatoes to get from Miami to Puerto Rico. Gassing, a procedure designed to speed up the ripening of tomatoes, would not have been an appropriate process in a situation such as this. With regard to Shipment #4, Respondent wanted vine-ripened tomatoes for quick delivery to a close-by market. He described his order as for 40 to 50 percent color in the shipment. The tomatoes delivered contained color well below the desired level; and as a result, the Respondent's customer, who had to hold them for an extended period before sale to allow them time to ripen, was dissatisfied with the shipment. The tomatoes in Shipments #1, #2, and #3 were graded as US. No. 3 by a USDA inspector at Petitioner's plant outside Miami prior to shipment. The procedure followed is for the inspector to inspect batch lots containing amounts far greater than that in any one of the shipments in question here. The inspector puts his stamp of grade on a master inspection certificate. Thereafter, whenever any tomatoes are drawn from that batch for sale and shipment, the Petitioner's employees are authorized to mark the appropriate grade for that shipment onto the documentation relating to it. There is no additional inspection by the USDA at origin. However, Petitioner could provide a document trail for only two shipments. One, of 1,368 boxes to Puerto Rico on February 3, 1982, was Shipment #2. Certificate No. B 135642, referring to Gas Lot 306, reflecting a grading of US. No. 3 on February 2, 1982, can be traced to that shipment. Certificate No. B 135588, which was offered in support of Shipment #3, on February 5, 1982, affords reasonable connection to that shipment. There is no documentation, other than Petitioner's own shipping memorandum, which relates to the preshipment grading of the tomatoes in Shipment #1. No credible evidence was introduced to establish the grade of produce in this shipment which failed to grade out as US. No. 3 upon delivery. I therefore find that the grade assigned by the inspector at the delivery point is controlling and that the shipment of 1,296 boxes on January 28, 1982, was not US. Grade No. 3. Respondent deducted $3.25 per box on Shipment #1 ($4,212), $1.50 per box on Shipment #2 ($2,050), $2.50 per box on Shipment #3 ($3,420), and $2 per box on Shipment #4 ($2,356), plus $752.40 each on Shipments #2 and #3 for gassing and freight to the gashouse.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department of Agriculture and Consumer Services enter an order finding that Respondent is indebted to Petitioner in the amount of $5,470. RECOMMENDED this 7th day of June, 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 7th day of June, 1983. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Kenneth M. Clayton, Esquire Michael T. Hand, Esquire 220 North Palmetto Avenue Orlando, Florida 32801 Homestead Tomato Packing Company, Inc. c/o Mr. Rosario Strano Post Office Box 3064 Florida City, Florida 33034 Peerless Insurance Company 62 Maple Avenue Keene, New Hampshire 0343
Findings Of Fact Willie J. Woods is a farmer. He entered into an agreement with W. R. Ward, Jr., President of Growers Marketing Service, Inc. (GMS) concerning the disposition of watermelons which he had grown. The testimony of Woods and Ward concerning the nature of the agreement is conflicting. In the absence of a written contract, the nature of the agreement must be determined from the other documents surrounding their transactions. From these documents, it is determined that the agreement between the parties was not for the purchase of Woods' watermelons by GMS. The documentation surrounding the transactions by GMS, show that GMS was acting as a broker or middle man in introducing Woods' watermelons into the stream of commerce. According to Mr. Ward's records, each shipment was assigned a transaction number, and each sale from a lot of watermelons was also assigned a transaction number. The record of each of these transactions was examined in detail. Below each of these transactions is discussed, and where portions of the record are particularly pertinent, they have been copied and attached to this order for ease of reference. In some instances, the settlement statement has been reproduced and corrected to reflect what the actual charges should have been based upon the underlying record. A handwritten explanation of the adjusting entries has been added to these statements. Transaction number 1439: On June 4, 1991, Woods delivered 43,750 pounds of watermelons to GMS The documentation surrounding this transaction shows that GMS, sold the load of watermelons FOB Brooksville, Florida for a price of 14 cents per pound.The purchaser's driver transported the load from Brooksville to Canada where the purchaser "rejected" the load because the melons were immature. By purchasing the watermelons FOB Brooksville, the purchaser waived any right to reject the melons upon their arrival at their destination. Further, the only evidence of immaturity is an inspection report which states that the inspection was limited and may not reflect the condition of the whole load. The inspection report itself is hearsay. The dollar value of this load as stated in the Bill of Lading/Customs Declaration was $6,125.00. The cost of freight was not shown in the file because it was delivered FOB Brooksville and the costs were borne by the purchaser. The GMS's handling fee was 1 cent per pound or $438.00. GMS owed Woods $5,687.00 on transaction number 1439. GMS paid Woods $2,879 on this transaction. GMS still owes Woods $2,808 on this transaction. Transaction number 1424: On June 4th, GMS sold in behalf of Woods $4,320 pounds of watermelons for 20.25 cents per pound. W. R. Ward stated that the price was reduced from 15 to 5 cents per pound, and was a bookkeeping error. The file reflects the sales price for the 46,320 pounds of watermelons was $9,380. The file reflects that transportation on this load of watermelons was $1,683.00, and GMS, was entitled to 2.5 cents per pound for packing and 1 cent handling for a total of $1,621. The total expenses were $3,304.00 for transaction number 1424. GMS owed Woods $6,077.00 for transaction 1424, but only paid him $1,844. GMS still owes Woods $4,233 on this transaction. Transaction number 3534: On June 4th, GMS, handled a load of yellow meat watermelons weighing 4,071 pounds for Willie J. Woods. Subsequently, GMS sold portions of this load of watermelons in transactions number 1565, 1507, 1461, 1403, and 1476. On June the 6th, GMS sold 13,337 pounds of watermelons at 17 cents a pound for a total sales price of $2,267.29 in transaction 1461. On June 6th, Growers Marketing Service sold 18,909 pounds at 14 cents a pound for a total of $2,647.26 in transaction number 403. On June 7th, Growers Marketing Service sold 1,945 pounds at 22 cents a pound for a total of $427.90 in transaction 1476. On June 14th, Growers Marketing Service sold 5,347 pounds on transaction 1565 which were subsequently rejected because of severe decay. See, Dump Report dated July 5 in Transaction 1565. Growers Marketing Service showed no income nor expense to the grower on transaction 1565. Because these melons were not sold until June 14, it is possible that they decayed. GMS's treatment of the transaction on the settlement statement is contrary to the notes on transaction 1565 which treat is as a wash with no income or expense to Woods. The assessment of freight and handling charges was not inappropriate under the circumstances, and are disallowed. See, Corrected Invoice 3534 attached to this Order. The total revenue from the remaining transactions was $6,142. The expenses on the various loads total $2,285. GMS owed Woods $3,857 on this load, but only paid him $1152. GMS still owes Woods $2705 on this transaction. Transaction number 3541: On June 7, 1991, Growers Marketing Service handled 9,997 pounds of watermelons for Willie J. Woods on transaction number 1565. This load was sold to Castellini Produce on transaction 1565, discussed above, where it was rejected for excessive decay. The assessment of the freight charges and handling charges on this load which was handled 10 days after it was picked was inappropriate, and is disallowed. It is treated also as a wash in this transaction just as it was in 3534, and just as GMS treated it in transaction 1565. Transaction number 3546: On June 11th, Growers Marketing Service received 4,949 pounds of yellow meat watermelons from Woods. It subsequently sold these watermelons for Woods in transactions 1589, 1607, and 1613. Regarding transaction 1589, the Growers Marketing Service's settlement statement to Woods reflects that this transaction is subject to PACA Audit; however, GMS included the 14,121 pounds of watermelons in its settlement at a expense to Woods of 5 cents per pound on a sales price of 1.67 cents per pound. Because this transaction is still subject to audit, it was inappropriate to settle with the farmer. For purposes of this accounting, 1589 is not considered. In transaction 1607, GMS sold 16,775 pounds of yellow meat watermelons received from Woods on transaction 3546. Transaction 1607 and the funds received from the transaction are discussed in full below with regard to transaction 3548; therefore, it is not discussed or accounted for as part of transaction 3546. In transaction 1613, Growers Marketing Service sold 10,053 pounds of watermelons at 11.6 cents per pound for a total of $1,069.00. Expenses attributable to transaction 1613 were $554.00. Woods was entitled to $614.00 on transaction 1613; however, he was paid nothing on this transaction; GMS owes Woods $614 on this transaction. Transaction 1475: On June 11th, Growers Marketing Service received 45,050 pounds of watermelons from Woods. Growers Marketing Service asserts that the original price of these watermelons was dropped from 15 cents to 12 cents; however, the checkstub attached to the invoice shows a total payment to GMS of $7,298.10 at the original purchase price of 17.2 cents per pound. Growers Marketing Service's costs in this transaction were $2,358. Because this transaction clearly shows the original price was paid, it reflects adversely on creditability of the witnesses for Growers Marketing Service with regard to their testimony in other transactions that the original price was reduced due to fall in the market. Growers Marketing Service owed Woods $4,940 on transaction 1475, and paid him $4,484. GMS still owes Woods $456 on this transaction. Transaction number 1508: On June 11, 1991, Growers Marketing Service received 46,000 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these melons at a price of 10.25 cents per pound. Growers Marketing Service received $4,715.00 on transaction 1508 and had expenses in the amount of $2,259.00. Growers Marketing Service owed Woods $2,456.00 on transaction 1508, and paid Woods $2,284. GMS still owes Woods $172 on this transaction. Transaction number 1497: On June 11, 1991, Growers Marketing Service received 45,340 pounds of watermelons in this transaction. Growers Marketing Service sold these watermelons at 16.35 cents per pound and deducted freight of 4.35 cents per pound, showing a net sales price of 12 cents per pound. This resulted in sales revenue of $5,441 from which GMS deducted its 1 cent handling charge and an additional $4,750 listed as a harvesting advance. GMS paid Woods $204. GMS introduced no proof of a harvesting loan; however, Woods' complaint admits this loan. Nothing is owed to Woods on this transaction. Transaction number 3548: On June 12, 1991, Growers Marketing Service received 41,132 pounds of watermelons from Willie J. Woods. Subsequently, Growers Marketing Service sold watermelons received from Woods on this transaction in its transaction numbered 1613, 1607 and 1627. Growers Marketing Service asserts that 24,457 pounds of watermelons were rejected and destroyed on transaction 1607. The records regarding transaction 1607 show handwritten notation on the invoice that Growers Marketing Service received a total after expenses of sale of $3,286.00 on transaction 1607. In transaction 1613, Growers Marketing Service sold 10,032 pounds of watermelons at 11 cents a pound and in transaction 1627 Growers Marketing Service sold 7,899 pounds of watermelons at 7 cents a pound. The original settlement statement reflected incorrectly that Woods owed GMS $810. A corrected settlement statement on transaction 3548 is attached to this Order and reflects that Willie J. Woods was owed the amount of $1,019.00 in transaction 1607, $624.00 in transaction 1613, and $1,019.00 in transaction 1627. GMS paid Woods no money on this transaction, and owes Woods a total of $1,873. Transaction number 1527: On June 12, 1991, Growers Marketing Service received 50,080 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these watermelons for 17.35 cents per pound receiving a total of $8,689.00 less expenses of $2,441.00. GMS owed Willie J. Woods $6,248.00 on transaction 1527, and paid Woods $247. GMS owes Woods $6,001. Transaction number 1536: On June 12, 1991, Growers Marketing Service received 41,320 pounds watermelons from Willie J. Woods. Growers Marketing Service consigned these watermelons and received $2,078.00 less expenses of $1,473.00. Woods owed $605.00 from Growers Marketing Service on transaction 1536, and paid Woods $307. GMS still owes Woods $298. Transaction number 1535: On June 12, 1991, Growers Marketing Service received 43,240 pounds of watermelons from Willie J. Woods in this transaction. Growers Marketing Service subsequently sold these watermelons at 16.45 cents per pound receiving a total of $7,113.00 less expenses of $2,357.00. Growers Marketing Service owed Willie J. Woods $4,856.00 on transaction 1535, and paid Woods $2,802. GMS still owes Woods $2,054. Transaction number 1505: On June 13, 1991, Growers Marketing Service received 44,950 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold these watermelons for a total of $6,967.00 to a dealer in Canada. The dealer in Canada rejected the watermelons upon their receipt serving that they were overripe on June 15, 1991, when they were received. A Canadian agricultural inspection was ordered and conducted on June 21, 1991, which revealed that 28% of the melons showed decay. However, the inspection was not timely and the report is hearsay. GMS failed to exercise due diligence in obtaining a prompt inspection and seeking recovery in behalf of Woods. Therefore, after absorbing expenses of $2,747.00, Growers Marketing Service owed Woods $4,220.00 for his loss in this transaction. GMS paid Woods $1,250 salvage on the load; however, it still owes him $2,970. Transaction number 1520: On June 13, 1991, Growers Marketing Service received 45,940 pounds of watermelons from Willie J. Woods in this transaction. The front of the folder shows that Growers Marketing Service sold this load of watermelons to Winn Dixie in South Carolina for 12 cents per pound, or $5,513. Upon receiving the watermelons on June 15 1991, Winn Dixie rejected the melons because they were "cutting white, green fresh." See copy of front of file. Growers Marketing Service asked another broker to move the load, and that broker and Growers Marketing Service arranged to have the load inspected at its next destination, Staunton, Virginia. The truck broke down in route to Staunton, Virginia and did not arrive until June 18, 1991. The other broker described the melons as looking "cooked" on arrival. Growers Marketing Service charged Woods with freight on this load. Because Growers Marketing Service had a legitimate freight claim against the trucking company, yet charged the loss and freight charges to the grower, GMS owes Woods $5,940 less the salvage, freight and expenses totaling $2,125. GMS owes Woods $3,816. Transaction number 3553: On June 13, 1991, Growers Marketing Service received 29,478 pounds of watermelons from Willie J. Woods on transaction 3553. Subsequently, Growers Marketing Service sold these melons to various concerns realizing $3,450.76 on these sales. GMS's settlement statement with Woods on this transaction reflects a deficit on transaction 1505 of $822.50. According to the records reviewed by the Hearing Officer there was no deficit in transaction 1505; therefore, the deduction of $822.50 was inappropriate. Adding this money back into the amount due Woods, Woods should have received $1,615.74 on transaction number 3553. GMS paid Woods $675, and still owes Woods $941. Transaction number 3552: On June 13, 1991, Growers Marketing Service received 32,769 pounds of watermelons from Willie J. Woods on this transaction. A review of the records reflects that Growers Marketing Service subsequently sold 10,403 pounds of these melons at three cents a pound, realizing $312.09. Growers Marketing Service also sold 19 bins of these melons weighing 22,366 pounds for nine cents a pound for a total of $2,012.94. Growers Marketing Service's settlement statement reflects a packing charge of two and a half cents per pound for 22,366 pounds of melons that were in bins. This is excluded as an expense because the adjustment for packing charges was included in the Hearing Officer's recomputation of the price of nine cents per pound. Similarly, the price adjustment of one and a half cents per pound was included in the recomputation of the price and is therefore excluded. The settlement statement which is attached to this Order reflects total receipts of $2,325 and total expenses of $750. Growers Marketing Services owed Willie J. Woods $1,575 on transaction number 3552, and paid Woods $1,551. GMS owes Woods $24 on this transaction. Transaction number 3549: On June 13, 1991, Growers Marketing Service received 32,564 pounds of watermelon from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold 4,008 pounds of watermelons at three cents a pound on transaction 1669, realizing $120.24 on the sale. Growers Marketing Service sold seven bins of watermelons weighing 8,400 pounds at $217.66 for each bin, realizing a total of $1,523.66 on transaction 1532. Growers Marketing Service sold 1,346 pounds of watermelon at eight cents a pound, realizing $107.68 on transaction 1678. Growers Marketing Services sold 18,810 pounds of watermelons at sixteen and a half cents a pound, realizing $3,104 on transaction 1530. The Growers Marketing Services' settlement statement on transaction 3549, corrected as indicated above, shows that Growers Marketing Services received a total of $4,855 on this transaction. Growers Marketing Services' statement reflects packing charges of four cents per pound for 24,164 pounds. This packing charge was not applicable because the melons are indicated to have been in bins, not in cartons. Further, the price adjustment of one and a half cents per pound on 18,810 pounds was included in the Hearing Officer recomputation of the price per pound. Taking into account these corrections, total revenue was $4,855, and the total expenses of Growers Marketing Services were $1,613. Growers Marketing Services owed Woods $3,242 on transaction 3549, and paid him $1,690. GMS still owes Woods $1,552. Transaction 3556: On June 13, 1991, Growers Marketing Services received 32,898 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Services sold 2,086 pounds of these watermelons for 12 cents a pound on transaction 1622. Growers Marketing Services sold 2,096 pounds of these watermelons at 10 cents a pound realizing $210 on transaction 1575. Growers Marketing Services sold 1,983 pounds of these watermelons at 10 cents a pound realizing $198 in transaction 1647. Growers Marketing Services' settlement for transaction 3556 is attached to this Order and reflects an original price for these melons of 4 cents per pound; however, Growers Marketing Services sold 1,029 of these watermelons at 11.6 cents a pound in transaction 1613. The settlement statement, a copy of which is attached, is corrected to reflect the sales price of 11.6 cents a pound, and the resulting change in the monies received from $41.16 to $119. GMS sold 2086 pounds of melon for 12 cents per pound realizing $250 on transaction 1622. GMS sold 3,841 pounds of watermelons for 10 cents per pound realizing $384 on transaction 1707. Growers Marketing Services sold 21,862 of these watermelons at 7 cents a pound realizing $1,530 on transaction 1627. The total received by Growers Marketing Services was $2,691 less expenses of $1,952. Growers Marketing Services owed Willie J. Woods $739, and paid him $662 on transaction 3556. GMS still owes Woods $77. Transaction number 3557: On June 14, 1991, Growers Marketing Services received 20,013 pounds of watermelons from Willie J. Woods on this transactions. Subsequently, Growers Marketing Services sold 9,214 watermelons at 12 cents a pound on transaction 1616. Growers Marketing Services 3,418 pounds of watermelons at 3 cents a pound in transaction 1669. Growers Marketing Services sold three bins of watermelons weighing 3,525 pounds at 16.5 cents a pound and an additional 3,852 pounds of watermelons at 16.5 cents a pound in transaction 1530. This is a total of 16,162 pounds of watermelons. The Growers Marketing Service's settlement statement, which is attached, is corrected to show the correct number of pounds sold and the correct amounts of money received by Growers Marketing Service. Growers Marketing Service received a total of $3,301.50 for the sell of these watermelons. Concerning the expenses shown by Growers Marketing Service, the number of pounds handled is adjusted to show that 16,162 pounds was handled. In addition, the 4 cent packing charge for 16,484 pounds of watermelons is deleted since these melons were not packed in cartons but in bins. In addition, the 1.5 cent price adjustment for 3,525 pounds of watermelons handled in transaction 1530 is in the recomputation of the price. The corrected expense total is $254. Growers Marketing Service owes Willie J. Woods $3,048 on transaction 3557. GMS paid Woods $643; however, it still owes Woods $2,405. The total of the sums still owed Mr. Woods by GMS is $32,999.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the parties be notified of these findings, and GMS permitted the opportunity to pay to Willie J. Woods $32,999 within 30 days, and if GMS fails to settle with Mr. Woods, Mr. Woods should be permitted to obtain settlement from the Respondent's bond in the amount of $32,999, or to the limits of the bond. DONE and ENTERED this 29th day of July, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1992. COPIES FURNISHED: Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-1550 Willie J. Woods 1022 Piercewood Point Brooksville, Florida 34602 W. R. Ward, Jr., President Growers Marketing Srevice, Inc. Post Office Box 2595 Lakeland, Florida 33806 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond Mayo Building Tallahassee, Florida 32399-0800
The Issue This concerns the issue of whether wooden stakes utilized in the growing of tomatoes in the State of Florida are exempt from the Florida State sales tax under Florida Statute 212.08(5)(a). At the formal hearing, the Petitioner called as witnesses James Felix Price and George Marlowe, Jr. The Respondent called no witnesses. The Petitioner offered and had admitted three exhibits and the Respondent offered and had admitted into evidence two exhibits. Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact are consistent with the findings herein they were adopted by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions in this Order, they were considered by the Hearing Officer and rejected as being not supported by the evidence or unnecessary to the resolution of this cause.
Findings Of Fact The Petitioner, Pitch Pine Lumber Company, sells tomato stakes to tomato growers in Florida. As a result of these sales, the Petitioner was assessed and ordered by the Department of Revenue to pay sales tax due on the sales of tomato stakes. It was stipulated by and between Petitioner and Respondent that the amount in controversy is $11,723.26 and that if the exemption under Florida Statute 212.08(5)(a) does not apply then the Petitioner shall owe that amount plus interest and penalties if applicable from October 3, 1980. Tomato stakes are used in almost every area of Florida today which produces tomatoes. Approximately two- thirds of the 44,000 acres used to grow tomatoes in Florida utilize tomato stakes. The only area which does not utilize these stakes is the Dade County area and this is due to the coral rock soil conditions. The stakes which are used are wooden stakes. These stakes are driven into the ground and used to hold the tomato plants upright or vertical. This prevents the fruit of the tomato plants from resting directly on the soil. Tomato stakes and cotton cloth are both natural plant materials and contain cellulose. One of the benefits of using tomato stakes is that by holding the plant upright, the plant will form a natural canopy which then shades the fruit and prevents sun scalding and sunburning of the fruit. This shade is provided by the leaf canopy of the plant and the stakes themselves provide no shade. Another benefit of utilizing tomato stakes is increased insect control and decreased fruit loss. This is the result of the fruit of the plant being held up off the ground by the plant which is being held upright by the tomato stakes. Tomato stakes were used for this purpose in Florida as early as 1947 and 1948. By 1960, tomato stakes were being used extensively in Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Revenue enter a final order requiring the Petitioner to pay $11,723.26, plus interest and penalties, if applicable from October 3, 1980. DONE and ENTERED this 23rd day of September 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 23rd day of September, 1983. COPIES FURNISHED: Roderick K. Shaw, Jr., Esquire Post Office Box 2111 Tampa, Florida 33601 Linda Lettera, Esquire Department of Legal Affairs The Capitol, LLO4 Tallahassee, Florida 32301 Larry Levy, Esquire General Counsel Department of Revenue 104 Carlton Building Tallahassee, Florida 32301 Randy Miller Executive Director Department of Revenue 102 Carlton Building Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondents owe Petitioner approximately $591 for a quantity of watermelons provided by Petitioner; secondarily, resolution of this issue 1 Correction of obvious error has been made to the style of this case, adding the name of Co-Respondent U.S. Fidelity and Guaranty Co., and eliminating the Department of Agriculture and Consumer requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.
Findings Of Fact Petitioner is a farmer who produces agricultural products, including watermelons. Petitioner also has trucks in which he hauls agricultural products, including watermelons. When all his trucks are in use, he frequently calls a friend, Freddy Bell, to provide some of Bell’s trucks to haul his products. Petitioner, in turn, helps Bell when Bell’s trucks are all in use. Respondent Wilson is a dealer of such products in the course of normal business activity. Respondent Wilson acts as a broker in these arrangements, receives the gross sales receipts from buyers and from that sum deducts costs of labor, freight, inspections, any other associated costs and his commission. The net balance of the gross sales receipts are paid to the melon producers. Respondent U. S. Fidelity and Guaranty Company is the bonding agent for Respondent pursuant to Section 604.20, Florida Statutes. Petitioner had not discussed any arrangement for the sale of his melons with Respondent Wilson. Instead, Petitioner discussed the sales price of his melons with Freddy Bell. Petitioner testified that Bell represented to Petitioner that he could get a price of $4.00 per hundred weight for Petitioner’s melons. Petitioner relied on Bell to provide transport his melons and obtain the promised price. While Bell did not testify at the final hearing, the parties are in agreement that Bell arranged for sale and shipment of Petitioner’s melons through Wilson. Wilson’s President, Robert M. Wilson, testified at hearing that Bell was not empowered by him to represent a guaranteed price for melons to anyone and that he could not affirm that Bell operated as his agent. He added that Melons were plentiful this past season and no melons were brokered on a guaranteed price basis. Testimony of Robert M. Wilson at the final hearing establishes that the arrangement between Respondent Wilson and Freddy Bell on Petitioner’s behalf was a brokerage arrangement and that the sale of the melons was subject to conditions and demands of the market place, i.e., that the melons would sell for the best possible price which Wilson could obtain for them. Testimony of Petitioner is uncorroborated and fails to establish that the agreement between the parties contemplated a direct sale of the melons to Respondent Wilson or a guaranteed price by Wilson.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing Petitioner's complaint.DONE AND ENTERED this 12th day of March, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Bo Bass 2829 Southwest SR 45 Newberry, FL 32669 John M. Martirano, Esquire US Fidelity and Guaranty Co Post Office Box 1138 Baltimore, MD 21203-1138 Robert M. Wilson, President Wilson and Son Sales, Inc. 2811 Airport Road Plant City, FL 33567 Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol - Plaza Level 10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, FL 32399-0800
Findings Of Fact Shortly before January 21, 1985, Tommy P. Adams, on behalf of Mid-South Distributors, placed an order with salesman Daniel Garcia, of Corky Foods Corporation, for the purchase of tomatoes. Mid-South Distributors was to purchase one hundred and forty-four (144) 5x6, eight hundred and sixty-four (864) 6x6, and five hundred and seventy-six (576) 6x7 boxes of tomatoes from Corky Foods. The parties agreed that the price of each unit would be fixed at $1.00 less than "market price." However, no price was established at the time of sale because tomato prices were unstable due to a freeze which passed through the area on January 19 and 20, 1985. Mid-South Distributors and Corky Foods had used this type of billing arrangement satisfactorily in past business transactions. On January 21, 1985, the tomatoes were shipped to Mid-South Distributors from the packing house in Boynton Beach, Florida. Thereafter, on January 23, 1985, an invoice was sent by Corky Foods to Mid-South Distributors establishing the price of the tomatoes as follows: $19.15 per unit for the 5x6 containers; $17.15 per unit for the 6x6 containers; and $15.15 per unit for the 6x7 containers. Mid-South Distributors remitted payment to Corky Foods based on the following assumed market prices: $16.00 for the 5x6; $14.00 for the 6x6; and $12.00 for the 6x7 boxes of tomatoes. Corky Foods Corporation sold 5x6 boxes of tomatoes to other dealers during the period in question for 519.15 per unit; 6x6 boxes of tomatoes during the period in question for $17.15; and 6x7 boxes of tomatoes during the time in question for $15.15. Adams Brokerage (Tommy P. Adams) purchased 5x6 boxes of tomatoes from area sellers during the time in question for $16.00; 6x6 boxes of tomatoes from area sellers during the time in question for $14.00; and 6x7 boxes of tomatoes from area sellers during the time in question for $12.00. The Southeastern Fruit and Vegetable Report, printed in Thomasville, Georgia on Thursday, January 24, 1985, set market prices on tomatoes in "South and Central Florida" at $20.00 for 5x6, $18.00 for 6x6, and $16.00 for 6x7. The Southeastern Fruit and Vegetable Report is often used as a guideline in establishing prices for the industry; the prices reported are based in part on information or "quotes" received from different shippers in the area under consideration. Notably, a shipper's quoted price for a particular day may not be the same price at which the shipper actually sells the commodity. The Southeastern Fruit and Vegetable Report used the geographical area of "South and Central Florida" in establishing market prices for tomatoes. The south and central Florida area is a reasonable geographical boundary to consider in establishing market prices for tomatoes sold at individual locations within those boundaries. The customary way in which Corky Foods Corporation determines market prices is by calling other large area packing houses, and by referring to the Southeastern Fruit and Vegetable Report. In establishing the prices for the tomatoes herein discussed, Corky Foods Corporation consulted (among other area packers) Florida Tomato Packers, a large tomato packer located in Homestead, Florida. The locations at which Tommy P. Adams purchased tomatoes for the lower prices included Lantana, Naples, Bonita Springs, Boca Raton, and Immokalee. Area market prices for tomatoes immediately prior to the freeze were as low as $11.00 for 5x6; $10,00 for 6x6; and $8.00 for 6x7. Generally, severe weather conditions, such as a freeze, will cause market prices for tomatoes to rise. The Respondents did not dispute the quality or condition of the tomatoes; market price was the sole source of disagreement between the parties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing Corky Foods Corporation's Amended Complaint herein. DONE AND ORDERED this 8th day of November, 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 8th day of November, 1985. APPENDIX Pursuant to Section 120.59(2), Florida Statutes (1983), following is submitted in response to Petitioner's and Respondent's Proposed Findings of Fact: Petitioner's Proposed Findings of Fact Paragraph: Ruling: Accepted; see paragraphs 1 and 2, Recommended Order. Rejected as a conclusion of law and not supported by the evidence. Partially accepted; see paragraph 7, Recommended Order. Partially accepted; see paragraphs 6 and 7, Recommended Order. Facts not included therein were rejected as not being established by evidence presented at the hearing. Rejected; irrelevant and not supported by the evidence. Accepted; see paragraph 4, Recommended Order. Accepted; see paragraphs 1 and 2, Recommended Order. Accepted; see paragraph 10, Recommended Order. Rejected; not a finding of fact. Respondent's Proposed Findings of Fact Paragraph: Ruling: a law. 1 Partially accepted; see paragraphs 1-10, Recommended Order. Rejected to the extent that the majority of this paragraph contains statement of the issues and conclusions of COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building Room 513 Tallahassee, Florida 32301 Mr. Joe W. Kight Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301 Donna L. Fuller Vice-President Corky Foods Corporation Post Office Box 1019 Boynton Beach, Florida 33425 Mid-South Distributors, Inc. 2601 South Blossom Trail Orlando, Florida 32805
Findings Of Fact Davis was general manager of the Florida Food Industry Credit Union from May 31, 1980 to May 30, 1985. He was a member of the Board of Directors of the Credit Union from 1980 to May 31, 1985. Davis resigned as General Manager and Director of the Credit Union effective May 31, 1985. In his letter of resignation, Davis acknowledged that he had falsely reported delinquent loans in reports to the Board of Directors for the previous eight years (including three years before he became General Manager). These reports understated the status and amount of delinquent loans. A review of loan records of the Credit Union by the Department of Banking and Finance in June, 1985, confirmed that delinquency reports to the Board of Directors and the Department had been understated over $300,000 for at least six months of 1984. Other source documents of actual loan delinquency and reports thereof could not be located by the Credit Union. The amount of loans past due two months and over were significantly understated as follows: DATE REPORTED AMOUNT REPORTED ACTUAL AMOUNT AMOUNT UNDERSTATED 12/84 $90,117.02 $415,054.48 $324,937.46 9/84 $107,792.25 $446,224.48 $348,400.50 6/30/84 $86,378.35 $454,206.15 $367,827.80 5/31/84 $85,003.54 $492,721.49 $407,717.95 4/30/84 $80,538.85 $477,767.97 $397,299.12 The June 30, 1984, Report of Condition of the Credit Union to the Department understated loans delinquent over sixty days by $367,827. Loans past due two months and over as of April 30, 1985, Report of Examination, totaled $520,600. Of this amount $348,700 were classified by the examiner as loss and $57,400 doubtful of collection. The earned net worth of the Credit Union, as of the date of the examination, was 3.8 percent of total assets. Earned net worth, adjusted for loans classified loss and 50.0 percent of loans classified doubtful of collection, was 1.4 percent of total assets. Essentially, the loans classified loss and doubtful of collection are those that were not reported by Davis. By his response to Requests for Admissions and by his letter of resignation, Davis has acknowledged that he knowingly reported the false delinquent loan information. The understatement of delinquent loans as it relates to an inflation of earned net worth could seriously prejudice the interests of the depositors, members or shareholders of the Credit Union in that inflation of earned net worth impacts on future lending policies and declaration of dividends. The Complaint seeking formal removal of Respondent as a director and officer of Florida Food Industry Credit Union was dated and served on August 29, 1985. At the time the Department of Banking and Finance issued and served the Complaint instituting these proceedings, Respondent was not an officer, director, committee member or employee of Florida Food Industry Credit Union or of any other financial institution in the State of Florida, having resigned on May 31, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a Final Order finding Respondent, Thomas E. Davis, guilty of violating Sections 655.037(1)(a) and (g), Florida Statutes, and prohibiting his participation in the affairs of any financial institution for a period of three years from May 31, 1985. DONE and ENTERED this 19th day of February, 1986, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of February, 1986. COPIES FURNISHED: Rodney C. Wade, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 Thomas E. Davis 1775 N. Andrews Avenue, 204W Fort Lauderdale, Florida 33311 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 Charles Stutts General Counsel Office of the Comptroller Plaza Level, The Capitol Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed. findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Adopted in substance in Finding of Fact 3. Adopted in substance in Findings of Fact 2 and 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Rulings on Proposed Findings of Fact of Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 3.
The Issue Does Respondent Horizon Produce Sales, Inc. (Horizon) owe Petitioner Richard Sapp, d/b/a Sapp Farms (Sapp Farms) $5,484.50 as alleged in the Amended Complaint filed herein by Sapp Farms?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. 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. Tomatoes come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. Horizon is a Florida Corporation, owned entirely by Donald E. Hinton, and located in Sydney, Florida. At times pertinent to this proceeding, Horizon was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Horizon was issued License Number 10584, supported by Bond Number 58 84 19 in the amount of $16,000 written by Gulf Life Insurance Company, as Surety, with an inception date of September 26, 1998, and an expiration date of September 25, 1999. By Invoice numbered 1262, Sapp Farms’ Exhibit numbered 6, dated June 18, 1999, with a shipping date of June 16, 1999, Sapp Farms sold and delivered to Horizon several varieties and sizes of tomatoes in 25-pound cartons at an agreed-upon price of $9.00 per 25-pound carton for 267 cartons and $8.00 per 25-pound carton for 104 cartons for a total amount of $3,235.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. By check dated July 3, 1999, Horizon paid Sapp Farms $1,415.00 on these tomatoes leaving a balance owing of $1,820.00. By Invoice numbered 1263, Sapp Farms’ Exhibit numbered 10, dated June 22, 1999, with a shipping date of June 22, 1999, Sapp Farms sold and delivered to Horizon 122 25-pound cartons of extra large pink tomatoes at $8.00 per 25-pound carton, 51 25- pound cartons of large pink tomatoes at $8.00 per 25-pound carton, and 296 25-pound cartons of 125-150 count Roma tomatoes at $8.00 per 25-pound carton for a total invoiced price of $3,752.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for these tomatoes. By Invoice numbered 1272, Sapp Farms’ Exhibit numbered 15, dated June 24, 1999, with a shipping date of June 23, 1999, Sapp Farms sold and delivered to Horizon 70 25-pound cartons of extra large tomatoes at an agreed upon price of $8.50 per 25- pound carton for a total price of $595.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for those tomatoes. Sapp Farms agrees that it owes Horizon $682.50 in freight charges. See Sapp Farms’ Exhibit numbered 12 and the Amended Complaint filed by Sapp Farms. Horizon contends that it did not agree to purchase the tomatoes at an agreed upon price per 25-pound carton but agreed to "work" the tomatoes with Horizon’s customers and to pay Sapp Farms based on the price received for the tomatoes from its customers less any freight charges, etc. Additionally, Horizon contends that it made contact or attempted to make contact with Sapp Farms regarding each of the loads and was advised, except possibly on one load, by either Mark Davis or Richard Sapp that a federal inspection was not necessary and to "work" the tomatoes as best Horizon could. The more credible evidence is that neither Mark Davis nor Richard Sapp was timely advised concerning the alleged condition of the tomatoes. Furthermore, there is insufficient evidence to show that the condition of the tomatoes when delivered to Horizon’s customers had deteriorated to a point that resulted in rejection by Horizon’s customers. The more credible evidence shows that neither Mark Davis nor Richard Sapp advised Horizon that there was no need for a federal inspection or that Horizon could "work" the tomatoes with Horizon’s customers. The more credible evidence is that Horizon agreed to purchase Sapp Farms’ tomatoes at an agreed-upon price and that upon those tomatoes being loaded on Horizon’s truck, Horizon was responsible to Sapp Farms for the agreed-upon price. Sapp Farms timely filed its Amended Complaint in accordance with Section 604.21(1), Florida Statutes, and Horizon owes Sapp Farms for tomatoes purchased from Sapp Farms on Invoice numbered 1262, 1263, and 1272 less the partial payment on Invoice numbered 1262 of $1,415 and freight charges of $682.50 for total amount due of $5,484.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order granting Sapp Farms relief by ordering Horizon Produce Sales, Inc. to pay Sapp Farms the sum of $5,484.50. DONE AND ENTERED this 24th day of May, 2000, 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 24th day of May, 2000. COPIES FURNISHED: Honorable Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Sapp Sapp Farms 4720 Gallagher Road Plant City, Florida 33565 Donald E. Hinton, Qualified Representative President, Horizon Produce Sales, Inc. 1839 Dover Road, North Post Office Box 70 Sydney, Florida 33587 Michael E. Riley, Esquire Rumberger, Kirk and Caldwell A Professional Association Post Office Box 1050 Tallahassee, Florida 32302 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact Junior Martin, Petitioner, is a farmer d/b/a/ Junior Martin Farms in the State of Florida. Bastista Madonia is a farmer doing business in Florida and West Virginia and a licensed broker in Florida and packer of agricultural products d/b/a/ East Coast Brokers and Packers. Madonia holds Florida license no. 3906 supported by bond no. 743F4618 written by Travelers Indemnity Company as surety. In the summer of 1984 James DiMare, Bastista Madonia, and Junior Martin entered into a Farming Agreement (Exhibit 1) to establish a joint venture to grow cherry tomatoes in the fall 1984 farming season and, if successful, to continue this agreement into the spring season. Pursuant to this agreement approximately fifty (50) acres of tomatoes would be grown by Martin. DiMare and Madonia agreed to supply all plants and $500 cash per acre for which they would own 25 percent of the crop and the profits derived therefrom. East Coast Brokers (Madonia) was to supply picking bins and advance all picking money. Two dollars ($2) per package was to be charged for packing and thirty cents ($.30) per package for selling. Costs for growing the tomatoes was approximately $2,250 per acre. With their advance of $500 per acre and providing plants DiMare and Madonia financed approximately 25 percent of the growing cost of which they were to receive 25 percent of the profits. They were also to advance funds to harvest the tomatoes and deliver them to the packing house. In addition, Madonia paid for two (2) deliveries of tomato stakes to Martin's farm. The tomato crop planted in the fall of 1984 froze and was a total loss. DiMare then pulled out of the agreement. The agreement provided that if both parties are satisfied and things are going well by October 15, all parties will continue this venture by planting a spring crop. Madonia offered to contribute DiMare's share as well as his own for a spring Crop and Martin agreed to plant the spring crop. The spring crop was harvested from late March 1985 through late May 1985 (exhibit 4) at a profit. It is from this venture only that Martin bases his claim. In auditing the records, the Department of Agriculture investigator did not consider the transactions involving the fall crop because that had occurred more than nine (9) months before Martin's complaint. Section 604.21(1) Florida Statutes limits the time frame in which a complaint may be brought. Following the harvesting of the spring crop, Martin and Madonia went to Virginia to look into the feasibility of planting a summer crop in Virginia. They obtained suitable land to lease and, under a modification of their agreement, Madonia would put up most of the money required for the land, fertilizer, etc., and would be entitled to 50 percent of the profits. This venture was unsuccessful and resulted in a large loss, none of which has been paid by Martin. This endeavor was not included in the Department of Agriculture's audit because it occurred outside Florida and beyond the jurisdiction of the Florida Department of Agriculture. The parties discussed a fall 1985 crop after the debacle in Virginia and the Respondent advanced $10,000 to Petitioner for this crop (exhibit 16). This crop was never planted and the Petitioner has rendered no accounting for this advance. The endeavors by Madonia and Martin to grow fall and spring crops in Florida and a summer crop in Virginia were ongoing farming operations carried out pursuant to the Farming Agreement (Exhibit 1). As such, the endeavor was a joint farming venture with Martin providing the land (in Florida) and the farming expertise while Madonia provided plants and funds equal to one-fourth of the expenses and the marketing experience to sell the crops. Accordingly this endeavor was exempt from the provisions of Section 604.15-604.34 Florida Statutes, by Section 604.16(1) (Florida Statutes). The audit conducted by the Department of Agriculture (exhibit 6) showed Petitioner was owed $18,401.91 by Madonia as a buyer for the 1985 spring crop only. This figure does not include any advances over and above the $500 per acre advanced to Martin by Madonia for the fall crop 1984, or the advances for the Virginia operation in excess of the amount agreed to be provided by Madonia. Nor does this figure reflect the 25 percent of the profits due Madonia pursuant to the Farming Agreement. The amount Petitioner claims is owed to him by the Respondent for the spring crop is $60,632.86 (exhibit 7). This balance was prepared by Mrs. Martin from her records. Numerous checks endorsed by Petitioner which he received from Madonia were not included in those figures. Although cashed by Petitioner, they did not get into Mrs. Martin's bookkeeping records. Mrs. Martin acknowledged that she was not sure that she properly credited all of the checks she did receive from Madonia to the spring crop account. Accordingly, this figure is totally unreliable. Disregarding the fall 1984 crop and the Virginia episode, and accepting the Department of Agriculture's audit figures of $18,401.91 as the profits on the spring crops, 25 percent should go to Respondent pursuant to the Farming Agreement. This would leave $13,801.43 owed to Petitioner. From this should be deducted, at least, the $10,000 advance given to the Petitioner for the fall crop of 1985 which was never planted. The parties are engaged in civil litigation to resolve the disputes engendered by the farming activities above discussed. In those proceedings, all of the activities in which they participated pursuant to the Farming Agreement can be considered by the tribunal and resolved. Accordingly, that is the proper forum to resolve the disputes here in issue.
Findings Of Fact On March 25, 1980, Willard Sutliff, broker for Okun and Charles Weisinger, salesman for Six L's, met at the Six L's packing facility in Immokalee. On that date, Sutliff inspected, purchased and took delivery of a load of tomatoes for an agreed price of $10,198.50. The tomatoes were shipped the same day by transport arranged by Sutliff, and arrived in New York at the Okun facility on March 28, 1980. They were immediately inspected by a United States Department of Agriculture (U.S.D.A.) representative and found to be "Now approximately 60 percent U.S. No. 1 quality, 9 percent soft, 5 percent decay." Following harvesting, sorting and packing, tomatoes are taken to the Six L's "gas room" where they are normally held for a period of 48 to 60 hours prior to shipment. During this period the tomatoes continue to ripen. The tomatoes at issue here had been placed in the gas room on March 19 and were well past the optimum shipping point at the time of sale on March 25. These tomatoes were initially inspected by a U.S.D.A. representative on March 19 at the Six L's facility and were assigned a U.S. combination grade. This grade indicates the tomatoes are a combination of U.S. No. 1 and U.S. No. 2 grade, but are at least 60 percent U.S. No. 1. Sutliff was aware of the March 19 U.S.D.A, report, but contends he purchased the load with the understanding from Weisinger that the tomatoes would grade at least 75 percent U.S. No. 1, and his broker's memorandum so indicates. Weisinger denies such representation. The Six L's office manager received his copy of the broker's memorandum on April 3 and regarded the 75 percent U.S. 1 entry as a minor error not requiring repudiation since the tomatoes had already been delivered. Sutliff was accorded ample opportunity to inspect the tomatoes prior to purchase. Although the tomatoes were in crates on pallets which limited his access, Sutliff did observe the color of the tomatoes and also determined that they were "second picking" rather than "crown picking". Had he elected to do so, Sutliff could have required the crates to be opened or requested a further U.S.D.A. inspection. Sutliff purchased the load at a price somewhat lower than market for high grade tomatoes. Weisinger contends he "discounted" the price due to their ripeness while Sutliff contends he paid the lower price because the tomatoes were second picking and were not represented to be 85 percent U.S. No. 1 which would have justified a higher price. The price was arrived at through negotiation and, obviously, all relevant factors including the ripened condition of this highly perishable commodity were taken into account by the parties. The tomatoes were acknowledged to be in good condition by the trucker when he accepted them for loading on March 25th. The temperature records and the three days for transit to New York indicate reasonable shipping conditions. Thus, the deterioration was not due to mishandling, but primarily to the age of the tomatoes when they arrived in New York on March 28th. Okun did not attempt to reject this shipment upon delivery in New York, nor did it furnish any written notice of a price dispute. Okun did, however, furnish Six L's a copy of the March 28 U.S.D.A. inspection report. The parties became involved in a separate dispute in late March when Sutliff claims he purchased a second load of tomatoes from Weisinger which he intended to leave in the gas room for further ripening. When he attempted to take delivery, Petitioner refused claiming no promise of sale or contract had been made. Sutliff's diary and broker's memorandum indicate the purchase was made. However, no signed agreement was produced and Six L's denied the purported sale by telegrams on March 26 and March 31, 1980. Further testimony surrounding the two disputes was given by both parties regarding their face to face end telephone conversations. Their recollections of these conversations were self-serving and conflicting, and are thus assigned no evidentiary weight.
The Issue Whether Respondent owes Petitioner $14,080 on account for vegetables sold and delivered at the request of Respondent.
Findings Of Fact Petitioner, M.O. "Buster" Williams, is an agent for the producers of agricultural products, carrots, red radishes and white corn. Respondent, Dougal M. Buie, III, d/b/a Blue Star Citrus and Vegetables, is a dealer of such products in the normal course of its business activity. Respondent is licensed by the Department of Agriculture and Consumer Services and is bonded by First Union National Bank of Florida. Petitioner sold Respondent carrots, red radishes and white corn by the truck load between the period May 19, 1993 and June 14, 1993, and was given a Bill of Lading therefor. Respondent was sent an Invoice for each shipment and payment was due in full following receipt of the Invoice. As of the date of the formal hearing, each invoice for shipments made between May 19 and June 14, 1993 remains due and owing and unpaid. The total amount of indebtedness owed by Respondent, Buie, to Petitioner is $14,080.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $14,080.00 DONE and ENTERED this 16th day of March, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 16th day of March, 1994. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Robert F. Vason, Jr., Esquire Potter, Vason and Clements 308 East Fifth Avenue Mount Dora, Florida 32757 M.O. Buster Williams 1412 Raintree Lane Mount Dora, Florida 32757 Lewis Stone, Esquire P. O. Box 2048 Eustis, Florida 32727-2048 First Union National Bank of Florida 21 North Grove Street Eustis, Florida 32726
