Findings Of Fact In the summer of 1986, petitioner, Leo R. Fleming, as the agent for a Mr. Griffin, entered into an agreement with Jimmy Davis, representing D & M Pecan Company, to sell an unspecified amount of watermelons to D & M at the "ground" price which was to be determined daily. The parties also agreed to "joint" the melons, meaning that D & M and Mr. Griffin would split whatever profit or loss was made on the sale of the watermelons. Under the terms of the agreement D & M supplied the trucks and petitioner was responsible for harvesting and loading the melons on the trucks. Fifteen loads of watermelons were loaded and sold to D & M between June 28 and July 2, 1986. On June 28, 1986, D & M paid petitioner $3,000 as an advance on the watermelons so that the field crew could be paid. On June 30, 1986, D & M paid $5,000 and on July 2, 1986, D & M paid $3,000. None of the monies paid to petitioner between June 28 and July 2 were for specific loads or lots of melons, but were advances to be credited against the total amount that was ultimately owed to petitioner. From the first day of loading, June 28, 1986, D & M experienced problems with the melons loaded by petitioner. Mr. Davis would call petitioner the night before the loading to advise him as to the type and size of melon that was to be put on each truck to be loaded the following day. However, petitioner would get the orders confused, which resulted in the trucks being loaded with a different size and type of watermelon than was ordered. D & M usually did not discover the problem until the trucks reached their destination. On a few occasions, the discrepancies were discovered when petitioner called back in after the trucks had left the field to report the amount of melons put on each truck. In any event, the failure to load the right melons on the trucks caused D & M to have to find other buyers and reroute the trucks or reduce the price of the melons delivered. On July 12, 1986, petitioner and Mr. Davis met in Cordele, Georgia, for the purpose of determining the amount owed by D & M for the watermelons. Petitioner brought typed invoices with him which reflected the type of watermelon, the number of pounds shipped, and ground price per pound for each lot or load. However, due to the problems with the wrong melons being loaded, the parties agreed to reduce the price per pound on those loads which had not been loaded as ordered. The adjusted price agreed upon was written on the original invoices and the typed price was marked through. No adjustment was made for the lots that were loaded properly. Lot 621 was not included in the negotiations because petitioner did not present an invoice for that lot and neither party at that time knew what had happened to that truck. However, the parties did agree to settle the other 14 loads for a total price of $25,783.60. (See Appendix A which lists the invoiced price and negotiated price per load.) D & M deducted $10,000 from that total for the advances that had been made and gave petitioner a check for $15,783.60. 1/ The stamp marks on the back of the check reveal that the check was deposited by petitioner on or before July 14, 1986. On July 15, 1986, petitioner wrote a check to the grower for the watermelons. The amount of the check was based on the negotiated price minus petitioner's commission and the cost of the harvesters. This amount is reflected on the original invoices. (P.Ex.1) However, Mr. Griffin did not accept the changes in the price and insisted upon payment from petitioner based on the original invoiced amount. Petitioner then paid Mr. Griffin based on the original invoiced amount "for keeping him from going to the PACA." (T-30) Thereafter, on August 6, 1986, petitioner sent D & M a statement reflecting a balance due based on the original invoiced amounts. From thee evidence presented, it is clear that on July 12, 1986, the parties reached an agreement concerning the full amount to be paid for all the loads of watermelons purchased by D & M except for the load labelled Lot No. 621. D & M admits that it owes petitioner for Lot No. 621, but it contends that it only owes $1,898.40 for that load, whereas the invoice indicates that $2,133.90 is owed. Mr. Davis explained that D & M should not have to pay $2,133.90 for that load because that was the total amount it was able to get for the load. In other words, if D & M paid the full invoiced amount, it would not make a profit. Nevertheless, the original agreement of the parties was that D & M would pay ground price for the melons. D & M paid full invoice price on the melons that were correctly loaded and paid an agreed upon adjusted price for the melons that were not loaded as ordered. D & M failed to present any evidence establishing that Lot No. 621 consisted of melons that were not of the type and size ordered. Therefore, D & M owes petitioner $2,133.90 for Lot 621.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Agriculture directing respondent to pay petitioner the sum of $2,133.90 within 15 days after the final order is entered. DONE AND ENTERED this 26th day of February, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1988.
Findings Of Fact During late 1987 and early 1988, the Respondent, Javier Melendez, was registered by the Petitioner, the Department of Labor and Employment Security (DLES), as a farm labor contractor with authorization to transport migrant and seasonal farm workers. In March, 1988, Melendez applied to renew his registration as a farm labor contractor. On or about April 5, 1988, the DLES entered a Final Order imposing $1400 of fines on Melendez for two violations: one, a violation of Section 450.33(5), Florida Statutes, and Rule 38B-4.005(1), Florida Administrative Code, for not carrying required liability insurance on the 1979 Ford van in which he was transporting migrant and seasonal farm workers on December 10, 1987; the second, a violation of Section 450.33(9), Florida Statutes, and Rule 38B-4.004(5), Florida Administrative Code, for not having a current valid inspection on the same vehicle on the same day. Melendez did not take steps to bring his 1979 Ford van into compliance with the requirements for using it to transport migrant and seasonal farm workers. On January 11, 1988, another registered farm labor contractor named Emmett Hunter was using a 1975 Ford van that Melendez owned and had loaned to Hunter for a rental charge to transport migrant and seasonal farm workers. The 1975 Ford van did not have required liability insurance for use in transporting migrant and seasonal farm workers. Melendez still has not brought either of the two vans into compliance with the requirements for use in transporting migrant and seasonal farm workers. Melendez has paid no part of the $1400 of fines that were imposed by Final Order in April 1988. Melendez did not appear at the final hearing in this case.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, the Department of Labor and Employment Security, enter a final order denying the application of the Respondent, Javier Melendez, for renewal of his certificate of registration as a farm labor contractor. RECOMMENDED this 3rd day of August, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1988. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Suite 117, Montgomery Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Mr. Javier Melendez Post Office Box 2052 Haines City, Florida 33844 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
Findings Of Fact The Petitioners and the Respondent had a business relationship by which the Respondent received cucumbers from the Petitioners for the fall 1980 harvest season. Cucumbers on some occasions are sold on a "cash basis," which means that a buyer purchases the cucumbers for a set price, either at the field or upon arrival at the packing house. On other occasions cucumbers are sold on a "handling basis" or "brokerage basis." Under this latter arrangement the "buyer" takes delivery of the load of cucumbers from the grower, the farmer; sells them at the best obtainable market price, and a portion of the sale price goes to the grower or farmer and a portion is retained by the "handler." The Petitioners grow cucumbers in Hardee County and are, therefore, producers of agricultural products in the State of Florida. The Respondent, Southern Cucumber Co., Inc., is a dealer in agricultural products engaged in that business in the State of Florida. The Petitioners began clearing land for the purpose of putting in a cucumber crop in the summer of 1980. During the course of their land clearing and planting of the crop, they obtained certain monetary advances from the Respondent with the oral agreement that they would deliver the produced cucumbers to the Respondent's packinghouse upon the crop's maturity and harvesting. When the crop became ready for harvesting they also got, in addition to fertilizer advances and other cost advances, advances to cover the costs of labor for picking the cucumbers. In approximately October, 1980, the Petitioners began harvesting and delivering cucumbers to the Respondent's packinghouse. By oral agreement the Petitioners and the Respondent agreed that the Respondent would "pack-out" their cucumbers for approximately two dollars to two dollars and twenty-five cents per bushel, which charge covered processing the cucumbers through the machine where they were washed and waxed, packing them and preparing them for shipment. When the cucumbers were delivered by the Petitioners to the Respondent's loading dock, the Petitioners were issued a slip showing the quantity delivered by the Respondent. No money changed hands at this time. The Respondent did not pay for cucumbers upon their delivery to his packinghouse. The Petitioners rather had to wait until the cucumbers were shipped and sold to the ultimate purchaser before they were told of the price received for them and sometimes received no money for the crop until that purchaser had remitted payment for the cucumbers to the Respondent whereupon the Respondent would pay the Petitioners for the cucumbers he had received and sold on their account. The Respondent would deduct from the proceeds of the sale of the cucumbers the amounts representing the costs the Respondent advanced for fertilizer, fuel and picking, and any other items for which the Petitioners owed him. Typically, thirty days or more elapsed before the Petitioners were issued "pack-out slips" for a given lot of their cucumbers which they had delivered to the Respondent. The "pack-out slip" indicated what grade and quantity of cucumbers the Respondent was able to prepare for shipment and sale, out of the cucumbers delivered to him by the Petitioners, as well as price. The Petitioners' oral agreement was negotiated between themselves and Mr. Jack Eason, who was manager or otherwise in charge of the Respondent's packinghouse and shipment business at the time. As acknowledged by witness Connor for the Respondent, a "handler" is one who accepts produce, packs it, sells it, sends it to the ultimate purchaser, gets his remittance back, subtracts his profit from that, and returns the rest to the growers. This is consistent with the Petitioners' arrangement with the Respondent. The Petitioners delivered their cucumbers to the Respondent, had them processed, packed, shipped and sold and received no money for them, typically, until the Respondent received his remittance from the ultimate purchaser where the products were shipped. The Respondent then subtracted the amount of costs advances to the Petitioners, his own profit and then remitted the net over to the Petitioners. The Petitioners were liable for any loss on the sale of the crop. That is the nub of their complaint. They believe that the market price assured to them was less than the true market price on the day their products were sold. On several occasions when the Petitioners sought money for their crop after delivery of it to the Respondent and the ultimate purchaser and discussed the price with the Respondent, the Respondent in stating a price which the cucumbers would bring or had brought, discussed the fact that there was "room for adjustments" or that "adjustments" would be made. A "handler arrangement" (as Respondent's own witness Alvarez established) is one characteristically involving "adjustments" to be made to the portion of the sale-price due the grower because of any variances in quality of the product when delivered to the ultimate purchaser. This his in addition to charges to the grower for processing, packing, and selling the product (and in this case, growing and harvesting costs advances) , all of which charges to the growers, mostly incurred after delivery to the Respondent, are characteristic of a "handler" or agency arrangement. Witness Parker for the Respondent is a packing-house owner and cash buyer of produce in Wauchula. In his cash-buying operation he never makes growers wait for their money, but will borrow money at seventeen to eighteen percent interest if necessary to pay them either on the day or one to two days after produce is delivered to him. The Respondent established that Wauchula is traditionally a "cash market," but that was not the situation with the Petitioners' and Respondent's business arrangement. The Respondent was functioning as the Petitioners' "handler" or agent in the situation at bar. The Petitioners have not filed a complaint for a specified amount of money they feel is due and owing them for the crop, but rather ask for an accounting so that pecuniary question can be determined. In that regard the surety on the bond required of the Respondent as a dealer in agricultural commodities, is Continental Insurance Company, specifically bond number BND218 26 21.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses and arguments of the parties; it is, therefore, RECOMMENDED: That a final order be entered requiring the Southern Cucumber Co., Inc., to furnish to the Petitioners an accounting of all quantities of cucumbers received by them for the Petitioners; the parties to whom those cucumbers were ultimately sold; the sales price obtained; the prevailing market price for cucumbers with that quality and grade on the date the sales were effected; all adjustments to the gross sales price along with an explanation of the same; an itemized showing of all marketing costs, if any, deducted by the Respondents from that gross sales price; together with all production and harvesting costs deducted by the Respondent representing money advanced to the Petitioners for the growing and harvesting of the crop along with the net amount due the Petitioners. This accounting should be furnished the Petitioners within thirty (30) days of the final order herein. DONE AND ENTERED this 19th day of March, 1982, in Tallahassee, Florida. P. MICHAEL RUFF 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 19th day of March, 1982.
The Issue Whether Respondent should be assessed a civil money penalty of $1,000.00 for alleged violations of Sections 450.33(10), and 316.620(3) and (4)(d) and (k), Florida Statutes (1993).
Findings Of Fact Respondent, Michelle A. Blount, is a farm labor contractor licensed in Florida. On January 14, 1994, a vehicle transporting members of Respondent's farm labor crew was involved in an accident in St. Lucie County, Florida which resulted in the death of one passenger and serious injury to eight others. Respondent was hired by Willie J. Lampkin to transport, supervise, recruit and provide a crew for harvesting and loading fruit. Elva Ochoa was employed by Respondent to recruit, transport, supervise and provide a crew, in connection with Respondent's contract with Willie J. Lampkin. On January 14, 1994, ten farm workers were being transported to the groves of Lampkin at the direction of Ochoa. The vehicle used to transport the workers was a pickup truck with a cab covering the bed. It did not have secured seating, the tires were worn out and unsafe, and it did not have any means of communication between the passengers and the driver. The vehicle was not approved or insured to transport workers, nor did it have an inspection certificate on record with the Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent has violated Sections 450.33 and 316.620, Florida Statutes. It is further RECOMMENDED that Respondent be fined $1,000.00 and such fine to paid within thirty days from date of the final order entered by the Division. Should Respondent fail to pay fine, Respondent's license as a farm labor contractor should be suspended until the fine is paid in full. DONE and ENTERED this 19th day of August, 1994, in Tallahassee, 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 19th day of August, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Accepted in substance: paragraphs 1-7. Respondent did not submit proposed findings. COPIES FURNISHED: Shirley Gooding, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Edward A. Dion, Esquire Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Francisco R. Rivera, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307 Hartman Building Tallahassee, Florida 32399-2189 Michelle A. Blount 531 North Dollings Avenue Orlando, Florida 32805
Findings Of Fact At all times pertinent to the issues herein, Petitioner John Crawford, operated Crawford and Son's Farms located in or near Lakeland, Florida, on which he grows produce including, inter alia, beans of the variety in controversy here. Respondent, Wishnatzki, is a produce broker located in Tampa, Florida, and has been in the business of brokering produce grown by Florida farmers throughout the United States for three generations. Petitioner and Respondent have done business together in the past on many occasions, without controversy, and have, over the years, developed an amicable business and well as personal relationship. For a substantial portion of that time, including the time in issue, the parties' transactions were consummated under a "written statement of terms and conditions" which called on the broker, Wishnatzki, to act as the grower's agent on the basis of "gross proceeds of a sale, less carrier, cooling, packing and palleting charges, if any, and a Grower's Agent's customary commission." At some time prior to April 28, 1994, Mr. Crawford, who was, at the time, carrying a bucket full of the beans later sold through Respondent, saw Mr. Wishnatzki who, he claims, indicated the beans could be worth $25.00 per bushel. The beans at hand were the earliest produced from the Petitioner's fields, however, and the main crop was not yet ready for harvesting. Mr. Crawford acknowledges this comment by Mr. Wishnatzki was no guarantee of price but merely an opinion, and Mr. Wishnatzki claims it was Crawford, not him, who stated a figure. Several days later, however, on or about May 3, 1994, while his beans were being picked, Mrs. Crawford spoke with Mr. Wishnatzki who said he needed beans and had a truck going to New York. According to Mrs. Crawford, Mr. Wishnatzki advised her they could probably get $20.00 per bushel for the beans if Crawford could get them in. Mrs. Crawford immediately went to Petitioner and told him what Respondent had said, and within two days, on May 3 and 4, 1994, Mr. Crawford delivered to Mr. Wishnatzki 164 bushels of beans. The beans were shipped up north, but in the interim, the price of beans, according to the Department of Agriculture's price report, dropped considerably from a price near $18.00 per bushel. Records maintained by Respondent reflect that between May 4 and May 7, 1994, Respondent sold the entire 164 bushels, in varying amounts, to six different customers, as follows: 5/4/94 Scarmardo Produce. 40 bu at $14.00/bu 5/5/94 C & S Wholesale Gro. 73 bu at 12.00/bu 5/5/94 C & S Wholesale Gro. 2 bu at 0.00/bu 5/5/94 Watson's Produce 5 bu at 16.00/bu 5/6/94 Scott Street Tomato Co. 5 bu at 16.00/bu 5/6/94 Sy Katz Produce 5 bu at 16.00/bu 5/7/94 Tamburo Bros. 34 bu at 4.00/bu Respondent received a total of $1,812.00 for the sale of all Petitioner's beans consigned to it for an average price of $11.04 per bushel. Notwithstanding Respondent was entitled, by the terms of the agreement between it and Petitioner, to deduct a commission on the sale, because of the long- standing harmonious relationship which had existed between them, and because Respondent felt it important to support its growers and insure their financial well-being, Respondent, nevertheless paid Petitioner the full amount it received, and an additional sum as well, for a total payment of $2,132.00. In other words, though Respondent received only an average of $11.04 per bushel from its customers for Petitioner's beans, it nevertheless paid Petitioner an average of $13.00 per bushel for the beans it received from him. Petitioner is not satisfied with the amount received, however, and claims Respondent sold the beans at a price below market. He refers to Mr. Wishnatzki's comment in passing in late April that the beans could bring $25.00 per bushel. He also notes that the market should have been good because of an infestation of bean virus due to white flies. He further contends that Respondent should not have sold the beans for such a low price; that Respondent should have checked with the northern markets, and if there was a problem with his beans, Respondent should have procured a government inspection of them. While he admits beans were in a downward fall, he does not believe the price dropped to $13.00 per bushel on a first hand picking. In support of his position, he refers to two separate market reports, the first dated May 4, 1994, and the other dated May 6, 1994. The former reflects a "fairly light" demand for beans, with handpicked beans selling between "16.00 and 18.65, mostly 16.65 few 12.00", and the latter reflects, for handpicked beans, a "fairly light" demand with sales at "14.00 - 16.65 few 12.00 occasional lower." Petitioner does not claim he should have received $18.00 per bushel which he cites, inaccurately, was the fair market price according to the Florida Market Reports cited above, but claims he could have come off that price if he had been contacted to negotiate price. However, the $18.00 price he cites was not, according to the evidence, the usual price received. The usual price was around $16.65, with some lower. In any case, the terms of the brokerage agreement does not provide for price negotiation after delivery is made to the broker. Further, Mr. Wishnatzki did not call Petitioner when he saw the beans were not selling well because they had already been picked and were in Respondent's hands. Not much could have been done at that point, and he had other growers to deal with as well. In addition, Mr. Crawford has access to the market report and knew the price was falling. He did not call Respondent to set a minimum price. According to Mr. Wishnatzki, the price paid to the growers is based upon the price his company receives for the produce. However, Respondent does not wait until it has been paid before paying its growers. When the produce is sold, the grower is paid, and Respondent receives payment from the buyer after that. There is no way to say with certainty when the grower delivers produce to Respondent what price an ultimate buyer will pay for that produce. Many factors come into play, including quality of the produce, current market price, supply and demand and the like. A market bulletin, published at the end of each market day, gives some idea of what the next day's price is likely to be, but only market conditions control the price. Review of the prices received by Respondent for the first 130 bushels of beans sold reflect a price of from $12.00 for the 73 bushels sold to C & S, to $14.00 for the 40 bushels sold to Scarmardo. The 15 bushels sold to three different brokers for $16.00 per bushel is but a small amount of the total. The remaining 34 bushels sold to Tamburo for $4.00 per bushel brought the average price received down, as did the two bushels for which no payment was received. Respondent claims they received only $4.00 per bushel from Tamburo because of a constant decline in the market during the entire week the beans were for sale, and the sale to Tamburo was, in effect, a distress sale. Wishnatzki started the week out offering the beans at $18.00 per bushel. The price was reduced each day until the final Saturday when it is usual to sell what they have left over for what they can get. On Saturday, May 7, Wishnatzki still had 34 bushels of beans left and Tamburo sold them at the lower price. It was lower that Wishnatzki had expected, but consistent with the agreement they had with Tamburo who had the beans on consignment. Mr. Wishnatzki asserts the sale at that price was a judgement call he had to make, but were he confronted with the same situation, he would do it again. At no time did Mr. Wishnatzki advise Mr. Crawford he could, or would, sell a given quantity of beans at a certain price. If he had known what price he would get for the beans at later sale, he would have paid Mr. Crawford on the spot, in advance. Further, even though at the beginning of the week in question the market reports showed beans selling for a good price, sales can not always be made at the reported market price. The price he gets is what his customers are willing to pay. His procedure is to send out a daily inventory sheet to each of his customers, nation-wide, by FAX. At the time these beans were delivered to Respondent, the demand was light, witnessed by the fact that it took a whole week to dispose of 164 bushels. That is not a large volume. While he understands Mr. Crawford's disappointment, it is a result of the fact that Crawford's expectations were higher than reality delivered. This has happened to growers before, and it will, no doubt, happen again.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Crawford & Son's Farms' claim against Respondent, Wishnatzki & Natel, Inc. and Continental Insurance Company, in the amount of $824.00, be denied. RECOMMENDED this 22nd day of November, 1994, in Tallahassee, Florida. COPIES FURNISHED: John Crawford d/b/a Crawford & Son's Farms 2545 Sleepy Hill Road Lakeland, Florida 33809 ARNOLD H. POLLOCK 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 22nd day of November, 1994. David L. Lapides, Esquire W. Edwin Litton, II, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 3433 Tampa, Florida 33601 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture 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
Findings Of Fact Petitioner, Hillside Sod Farms, Inc., is a producer of agricultural products, grass sod. Respondent, S. J . Harper Landscaping Enterprises, Inc., is a dealer of such products in the normal course of its landscaping business activity. Petitioner generally deals on a cash basis with customers, unless the customer is licensed by the Department of Agriculture and Consumer Services for the sale of agricultural products. Customers who are licensed may maintain an open account status with Petitioner. Respondent is licensed by the Department. The Respondent has maintained an open account with Petitioner since 1986. Petitioner sold Respondent grass sod by the truck load for various projects, and was given an invoice therefor. Under the terms of the account, payment was due in full the week following receipt of the sod. On November 21, 1988, including invoice number 12284, Respondent's account balance was $2,098.80. On November 25, 1988, the account balance was $3,129.12. On December 12, 1988, Respondent paid on the account the sum of $2,594.88, leaving a balance due, owing and unpaid of $534.24. Respondent's alleged that in early November, 1988 several trucks loads that were accepted by Respondent were short of sod by approximately eight pallets (each pallet contains 400 square feet of sod) Simon J. Harper, Respondent'S president, reported this fact to Petitioner's foreman, Larry Poole, at night after the work day. He did not reject the trucks with the lesser amount of sod on them, but accepted them. Respondent did not file a complaint or objection to the billing, verbally or in writing, to an officer in the Petitioner's company, although he had dealt with the company for years. Respondent estimated the amount of sod it believed they had been shorted and sent a check for the unpaid balance, less the charges for shorted sod. The amount withheld was the sum of $534.24.
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 $534.24. DONE AND ENTERED this 31st day of January, 1990, 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 31st day of January, 1990. COPIES FURNISHED: Avery P. Wisdom Vice President Hillside Sod Farms, Inc. 1620 East State Road 46 Geneva, FL 32732 Simon J. Harper President S. J. Harper Landscaping Enterprises, Inc. 205 Zenith Point Geneva, FL 32732 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Ben H. Pridgeon, Jr. Chief Bureau of License and Bond Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32399-0810 Mallory Horne General Counsel 515 Mayo Building Tallahassee, FL 32399-0800
Findings Of Fact Respondent, a Florida corporation, is engaged in the business of aerial pesticide spraying in the State of Florida. Wells Farm is a commercial potato farm owned and operated by Mr. William W. "Billy" Wells on an area of land in St. John's County located approximately 15 miles northwest of St. Augustine, Florida. The south corner of Wells Farm is located approximately 150 feet from the nearest edge of a man-made finger canal that is connected to Wells Farm by a drainage pipe under Colee Cove Road, which road is parallel to the southern border of Wells Farm. Between the cultivated area of Wells Farm and Colee Cove Road is a culvert or drainage ditch which parallels the border of Wells Farm and Colee Cove Road. This drainage ditch also runs up the eastern border of Wells Farm, perpendicular to Colee Cove Road. Deputy Sheriff Jimmy L. Evans lives in a house south of Colee Cove Road. The drainage pipe, perpendicular to and running under Colee Cove road, connects the culvert/drainage ditch on the Wells Farm (north) side of the road with the previously described man-made finger canal which is behind and to the south of Deputy Evans' house. This "canal" could legitimately be described as a "big drainage ditch," but it has 1-3 feet of water in it at all times and small boats can be pulled or paddled in it. Motorboats cannot run in it. All the surrounding fields used for agricultural purposes have interconnected drainage systems which eventually run off into the drainage pipe located under Colee Cove Road and all adjacent canals and ditches are affected by the tidal nature of the St. Johns River. Presumably all of these drainage apparatuses have at least some water in them at all times. On March 30, 1991 Terry Bosserman, principal of Respondent corporation, aerially applied Manzate 200 fungicide and Thiodan 3 E.C. insecticide to Wells Farm. Mr. Bosserman has sprayed Wells Farm between 100 and 150 times over the last 15 years. He has been operating the Respondent corporation for 18 years. Thiodan is a pesticide regulated by Petitioner agency. The active ingredient of the pesticide Thiodan is endosulfan. Endosulfan is designated a Class 1 Toxicity chemical, the most severe toxicity level for chemical compounds. Thiodan containers are imprinted with labels containing the following information, in relevant part: This product is toxic to fish, birds, and other wildlife. Birds feeding on treated areas may be killed. Do not apply directly to water or wetlands. Due to the risk of runoff and drift, do not apply within a distance of 300 feet of lakes, ponds, streams and estuaries . . . Apply this product only as specified on this label. During the Petitioner agency's investigation of a fish kill of approximately 50 fish in the adjacent canal behind Deputy Evans' home, Mr. Bosserman and Mr. Wells each made statements orally and Mr. Bosserman made a statement in writing, under oath, to the effect that Wells Farm constituted 335 acres and that the entire field had been sprayed by Mr. Bosserman d/b/a Respondent corporation. These statements were taken in the most literal sense by agency investigators who concluded that the March 30, 1991 spraying had been conducted with precision up to each exact edge of the Wells Farm property or the edge of potato cultivation within that property. Accordingly, the agency deemed these statements to be admissions that spraying had deliberately occurred within approximately 150 feet of the canal behind Deputy Evans' home. The potato field cultivation does end no more than 150 feet from the nearest edge of the canal. However, during formal hearing, both Mr. Bosserman and Mr. Wells testified credibly that over the last 15 years they had always attempted to avoid improper use of pesticides by voluntarily not making aerial application outside the Wells Farm boundaries and by otherwise attempting to avoid potential "drift" of pesticides which were sprayed within the target site. Mr. Bosserman specifically and credibly described affirmative efforts he had made on March 30, 1991 to run up his plane to his spray location (target site) in such a way as to force pesticide material down to the ground and prevent its rolling up and drifting out of the target site. He further credibly described shutting off his spray apparatus at what he believed to be "a safe distance" from the borders of the cultivated potatoes in an effort to prevent drift on March 30, 1991 and so as to comply with the Thiodan package labelling. Both Mr. Wells and Mr. Bosserman explained credibly and reasonably why their prior statements to the agency investigator should not be taken to mean literally that the March 30, 1991 aerial spraying had been done to each square inch of the cultivated area or property itself. For instance, the farm itself is in excess of 400 acres and the estimated amount of potato cultivation was 335 acres. Mr. Bosserman testified from his 18 years experience in aerial pesticide spraying that it is impossible to spray a field with absolute precision so as to cover the metes and bounds thereof within perfect rectangular borders, and that his prior statements were meant to convey to the agency that on March 30, 1991 he had sprayed the potato field, allowing for whatever drift was likely. Mr. Wells testified credibly that both before and after the March 30, 1991 incident he had purchased land sprayers to "trim" the edges of his property with pesticide, thus covering the rim of the cultivated property he had instructed Mr. Bosserman to avoid. Likewise, Mr. Bosserman was credible in asserting that on that date he had tried to spray in accord with Mr. Wells' cautionary instructions and his own hands-on experience. In adhering to his experience and Mr. Wells' instructions, on that date, Mr. Bosserman tried to avoid spraying the five acres closest to the road and hence closest to the canal and did not fly back around the edges of the Wells Farm property to "trim" the unsprayed edges with more pesticide, but left this area for the ground spraying equipment. Having observed the candor and demeanor of Mr. Wells, Mr. Bosserman, and Mr. Schlager, the agency investigator, and having carefully reviewed all of Petitioner's exhibits, including but not limited to P-1 and P-7, it is found that Mr. Wells' and Mr. Bosserman's testimony at formal hearing is credible to the effect that care was taken to avoid or minimize wind drift of the pesticide and that no willful spraying occurred within 300 feet of the canal in question. Likewise, it is found that the oral testimony of Mr. Bosserman and Mr. Wells on this issue did not actually contradict their prior statements and that their oral testimony is not inconsistent with, but is merely explanatory of, their prior statements. This is not a situation of prior inconsistent statements or a poor investigation. There was simply not a "meeting of the minds." However, Mr. Bosserman's description of when he turned off his spray apparatus was not very specific in that he stated that he could not say with any certainty whether he turned off his pesticide spraying apparatus within 280 feet, 450 feet, 500 feet or any other distance from the edge of potato cultivation or the border of Wells Farm. The most accurate estimate he could give was that he had turned off his pesticide spray "at a safe distance." Mr. Bosserman also conceded that he flew over the houses south of Colee Cove Road, including Deputy Evans' house, two times on March 30, 1991, pursuant to a Federal Aviation Authority waiver. Deputy Evans testified that on March 30, 1991, he clearly saw a sprayer nozzle on the left wing of Respondent's airplane spraying as it crossed over his property passing from south to north to go over the potato field on Wells Farm. If the plane were flying south to north with an open or leaky nozzle, it had to also have flown with an open or leaky nozzle over the canal behind and to the south of Deputy Evans' house. Respondent maintained he could have seen a leaky jet on the left wing of his plane and he did not see one. The fact that Mr. Wells felt entitled to receive $11,000 from Deputy Evans for damage allegedly caused to a prior Wells Farm potato crop by Deputy Evans' son, which damages Mr. Wells voluntarily did not collect from Deputy Evans, is insufficient to diminish Deputy Evans' credibility on the issue of Respondent's open nozzle. On this issue, the undersigned accepts Deputy Evans' testimony that the nozzle was leaking over the testimony of Respondent to the effect Respondent did not see that it was leaking, and finds that despite all reasonable precautions, Respondent had a leaky nozzle when he flew over Deputy Evans' house and over the canal south of Colee Cove Road on March 30, 1991. During his investigation of the fish kill in the canal which had been reported by the Florida Game and Fresh Water Fish Commission, the agency's investigator collected water samples and dead fish for analysis on April 6, 1991. He collected a water sample from the canal south of the Deputy Evans' home, dead fish from the same location, and a water sample from the culvert/drainage ditch immediately adjacent to the southeast corner of Wells Farm. The sample from the canal behind Deputy Evans' home was taken from a location well in excess of 150 feet from the potato field, but upon the evidence in this record it is impossible to say if this sample site was more or less than 300 feet from the target site. The agency's tests revealed that the water sample collected from the culvert/drainage ditch adjacent to Wells Farm contained endosulfan at a concentration of 1.75 parts per billion. This means there was 1.75 gallons of contaminant in proportion to every one billion gallons of water. The sample collected from the canal south of Deputy Evans' home contained endosulfan at a concentration of 0.05 parts per billion. This means there was .05 gallons of contaminant in proportion to every one billion gallons of water. It may reasonably be inferred that there was some contaminant in the water at all points between the two sample points including within 300 feet of the target site. Numerically, these are very low concentrations of contaminant. Although it was the agency's witnesses' collective view that any amount of pesticide is bad, none clearly testified that these concentrations were "severe" or "not severe." Between March 30, 1991 and the date of taking samples, there was a heavy rain which would have contributed to runoff of the pesticide properly applied to the target area into the several connected drainage ditches/culverts/canals. The fact that the concentration of endosulfan diminished the further from the potato patch the sample was taken, is indicative of runoff of pesticide residue from the target site rather than a direct spray application to the canal behind Deputy Evans' home. There is no evidence of what level of endosulfan would be in the canal or drainage ditch simply from natural runoff from the properly sprayed target site. Evidence was also admitted (R-3) to the effect that an early "suspicion" of Game and Fresh Water Fish Commission biologists was that the fish kill here at issue resulted from runoff caused by heavy rains. This early, uncorroborated "suspicion" is probative of nothing. No samples were taken to determine if the presence of endosulfan in the canals was the result of wind drift from a distance deemed "safe" by the labelling. The fish sample was not analyzed by the agency. There is no evidence of how much thiodan or endosulfan it takes to kill a fish, but the label of the product provides, in pertinent part, This product is toxic to fish . . . shrimp and crab may be killed at application rates recommended on this label. Do not apply where fish, shrimp, crab, or other aquatic life are important resources. There was no evidence presented that the fish killed in Colee Cove were an important resource. There is no evidence that either of the respective concentrations of the endosulfan in the water samples analyzed were sufficient to kill fish, but endosulfan is not naturally found in Florida waters. Evidence (R-1) shows that a Florida Game and Fresh Water Fish Commission inspector witnessed fish kills in the same man-made canals in Colee Cove almost every spring and summer resulting from lack of oxygen rather than endosulfan. It was Respondent's contention that heavy rains in combination with the tidal action of the St. Johns River which is only a quarter of a mile away, would have flushed the contents of the finger canals into the St. Johns River so that the pesticide on the canal waters was not attributable to Respondent, but no competent evidence of this supposed effect was introduced. There is no evidence that Respondent benefited from any deviation from the pesticide label above and beyond the usual payment for spraying the farm. Respondent would have received the same amount for correctly spraying Wells Farm, so there was no monetary inducement for him to spray contrary to the pesticide label. The amount he was paid by Mr. Wells is not in evidence. Respondent has a past history of compliance problems with Petitioner, but none involve endosulfan or deliberate, premeditated defiance of pesticide laws and regulations. On July 21, 1989, Respondent was issued two Notices of Warning, one for spray "drift" which had occurred on March 27, 1989. The other July 21, 1989 Notice of Warning was for a December 27, 1989 [sic] investigation showing that a fungicide had been applied at a higher concentration than the label recommendation, that there had been an aerial application to a non-target site through wind drift, that proper paperwork on chemicals used had not been maintained at Respondent's place of business, and that there had been a failure, on a single occasion, to use required protective equipment. On October 25, 1990, Respondent was cited for a December 9, 1988 elevated pesticide residue in the mixing area at Respondent's airport. Respondent demonstrated that regardless of the choice of words employed in these agency citations, he was not guilty of repeat offenses and that he had taken all reasonable steps to correct the violations cited and to prevent their reoccurrence. These violations are few and far between for 18 years of operation. Since the March 30, 1991 incident, Mr. Wells has purchased additional ground spraying equipment which in the future will be used for all "trim" areas, thereby permitting Respondent to spray aerially even further within the perimeter of Wells Farm than he did on March 30, 1991. Mr. Wells has also replanted his rows of potatoes in the opposite direction so as to further minimize pesticide problems.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order finding Respondent guilty of violating the statutes cited and assessing the nominal fine of $250.00. RECOMMENDED this 13th day of January, 1993, 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 13th day of January, 1993. APPENDIX TO RECOMMENDED ORDER 92-2503 DOAH CASE NO. 92-2503 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 Covered under preliminary matters. 2,3,4,7,8,9,10, 11,12,17 Accepted. 5,6 Rejected for the reasons covered in Facts of Finding 8-12 of the Recommended Order. 18 Rejected as immaterial as stated, but covered peripherally. 13,14,15,16,19 Except for unnecessary, subordinate, irrelevant, immaterial, or cumulative material, accepted. 20 Rejected as not supported by the record as stated; covered in FOF 5. 21-22 Rejected as stated as cumulative, argumentative and conclusory as opposed to factual. Also, as stated, not supported by the greater weight of the credible evidence. See FOF 8-12 of the Recommended Order. 23 Rejected because, as stated, it is not supported by the greater weight of the evidence. However, covered in FOF 25 of the Recommended Order. The undersigned also notes date discrepancies of certain exhibits that render them of questionable probative value. Respondent's PFOF: Respondent has not numbered his proposals. However, starting with the first paragraph under his "Findings of Fact," the Hearing Officer has regarded each paragraph as a single proposed finding of fact and accordingly has numbered the paragraphs sequentially. 1,2,3,4,5, Except for unnecessary, subordinate, irrelevant, immaterial, or cumulative material, accepted. As stated, this proposal was not affirmatively proven in its entirety. What was proven was accepted. 7 Accepted that this was testified - to. Rejected as a finding of material fact. Covered in FOF 12 of the Recommended Order. COPIES FURNISHED: John S. Koda, Esquire Senior Attorney Office of General Counsel Florida Department of Agriculture and Consumers Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Terry Bosserman, pro se Terry's Ag Services, Inc. Route 5, Box 617 Lake City, Florida 32055 The Honorable Bob Crawford Commissioner of Agriculture The Capitol PL-10 Tallahassee, Florida 32399-0350 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol PL-10 Tallahassee, Florida 32399-0350
The Issue The issue is whether Respondent Southern Hay Sales Inc., (Southern Hay) and its surety, Respondent Old Republic Surety Company (Old Republic), are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner produces hay on a farm owned by Petitioner near Jasper, Florida. Respondent Southern Hay is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. Hay is a natural product of a farm and, therefore, an agricultural product as defined in Section 604.15(3), Florida Statutes. Old Republic is Southern Hay's surety. Both Petitioner and Southern Hay have participated in a business arrangement since at least 1997, whereby Petitioner grew and sold to Southern Hay varying quantities of hay. Petitioner would cut, process, and then store the hay in trailers provided by Southern Hay. Petitioner would deem Southern Hay to be indebted for a load of hay when a trailer of hay was hauled away by Southern Hay personnel. On January 16, 2002, Petitioner received a signed check from Southern Hay. While there is a dispute as to who filled out the check, resolution of that question is not relevant for purposes of this matter. Suffice it to say that Southern Hay's check number 1183 was written in the amount of $2,596.45 and dated January 16, 2002. Delivery of the check to Petitioner satisfied all outstanding invoices for payment where hay had been picked up, with the exception of Petitioner's invoice number 302 documenting an obligation to Petitioner from Southern Hay in the amount of $1,241.95 for hay. Southern Hay's representative maintained at final hearing that an additional check was issued on February 15, 2002, which included payment for invoice number 302. No cancelled check was presented to corroborate the testimony of Southern Hay's representative and such omission, coupled with the general demeanor of the representative, prevents the testimony of the representative, Andrew Snider, from being credited in this regard. Southern Hay and its surety, Old Republic, currently owes Petitioner for an unpaid invoice in the amount of $1,241.95.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Department of Agriculture and Consumer Services enter a final order requiring Respondent Southern Hay Sales, Inc., or its surety, Respondent Old Republic Surety Company, to pay Petitioner for an unpaid invoice in the amount of $1,241.95. DONE AND ENTERED this 6th day of November, 2002, in Tallahassee, Leon County, Florida. _ DON W. DAVIS 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 6th day of November, 2002. COPIES FURNISHED: Brenda D. Hyatt, Bureau Chief Department of Agriculture 541 East Tennessee Street India Building Tallahassee, Florida 32308 Richard D. Tritschler, General Counsel Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Michael A. Jankowski Old Republic Surety Company Post Office Box 1635 Milwaukee, Wisconsin 53201 Sam Jones Jones Farm 6799 SR 6 West Jasper, Florida 32052 Stephen C. Bullock, Esquire 116 Northwest Columbia Avenue Lake City, Florida 32055
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioners, Mark K. Mast and Kirk E. Mast d/b/a Mast Farm, operate a sixty-acre potato farm on Cracker Swamp Road in or near East Palatka, Florida. The 1991 crop year was the first year in which the two brothers had operated their own farm. This activity was a part-time endeavor since the brothers worked full-time as logging contractors for Georgia Pacific Corporation. Respondent, G & G Sales Corporation, a Minnesota corporation licensed to do business in this state, is a dealer (broker) in agricultural products that purchases potatoes from growers throughout the country for resale to various potato chip companies. Its president and vice-president are Loren R. Girsbirger and George Wilkerson, respectively. As an agricultural dealer, respondent is required to obtain a license from and post a surety bond with the Department of Agriculture and Consumer Affairs (Department). In this case, the bond has been posted by respondent, St. Paul Fire & Marine Insurance Company. The amount of the bond is not of record. In order to start their farming operation, it was necessary for the Mast brothers to secure a loan from the North Florida Production Credit Association. That lending institution had a practice of requiring farmers to secure their loans with contracts for the sale of all or a portion of their crop. That is to say, the lender required a farmer to have a sales contract which equaled the amount of the loan. So that petitioners could meet this requirement, on January 29, 1991, the parties executed a contract wherein petitioners agreed to sell respondent 8,000 bags of Atlantic variety potatoes at an agreed upon price of $5.75 per bag, for a total price of $46,000. The lending institution then agreed to loan petitioners that amount of money. Although the brothers asked that respondent purchase more than 8,000 bags, respondent declined since it had only that contract amount (with chip companies) available. A copy of the contract has been received in evidence as joint exhibit The contract was drafted by respondent and it may be inferred from the evidence that it is a "standard" type of contract used by farmers and dealers in the potato business. The contract contained the following relevant conditions in paragraphs 4, 5 and 6: Buyer assumes that Seller will have sufficient amount of potatoes to cover all contracts, including open market sales. This contract does not restrict these open market sales, but Seller does protect Buyer's amount due. In the event of fire, unauthorized strikes, wars, transportation shortages, Acts of God, or events beyond the control of Seller or Buyer which prevent Seller or Buyer from performance in full or in part of the terms of this agreement, it is agreed that such failure to perform shall not be excused and shall not form the basis for any claim of damage or breach of contract. Seller agrees to seed sufficient acreage to cover the potatoes sold for delivery under this contract and other contracts to all purchasers with whom the Seller has contracted for the delivery of potatoes during the upcoming farm season. If, however, on account of shortages of crops not due to any act within the Seller's control or other causes beyond the control of the Seller, he is unable to deliver the full amount of potatoes called for in this contract, the Buyer will accept a prorated delivery with other buyers of the potatoes covered by similar contracts without any claim for damages against the Seller. Seller will grant Buyer all necessary rights to insure and verify that he is receiving his fair and just pro-rate share. Such rights to include, but not limited to, inspection of all records, books, field reports, shipments, etc. Burden of proof rests with Sellers. Finally, paragraph 11 of the contract provided in part that "the terms of this contract cannot be re-negotiated without the written consent of the Buyer and the Seller." Thus, under the terms of the contract, petitioners were obliged to "have sufficient amount of potatoes to cover all contracts". However, if an Act of God prevented the seller from "deliver(ing) the full amount of potatoes called for in (the) contract", the seller was excused from full performance and could prorate its crop. Under those circumstances, respondent was required to "accept a prorated delivery with other buyers of the potatoes covered by similar contracts." In this case, there were no other buyers of potatoes covered by similar contracts. Finally, except for changes approved in writing by both parties, the terms of the contract could not be changed. Petitioners planted their crop on February 2 and 10, 1991. At that time, the brothers hoped to harvest 16,000 bags of potatoes, or around 267 bags per acre. Although the average yield per acre for Atlantic type potatoes in the area had been between 250 and 270 bags, most growers assume a more conservative yield of around 200 bags per acre to insure that all contractual requirements can be met. Here, however, except for a contract with respondent, petitioners had no other contracts with other dealers or individuals. When the contract was signed in January, the brothers expected to sell the remainder of their crop to other buyers on the open market. In this regard, they entered into an agreement (presumably verbal) with their father, who had co-signed the bank note, to split the net proceeds on all sales over and above that required under the G & G Sales Corporation contract. This latter agreement with the father was not a "similar contract" within the meaning of paragraph 6 of the contract and thus the G & G Sales Corporation contract is found to be the only relevant contract for crop year 1991. On April 23, 1991, a severe thunderstorm swept through a part of Putnam County. The storm was accompanied by high winds and hail and followed a path which ran through the potato farm belt in East Palatka. The Circle S farm, which lies about one-half mile from petitioner's farm, was "devastated" by the storm. Petitioners' farm received high winds, heavy rains and some hail. The extent of damage caused by the storm to petitioners' farm is in dispute, but it is agreed that the storm diminished the size of the crop. As it turned out, petitioners dug only 8,802 bags of potatoes, which still exceeded the amount required under their only contract. After the storm struck, Mark Mast immediately contacted Wilkerson by telephone and advised him that the farm had been hit with hail and asked that Wilkerson and Girsbirger survey the damage. On April 24, 1991, Wilkerson and Girsbirger visited the farm and found it "very wet" and muddy but the leaves on the plants still intact. This level of damage was generally corroborated by various other witnesses. Although the above conditions were present at that time, it was still impossible then for anyone to forecast exactly how the storm impacted the volume and quality of petitioners' crop. Most potato farmers purchase crop insurance prior to each farming season. A farmer has the option of purchasing either 50%, 65% or 75% coverage, although 65% coverage is the most common. This means that a farmer must lose at least 50%, 35% or 25% of his crop due to weather or insects in order to file a claim. The amount of insurance is based on a function of the percent of crop the farmer wishes to insure times the value per hundred weight of the crop. For first year farmers, such as petitioners, the Federal Crop Insurance Corporation (FCIC) establishes a designated yield per acre which is based on FCIC's estimate, albeit conservative, of what the average yield should be. In the case of petitioners, who purchased 65% coverage, the FCIC (and insurer) set a designated yield of 184 bags per acre which meant petitioner would have a crop approximating 184 hundred weight per acre. Although petitioners had a crop insurance policy in 1991, they did not file a claim after the April 23 storm since they failed to meet the threshold requirements for coverage. Indeed, the local crop insurance agent visited the farm shortly after the storm and verified there was not enough damage to file a claim. However, he noted that there was excessive water for a few days and some of the leaves on the vines had holes caused by the hail. Between May 4 and 18, 1991, petitioners sold respondent nine loads of potatoes totaling 4,101 bags at a price of $5.75 per bag. During the period from April 30, 1991, through May 18, 1991, they sold ten other loads on the open market to two other buyers. The open market sales totaled 4,701.2 bags. Because potato prices had dramatically increased after the contract was executed, nine of these latter loads were sold at an open market price of $19 per bag while one was sold at a price of $18.50 per bag, for a total of $88,806. Petitioners contend respondent agreed that the above ten loads could be sold on the open market and thus it should not be heard now to complain that it was shorted on the contract. In this regard, the evidence shows that after the storm, which is the time period relevant to this contention, Wilkerson told Mark Mast that he had no problem with petitioners selling any extra potatoes on the open market as long as respondent received its 8,000 bags. Girsbirger also advised the Masts that it was okay to sell ten loads of potatoes on the open market if production was 200 bags per acre. However, he cautioned them to sell no more than four loads on the open market if the yield fell to 180 to 185 bags per acre since the remainder would be necessary to meet the terms of the contract. Thus, it is found that respondent did not agree to the sale of the ten loads on the open market if total production did not exceed 8,000 bags. Around May 3, 1991, Mark Mast approached Wilkerson and asked if respondent would renegotiate the contract price upward. Wilkerson declined to do so. On May 6, Mast sent Wilkerson a notice by registered mail advising him that due to the crop loss, which he estimated to be one-third of the crop, he intended to adjust the contract pursuant to paragraph 6 of the contract and supply only two-thirds of the 8,000 bags. This unilateral offer to modify the contract was never accepted by respondent, and in any event, petitioners failed to supply the amount offered in their May 6 letter. In all, respondent received only 51.3% of its contracted amount of 8,000 bags. Petitioners allocated respondent this amount on the theory they had originally planned to sell one-half of their total anticipated crop of 16,000 bags to respondent, that one-half of the anticipated crop was lost in the storm, and thus respondent should receive only one-half of the remaining crop, or around 4,000 bags. At hearing, petitioners defended this decision by treating the April 23 storm as an Act of God within the meaning of paragraph 6 of the contract. However, reliance on this provision was inappropriate since, despite the effects of the storm, petitioners could still deliver the full amount of potatoes called for in the contract. The testimony is in conflict as to whether petitioners offered respondent more than 4,101 bags during the harvest season. At various times, respondent was offered several "extra" loads at the market price of $19 per bag but declined since it still wanted the contract honored. According to petitioners, they were ready to load a truck on two occasions but respondent failed to send a truck. Respondent denies this assertion. In addition, petitioners claim that a truck arrived late one Sunday afternoon when their farm equipment was inoperable and thus they could not load any potatoes. Conversely, Wilkerson contended that Mark telephoned him on several occasions and told him not to send a truck because Mark was loading for "another contract". Accordingly, it is found that petitioners offered respondent only the 4,101 bags at the contract price but that additional loads were offered at the substantially higher open market price. After receiving the 4,101 bags, respondent presented petitioners a check dated June 17, 1991, in the amount of $4,777.92 as full payment for the 4,101 bags of potatoes. The check carried the notation "The undersigned, upon cashing check, accepts payment in full for attached invoices, with no recourse." It was never cashed by petitioners. Attached to the check was an invoice which calculated the $4,777.92 in the following manner. Respondent first calculated $23,598 by multiplying 4,101 bags times $5.75 per bag and then subtracted $82.08 for "Not Pat dues", an amount not explained but nonetheless unchallenged by petitioners. It then deducted $19,038 from that total for a net amount due of $4,777.92. The latter deduction of $19,038 represented a set-off for damages incurred by respondent in having to buy potatoes elsewhere by virtue of petitioners failing to supply the contracted amount of potatoes. It was calculated by assuming that petitioners would supply 2/3 (or 68%) of its commitment, or 5,440 bags. 1/ Since only 4,104 bags were delivered, this amounted to a shortage of 1,336 bags. Respondent represented, without contradiction, that it had to replace this shortage at the same price which petitioners received for non-contract sales on the open market. Respondent assumed that petitioners sold their potatoes at an open market price of $20, or $14.25 more than the contract price. Thus, it deducted 1,336 x $14.25, or $19,038 from the final payment. In actuality, petitioners sold the bulk of those potatoes at a price of $19 per bag. Thus, respondent's set-off should have been $17,702 rather than $19,038. This amount of set-off ($17,702) is deemed to be reasonable and should be subtracted from the amount owed by respondent to petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring respondent to pay petitioners $5,813.92 within thirty days of date of final order. Otherwise, the surety should be required to pay that amount. DONE and ENTERED this 21st day of May, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER 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 21st day of May, 1992. 1/ For purposes of determining damages, respondent decided that petitioners were entitled to some relief under the contract due to the storm. Accordingly, respondent assumed that it would receive only two-thirds of the contract requirement. APPENDIX Petitioners: 1. Covered in the preliminary statement. 2. Accepted in finding of fact 2. 3-4. Accepted in finding of fact 1. 5. Accepted in finding of fact 2. 6. Accepted in finding of fact 3. 7-8. Accepted in finding of fact 4. 9. Accepted in finding of fact 3. 10. Accepted in finding of fact 5. Accepted in findings of fact 1 and 5. Accepted in finding of fact 6. 13-14. Accepted in finding of fact 7. Accepted in finding of fact 8. Rejected as being unnecessary. Partially accepted in finding of fact 10. The remainder has been rejected as being contrary to the more persuasive evidence. Partially accepted in findings of fact 11 and 12. Accepted in finding of fact 11. Accepted in finding of fact 9. 21-22. Accepted in finding of fact 14. Accepted in finding of fact 6. Rejected as being contrary to more persuasive evidence. Partially accepted in finding of fact 6 but this finding does not excuse performance under the contract. See finding of fact 12. Respondent: * Partially accepted in finding of fact 14. The remainder is covered in the preliminary statement. Accepted in finding of fact 1. Accepted in findings of fact 2 and 3. Accepted in finding of fact 4. Accepted in findings of fact 3 and 5. 6-8. Accepted in finding of fact 7. 9-10. Accepted in finding of fact 10. Accepted in finding of fact 7. Accepted in finding of fact 9. Accepted in finding of fact 14. * Respondent G & G Sales Corporation filed thirteen unnumbered paragraphs containing proposed findings of fact. The paragraphs have been numbered 1-13 by the undersigned for the purpose of making these rulings. COPIES FURNISHED: Joe C. Miller, II P. O. Box 803 Palatka, Florida 32178-0803 Ronald W. Brown, Esquire 66 Cuna Street, Suite B St. Augustine, Florida 32084 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Chief Bureau of License & Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Charles T. Shad, Esquire 601 Blackstone Building East Bay & Market Street Jacksonville, Florida 32202 (on behalf of St. Paul Fire and Marine Insurance Co.) Richard A. Tritschler, Esquire Department of Agriculture & Consumer Affairs The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact The Petitioners in this matter are agricultural producers. Respondent GMS is an agricultural dealer. Petitioners, through their agent, Odis Phillips, contracted to sell a portion of their watermelons to GMS through its agent, J. W. Starling. Neither side controverts that prior to June 25, 1983, the terms of their verbal contract were as follows: The watermelons were to be loaded on the shipper's truck at the field by the grower at the grower's expense; GMS would confirm a firm sale price at the time of delivery; and Settlement would be on the day following the delivery of the melons to the shipper. The price was the local market price paid producers of watermelons by the shippers, which price was generally acknowledged to be one cent per pound less than the price for which the shipper could sell the melons. The above terms were not renegotiated between Phillips and Starling. Immediately prior to June 25, 1983, the market price paid to GMS by shippers had been falling at approximately one cent per pound per day. On or about June 25, 1983, William Ward, Jr., manager of GAS, called Starling and advised him that the watermelon market was falling and they no longer had any confirmed sales. Ward advised Starling that Starling could no longer quote fixed prices to the growers from whom GMS had been purchasing watermelons. This constituted a change from the way these transactions had been handled prior to that date, when the price of the melons was fixed and GMS had a confirmed sale for the melons. After that date, GMS sought to obtain the melons for sale as `rollers." A "roller" is a load of melons shipped without a confirmed purchaser, for which a sale is attempted to be negotiated while the melons are in transit. The loads of melons in question were shipped by GMS as "rollers." Testimony regarding whether the Petitioners agreed to the sale of the watermelons in question as "rollers" or continued to demand a fixed price for their melons is conflicting. After June 25, 1983, Starling was in contact with Phillips and advised him that the market was off and the price was dropping. Starling felt he had advised Phillips that the melons would henceforth be "rollers" and the price contingent upon the sale price. Phillips did not feel that there had been any change, but felt that the price would continue to be based upon local market conditions. It is specifically found that the terms in Case Nos. 83-3013A and 83-3014A remained unchanged. The local market price on June 27, 1983, was six cents per pound. Starling was in contact with Petitioner James E. Hiers at Starling's office on the morning of June 29, 1983. Hiers was functioning as a field supervisor, keeping a record of the number of loads, their weight, the buyer, the price, and what was paid for all loads sold involved in Case No. 83-3015A. Starling testified that he advised Hiers that the price of the watermelons shipped on June 28 and 29, 1983, was not firm but would be based upon the price for which GMS could sell them. Starling testified that he told Hiers the price was contingent upon price when the melons sold. Hiers responded to Starling on June 29, 1983, that he was not selling based upon the sales price for the melons received by GMS but would sell only for a firm price at the rate other brokers were paying producers for melons in the local area. Starling did not clearly state that the melons were "rollers;" however, there was definitely no assent on the part of Hiers to ship the Petitioners' melons as "rollers." Starling testified that he did not quote Hiers a price for the watermelons. Hiers testified that it was his practice not to load melons for shipment until a firm, fixed price for them was quoted by the purchaser. Heirs' testimony was the more credible and supported by others who had purchased melons from him. Each morning during the season, Heirs ascertained the market price for watermelons. His records reflect a price of four to five cents per pound for June 29, 1983, which Hiers took to be an effective price of four cents per pound. This price of four cents per pound was consistent with the local market price for watermelons on June 28 and 29, 1983. After Hiers rejected the new terms tendered by Starling and restated that the terms of sale were firm price based upon local market price, GMS trucks were sent with Hiers to the field for loading. It costs a farmer between two and a quarter and two and a half cents per pound to load and ship watermelons. The price eventually tendered by GMS for the melons in question was three cents per pound, or one cent less than the price quoted by Starling. The following reflects by the case number, the date, weight, and tendered settlement price for each load of watermelons purchased by GMS based upon track reports; Petitioners Exhibits 1, 2 and 3; and evidence of price based upon the testimony and records of the Petitioners: Case No. 83-3013A Date Wght. Local Amount Pound Market Tendered Difference Price by GMS Claimed Total Difference Claimed 06/27/83 40,610 $.06 $.05 $.01 $406.10 06/27/83 43,540 .06 .05 .01 435.40 06/27/83 47,900 .06 .04 .02 958.00 06/27/83 41,410 .06 .05 .01 414.10 06/27/83 40,000 .06 .05 .01 400.00 06/28/83 41,130 .05 .04 .01 411.30 06/28/83 42,610 .05 .03 .02 852.20 06/28/83 40,250 .05 .03 .02 805.00 06/28/83 42,520 .04 .03 .01 425.20 $ 5,107.30 Case No. 83-3014A Date Wght. Local Amount Pound Market Tendered Difference Price by GMS Claimed Total Difference Claimed 06/27/83 47,950 $.06 $.05 $.01 $479.50 06/28/83 42,770 .05 .04 .01 427.70 $ 907.20 Case No. 83-3015A Wght. Price Local Amount Pound Market Tendered Difference by GMS Claimed Claimed Total Difference Date 06/28/83 44,220 $.05 $.03 $.02 $884.40 06/28/83 44,070 .05 .03 .02 881.40 06/29/83 46,450 .04 .03 .01 464.50 06/29/83 41,350 .04 .03 .01 413.50 06/29/83 39,880 .04 .03 .01 398.80 06/29/83 42,100 .04 .035 .005 210.50 06/29/83 40,260 .04 .04 .00 - 0 - 06/29/83 42,420 .04 .03 .01 424.20 $ 3,676.30 In addition to the money already tendered, the Respondents owe the Petitioners the following amounts: in Case No. 83-3013A, $5,107.30; in Case No. 83-3014A, $907.20; and in -Case No. 83-3015A, $3,676.30; or a total of $9,690.80.
Recommendation Having determined that the allegations of the complaint have been established, and having determined that Respondent GMS owes the Petitioners respectively the following sums, it is recommended that the Department of Agriculture and Consumer Services order Respondent GMS to pay the Petitioners the following amounts in these cases in addition to the amounts tendered: (a) in Case No. 83-3013A, $5,107.30; (b) in Case No. 83-3014A, $907.20; and (c) in Case No. 83-3015A, $3,676.30. DONE and RECOMMENDED this 17th day of April, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 17th day of April, 1984. COPIES FURNISHED: Frederick E. Landt, III, Esquire Post Office Box 2045 Ocala, Florida 32678 M. Craig Massey, Esquire 1701 South Florida Avenue Post Office Box 2787 Lakeland, Florida 33806-2787 Glenn Bissett, Chief Bureau of Licensing and Bond Department of Agriculture & Consumer Services Mayo Building, Room 418 Tallahassee, Florida 32301 Robert A. Chastain, Esquire Department of Agriculture & Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture & Consumer Services The Capitol Tallahassee, Florida 32301
