Findings Of Fact Petitioner, Monticello Nursery Company of Florida, Inc., is a corporation whose address is Post Office Box 190, Monticello, Florida. (Petitioner's Complaint) Respondent, Paul Pent, d/b/a Paul Pent Landscape Company, is located at 1660 Emerson Street, Jacksonville, Florida. At the time of the transactions involved, Respondent was licensed as a dealer in agricultural products under License No. 3531. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985) Corespondent, Transamerica Insurance Company as surety provided bond number 5182-39-34 for Respondent in the amount of $4,750. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985) Petitioner's complaint for $6,159.30 is based upon two invoices for nursery plants: Invoice 1060 in the amount of $2,612.80, and Invoice 1308 in the amount of $6,109.30. From the total of $8,722.10 is deducted "payments and credit" of $2,562.80. (Petitioner's Complaint) The figures on the complaint and the attached invoices accurately reflect the statement of account for the subject transactions. (Testimony of Sandy Mazza) Invoice No. 1060 is for several kinds of nursery plants and is dated 12/31/84. On the invoice the order date is 10/26/84 and the "ship date" is 12/07/84. Whether the sale occurred upon order, shipment or date of invoice is immaterial, as all three dates are more than nine months prior to the filing of the complaint on September 5, 1985. Invoice No. 1308 is for a quantity of crepe myrtle trees and is dated 1/31/85. The order date and "ship date" are both 1/28/85. One invoice supports, and the other conflicts with, the date of 12/31/84, stated on the face of the complaint as the "date of sale". The invoices are competent evidence as supported by the bookkeeper's testimony. The finding in the November 15, 1985 order of the Department of Agriculture and Consumer Services that the sale totaling $6,159.30 was made on September 5, 1985, conflicts with both the complaint and the invoices and is unsupported by any evidence in the record.
Recommendation Based on the foregoing, it is recommended that a Final Order be issued requiring Respondent Paul Pent, pay Petitioner $3,546.50. The Final Order should specify that failure to comply will result in a requirement that Transamerica Insurance Company pay said sum to the Department of Agriculture and Consumer Services for distribution to Monticello Nursery. DONE and RECOMMENDED this 1st day of May, 1986, in Tallahassee, Florida. MARY CLARK, 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 May, 1986. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 John C. Cooper, Esquire Douglas, Cooper & Coppins, P.A. 211 East Call Street Tallahassee, Florida 32302-1674 Mr. Paul Pent Pent Landscape Company 1660 Emerson Street Jacksonville, Florida 32207 Transamerica Insurance Company 1150 South Olive Street Los Angeles, California 90015 Joe W. Kight, Chief Division of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Ron Weaver, Esquire Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Room 513 Tallahassee, Florida 32301
Findings Of Fact Robert J. Walsh and Company, Inc. has been in the business of selling agricultural products since 1962. It is a "dealer in agricultural products" as defined in s. 604.15(1), Florida Statutes (1985). It is not a "producer" as defined in s. 604.15(5), Florida Statutes (1985). Walsh's modus operandi which it has used for many years is to have its salesmen call on landscapers, nurseries and other customers for trees, plants and other agricultural products to determine their needs. These salesmen have the prices of products and their availability from producers and the salesmen take orders from these purchasers. This order is sent to the producer who delivers the product to the purchaser and sends Walsh a copy of the delivery ticket. Walsh bills the customer for the product delivered and the producer bills Walsh for the consumer-cost of the product less a 20-25 percent discount from which Walsh derives its profit from the sale. The producer relies solely on Walsh for payment for the product it produces and delivers to the customer. Walsh has no authority to sell the product at a price other than that set by the producer. In any event, the producer bills Walsh for the product delivered at the producer's established price less the discount it gives Walsh for acting as intermediary in the sale. If products are damaged in transit, the producer's driver will make any necessary adjustment with the customer or return the damaged plant for replacement by the producer. Walsh does not represent the grower if such a situation develops. Similarly, if the product is rejected by the purchaser for not meeting quality standards, that issue is resolved between the grower and the customer without input from Walsh. Whatever agreement is reached between the grower and the customer is reflected on the invoice signed by the customer and forwarded to Walsh who has the responsibility of collecting from the customer. The grower bills Walsh for the cost of the product less Walsh's commission. The sales forming the bases for the complaints filed by Walsh with Respondent involve sales to Paul Pent, d/b/a Paul Pent Landscape Company, Dean Pent and J & W Landscape. On January 31, 1985, Walsh sold Pent three laurel oaks grown by Stewart Tree Service for a total price of $467.46 including sales tax (Ex. 2). On March 27, 1985, Walsh sold various trees and plants grown by Goochland Nurseries to J & W Landscape for a total price of $403.98 (Ex. 3). On April 22, 1985, Walsh sold two live oaks grown by Stewart Tree Service to Pent Landscape Company for a total price of $336.00 (Ex. 4). On July 3, 1985, Walsh sold various plants grown by Goochland Nurseries to J & W Landscape for a total price of $564.96 (Ex. 5). On all of these sales the producers billed Walsh for the product and were paid by Walsh. Walsh billed the customers who did not pay and Walsh filed the complaints (Ex. 8, 9 and 10), denied by Respondent on grounds Walsh was not an agent or representative of the producers. In 1976, Petitioner filed a complaint against the bond of the Ernest Corporation, a licensed dealer in agricultural products and received $5,589.20 from Respondent who recovered from the bonding company. In the complaint Walsh alleged that it was agent for Southeast Growers, Inc., selling their nursery stock throughout Florida. Respondent's witnesses could not recall what additional evidence they saw to conclude that Walsh was, in fact, an agent for the producer. However, these witnesses all testified that had they then believed Walsh was solely responsible to the producer for payment for the products sold they would not have concluded Walsh was the agent or representative of the producer. The bond on which Petitioner is attempting to recover provides that if the principal "shall faithfully and truly account for and make payment to producers, their agents or representatives, as required by Sections 604.15 - 604.30, Florida Statutes, that this obligation to be void, otherwise to remain in full force and effect." (Ex. 11 and 12)
Conclusions The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Section 604.21, Florida Statutes (1985) provides in pertinent part: Any person claiming himself to be damaged by any breach of the conditions of a bond or certificate of deposit, assignment or agreement given by a licensed dealer in agricultural products as herein before provided may enter complaints thereof against the dealer and against the surety, if any, to the department, which complaint shall be a written statement of the facts constituting the complaint. Section 604.15(1) , Florida Statutes (1985) provides: "Dealers in agricultural products" means any person, whether itinerant or domiciled within this state, engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer or his agent or representative for resale or processing for sale; acting as an agent for such producer in the sale of agricultural products for the account of the producer on a net return basis; or acting as a negotiating broker between the producer or his agent or representative and the buyer. (emphasis supplied) One of the complexities of this case which leads to some confusion is the fact that both Pent and Walsh were dealers in agricultural products as above defined. Walsh fits into the category of a person claiming himself to be damaged by a breach of any condition of the bond of Pent. However, he has the burden of showing that he is a person covered by the bond. According to the terms of the bond, coverage is provided only for "producers, their agents or representatives." Walsh is clearly not a producer in this case but claims coverage as an agent or representative. In construing "agent" or "representative" the legislative intent should be considered. The purpose of these provisions of the statute requiring licensing and bonding of dealers in agricultural products, as expressed in Section 604.151, Florida Statutes, is to protect producers from economic harm. Economic harm sustained by an agent or representative is imputed back to the principals, which in this case are the producers. An agency may be defined as a contract either expressed or implied upon a consideration, or a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in the former's name or on his account, and by which the latter assumes to do the business and render an account of it. 2 Fl. Jur. 2d "Agency," Section 1. Here, Walsh was selling agricultural products on its own account, which products it was purchasing from the producers. The producer sold its product to Walsh and delivered it to the address Walsh indicated. The customer receipted for the product and the producer billed Walsh for the total cost, including transportation, to the ultimate buyer, less the 20-25 percent commission Walsh received. Walsh paid the producer and billed the customer. Whether or not Walsh collected from the customer had no bearing on the debt Walsh owed the producer for the product. It could be said that the producer was the agent for Walsh in delivering the product to the user. Even though Walsh never had actual possession of the product the sale to Walsh was complete when the producer delivered the product to the user. The entire transaction clearly is a buy-and-sell operation by Walsh and not Walsh acting as an agent for the producer. The fact that Walsh sells the producer's product does not make Walsh the agent or representative of the producer, when the producer holds only Walsh responsible to pay for the product. Nor was Walsh a representative of the producers. Representative is defined in Webster's New Collegiate Dictionary (1977 Ed.) as: "standing or acting for another esp. through delegated authority." Walsh had no delegation of authority to act for the producer. Walsh had no authority to modify the price, settle disputes, or any other function normally performed by a representative. The above interpretation of those having standing to file a complaint against a dealer in agricultural products is the same interpretation of the applicable statutory provisions that is made by Respondent. As stated in Natelson v. Dept. of Insurance, 454 So.2d 31 (Fl 1st DCA 1984): Agencies are afforded a wide discretion in the interpretation of a statute which it [sic] administers and will not be overturned on appeal unless clearly erroneous. The reviewing court will defer to any interpretation within the range of possible interpretations. (citations omitted). This interpretation limiting recovery on an agricultural bond to producers and their agents or representatives is certainly within the range of possible interpretations, especially considering the purpose of these statutory provisions to be the protection of the economic well being of the producer. From the foregoing, it is concluded that Robert J. Walsh & Company, Inc. was not the agent or representative of Goochland Nurseries and Stewart Tree Service and does not have standing to file a complaint against Dean Pent, d/b/a Pent Landscape Company, and Paul Pent, d/b/a Paul Pent Landscape Company, and their surety, Transamerica Insurance Company.
Recommendation It is recommended that a Final Order be entered dismissing the petition as contained in Petitioner's letter dated March 24, 1986. ENTERED this 14th day of July 1986 in Tallahassee, Leon County, Florida. K. N. AYERS 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 14th day of July 1986. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building, Room 513 Tallahassee, Florida 32301 Thomas M. Egan, Esquire Phillip Kuhn, Esquire Post Office Box 7323 Winter Haven, Florida 33883 Ronnie H. Weaver, Esquire Mayo Building, Room 513 Tallahassee, Florida 32301 Mr. Joe W. Right Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301
The Issue This matter began with the filing of a complaint by Homestead Tomato Packing Company, Inc., (Homestead Tomato) with the Florida Department of Agriculture asserting that it was due $9,502.50 for tomatoes sold January 21, 1985, to Seymour Cohen Brokerage Company (Cohen Brokerage). While Cohen Brokerage did not appear, due to the death of the owner, Seymour Cohen, the surety on its Agricultural Products Bond, Fidelity and Deposit Company of Maryland did appear. Because it represents the interest of Cohen Brokerage, in this order its position will be characterized as that of Cohen Brokerage. Cohen had already paid $16,360.00 for the tomatoes. The dispute centers upon the agreement between the parties as to the price of the tomatoes. The parties agree that the price was to be set after the tomatoes were shipped, due to an impending freeze which had caused volatility in the price for tomatoes. Homestead Tomato contends that other purchasers bought tomatoes at about the same time and agreed to the price which Homestead Tomato claims is due from Cohen Brokerage. Cohen Brokerage maintains that the price claimed is excessive, and that the payment made was full payment.
Findings Of Fact Homestead Tomato Packing Company, Inc., sells tomatoes as agent for Strano Farms of Florida City, Florida, which produces tomatoes. Cohen Brokerage is a licensed dealer in agricultural products holding license number 3047, which is supported by a bond written by the Fidelity and Deposit Company of Maryland, number 9634509. Seymour Cohen died, apparently before the complaint in this action was filed. See the Verified Suggestion of Death of Party and Motion to Dismiss filed on June 26, 1986. On Thursday, January 17, 1985, Rosario Strano, the President of Homestead Tomato, learned that a freeze would occur in South Florida on or about January 22, 1985. Strano notified Homestead Tomato's sales staff, including Thomas Banks, that beginning January 19, 1985, all sales were to be made at prices to be determined following the freeze. On January 21, 1985, Cohen Brokerage, acting through Rick Cohen (the son of Seymour Cohen, now deceased), purchased 1,600 boxes of Strano Pride #25, 6X7 (medium) tomatoes. Both parties testified that the price was not established on Monday, January 21, but that it would be established "sometime in the middle of the week" (Testimony of T. Banks, Transcript 177)) on or about Wednesday, January 23, 1985 (Testimony of R. Cohen, Transcript 225). This is consistent with the brokerage confirmation from Cohen Brokerage dated January 21, 1985, which was belatedly submitted to Homestead Tomato, stating that the tomatoes were "to be priced on or about Wednesday, 1/23/85, in line with Florida Tomato industry Market". The parties intended that the tomatoes would be priced by Wednesday, January 23, 1985, in accordance with the market price for U.S. number one tomatoes 85 percent or better. The freeze did occur on January 21 and 22, 1985, which caused a shortage of high quality unfrozen tomatoes. The expectation of the freeze had caused uncertainty in the market price for tomatoes during the period January 19 through January 25, 1985. From January 19 through January 22, 1985, Homestead Tomato sold 43 loads of tomatoes to buyers at prices to be determined later. On Wednesday, January 23, 1985, Rosario Strano set his price for 6x7 Strano Pride tomatoes at $16.00 a box and told sales staff to inform those who had purchased from Homestead Tomato before the $16.00 per box price had been set that they could return the tomatoes if they were dissatisfied with his price. According to Mr. Strano, he was unable to compare his prices the week after the freeze to what competitors were charging for like quality, unfrozen tomatoes because there were not enough others with tomatoes to make a price comparison. (Transcript 44-45). On January 23, Homestead Tomato's salesman Banks called Rick Cohen and gave him the price. The Florida Fruit and Vegetable Report is a market quotation service for agricultural commodities published by the United States Department of Agriculture, Agricultural Marketing Service, Fruit and Vegetable Division and the Florida Department of Agriculture and Consumer Services, Division of Marketing, Bureau of Market News. It is used and generally relied on by those in agriculture. It shows that tomatoes sold January 21, 1985, were sold with sales prices to be established later. The January 24th edition of the report shows that on January 23, 6x7 tomatoes sold for $16.00 per box. Homestead Tomato also introduced evidence that other buyers purchased 6 x 7 tomatoes which were shipped between January 19 and January 23, 1985, who were invoiced at $16.00 per box and paid that amount. This evidence of price is undercut, however, by the testimony of Rosario Strano with respect to disputes he had with other tomato purchasers, such as acme Pre-Pack over his price of $16.00 for medium tomatoes. Under cross-examination about whether he had reduced his billing or given a discount to protesting purchasers, Mr. Strano testified: The only -- Way back last -- latter part of February, I told them I would not give rebates. I told Mr. -- when they bought future tomatoes, when we got back in the tomatoes, we would work out an arrangement. I never quoted $2. I heard quoted $2, 4, 6, 8. I never quoted the price. I told them that I understood their plight but that I was not -- they had to take that then and there, settle and pay in full, or I was not going to do anything, and [there] was a reason for that, [which] was to expedite the collections of some very, very serious money, as you can see in this [case] right here. Transcript pages 165-166. Cohen Brokerage was invoiced $16.00 per box on January 25, 1986, for the tomatoes it had received on January 21, 1985. The total amount of the bill was $25,862.50. Cohen Brokerage made a payment on the invoice in the amount of $16,360.00 which then caused Homestead Tomato to file the instant complaint for the balance billed of $9,502.50.
Recommendation It is RECOMMENDED that the complaint filed by Homestead Tomato against Cohen Brokerage be dimissed. DONE AND ORDERED this 2nd day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 2nd day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3923A The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Covered in Finding of Fact 4. 4. Covered in Finding of Fact 5. 5. Covered in Finding of Fact 6. 6. Covered in Finding of Fact 6. 7. Covered in Finding of Fact 7. 8. Covered in Finding of Fact 7. 9. Covered in Finding of Fact 8. Covered in Finding of Fact 9. Covered in Finding of Fact 10. Covered in Findings of Fact 9 and 11. Covered in Finding of Fact 11. Rejected as argument. Covered in Finding of Fact 11. Covered in Finding of Fact 11. Rejected as inconsistent with the more significant testimony of Mr. Strano relied on in Finding of Fact 9. Rejected as unnecessary. Rejected as inconsistent with other evidence, see for example Petitioner's Exhibit #29. Covered in Finding of Fact 12. Covered in Finding of Fact 13. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 6. Rejected because the prices quoted were asking prices but not necessarily market prices. See Conclusion of Law 3. Rejected as a recitation of evidence. Rejected as a recitation of evidence. Rejected as a recitation of evidence. Rejected as unnecessary. Rulings on Proposed Findings of Fact Submitted by Respondent (Seymour Cohen Brokerage Company) Covered in Finding of Fact 1. Covered in Finding of Fact 3 and the statement of the issues. Covered in Finding of Fact 6. Covered in Finding of Fact 7. Covered in Finding of Fact 9. To the extent relevant, covered in Finding of Fact 11. Covered in Finding of Fact 12. Covered in Finding of Fact 13. Covered in Finding of Fact 6. Rejected as a conclusion of law. To the extent necessary, covered in Finding of Fact 11. Covered in Finding of Fact 11. Rejected because the testimony of Mr. Scherer was unpersuasive because the methodology implied to determine the price of $10.00 per box for 6x7 tomatoes was not adequately explained. Rejected as unnecessary. Sentence 1 rejected as unnecessary. Sentence 2 covered in Finding of Fact 9. Rejected as unnecessary. COPIES FURNISHED: Alexander J. Pires, Jr., Esquire 2501 M. Street, N.W., Suite 400 Washington, D.C. 20037 Murray H. Dubbin, Esquire 1000 Rivergate Plaza 444 Brickell Avenue Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact On September 17, 1987, the Petitioner entered a nolo contendere plea to two felonies: possession of cocaine and possession of marijuana. The plea was entered in Case No. 86-342-CF, in the Circuit Court of DeSoto County, Florida, and the Petitioner was adjudged guilty of the offenses. In the Court's judgment of guilt, it was found to the Court's satisfaction that the Petitioner was not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that RICHARD EPPS should suffer the penalty authorized by law. As a result of the Court's findings, the Petitioner, RICHARD EPPS, was sentenced to three years probation. He was ordered to serve five months in the county jail as a condition of that probation. On January 25, 1988, the Petitioner completed an application for a Florida Farm Labor Contractor Certificate of Registration. The purpose of the application was to obtain a new certificate as he was no longer eligible for a renewal of his prior certificate. On March 16, 1988, the Respondent notified the Petitioner of its intent to refuse to issue the certificate of registration. The reasons given were: 1) The U.S. Department of Labor recommended against it due to the felony convictions. 2) By rule, the Respondent is required to cooperate with any federal agency. 3) Once a certificate is obtained, each contractor must comply with all applicable statutes, rules, and regulations for the protection or benefit of labor. The Petitioner has used marijuana in the past. He has never used it during working hours, and his work crew was unaware that he has ever used marijuana. He has never allowed drugs in the work place and he no longer uses marijuana. The Petitioner has never used cocaine or other illegal drugs, except for the marijuana. The Petitioner's arrest on November 6, 1986, for the possession of cocaine and marijuana was a result of his location in the wrong place at the wrong time. When he went to his marijuana supplier's home to purchase marijuana for his personal use, the house was raided by the Arcadia Police Department. Originally, all of the people within the house where individually charged with possession of all of the drugs stored there. The Petitioner's plea of nolo contendere was a result of a plea bargain agreement. The Petitioner is aware that his former drug activity was criminal in nature, and he has stopped his marijuana use with the help of voluntary counseling, his family, the fact that he is on probation, and the fact that his habit got him into serious trouble. The Petitioner will not endanger the safety of a work crew as a result of his past use of marijuana. There is no evidence that the safety of the work crew was ever endangered as a result of the Petitioner's past habit or that his presence in the fields will be harmful to farm workers. The Petitioner has never engaged in transporting farm workers beyond state lines. His crew leader activities are confined to less than twenty workers and he works for one farmer, Mr. Bobby Williams in Arcadia, Florida.
The Issue Whether the respondent is indebted to the complainant for the sale of Florida-grown agricultural products, and, if so, the amount of the indebtedness.
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: Mr. Rose has a grove of lychee trees on his property; each year he harvests the lychee nuts for sale, but the sale of agricultural products is not his sole source of income. In mid-June, 1996, Mr. Rose heard that the Growers Association was offering $3.50 per pound for lychees, the highest price of which he was aware. Mr. Rose took his fruit to the Growers Association on June 18, 1996. Mr. Rose had not done business with the Growers Association previously but had sold his fruit to another company. Mr. Rose received a grower's receipt showing that, on June 18, 1996, he had brought in 298 pounds of fruit, that 14 pounds were culls, and that the Growers Association had packed 27.9 ten- pound boxes of fruit. The Growers Association packed only marketable fruit. Ninety-nine percent of the tropical fruit grown in Florida is handled in pools.1 According to industry practice, the "handler" does not purchase the fruit outright but is responsible for packing, storing, selling, and shipping the fruit and for accounting for and remitting the proceeds of sale, minus expenses, to the members of the pool on a pro rata basis. The pools are composed of all growers whose fruit is packed during a designated period of time. Prices initially quoted to growers participating in a pooling arrangement are not guaranteed because the actual sales price may vary, depending on market conditions. It was the practice of the Growers Association to handle lychees under a pooling arrangement, and the receipt Mr. Rose received from the Growers Association contained the notation "P- 407LY," which designated the pool to which Mr. Rose's fruit was assigned. The Lychee P-407LY pool to which Mr. Rose's fruit was assigned consisted of fruit packed by the Growers Association between June 15 and 21, 1996. Mr. Rose was told on several occasions by employees of the Growers Association that he would receive $920.70 after expenses for the sale of his lychees. This amount was reflected in a Pool Price Report generated by the Growers Association on July 10, 1997, which also showed that a total of 107.6 pounds of fruit was included in the pool and that the Growers Association anticipated receiving a total of $4,088.65 for the sale of the fruit in the pool. The Growers Association maintained in its files a work order showing that 83 ten-pound boxes of lychees were sold to Produce Services of America, Inc., at a price of $38.00 per box and that the fruit was shipped on June 21, 1996. According to the July 10 report, the Growers Association had received payment of $932.90 for 24.55 ten-pound boxes of lychees sold to "L & V" on June 21, 1996, at $38.00 per box, but there is no indication in the report that the anticipated payment of $3,154.00 had been received from Produce Services of America. Mr. Rose repeatedly called the Growers Association during July and August to inquire about when he would receive payment for his fruit. In accordance with the information he had consistently been given by employees of the Growers Association, he expected to receive $920.70. When he received a check from the Growers Association dated August 29, 1996, in the amount of $367.48, he called the Growers Association for an explanation of why he had received that amount rather than the $920.70 he was expecting. Ultimately, he spoke with Mr. Kendall in early September, who told him that the $367.48 was all he was going to receive as his pro rata share of the pool because Produce Services of American had not paid in full for the 83 boxes of fruit it purchased. As reflected in the Pool Price Report dated September 19, 1996, the Growers Association received a total payment of only $1,847.42 for the fruit in the pool, rather than the $4,088.65 shown in the July 10, 1996, report. After the Growers Association's expenses were deducted, a total of $1,417.25 was distributed to the five growers in the pool. Although a copy of this final price report for the P-407LY pool should have accompanied Mr. Rose’s check, it did not. According to the information contained in the September 19 Pool Price Report, the shortfall in the amount received for the sale of the fruit in the pool is attributable to the Growers Association's receiving only $913.00, or $11.00 per box, for the sale of the 83 boxes of lychees to Produce Services of America, instead of the anticipated $3,154.00. The $913.00 was paid to the Growers Association by check dated August 19, 1996. Mr. Rose did not present sufficient evidence to establish that he had a contract for the outright sale of 27.9 ten-pound boxes of lychees to the Growers Association. Rather, the evidence establishes that Mr. Rose's fruit was handled by the Growers Association under a pooling arrangement and that, consistent with the practice in the tropical fruit industry, the Growers Association assumed responsibility for packing, storing, selling, and shipping the fruit. The Growers Association failed to offer any credible evidence to explain why Produce Services of America paid only $11.00 per box for the 83 boxes of fruit shipped from the pool, notwithstanding that the agreed sales price was $38.00 per box.2 Even if the fruit was damaged or in poor condition when it was delivered to Produce Services of America, the Growers Association packed 27.9 ten-pound boxes of marketable fruit on Mr. Rose’s account, and, once packed, it had complete control of the fruit in the pool. The Growers Association failed to offer any evidence to establish that it acted with reasonable care in fulfilling its responsibilities under the pool arrangement. Consequently, it bears the risk of loss rather than Mr. Rose and is indebted to him for $553.22, which is the difference between the $920.70 Mr. Rose would have received as his pro rata share of the pool had Produce Services of America paid the agreed-upon sales price of $38.00 per box and the $367.48 which the Growers Association paid to Mr. Rose by check dated August 29, 1996.
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 finding that the South Florida Growers Association, Inc., is indebted to Mike Rose for the sale of agricultural products and ordering the South Florida Growers Association, Inc., to pay Mike Rose $553.22 within fifteen (15) days of the date its order becomes final. The Final Order should also provide that, in the event that the South Florida Growers Association, Inc., fails to pay Mike Rose $533.22 within the time specified, Aetna Casualty and Surety Company, as surety for the South Florida Growers Association, Inc., must provide payment under the conditions and provisions of its bond. DONE AND ENTERED this 10th day of April, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1997.
The Issue Whether Respondents (“Dobson’s” and “Western Surety”) should be required to pay an outstanding amount owed to Petitioner, Doug Lancaster Farms, Inc. (“Lancaster Farms”).
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: Oden Hardy was the general contractor for a project in Apopka, Florida, known as the Space Box project. Dobson’s, a subcontractor on the Space Box project, contracted to purchase 269 trees (including Live Oaks, Crape Myrtles, Elms, and Magnolias) for $53,245.00 from Lancaster Farms. Dobson’s supplied Lancaster Farms with all the information needed to file a “notice to owner” as authorized by section 713.06, Florida Statutes. A truck from Dobson’s picked up the trees and transported them to the site of the Space Box project. Upon arriving with the trees, Dobson’s discovered that there was no means by which the trees could be watered at the site. Rather than attempting to jury rig some manner of watering system as requested by Oden Hardy, Dobson’s transported the trees to its place of business, and the trees remain there. The parties have stipulated that Dobson’s has paid all of the invoices except for Invoice No. 5810, totaling $12,580.00. There is no dispute that the trees at issue are “agricultural products” within the meaning of section 604.15(1). There is also no dispute that Dobson’s is a “dealer in agricultural products” within the meaning of section 604.15(2).
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 approving the claim of Doug Lancaster Farms, Inc., against Dobson’s Woods and Water, Inc., in the amount of $12,630.00. DONE AND ENTERED this 20th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 20th day of November, 2020. COPIES FURNISHED: Larry K. Dobson Dobson's Woods and Water, Inc. 851 Maguire Road Ocoee, Florida 34761-2915 Kelly Lancaster Doug Lancaster Farms, Inc. 3364 East County Road 48 Center Hill, Florida 33514 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Kristopher Vanderlaan, Esquire Vanderlaan & Vanderlaan, P.A. 507 Northeast 8th Avenue Ocala, Florida 34470 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
The Issue Whether or not Petitioner is owed $7,097.15 by Respondent Green Acres for various nursery products.
Findings Of Fact Petitioner is a wholesaler engaged in the business of producing agricultural products, primarily nursery plants, since approximately 1953. Green Acres is a retail nursery engaged in the business of selling sod, nursery products, and provision of other related landscaping services. Green Acres is a newly-formed business which commenced operations during the summer of 1992. On August 10, 1992, Green Acres purchased from Petitioner various quantities of flowers and nursery products which are reflected by Petitioner's invoice nos. 5074, 5076, 5077 and 5080 in the respective amounts of $625.25, $1,097.00, $2,927.50, and $383.20. On August 14, 1992, Green Acres purchased another order of nursery products from Petitioner which is reflected by Petitioner's invoice no. 5085 in the total amount of $1,063.75. On August 18, 1992, again Petitioner delivered products to Green Acres based on an order (Petitioner's invoice no. 5060) for the total sum of $599.20. Finally, on September 17, 1992, Green Acres ordered various nursery products from Petitioner (Petitioner's invoice no. 5097), which were delivered to Green Acres for the total sum of $401.25. Petitioner has made numerous attempts to collect for the nursery products that it supplied to Green Acres without success. These efforts to collect included personal trips to the Green Acres nursery by Roy Amerson. When disputes arose as to the pricing of plants, Green Acres unilaterally adjusted the price to the amount that it desired to pay which amount Petitioner accepted without protest based upon the fact that Petitioner's owners were aware that Green Acres was a new nursery and Petitioner was desirous of building a good client over a long period of time. For this reason, Petitioner also extended credit to Green Acres on an open-account basis for a long time without attempting to collect. Petitioner extended credit to Green acres based upon Petitioner's knowledge and understanding of the difficulty that new retail nursery owners undergo in starting a new nursery business. Green Acres suffered fire damage at one of its office buildings on the Friday prior to the Labor Day weekend during 1992. As a result of that fire, Green Acres contends that it paid Petitioner in cash for products and was not properly receipted for those payments. Green Acres maintains that its receipts were destroyed in the fire. Green Acres's contention in this regard was considered; however, it is more likely than not that Green Acres did not pay Petitioner for any nursery products which they have not been granted credit for. In this regard, Petitioner introduced invoices and credit notations for each purchase of products that Green Acres ordered. Those invoices appear to properly reflect the entire series of transactions of the purchase of products from Petitioner with the appropriate credits and adjustments noted. Respondent, State Farm Fire and Casualty Company (State Farm), issued a surety bond to Green Acres for the period during which Petitioner provided nursery products to Green Acres in 1992.
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 ordering Green Acres to pay to Petitioner the sum of $7,097.15 within fifteen (15) days after the issuance of its Final Order. Upon the failure of Green Acres to tender the referenced amount to Petitioner, it is FURTHER RECOMMENDED that the Department of Agriculture and Consumer Services direct that the surety company pay over to the Department out of the surety bond posted for such dealer, the amount necessary to cover the indebtedness noted herein of $7,097.15. DONE AND ENTERED this 2nd day of September, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 2nd day of September, 1993. COPIES FURNISHED: Roy and Barbara Amerson Post Office Box 202 Terra Ceia, Florida 34250 Shelly K. Thomas 9330 Ulmerton Road Largo, Florida 34641 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esq. General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Ms. Becky L. Herald State Farm Fire & Casualty Company 112 East Washington Street Bloomington, Illinois 61710-1001
Findings Of Fact On September 24, 1982, Respondents, James A. Joss, Steven M. Mishkin and Norma Trento, together with Thomas Moskowitz, formed Highland Ranch Acres, Inc. (Highland Ranch), a Florida corporation, for the purpose of acquiring, subdividing and selling certain land in Section 35, Township 24 South, Range 25 East Lake County, Florida. These individuals were the sole principals and stockholders of Highland Ranch, and held, respectively, one-sixth, one-sixth, one-third and one-third of Highland Ranch's capital stock. All of the above- referenced individuals made an initial capital contribution to Highland Ranch, except Joss, who donated his time, knowledge and expertise in land sales. The land in question, acquired from W. D. Land Company consisted of approximately 50 acres, which Highland Ranch "subdivided" into 40 parcels of 1- 1/4 acres each, and consecutively numbered 65 through 104. Highland Ranch marketed the parcels to residents and nonresidents of the State of Florida by telephone solicitation, and a follow-up brochure. On March 3, 1983, the same principals formed Citrus Grove Acres, Inc. (Citrus Grove), a Florida corporation, for the same purposes they had formed Highland Ranch. Their respective ownership of the capital stock of Citrus Grove was the same as it had been in Highland Ranch. Citrus Grove acquired approximately 53 acres of land from W. D. Land Company in the same section, township and range of Lake County, Florida, as those lands acquired by Highland Ranch. Citrus Grove "subdivided" these lands into 42 parcels of 1-1/4 acres each, and consecutively numbered them 105 through 146, and marketed them in the same manner the lands owned by Highland Ranch had been sold. On June 13, 1983, the same principals formed Central Florida Highlands, Inc. (Central Florida), a Florida corporation, for the same purposes they had formed Highland Ranch and Citrus Grove. Their respective ownership of the capital stock of Central Florida was the same as it had been in Highland Ranch and Citrus Grove. Central Florida acquired approximately 15 acres of land from W. D. Land Company in the same section, township and range of Lake County, Florida, as those lands acquired by Highland Ranch and Citrus Grove. Central Florida subdivided these lands into 12 parcels of 1-1/4 acres each, and consecutively numbered them 147 through 158, and marketed them in the same manner the lands owned by Highland Ranch and Citrus Grove had been sold. Highland Ranch, Citrus Grove and Central Florida had the same principals, who performed the same basic duties. Joss, assisted by Mishkin, was responsible for the conception and operation of the business of the three corporations. Joss, as president, executed the purchase and sale agreements on behalf of Highland Ranch; Mishkin, as president, executed the purchase and sales agreements on behalf of Central Florida; and Trento, as president, executed the purchase and sales agreements on behalf of Citrus Grove. The purchase and sale agreements, and the brochures mailed to the telephone prospects, except for the corporate name, were identical in each instance. The photographs in the brochures which purported to depict the lands being offered, were identical. None of the photographs depicted the subject lands but rather were of lands Respondent Joss had marketed 15 years previously through Groveland Ranch Acres, Inc. All of the lands in question were purchased from the same seller, were located in the same section, township and range of Lake County, Florida, were subdivided into 1-1/4 acre lots which were consecutively numbered 65 through 158. The lands were located in the Green Swamp Area of Critical State Concern, were zoned agricultural and required a minimum of five acres to be eligible for a building permit, were not platted with the county, and contained no avenues of ingress and egress. Respondents were advised by their attorney, Michael J. Moskowitz, that Chapter 498, Fla. Stat., required registration if they proposed to offer more than 50 parcels to more than 45 persons. He further advised them that if the subsequent corporation(s) had the same principals and other indicia of a common promotional plan that their activities might be deemed a common promotional plan, subjecting them to potential liabilities. Respondent Joss concedes that the sole reason for forming Citrus Grove and Central Florida, and taking title in their names, instead of simply purchasing the additional lands in the name of Highland Ranch, the existing corporation, was to avoid the registration requirements of Chapter 498, Fla. Stat. Highland Ranch, Citrus Grove, and Centra1 Florida did not individually convey more than 50 parcels to more than 45 purchasers. Collectively however, they did convey more than 50 parcels to more than 45 purchasers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Department), enter a Final Order finding Respondents, James A. Joss, Norma Trento, Steve Mishkin, Citrus Grove Acres, Inc., and Highland Ranch Acres, Inc., guilty of violating the provisions of Sections 498.023(1) and (2), Fla. Stat., and ordering that Respondents shall not offer or dispose of, or participate in the offer or disposition of any interest in "subdivided lands," as defined by Section 498.005(17), Fla. Stat., unless the subdivided lands are registered with the Department. Within thirty (30) days of the date of the Final Order, Respondents shall offer all purchasers of land from Highland Ranch Acres, Inc., Citrus Grove Acres, Inc., and Central Florida Highlands, Inc., an opportunity to rescind their agreement, and to receive a refund of all principal and interest paid. The term "purchaser" as used herein shall mean any person who made any payment to Respondents for lands offered by Highland Ranch Acres, Inc., Citrus Grove Acres, Inc., and Central Florida Highlands, Inc., whether or not such person is currently making payments. The refund offer shall be in writing, and in a form approved by the Department. After notifying purchasers of the refund offer, Respondents shall determine the total amount of refund liability, based upon purchaser(s) who elect to rescind their agreement, and notify the Department within sixty (60) days of the date of the Final Order of the name(s) of the purchaser(s) electing to rescind their agreement and the amount of refund liability for each such purchaser. Respondents shall establish a trust or escrow account in a financial institution located within the State of Florida to assure the payment of refunds to those purchasers who elect to rescind, and to assure the conveyance of clear and marketable title to those purchasers who do not elect to rescind, transactions. Respondents shall appoint a trustee or escrow agent acceptable to the Department, who shall have such powers as are necessary to fulfill the purpose of his trust. Respondents shall collect and deposit any and all monies paid by all purchasers of lands from Highland Ranch Acres, Inc., Citrus Grove Acres, Inc., and Central Florida Highland, Inc., into the trust or escrow account established pursuant to paragraph (4). Respondents shall have no right, title or interest in or to the aforesaid monies until such time as those purchasers who have elected to rescind have been paid in full, clear and marketable title has been conveyed to those purchasers who have elected not to rescind, the trustee's or escrow agent's fees, if any, have been paid, and the civil penalties hereinafter imposed have been paid. Respondents shall pay the following civil penalties to the Department, within thirty (30) days from the date of the Final Order: Norma Trento $10,000.00 Steve Mishkin $20,000.00 James Joss $20,000.00 Highland Ranch Acres, Inc. $20,000.00 Citrus Grove Acres, Inc. $20,000 00 DONE and ENTERED this 30th day of May, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK 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 30th day of May, 1985. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Scott T. Eber, Esquire 3550 Biscayne Boulevard Suite 504 Miami, Florida 33137 E. James Kearney, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Is Skinner Nurseries, Inc. (Skinner), entitled to collect $28,097.10 on account, as a producer of agricultural products allegedly delivered to A & R Landscaping & Lighting, Inc. (A & R), a dealer in agricultural products?
Findings Of Fact From the pleadings it is found that Skinner is a producer of agricultural products and A & R is a dealer in agricultural products in Florida. Old Republic is the surety for the bond to secure A & R's performance consistent with its activities as a dealer. §§ 604.15 through 604.34 Fla. Stat. (2002). Skinner has a business address of 2970 Hartley Road, Jacksonville, Florida 32257. The A & R business address is 739 Long Lake Drive, Oviedo, Florida 32765. The Old Republic business address is 445 South Moorland Road, Brookfield, Wisconsin 53005. On July 31, 2001, A & R applied for a line of credit with Skinner for the provision of plants, shrubs, and trees in their respective capacities as a dealer in agricultural products and a producer of agricultural products. That application was granted and the entities commenced business. This case involves claims by Skinner for agricultural products delivered to A & R that have not been paid for. Within Composite Exhibit 1 by Skinner is a statement of the amount owed by A & R on account no. 3008, a number assigned by Skinner. The account statement depicts transaction dates, invoice numbers, and job descriptions in relation to the charges. In addition, Composite Exhibit 1 by Skinner contains the various invoices in support of the claim. The statement date for account no. 3008 was prepared on July 8, 2003, to support the complaint in this case. But it was, and continues to be, an accurate portrayal of the amount owed by A & R to Skinner for agricultural products provided. The matters set forth in the July 8, 2003, statement of account no. 3008 that accompanies the complaint were in relevant part the same as those in a billing statement that had been mailed to A & R on July 2, 2003, that A & R has not paid. The statement of account no. 3008 for purposes of the complaint excludes certain items from the claim. Among the exclusions are charges that date from December 2002 through January 9, 2003. Those charges were not promoted in the complaint based upon their untimeliness. The dates about which claims are made end on February 26, 2003. In addition, certain charges for what are described as hard goods, mulch, and freight were not claimed. Reference to hard goods refers to items to stake trees sold, also referred to as tree guy kits. Finally, no interest is claimed on the account. Within the July 8, 2003, statement of account no. 3008 an asterisk by invoice numbers indicates that the charges were solely for the provision of mulch. Therefore, these invoices are not included in Skinner's Composite Exhibit numbered 1, as is the case where invoices are associated with the period before January 13, 2003, and after February 26, 2003. At hearing Skinner established without contradiction that, with the exclusions noted, it supplied the plants, shrubs, and trees to A & R and has not been paid $28,097.10 on account no. 3008.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that A & R owes Skinner $28,097.10. DONE AND ENTERED this 18th day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 18th day of December, 2003. COPIES FURNISHED: Christopher Diaz, C.P.A. Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Michael A. Jankowski Old Republic Surety Company Post Office Box 1635 Milwaukee, Wisconsin 53201 Rita J. Robinson, President A & R Landscaping & Lighting, Inc. 739 Long Lake Drive Oviedo, Florida 32765
