The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Holmes Nursery & Gardens Associates, LTD., is a wholesale and retail nursery providing a variety of landscape agricultural products. The east coast regional office for Petitioner is located at 1600 SW 20th Street, Fort Lauderdale, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highways Delray Beach, Florida. Respondent, Garden of Eden is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about April 23, 1986, Garden of Eden ordered and received delivery of $1770.00 worth of agricultural products from Petitioner. This purchase consisted of four viburnum odo., five weeping podocarpus and one bottlebrush. On or about April 25, 1986, Garden of Eden ordered and received delivery of $420.00 worth of agricultural products from Petitioner. This purchase consisted of three live oaks. On or about April 28, 1986, Garden of Eden ordered and received delivery of $312.50 worth of agricultural products from Petitioner. This purchase consisted of twenty-five viburnum odo. On or about April 29, 1986, Garden of Eden ordered and received delivery of $520.00 worth of agricultural products from Petitioner. This purchase consisted of four laurel oaks. On or about May 5, 1986, Garden of Eden ordered and received delivery of $1,130.00 worth of agricultural products from Petitioner. This purchase consisted of forty-seven crinum lily and six hundred and twenty-two liriope muscari. On or about May 13, 1986, Garden of Eden ordered and received delivery of $2,943.00 worth of agricultural products from Petitioner. This purchase consisted of seven cattley grava, and six paurotes. On or about May 28, 1986, Garden of Eden ordered and received delivery of $315.00 worth of agricultural products from Petitioner. This purchase consisted of one roebelinii single and one roebelinii double. On or about June 19, 1986, Garden of Eden ordered and received delivery of $300.00 worth of agricultural products from Petitioner. This purchase consisted of one paurotis 5 stem. The total amount of the agricultural products purchased by Garden of Eden was $7,710.50. On August 8, 1986, Garden of Eden paid $1060.00 on the account. On September 24, 1986, another $2500.00 was remitted to Holmes Gardens on this account. The balance of indebtedness owed by Garden of Eden to Holmes Gardens for the purchases listed above is $4,150.00. Petitioner claims it is due an additional sum of $436.04 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry; however, no written agreement or acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
The Issue The issue is whether Boyer Produce, Inc. and its surety, Southern Farm Bureau Casualty Insurance Company, owe petitioner $1,751.80 as alleged in the complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In July 1993, petitioner, Patricia Thomas, was given authority by her brother to sell all remaining watermelons on his farm located in Citra, Florida. This amounted to approximately one truckload. She eventually sold them to respondent, Boyer Produce, Inc., a dealer (broker) in agricultural products located in Williston, Florida. Its owner and president is Kennedy Boyer (Boyer), who represented his firm in this proceeding. As an agricultural dealer, respondent is required to obtain a license from and post a surety bond with the Department of Agriculture and Consumer Services (Department). In this case, the bond has been posted by respondent, Southern Farm Bureau Casualty Insurance Company, and is in the amount of $75,000.00. Although the parties had never had business dealings before this transaction, through a mutual acquaintance, Randy Rowe, respondent learned that petitioner was interested in selling her watermelons. After Boyer visited the field and examined three watermelons which he described as "good," Boyer offered to purchase a truckload for 4 per pound if all melons were of the same quality. Thomas declined and counteroffered with a price of 5 per pound. The parties then agreed to split the difference and arrived at a sales price of 4 per pound. During the negotiations, Rowe acted as an intermediary between the parties and observed the formation of the contract as well as the loading of the goods onto the truck. Although the matter is in dispute, it is found that both parties agreed that Thomas would be paid 4 per pound for "good" watermelons delivered. This meant that petitioner would not be paid unless and until the watermelons were delivered to their final destination in "good" condition. In the trade, being in "good condition" meant that the watermelons would meet U. S. Grade No. 1 standards. Respondent also agreed to provide a truck and driver at petitioner's field and to transport the produce to Brooklyn, New York, the final destination. At the same time, petitioner was given the responsibility of loading the watermelons on the truck. To assist petitioner in meeting her up- front labor costs, respondent advanced $500.00 as partial payment for the shipment. Winston Smith was hired by respondent to transport the melons to New York. He arrived at petitioner's field on Saturday, July 16, 1993, and remained there while approximately 46,000 pounds of melons were loaded on an open top flat bed trailer. One of the loaders said the melons were "packed real tight," and four bales of straw were used in packing. According to Rowe, who observed the loading, the watermelons packed that day were in "good" condition, and any nonconforming watermelons were "kicked" off the truck. Also, by way of admission, the driver, as agent for Boyer, acknowledged to Rowe that the melons loaded were in "good" condition. Late that afternoon, a thunderstorm came through the area and, due to lightening, no further loading could be performed. Since around 46,000 pounds had already been loaded, petitioner desired for the truck to be sent on its way north. Smith, however, told petitioner he wanted 50,000 pounds in order to make his trip to New York worthwhile and he would not go with anything less. Acceding to his wishes, petitioner agreed to meet Smith the next morning and load an additional two hundred watermelons, or 4,000 pounds, on the truck. Smith then drove the loaded truck to a nearby motel where he spent the night. That evening it rained, and this resulted in the uncovered watermelons and straw getting wet. The next morning, Smith telephoned petitioner and advised her to meet him at 9:00 a. m. at a local Starvin' Marvin store, which had a weight scale that could certify the weight of the shipment. Petitioner carried two hundred watermelons to the store at 9:00 a. m., but Smith did not arrive. Around noon, she received a call from Smith advising that his truck was broken down at the motel and would not start. The watermelons were then taken to the motel and loaded onto the trailer. In all, 50,040 pounds were loaded. Smith's truck would still not start after the watermelons were loaded, and Smith refused to spend any money out of his own pocket to repair the truck. Not wanting to delay the shipment any longer, petitioner gave Smith $35.00 to have someone assist him in starting the vehicle. In order for the repairs to be made, the loaded trailer had to be jacked up and the truck unhooked from and later rehooked to the trailer. This was accomplished only with great difficulty, and Smith was forced to "jostle" the trailer with the power unit for some two hours altogether. According to Rowe, he warned Smith that such jostling could bruise the melons and "mess them up." Smith was also cautioned early on that he should make the necessary repairs as soon as possible so that the load of watermelons would not continue to sit uncovered in the sun. The truck eventually departed around 9:00 p. m., Sunday evening after the uncovered trailer had sat in the sun all day. The shipment was delivered to Brooklyn on the following Tuesday afternoon or evening, and it was inspected by a government inspector on Wednesday morning. According to the inspection report, which has been received in evidence, the load was split evenly between crimson and jubilee melons, and 23 percent and 21 percent, respectively, of the two types of melons failed to meet grade. No greater than a 12 percent "margin" is allowed on government inspections. Almost all of the defects cited in the report were attributable to the melons being "over-ripe." The buyer in New York rejected the entire shipment as not meeting standards. Respondent then sold the shipment for only $1350.00 resulting in a loss of $350.00 on the transaction. In addition, respondent says the driver (Smith) accepted $1200.00 instead of the $2,000.00 he would have normally charged to transport a load to New York. When petitioner asked for her money a few weeks later, respondent declined, saying the goods had not met specification when delivered to their destination, and if she had any remedy at all, it was against Smith, the driver. If petitioner had been paid 4 per pound for the entire shipment, she would have been entitled to an additional $1,751.80, or a total of $2,251.80. Petitioner contends that the melons failed to meet grade because of the negligence of the driver. More specifically, she says the loaded melons sat in the sun for almost two days, including all day Sunday after being soaked from the Saturday evening rain. If wet melons are exposed to the hot sun for any length of time, they run the risk of "wet burning," which causes decay. But even if this occurred, only 1 percent of the shipment was found to have "decay" by the government inspector. Petitioner also says that by being jostled for two hours on Sunday, the melons were bruised. Again, however, the melons were rejected primarily because they were over-ripe, not bruised. Therefore, and consistent with the findings in the inspection report, it is found that the jostling and wet burning did not have a material impact on the quality of the melons. Respondent contended the melons were close to being fully ripened when they were picked and loaded. In this regard, Charles Strange, Sr. agreed that if the melons sat in the field for another four or five days, they would have started "going bad." By this, it may be reasonably inferred that, unless the melons were loaded and delivered in a timely manner, they would have become over-ripe and would not meet grade within a matter of days. Therefore, a timely delivery of the melons was extremely important, and to the extent respondent's agent, Smith, experienced at least a twenty-four hour delay in delivering the melons through no fault of petitioner, this contributed in part to their failure to meet grade. Petitioner is accordingly entitled to some additional compensation, a fair allocation of which is one-half of the value of the shipment, or $1125.90, less the $500.00 already paid.
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 petitioner $625.90 within thirty days from date of the agency's final order. In the event such payment is not timely made, the surety should be liable for such payment. DONE AND ENTERED this 2nd day of December, 1993, 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 2nd day of December, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Chief Bureau of Licensing & Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Richard A. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810 Southern Farm Bureau Casualty Insurance Company Post Office Box 1985 Jackson, Mississippi 39215-1985 Patricia Thomas Post Office Box 522 Archer, Florida 32618 Kennedy Boyer 15A South West 2nd Avenue Williston, Florida 32696
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Sun Coast Farms, is agent for Strano Farms of Florida City, Florida, a producer of agricultural products. The Respondent, South Dade Produce, is a dealer in agricultural products and is located in Naranja, Florida. On April 4, 1985, Mr. George Mason, salesman for Petitioner, received a call from Respondent proposing to buy some squash. An agreement was reached for the sale of 400 crates of crookneck squash (#1 grade) at a price of $10.20 per unit "FOB Florida City, Florida." The agreed upon price for the full amount of the squash was $4,080. The squash in question was grown and packed by Strano Farms in Florida City, Florida. The 400 cases of squash were received by Respondent on April 4, 1985. During an inspection of the squash, Mr. Cope, owner of South Dade Produce, noticed that some of the squash had wind scar. Mr. Cope felt that the wind scar damage was minor and proceeded to dispose of the squash as planned. One hundred cases of the squash were sold and shipped without difficulty and are not a part of this action. On April 4, 1985, the 300 cartons of squash in question were shipped to Texas in a refrigerator truck and delivered April 6, 1986 to Harrington Produce Company of Dallas, Texas, through Reaves Brokerage Company, also of Dallas. Harrington Produce Company planned to sell the squash to consumers through its own retail outlets. Upon examination of the squash at destination, Harrington Produce Company represented to Reaves Brokerage Company that it believed a portion of the squash were spoiled and unmarketable. Reaves Brokerage Company notified the Respondent of this potential problem and requested instruction. That same day, April 6, 1985, having received notice of the problem in Dallas, the Respondent notified George Mason, a salesman for Petitioner. George Mason indicated that a "federal inspection certificate" (an inspection performed upon receipt to verify the condition of produce) was not required. Neither Petitioner nor Respondent requested a federal inspection to verify the condition of the squash. In an accounting statement provided to Respondent on December 30, 1985 Harrington Produce stated that in order to render the squash sellable, it was necessary to run (sort and repack) the squash twice to assure that each carton contained only sound vegetables. Harrington Produce Company further asserted that the cost of sorting and repacking was $1.50 per finished carton per run or $540.00 for the 180 salvageable cartons which were kept and sold. Harrington Produce stated that it did not charge labor costs for unsellable cartons, but that 120 of the 300 cartons delivered were unsellable, which, at $10.35 per carton, meant an additional deduction of $1,242.00. Because of the foregoing, Harrington Produce Company deducted $1,782.00 as an adjustment to Respondent's bill. Because Harrington Produce deducted $1,782 from Respondent's billing, Respondent deducted $1,782 from Petitioner's payment. The parties stipulated that the unpaid amount on the contract for the 400 units of squash was $1,782. No "federal dump certificate" (a certification of spoilage done at the time that unmarketable produce is discarded) was performed on the 120 cartons of squash which were supposedly dumped by Harrington Produce Company. It is standard practice in the industry that an independent, third-party assessment of produce be performed prior to "dumping". Ordinarily, "certification" of the condition of produce by the ultimate purchaser himself is unacceptable. Where a "federal dump certificate" is unavailable, some other independent assessment of the produce is required. It is standard practice in the industry that the buyer receiving the problematic goods request the necessary inspections. It was the understanding of the parties, who had undertaken similar transactions previously, that adjustments to the price of the goods when subsequently resold could be passed back to the producer. However, it is normal and customary practice in the industry to have an independent entity, be it state, federal or private, inspect agricultural products before they are "dumped" or thrown away as unmarketable. On April 5, 1985, Petitioner invoiced Respondent $4,080 for the full amount of the squash. In May 1985, Respondent remitted to Petitioner the sum of $2,298, leaving a balance due of $1,782. On June 21, 1985, Petitioner requested an accounting from Respondent for the sale of the Dallas squash. On August 1, 1985, Petitioner again requested an accounting from Respondent. On January 2, 1986, Respondent submitted a letter from Harrington Produce, dated December 30, 1985, accounting for the disposition of the 300 units of squash. On April 4, 1985, 1,800 units of squash harvested from the same field as the squash in question, were packaged by Strano Farms and sold without any complaints or returns.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent is indebted to, and required to pay, the amount of $1,782.00 to the Petitioner. DONE and ORDERED this 1st day of July, 1986 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 1st day of July, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1029A 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 Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6. Adopted in Finding of Fact 13. Adopted in Finding of Fact 7. Adopted in Findings of Fact 13 and 14. Adopted in Finding of Fact 15. Rulings on Proposed Findings of Fact Submitted by the Respondent Partially adopted in Findings of Fact 3, 5 and 12. Matters not contained therein are rejected as subordinate and/or not supported by competent, substantial evidence. Rejected as recitation of testimony. Adopted in Finding of Fact 7. Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate and/or not supported by competent, substantial evidence. Adopted in Finding of Fact 10. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as subordinate. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as a recitation of testimony and/or subordinate. Rejected as unnecessary and subordinate. Addressed in procedural background section of R.O. Addressed in procedural background section of R.O. COPIES FURNISHED: Vincent J. Fiorica 5856 West Flagler Street Miami, Florida 33144 Steven F. Brines 48 Northeast 15th Street Homestead, Florida 33133 Hon. Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Department of Agriculture Mayo Building, Room 513 Tallahassee, Florida 32301 Mr. Joe W. Kight Bureau of Lic. & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301 F. J. Manuel, Jr., Esquire Welbaum, Zook, Jones & Williams Post Office Box 3626 Orlando, Florida 32802
The Issue Whether the Petitioners, Pete Capparelli and Robin L. Stone, d/b/a Capparelli Farms, Inc., are entitled to the payment of $15,710.02 as proceeds due the Petitioners for loads of potatoes delivered to the Respondent, Orlowski Produce Co., Inc.
Findings Of Fact The Respondent, Orlowski Produce Co., Inc., was licensed as a dealer in agricultural products for the period April 20, 1973, to September 24, 1978, which license was issued by the State of Florida, Department of Agriculture and Consumer Services. In connection with its activity in the State of Florida, the Respondent was required to make a surety bond in the amount of $20,000.00 as security for its business transactions with Florida agricultural producers, their agents or representatives for those agricultural products bought from or handled or sold for the Florida agricultural producers, their agents or representatives. The licensure provisions and requirement for bond are set out in the Sections 604.15 through 604.30, Florida Statutes. A copy of the license and bond may be found in the State of Florida, Department of Agriculture and Consumer Services Composite Exhibit No. 1 admitted into evidence. All exhibits of that Department will henceforth be referred to as "Department Exhibits." The Petitioners, Pete Capparelli and Robin L. Stone, d/b/a Capparelli Farms, Inc., producers of agricultural products in the State of Florida, filed a complaint with the State of Florida, Department of Agriculture and Consumer Services, alleging that the Respondent failed to pay moneys due and owing to the Petitioners for loads of potatoes. This complaint was filed on November 8, 1978, and may be found as Department's Exhibit No. 2 admitted into evidence. Following the filing of the complaint and in keeping with Section 604.21, Florida Statutes, the Department informed the Respondent that a complaint had been filed by forwarding the notice and complaint by certified mail with a return receipt requested. A copy of the notice of filing a complaint and return receipt may be found as Department's Composite Exhibit No. 3 admitted into evidence. The Respondent did not reply to the complaint, notwithstanding the fact that one of its officials had signed the return receipt request, indicating that it had received the complaint and explanation. In view of the fact that the Respondent had failed to reply to the complaint within the twenty-five days allowed to answer the complaint, and had failed to request a hearing within that twenty-five day period, the Commissioner of Agriculture, State of Florida, Department of Agriculture and Consumer Services, entered an order in favor of the Petitioners. A copy of this order was served on the Respondent by certified mail with a return receipt requested. The Respondent received that order. The order itself may be found as the Department's Exhibit No. 4 admitted into evidence. In the order, the Commissioner of Agriculture makes the following findings of fact: Complainant, Pete Capparelli and Robin L. Stone, is a partnership doing business as Capparelli Farms whose address is Route 1, Box 247, Elkton, Florida. Respondent, Orlowski Produce Company, is a corporation whose address is Post Office Box 128, Water Mill, New York. At the time of the transactions involved, respondent was licensed as a dealer in agricultural products supported by a $20,000 surety bond. Between May 19, 1978 and June 14, 1978, the respondent, acting an an agent for the complainant, handled potatoes produced by the complainant. The complainant initially sent the respondent a statement showing $17,149.83 as the net proceeds due from the potatoes mentioned in Fact 3 after allowing for the 25 cents per hundredweight selling charge. Subsequent to the filing of the complaint, the complainant visited Mr. Bobby Carpenter of respondent firm who altered and initialed a copy of complainant's statement of June 15, 1978 to show an amount of $15,710.02. A copy of the altered statement shown in Fact 5 is attached to this Order. The complaint was received in this office within nine (9) months from the date of the last transaction. There are no known disputed facts in this matter. The Commissioner of Agriculture also concluded as a matter of law that the Respondent was justly indebted to the Petitioners in the amount of $15,710.02 and for that reason had violated the conditions and provisions of the bond, within the meaning of Subsection 604.21(1), Florida Statutes. After establishing the apparatus for default judgment, the Commissioner of Agriculture afforded the Respondent and others with a material interest in the outcome of the case, one final opportunity to request a hearing before the Commissioner of Agriculture's conclusions of law became binding. The Respondent, in the person of one of its officers, Robert Carpenter, made such a request for a hearing, but having made such a request, elected not to attend the hearing, for reasons that are more completely detailed through the pleadings filed in this cause. On the date and time scheduled for hearing, alluded to in the introductory statement of this Order, a de novo hearing was conducted. Testimony was offered and that testimony substantiated the findings of fact of the Commissioner of Agriculture in his order of January 26, 1979, except paragraph eight (8). Therefore, those findings of fact reported herein, excepting paragraph eight (8), are adopted as the findings of fact of this Hearing Officer.
Recommendation It is recommended that the State of Florida, Department of Agriculture and Consumer Services, uphold the claim of the Petitioners, Pete Capperelli and Robin L. Stone, d/b/a Capparelli Farms, Inc., against 0rlowski Produce Co., Inc., in the amount of $15,710.02 and allow the Petitioners to share in the bond proceeds which the Respondent, Orlowski Produce Co., Inc., has on file with the State of Florida, Department of Agriculture and Consumer Services. DONE AND ENTERED this 17th day of May, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101 Collins Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Pete Capparelli and Robin L. Stone d/b/a Capparelli Farms, Inc. Route 1, Box 247 Elkton, Florida 32022 Leonard Hanser, Esquire 1509 North Military Trail West Palm Beach, Florida 33409 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner, Greg Davenport Enterprises, Inc., d/b/a Container Grown, is entitled to payment from an Agricultural Bond issued to Respondent, A.W. Kelley’s Gardens, Inc., and, if so, the amount owed to Petitioner.
Findings Of Fact Petitioner is a licensed producer of an agricultural product: Nursery plants and flowers. Petitioner is duly incorporated by the State of Florida and is in good standing. Greg Davenport is listed as Director and President of the corporation in the Division of Corporations’ web-based records. Respondent is a duly incorporated Florida corporation. Its business address is 6901 Hendry Creek Drive, Ft. Myers, Florida. The directors of the corporation are listed as Dixie Kelley, Drew Kelley, and Kent Kelley. Respondent is a plant retail business. Respondent has been a customer of Petitioner for many years, going back as far as 2006 according to evidence submitted at final hearing. During that time, Respondent has purchased approximately $91,000.00 worth of goods from Petitioner. (In its PRO, Respondent says the relationship goes back 25 years or more, but there was no sworn testimony to that effect.) During the period March 22 through May 24, 2012, Respondent ordered numerous items from Petitioner for which he was billed in accordance with standard practices. The following invoices provide the invoice number, date of invoice, and amount of purchase: Invoice 1399 - March 22, 2012 - $1,570.00 Invoice 1818 – March 27, 2012 - $2,105.00 Invoice 1391 – April 10, 2012 - $1,130.00 Invoice 1303 – April 25, 2012 - $ 850.00 Invoice 1419 – May 16, 2012 - $1,145.00 Invoice 1431 – May 24, 2012 - $1,175.00 TOTAL - $7,975.00 Petitioner contacted Respondent on numerous occasions to request payment on the outstanding invoices. Those efforts were in vain. At first, Respondent would make empty promises to pay, but ultimately just refused to accept Petitioner’s calls. Meanwhile, Respondent’s owner relocated to North Carolina, causing Petitioner to fear that payment may never be forthcoming. Respondent made some promises to make payments “whenever he could” to satisfy the debt. He said, however, that even if he could not pay, Petitioner should not attach his agriculture bond. Respondent’s failure to make any promised payments was the basis for Petitioner seeking payment by way of the bond. Respondent does not deny his failure to pay the outstanding invoices. He does not dispute that the products he received were of acceptable quality. He does, in fact, admit his indebtedness to Petitioner. Respondent does not feel his bond should be attached for payment of this debt. He cites, as reasons, that: 1) his business suffered during the national financial crisis; 2) there was some embezzlement going on in his business that affected his ability to pay obligees; 3) there is a related civil lawsuit underway in circuit court relating to the embezzlement; and 4) Davenport and Kelley have been friends for a long time and thus he should be allowed more time to pay the invoices. Respondent’s PRO sets forth other bases for why he believes it would be improper to attach his agriculture bond. However, none of those bases was addressed by sworn witnesses at final hearing and are thus not evidence in this case. Further, Respondent contends that two witnesses he subpoenaed but failed to show up for final hearing prejudiced his case. He did not prove, however, that either of the supposed witnesses had been properly served. Respondent’s PRO also sets forth facts not elicited through testimony or documentary evidence during final hearing. Respondent relies in part on various documents exchanged between the parties during discovery, but none of those were offered into evidence and thus are not part of the record. Respondent acquired a bond through Suretec Insurance Company. The amount of the bond was not disclosed at final hearing but, per statute, must be at least $5,000.00. The surety company was not represented at final hearing. No defense was raised by the surety company concerning Petitioner’s attempt to attach the bond. Petitioner is entitled to payment in the amount of $7,975.00 for the products it provided to Respondent. Besides the amount set forth above, Petitioner claims the sum of $100.00 paid for the filing of his two claims against Respondent’s bond. The total sum owed to Petitioner by Respondent is $8,075.00.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is hereby RECOMMENDED that: Respondent shall pay to Petitioner, within 15 days of the entry of the Final Order, the sum of $8,075.00; If Respondent fails to timely make the aforementioned payment, the Department shall call upon Suretec Surety Company to pay over to the Department the full amount of Respondent’s bond; and The Department shall then turn the proceeds of the bond over to Petitioner to satisfy the debt that has been established. DONE AND ENTERED this 26th day of March, 2013, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2013. COPIES FURNISHED: Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Michael Cronin SureTec Insurance Company Suite 320 9737 Great Hills Trail Austin, Texas 78759 Greg Davenport Greg Davenport Enterprises, Inc. d/b/a Container Grown 613 Corbel Drive Naples, Florida 34110-1106 Kent O. Kelley A. W. Kelley’s Gardens Inc. 6901 Hendry Creek Drive Fort Myers, Florida 33908 Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether Respondent, FYV, Inc., d/b/a Miami Tropical Nursery, Inc. (Respondent or Buyer), owes Petitioner, Bud Sod, LLC (Petitioner or Seller), the sum of $7,168.09 for pallets of sod sold to the Buyer by the Seller.
Findings Of Fact At all times material to the instant case, Petitioner and Respondent were involved in the purchase and sale of an agricultural product grown and delivered in Florida. Under the terms of their on-going business relationship, Petitioner supplied Respondent with sod. There is no disagreement that Petitioner produced and sold the sod to Respondent. In fact, the parties had numerous dealings that covered many tickets noting deliveries and invoices noting the monies owed. Prior to July 7, 2010, the parties met without their attorneys to try and agree upon an amount owed by Respondent. At that time, they went through the volumes of paperwork related to the claim and reached a mutually-acceptable decision. Petitioner maintains that Respondent owes $17,168.09 as a compromised sum for the sod sold by Petitioner to Respondent. Of that amount, Petitioner acknowledges that Respondent remitted $10,000 to the Seller. Accordingly, Petitioner asserts that the sum of $7,168.09 is owed and unpaid for the sod purchased by Respondent. Respondent presented no evidence to refute this amount.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving Petitioner's complaint against Respondent in the amount of $7,168.09. DONE AND ENTERED this 9th day of August, 2010, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 9th day of August, 2010. COPIES FURNISHED: Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Kathy Alves Fidelity & Deposit Company of Maryland Post Office Box 968036 Schaumberg, Illinois 60196 Steven J. Polhemus, Esquire Post Office Box 2188 LaBelle, Florida 33975 Yolanda More FYV, Inc., d/b/a Miami Tropical Nursery, Inc. 104475 Overseas Highway Key Largo, Florida 33037 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether, under the provisions of sections 604.15 - 604.34, Florida Statutes, Lester Towell Distributors, Inc., is entitled to recover $2,098 for agricultural products ordered by and delivered to VBJ Packing, Inc
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made. Lester Towell is a dealer in Florida-grown agricultural products. VBJ is a dealer in Florida-grown agricultural products. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of extra-large green bell peppers. Lester Towell delivered 200 boxes of such peppers to VBJ on May 23, 1995. To fill this order, Lester Towell purchased 63 boxes of peppers from producer Ott Farms, Inc., in Estero, Florida, and 137 boxes from producer Thomas Produce, in Boca Raton, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of yellow corn. Lester Towell delivered 100 boxes of such corn to VBJ on May 24, 1995. To fill this order, Lester Towell purchased 100 boxes of corn from producer Wilkinson-Cooper, in Belle Glade, Florida. Lester Towell did not act as agent for this producer; it purchased the products outright. On May 24, 1995, VBJ placed an order with Lester Towell to purchase a quantity of jalapeno peppers, white corn, and red radishes. Lester Towell delivered two boxes of jalapeno peppers, 26 boxes of white corn, and 20 boxes of red radishes to VBJ on May 25, 1995. To fill this order, Lester Towell purchased 2 boxes of jalapeno peppers from producer Ott Farms, Inc., in Estero, Florida, and 26 boxes of white corn and 20 boxes of red radishes from producer American Growers in Belle Glade, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. Lester Towell filed its complaint with the Department of Agriculture and Consumer Services ("Department") pursuant to the provisions of section 604.21(1), Florida Statutes, because VBJ did not pay for the products identified above. There is, however, no evidence to establish that Lester Towell was a producer or the agent or representative of a producer with respect to the products for which it seeks payment. It is, therefore, not a "person" entitled to file a complaint with the Department against VBJ and its surety.
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 dismissing the complaint of Lester Towell Distributors, Inc. DONE AND ENTERED this 3nd day of July 1996 in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 3rd day of July 1996
The Issue The issue is whether Respondent, Greenblades of Central Florida, Inc., and its surety, Western Surety Company, 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 operates a nursery supply company that produces trees, plants, and other landscaping supplies at a location in Bunnell, Florida. Respondent is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Respondent was a licensed dealer in agricultural products supported by a surety bond provided by Western Surety Company. This matter arose over a Producer Complaint filed by Petitioner on June 24, 2005, in which it alleged that Respondent owed $20,512.97, based upon five invoices for nursery goods delivered to various job sites where Respondent was providing landscaping services. The five invoices set forth in the original Producer Complaint are as follows: Date of Sale Invoice # Amount Dec. 28, 2004 64679 $2,884.72 Jan. 11, 2005 64828 3,878.75 Jan. 11, 2005 64829 1,926.00 Feb. 1, 2005 65229 2,086.50 Feb. 3, 2005 65127 9,737.00 Petitioner later amended its Complaint to withdraw its claims under Invoice Nos. 65229 and 65127, as untimely filed, resulting in an amended amount due of $8,689.47. Respondent filed a Response to the Producer Complaint on August 15, 2005, admitting the amounts due under Invoice Nos. 64679 and 64828, totaling $6,763.47, and denying the amount claimed in Invoice No. 64829, $1,926.00, as never having been filled, resulting in Respondent's using another vendor to fill the order. Respondent admitted the amounts due under Invoice Nos. 64679 and 64828; therefore, no further discussion is necessary for those items, except to note that Delivery Receipt No. 17751, relating to Invoice No. 64828 contains the note "Reject 1 Live Oak." Therefore, the amount of Invoice No. 64828 must be reduced by $214.00 ($200 for the tree and 7 percent Florida Sales Tax). With respect to Invoice No. 64829, however, Petitioner produced at hearing only an unsigned invoice without either a sales order or a receipt for delivery of goods, as was its custom concerning deliveries of nursery goods. Accordingly, Petitioner provided no proof that the order under Invoice No. 64829 was actually delivered to Respondent. Respondent and its surety, Western Surety Company, currently owe Petitioner $2,884.72 under Invoice No. 64679, and $3,664.75 under Invoice No. 64828, for a total amount owed of $6,549.47.
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, Greenblades of Central Florida, Inc., or its surety, Respondent, Western Surety Company, to pay Petitioner $6,549.47 for unpaid invoices. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of January, 2006. COPIES FURNISHED: Christopher E. Green, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Division of Marketing 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Joseph Robbins, Jr. Greenblades of Central Florida, Inc. 11025 Southeast Highway 42 Summerfield, Florida 34491 Tom Snyder Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Donald M. DuMond Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Tom Robinson Skinner Nurseries, Inc. 13000 State Road 11 Bunnell, Florida 32110 Honorable Charles H. Bronson Department of Agriculture and Consumer Services Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
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
