The Issue Has Respondent Fancy Farms Sales, Inc. (Fancy Farms) made proper accounting to Petitioner Wayne Sullivan in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Fancy Farms from November 8, 1994, through December 10, 1994, by Wayne Sullivan to be handled by Fancy Farms as agent for Wayne Sullivan on a net return basis as defined in Section 604.15(4), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Wayne Sullivan was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Fancy Farms was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8453 issued by the Department, supported by bond number 57 92 20 in the amount of $75,000, written by Gulf Insurance Company with an inception date of September 1, 1994, and an expiration date of August 31, 1995. From November 8, 1994, through December 10, 1994 Wayne Sullivan delivered certain quantities of an agricultural product (zucchini) to Fancy Farms. It is the accounting for these zucchini (zukes) that is in dispute. It was stipulated by the parties that Fancy Farms was acting as agent in the sale of the zukes delivered to Fancy Farms for the account of Wayne Sullivan on a net return basis. There is no dispute as the quantity or size of the zukes delivered by Wayne Sullivan to Fancy Farms during the above period of time. Furthermore, there is no dispute as to the charges made by Fancy Farms for handling the zukes, including but not limited to the commission charged by Fancy Farms. The agreed upon commission was ten per cent (10 percent) of the price received by Fancy Farms from its customers. There is no evidence that Fancy Farms found any problem with the quality of the zukes delivered to Fancy Farms by Wayne Sullivan during the above period of time. Upon delivering the zukes to Fancy Farms, Sullivan was given a prenumbered delivery receipt ticket (delivery ticket) showing Wayne Sullivan as Grower number 116 and containing the following additional information: (a) date and time of delivery; (b) produce number, i.e., 37 indicating fancy zukes and 38 indicating medium zukes; (c) description of the produce, i.e., zukes, fancy; (d) a lot number containing number of delivery ticket, grower number and produce number, i.e. 2074-116-37 and; (e) the number of units of zukes received by Fancy Farm. The accounting for the zukes from the following delivery receipt ticket numbers is being contested in this proceeding: (a) 2127 dated November 8, 1994, lot nos. 2127-116-37 and 2127-116-38; (b) 22145 dated November 10, 1994, lot nos. 2145-116-37 and 2145-116-38; (c) 2181 dated November 15, 1994, lot nos. 2181-116-37 and 2181-116-38; (d) 2242 dated November 29, 1994, lot nos. 2242- 116-37 and 2242-116-38; (e) 2254 dated December 1, 1994, lot nos. 2254-116-37 and 2254-116-38; (f) 2289 dated December 7, 1994, lot nos. 2289-116-37 and 2289- 116-38 and; (g) 2313 dated December 10, 1994, lot nos. 2313-116-37 and 2313-116- 38. Once Fancy Farms found a customer for the zukes, Fancy Farms prepared a prenumbered billing invoice. Additionally, a bill of lading and load sheet was prepared and attached to the invoice. The bill of lading and load sheet would have the same number as the invoice. Basically, the invoice and bill of lading contained the customer's name and address, produce number, description of produce, number of units ordered, number of units shipped and the price per unit. The load sheet contains the customer's name, produce number, description of produce, units ordered, units shipped and the lot number for the units that made up the shipment. On numerous occasions Fancy Farms made adjustments to the selling price after the price had been quoted and accepted but before the invoice was prepared. Fancy Farms did not make any written notations in its records showing the adjustments to the price or the reasons for the adjustments to the price. Salvatore Toscano testified, and I find his testimony to be credible, that this usually occurred when there was a decrease in the market price after Fancy Farms made the original quote. Therefore, in order to keep the customer, Fancy Farms made an adjustment to the price. Sullivan was never made aware of these price adjustments. In accounting for the zukes delivered by Sullivan, Fancy Farms prepared a Grower Statement which included the delivery ticket number, the date of delivery, the lot number, grower number, produce number, description of the produce, quantity (number of units), price per unit and total due. Payment for the zukes was made to Wayne Sullivan from these statements by Fancy Farms. Sometimes payment may be for only one delivery ticket while at other times payment would be for several delivery tickets for different dates. A portion of Petitioner's composite exhibit 1 is the Florida Vegetable Report (Market Report), Volume XIV, Nos. 19, 21, 23, 31, 33, 37 and 40, dated October 28, 31, 1994, November 8, 10, 15, 29, 1994, and December 7, 12, 1994, respectively. The Market Report is a federal-state publication which reports the demand (moderate), market (steady), volume (units) sold and prices paid per unit for numerous vegetables, including zucchini, on a daily basis. The prices quoted for zucchini is for 1/2 and 5/9th bushel cartons and includes palletizing. The average cost for palletizing in the industry is 65 per carton. Fancy Farms receives and sells zukes in one-half (1/2) bushel cartons. Fancy Farms does not palletize the cartons for handling at its warehouse or for shipment. On November 8, 10, 15, 1994, Sullivan delivered a combined total of 130 units of fancy zukes and a combined total 206 units of medium zukes represented by delivery receipt ticket nos. 2127, 2145 and 218l, for a combined total of fancy and medium zukes of 336 units for which Fancy Farms paid Sullivan the sum of $1,171.00 as evidenced by the Grower Statement dated November 25, 1994. Forty eight units of fancy zukes represented by lot no. 2127-116-37 was billed out by Fancy Farms to P. H. Lucks, Inc. for $5.00 per unit. Without an explanation, Fancy Farms reduced the price to $2.50 per unit. However, Fancy Farms paid Sullivan $5.00 per unit for the 48 units of fancy zukes. Five units of medium zukes represented by lot no. 2145-116-38 were not accounted for by invoice. Thirty two units of fancy zukes represented by lot no. 2181-116-37 were not accounted for by invoice. Nineteen units of medium zukes represented by lot no. 2242-116-38 were not accounted for by invoice. Where there is no invoice the price quoted in the Market Report is used to calculate the amount due Sullivan. The amount due Sullivan from the Grower Statement dated November 25, 1994, is: Lot No. 2127-116-37: $5.00 per unit x 48 units (Invoice 3814) = $ 240.00 Lot No. 2127-116-38: $3.50 per unit x 45 units (Market Report) = $ 157.50 $3.50 per unit x 35 units (Invoice 3783) = $ 122.50 Lot No. 2145-116-37: $5.00 per unit x 12 units (Invoice 3818) = $ 60.00 $5.00 per unit x 38 units (Invoice 3822) = $ 190.00 Lot No. 2145-116-38: $3.00 per unit x 13 units (Invoice 3820) = $ 39.00 $3.00 per unit x 22 units (Invoice 3822) = $ 66.00 $3.00 per unit x 5 units (Market Report) = $ 15.00 Lot No. 2l81-116-37: $8.00 per unit x 32 units (Market Report) = $ 256.00 Lot No. 2181-116-38: $3.50 per unit x 86 units (Invoice 3778) = $ 301.00 Total owed to Sullivan = $1,447.00 Less: Amount paid Sullivan = $1,171.00 Ten per cent commission = 144.70 Net due Sullivan = 131.30 On November 29, 1994, Sullivan delivered 53 units of fancy zukes and 69 units of medium zukes as represented by delivery ticket no. 2242 for a combined total of 112 units for which Sullivan was paid $472.00 by Fancy Farms as represented by the Grower Statement dated December 7, 1994. The prices of $3.25 and $3.00 as indicated by invoice nos. 3941 and 3947, respectively are not indicative of the market for fancy zukes as established by the Market Report for December 1, 1994. The Market Report established an average price of $8.00 per unit for fancy zukes. Likewise, the price of $3.00 per unit for medium zukes as indicated by invoice no. 3927 is not indicative of the market for medium zukes as established by the Market Report for December 1, 1994. The Market Report established an average price of $6.00 per unit for medium zukes. The amount due Sullivan from the Grower Statement dated December 7, 1994, is: Lot no. 2242-116-37: $8.00 per unit x 53 units (Market Report) = $ 424.00 Lot no. 2242-116-38: $6.00 per unit x 69 units (Market Report) = $ 414.00 Total owed Sullivan = $ 838.00 Less: Amount paid Sullivan = $ 472.00 Ten Percent Commission = $ 83.80 Net due Sullivan = $ 282.20 On December 1, 7, 1994, Sullivan delivered a combined total of 51 units of fancy zukes and a combined total of 87 units of medium zukes for a combined total of 138 units of fancy and medium zukes represented by delivery ticket nos. 2254 and 2289 and was paid $516.00 for these zukes by Fancy Farms as represented by the Grower Statement dated December 15, 1994. There was no invoice for lot nos. 2254-116-37 or 2254-116-38. The Market Report established a market price of $8.00 and $6.00 per unit for fancy and medium zukes, respectively. The amount due Sullivan from the Growers Statement dated December 15, 1994, is: Lot No. 2254-116-37: $8.00 per unit x 39 units (Market Report) = $ 312.00 Lot No. 2254-116-38: $6.00 per unit x 20 units (Market Report) = $ 120.00 Lot No. 2289-116-37: $6.00 per unit x 12 units (Invoice 4049) = $ 72.00 Lot No. 2289-116-38: $3.50 per unit x 67 units (Invoice 3946) = $ 234.50 Total owed Sullivan = $ 738.50 Less: Amount paid Sullivan = $ 516.00 Ten Percent Commission = $ 73.85 Net due Sullivan = $ 148.65 On December 10, 1994, Sullivan delivered 27 units of fancy zukes and 18 units of medium zukes for a combined total of 45 units as represented by delivery ticket no. 2313 and was paid $211.50 for those zukes by Fancy Farms as represented by Growers Statement dated December 23, 1994. The 18 units of medium zukes represented by lot no. 2313-116-38 are not covered by an invoice. The Market Report established a unit price of $6.00 for the fancy zukes. Invoice no. 4075 billed the fancy zukes at zero without any explanation. Fancy Farms paid Sullivan $5.50 per unit for the fancy zukes. The Market Report established a per unit price of $8.00 for the fancy zukes which is more in line with the market than is the $5.50 per unit paid by Fancy Farms. The amount due Sullivan from the Grower Statement dated December 23, 1994, is: Lot No. 2313-116-38: $6.00 per unit x 18 units (Market Report) = $ 108.00 Lot No. 2313-116-37: $8.00 per unit x 27 units (Market Report) = $ 216.00 Total owed Sullivan = $ 324.00 Less: Ten percent commission = $ 32.40 Amount received by Sullivan = $ 211.50 Net due Sullivan = $ 80.10 The net amount owed to Sullivan by Fancy Farms: From Grower Statements dated: November 25, 1994 $ 131.30 December 7, 1994 $ 282.20 December 15, 1994 $ 148.65 December 23, 1994 $ 80.10 Total owed to Sullivan $ 642.25
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Fancy Farms Sales, Inc. be ordered to pay Petitioner Wayne Sullivan the sum of $642.25. DONE AND ENTERED this 28th day of November, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 28th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3015A The parties elected not to file any proposed findings of fact and conclusions of law. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 Wayne Sullivan 49 Myrtle Bush Lane Venus, Florida 33960 James A. Crocker Qualified Representative Fancy Farms Sales, Inc. 1305 W. Dr. M. L. King, Jr., Blvd. Plant City, Florida 33564-9006 Gulf Insurance Company Legal Department 4600 Fuller Drive Irving, Texas 75038-6506
The Issue Whether two signs owned by Respondent Simbo's Restaurant-Auto-Truck Stop, one located along Interstate 10 approximately .8 of a mile east of State Road 79 and the other located along Interstate 10 approximately .8 of a mile west of State Road 79, each bearing the copy: "Simbo's Restaurant-Auto-Truck Stop Next Exit-Open 24 Hours", are in violation of Section 479.07, Florida Statutes and Section 479.11, Florida Statutes, neither of which have been granted a permit and both of which are within twenty (20) feet of the right-of-way of Interstate 10.
Findings Of Fact No permit has been issued to or is affixed to either of the subject signs. The distance from the fence running parallel to Interstate 10 to the sign located approximately .8 of a mile west of State Road 79 is fourteen and one-half feet. The distance from the fence running parallel to Interstate 10 to the sign located approximately .8 of a mile east of State Road 79 is five and eight-tenths feet. The distances from both signs to the edge of the right-of- way of Interstate 10 are less than five hundred (500) feet. No application for the erection of either sign was made prior to the erection of the signs. These signs were erected in the first half of the year 1976 on private property. The Respondent contends that the classifications established in the Florida Outdoor Advertising Law, Chapter 479, violated the equal protection clause of the 14th Amendment of the United States Constitution. There is no merit to this contention.
Recommendation Remove subject signs if such signs have not been removed by the owner within ten (10) days after the final order herein. DONE and ORDERED this 5th day of January, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 J. D. Bodiford, Esquire Post Office Box 1022 Panama City, Florida 32401 Mr. J. E. Jordan District Sign Coordinator Department of Transportation Post Office Box 607 Chipley, Florida 32428
The Issue The issue in this case is whether J&K Enterprises of Lee County owes Petitioner money for sod.
Findings Of Fact On January 29, 1994, Petitioner invoiced Respondent J&K Enterprises for five loads of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $3139. On February 10, 1994, Petitioner invoiced Respondent J&K Enterprises for four loads of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $2776. On February 24, 1994, Petitioner invoiced Respondent J&K Enterprises for five loads of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $3946. On March 3, 1994, Petitioner invoiced Respondent J&K Enterprises for one load of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $736. On March 10, 1994, Petitioner invoiced Respondent J&K Enterprises for one load of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $656. The total of the five invoices is $11,253. Respondent J&K Enterprises made the following payments on account: April 10, 1994--$1000; April 29, 1994--$1000; May 17, 1994--$1000; May 25, 1994--$1000; June 24, 1994-- $1000; September 23, 1994--$2000; October 21, 1994--$500; and December 15, 1994--$250. The total of the eight payments is $7750. Respondent J&K Enterprises still owes Petitioner the difference of $3,503. Despite repeated demands, Respondent refuses to pay the remaining balance. The parties agreed on the delivery tickets that Respondent J&K Enterprises would pay 18 percent on all unpaid balances after 30 days. Respondent has paid in full the first two invoices. Respondent paid all but $2111 of the third invoice, which balance began to earn interest on March 24, 1994. The fourth invoice of $736 began to earn interest on April 3, 1994, and the last invoice of $656 began to earn interest on April 10, 1994. Interest through March 1, 1995, on the February 24 invoice is $355.02 plus $1.04 per day thereafter. Interest through March 1, 1995, on the March 3 invoice is $120.38 plus $0.36 per day thereafter. Interest through March 1 on the March 10 invoice is $104.64 plus $0.32 per day thereafter.
Recommendation It is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering J&K Enterprises of Lee County to pay the amount set forth above and, if said amount is not paid, ordering Preferred Mutual Insurance Company to pay said amount, up to its maximum liability on the bond. ENTERED on February 16, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on February 16, 1995. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Larry Perkins Florida Sod of Hendry County, Inc. P.O. Box 159 LaBelle, FL 33935 J&K Enterprises of Lee County 2290 Bruner Lane Ft. Myers, FL 33912 Preferred Mutual Insurance Co. Legal Department P.O. Box 40-7003 Ft. Lauderdale, FL 33340-7003
Findings Of Fact The Department of Transportation ("DOT") originally issued sign permits in 1964 for the location authorized by Permits 3966-2 and 3967-2, and these permits have been renewed continuously thereafter. The location authorized by Permits 3966-2 and 3967-2 is on the east side of U.S. 441. Effective October 30, 1987, Eagle Outdoor Advertising, Inc., which has owned Permits 3966-2 and 3967-2 since 1968 or earlier, transferred them to Peterson Outdoor Advertising Corp. ("Peterson"). On July 10, 1987, Gator Outdoor Advertising, Inc. ("Gator") applied to DOT for sign permits. The location for which Gator sought sign permits is on the same side of U.S. 441, approximately 348 feet from the location authorized by Permits 3966-2 and 3967-2. On July 16, 1987, DOT rejected Gator's application solely because the proposed sign location did not meet applicable spacing requirements relative to the sign authorized by Permits 3966-2 and 3967-2. In 1984, the owner withdrew his permission for maintaining the sign authorized by Permits 3966-2 and 3967-2. There has been no sign lease or owner permission for a sign at this location since 1984. As of the date of the final hearing, Peterson had not obtained the owner's permission to maintain a sign. Representatives of the property owner and a representative of Peterson have discussed the possibility of owner permission, but it had not been unequivocally granted.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1985). At all times pertinent to this proceeding, Respondent was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1985), and bonded by Respondent Travelers Indemnity Company (Travelers). At all times pertinent to this proceeding, Respondent Travelers was authorized to do business in the State of Florida. The complaint filed by Petitioner was filed timely in accordance with Section 604.21(1), Florida Statutes. From November 5, 1987, through June 10, 1988, Respondent purchased from Petitioner 71 dozen squash, 375 dozen collard greens, 247 dozen mustard greens and 147 dozen turnip greens for a total price of $7,386.00. All produce was delivered between November 5, 1987 and June 10, 1988. No payments have been made by Respondent for the above produce. Respondent has not denied receiving the produce nor did Respondent complain about the produce's quality or condition upon delivery. Respondent owes $7,386.00 to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be ordered to pay to the Petitioner the sum of $7,386.00. It is further RECOMMENDED that if Respondent fails to timely pay the Petitioner as ordered, then Respondent Travelers be ordered to pay the Department as required by Section 604.21, Florida Statutes (1985) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes. DONE and ORDERED this 18th day of May, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 18th day of May, 1989. COPIES FURNISHED: C. L. Norman Route 2, Box 2160 Starke, Florida 32091 David Norman Norman's Country Market, Inc. 515 Northwest 23rd Avenue Gainesville, Florida 32069 Traveler Indemnity Company Attention Breet A. Ragland 988 Woodcock Road Suite 102 Orlando, Florida 32803 Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Mallory Horne, Esquire General Counsel Department of Agricultural and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Clinton H. Coulter, Jr. Attorney at Law Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact There follows a verbatim restatement of the Stipulation and incorporation and adoption of the exhibits associated with that Stipulation. This restatement and incorporation of exhibits constitutes the fact finding for the purposes of this Recommended Order, with the exception of paragraph 19 to the Stipulation, which is modified in keeping with the February 9, 1982, order of the undersigned to allow the Petitioners to seek recovery of (100 percent or any lesser percent) refund of any road taxes and fees paid for cab cards, identification stamps and emergency permits to `the Public Service Commission under Chapter 323, Florida Statutes (1979), after October 31, 1979, for the 1980 Public Service Commission cycle. This modification becomes part of the fact finding of this Recommendated Order. The Stipulation follows:
