Findings Of Fact Petitioner, J. R. Brooks and Sons, Inc. (Brooks), is in the business of selling agricultural products. Its offices are located in Homestead, Florida. Respondent, Fair Chester Tomato Packers, Inc. (Fair Chester), is a licensed agriculture dealer under Chapter 604, Florida Statutes. Its offices are in Mamaroneck, New York. As a licensed agriculture dealer, respondent is required to file a surety bond with the Department of Agriculture and Consumer Services (Department) to insure payment of any indebtedness to persons selling agricultural products to Fair Chester. In this regard, it has filed a $50,000 surety bond underwritten by respondent, Hartford Accident and Indemnity Company (Hartford). Between February and April, 1984, Brooks sold six shipments of `Pony Limes" to Fair Chester for a price of $25,039. Shortly thereafter, Fair Chester experienced financial problems and was unable to pay Brooks and other trade creditors. Because of this the creditors formed a committee in an effort to secure payment of their claims. A composition agreement was eventually drawn whereby the unsecured trade creditors agreed to settle, release and discharge in full their claims against Fair Chester on condition that each creditor signing the agreement be paid one-third of its claim "in full payment and settlement thereof, and provided further that 95 percent or more in dollar amount of all the debtor's unsecured trade creditors accepted the terms and provisions in writing on or before November 13, 1984. On or about September 2, 1984, Brooks filed a complaint against respondents with the Department which was pending when the offer to participate in the composition agreement was made. Brooks initially refused to accept the composition agreement. Because Brooks' acquiescence was necessary in order to achieve the 95 percent participation, Fair Chester, through its counsel advised Brooks by letter dated November 1, 1984 that its "acceptance of the Composition Agreement . . . shall be without prejudice to the complaint against (respondents) before the Department of Agriculture and Consumer Services of the State of Florida." After receiving this letters Brooks agreed to execute the agreement and did so on November 7, 1984. Accordingly, it is found that it was the intention of the parties to allow Brooks to maintain the action herein. Thereafter, in accordance with the agreement, Fair Chester issued a check in the amount of $7,449.66 to Brooks on November 9, 1984, which represented one-third of its total claim. 1/ The check was endorsed by Brooks and deposited in its bank account. It has never rescinded that agreement. The letter of November 1, 1984, was not disclosed by Fair Chester to Hartford or any other trade creditor who executed the agreement. However, there was no effort on the part of Brooks to have the letter remain secret.
Recommendation Based on the foregoing findings of fact and conclusions of lawn, it is RECOMMENDED that the complaint of J. R. Brooks and Sons, Inc. a against respondents be DISMISSED with prejudice, and its claim against them DENIED. DONE and ORDERED this 3rd day of June, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of June, 1985.
The Issue Whether Respondent, Redland Brokers, a dealer in agricultural products, is indebted to Petitioner, a producer of agricultural products, for 529 hampers of peas delivered by Petitioner to Redland Brokers on May 2, 3, and 7, 1996, and subsequently resold by Redland Brokers on behalf of Petitioner.
Findings Of Fact Petitioner is a producer of agricultural products. Respondent, Redland Brokers Exchange, Inc. (Redland), is a dealer in agricultural products. At all times pertinent to this proceeding, there was a marketing agreement in effect between Petitioner and Redland. This agreement provided, in pertinent part, as follows: The grower (Petitioner) gives Redland Brokers Exchange, Inc. the right to sell or consign to the general trade. No guarantees as to sales price are made and only amounts actually received by Redland Brokers Exchange less selling charges, loading charges, cooling charges and any other charges will be paid to the grower. Final settlement will be made within a reasonable length of time and may be held until payment is received from the purchaser. On May 2, 1996, Martin Ruiz, the son of the Petitioner, delivered to Redland 233 hampers of peas for sale on consignment. On May 3, 1996, Mr. Ruiz delivered to Redland 38 hampers of peas for sale on consignment. On May 3, 1996, Mr. Ruiz delivered to Redland 124 hampers of peas. On May 7, 1996, Mr. Ruiz delivered to Redland 134 hampers of peas. These peas were produced by Petitioner and her family. Petitioner asserts that the sale price for the peas delivered on May 2 and 3, 1996, should have been $20.00 per hamper. Petitioner asserts that the sale price for the peas delivered May 7, 1996, should have been $14.00 per hamper. Petitioner does not challenge the amounts deducted from the sales price by Redland for its commission, advances it made to the grower, and for crates. The greater weight of the evidence established that Mr. Ruiz was misinformed as to the fair market value for the peas that were delivered to Redland in May 1996 and that he believed the price to be greater than the actual fair market value. Redland did not misrepresent to Petitioner the fair market value of these peas. The greater weight of the evidence established that Redland sold the peas that Petitioner delivered to it in the regular course of business and that it paid Petitioner in full for that product consistent with the marketing agreement that was in effect. The lower prices were the result of falling market prices and the poor quality of some of the peas. Petitioner failed to establish that Redland was indebted to her as a result of these transactions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner’s complaint be dismissed. DONE AND ENTERED this 7th day of April, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 7th day of April, 1997. COPIES FURNISHED: Oralia Vera, pro se 14500 Southwest 280th Street, Lot 4 Homestead, Florida 33032 Frank T. Basso, Jr., President Redland Brokers Exchange, Inc. Post Office Box 343544 Florida City, Florida 33034 Florida Farm Bureau General Insurance Company (Legal Dept.) Post Office Box 147030 Gainesville, Florida 32614 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
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 Whether or not Respondent, Dixie Growers, Inc., is indebted to Petitioner, Leah Raulerson, for agriculture produce purchased and not paid for in the amount of $3,722.49.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, I make the following relevant factual findings. During times material, Petitioner, Leah Raulerson, was an agricultural producer within the meaning of Section 604.15(5), Florida Statutes and concentrated primarily in the production of peppers. During times material, Respondent, Dixie Growers, Inc., was an agricultural dealer within the meaning of Section 604.15(1), Florida Statutes, and wholesaler and purchased peppers from Petitioner during May and June, 1992. Respondent, U.S. Fidelity & Guaranty Company, issued a surety bond to Respondent Dixie during times material. During late May and June, 1992, Petitioner sold various types of pepper including hungarian wax, finger hots, long hots, bell pepper, fancy cubanelle and jalopeno to Respondent Dixie. During times material, Petitioner inquired of one of Respondent Dixie's owners, Charles Lawton, what the wholesale market was bringing for the type of peppers that she produced and desired to sell. Respondent Dixie advised that the average wholesale price was $8.00 per box. Petitioner told Respondent Dixie, that she could sell her peppers for that price but if the market deteriorated to the point where the price was $4.00 or less per box that she should be advised whereupon she would cease picking the peppers as her labor and other related costs would be below her breakeven point of $4.00 per box. Respondent Dixie, advised Petitioner that he (Charles Lawton) would let her know if the market declined. The agreement was struck and Petitioner was advised by Respondent Dixie to "bring the peppers on." Based on their agreement, Petitioner continued picking the peppers. Petitioner delivered to Respondent Dixie, a load of the various types of peppers that she produced and expected to be compensated at the rate of an average of $8.00 per box for her produce. Petitioner was not paid for the peppers at that time nor was she told that she should not bring any more peppers to Respondent's warehouse. Approximately two weeks from the date of delivery, Petitioner was paid an average of $1.03 per box by Respondent Dixie. Petitioner provided copies of the wholesale market reports for the types of peppers that she produced and sold to Respondent, Dixie, during May and June, 1992. The reports reflect an average wholesale price of $8.00 per box. Petitioner is owed by Respondent Dixie, the sum of $3,722.49 for nonpayment of produce (peppers) that she delivered to Respondent Dixie during May and June, 1992. Respondent Dixie, has countered that Petitioner's produce was bad and that the market had declined to the point whereupon they (Dixie Growers) were only able to obtain approximately $1.03 per box for the produce that Petitioner sold to Respondent Dixie. However, Respondent Dixie, failed to present any credible evidence which would establish that either Petitioner's produce was bad or that they were only able to obtain $1.03 as contended. No evidence was presented that the market declined or situation was anything different from the prices Petitioner was quoted and as reflected by the prices shown in the wholesale market reports. It is more probable than not that Respondent Dixie received the amounts reflected in the wholesale market reports for the produce that it purchased from Petitioner during May and June, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Agriculture, Bureau of License and Bond, issue a Final Order requiring that Respondent, Dixie Growers, Inc., pay to Petitioner the sum of $3,722.49 as claimed for agricultural produce purchased from Petitioner. In the event that Respondent Dixie fails to pay Petitioner, within 30 days of the date of the Department's Final Order, the sum of $3,722.49, that Respondent, U.S. Fidelity & Guaranty Company, as surety, remit to the Department that sum which should then be timely remitted to Petitioner. DONE AND ENTERED this 17th day of May, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 17th day of May, 1993. COPIES FURNISHED: Linda Terry Lawton P. O. Box 1686 Plant City, Florida 33564 U.S. Fidelity & Guaranty Company Legal Department P. O. Box 1138 Baltimore, Maryland 21203-0000 Richard Tritschler, Esquire Department of Agriculture The Capitol - PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Dixie Growers, Inc. P. O. Box 1686 Plant City, Florida 33564 Honorable Bob Crawford Commissioner of Agriculture The Capitol - PL 10 Tallahassee, Florida 32399 0350
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: In January, 1990, the Respondent filed an application for credit with the Petitioner. The terms and conditions of the credit application provided: "All written 'Terms and Conditions of Sale' on invoices, statements, contracts or other written agreements must be observed and performed as stated." Further, the application provided: Payment of all amounts due shall be made not later than 30 days from the billing date. Amounts in default will be subject to a SERVICE CHARGE of 1 1/2 % per month (18 % Per Annum) on the unpaid balance. Failure to make payment within terms will result in cancellation of credit. Following acceptance of that application, Respondent sought to purchase sod from Petitioner's LaBelle sod farm. Invoices issued by Petitioner to Respondent at the time of the delivery of the sod provided that the amounts owed would be payable upon receipt of invoice. Further, the printed invoice required the purchaser to make claims within 24 hours of delivery or pick up. The invoices reiterated the 18 percent service charge for past due accounts. From December, 1990, through January 17, 1991, Respondent purchased and accepted in excess of $45,000 worth of sod from the Petitioner. The invoices for those purchases are identified in this record as Petitioner's exhibit 2. From January 30, 1991 until March 4, 1991, Respondent purchased and accepted $4,664.00 worth of sod from the Petitioner. The invoices for those purchases are identified in the record as Petitioner's exhibit 3. In February, 1991, when the Petitioner became concerned about nonpayment for the amounts claimed, contact with the Respondent was made for the purpose of resolving the matter. When those efforts failed to secure payment, the Petitioner instituted action through the Department of Agriculture against the Respondent's bond. The Petitioner claimed $45,080.25 was due for the invoices prior to January 30, 1991. The Petitioner claimed $4,664.00 was owed for the invoices subsequent to January 30, 1991. Subsequent to its claims, Petitioner received payments from the Respondent in the following amounts: $5,000.00 on March 11, 1991; $5,000 on March 26, 1991; and $2,000.00 on April 30, 1991. Applying the total of those payments ($12,000) to the indebtedness on the first claim reduces that amount to $33,080.25. Prior to the claims being filed, Respondent had notified Petitioner that some sod deliveries had been unacceptable because of the quality of the sod or the amount. Respondent claimed the Petitioner had "shorted" the square footage amounts per pallet so that Respondent was being charged for a pallet that did not contain the requisite square footage of sod. On one occasion, in January, 1991, the Petitioner gave Respondent a credit in the amount of $1,173.75 for either refund on poor quality sod or a shortage. The Respondent continued to purchase sod from Petitioner until its credit was no longer accepted by Petitioner, i.e. March 4, 1991. Respondent did not, within 24 hours of receipt of sod, make a claim regarding the quality of the sod or the amount. By letter dated March 14, 1991, the Respondent, through its attorney, advised Petitioner as follows: St. Amour Sod Services, Inc., does not dispute the balance due to you as set forth in your letter and they will pay same in payments that are being determined now. For your information, the balance accrued because of the loss of several of our customers resulting from the poor quality of sod purchased from your firm. Respondent did not timely challenge the quality of the sod accepted, and did not present evidence regarding its alleged poor quality.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Agriculture and Consumer Services enter a final order finding that Respondent is indebted to Petitioner in the amounts of $33,080.25 and $4,664.00, with service charge to be computed through the date of the final order; directing Respondent to make payment of the amounts to Petitioner within 15 days following the issuance of the order; and, notifying all parties that if such payment is not timely made, the Department will seek recovery from Respondent's surety, Aetna Casualty and Surety Company. DONE and ENTERED this 13th day of March, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1992. APPENDIX TO CASE NOS. 91-6388A AND 91-6389A RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: 1. Paragraphs 1 through 4 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: Paragraph 1 is accepted. Paragraphs 2, 3, 4, 6, 7, and 8 are rejected as contrary to the weight of the credible evidence or unsupported by the record in this case. With regard to paragraph 5, that portion of the paragraph which states the amount of payments made by Respondent ($12,000) is accepted. Otherwise, rejected as stated in 2. above. COPIES FURNISHED: Barry L. Miller P.O. Box 1966 Orlando, FL 32802 Gary A. Ralph 2272 Airport Rd. South, Ste. 101 Naples, FL 33962 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel Dept. of Agriculture & Consumer Svcs. The Capitol, PL-10 Tallahassee, FL 32399-0810 Aetna Casualty & Surety Company Attn: Legal Dept. 151 Farmington Ave. Hartford, CT 06156
The Issue The issue in this case is whether the Respondent, R & R Sod Contractors, Inc., owes the Petitioner for sod purchased from the Petitioner and, if so, the amount presently owed.
Findings Of Fact The Petitioner is in the business of raising and selling sod in the State of Florida. During the past few years, R & R has been a frequent customer of the Petitioner and has purchased large amounts of sod from the Petitioner. Prior to April of 1998, R & R had a credit account with the Petitioner. The terms of the credit agreement included the following: "In the event the account becomes delinquent, and will be referred to a licensed collection agency or an attorney, Customer agrees to pay all costs and expenses of collection including reasonable attorney's fees, court costs, and costs incurred on appeal." During April of 1998, R & R's account with the Petitioner became delinquent. The Petitioner referred the delinquent account to an attorney. The attorney filed a lawsuit against R & R and also filed a complaint with the Department to collect the delinquency by asserting a claim against the bond posted by R & R. The 1998 account delinquencies were resolved in December of 1998, when the Department issued a check to the Petitioner in the amount of $48,431.00. That check paid the full amount of all unpaid invoices from the Petitioner to R & R as of December of 1998. In the process of collecting the $48,431.00 debt from R & R during 1998, the Petitioner incurred costs and attorney's fees in the amount of $1,644.00. These costs and attorney's fees were in addition to the $48,431.00 debt that was paid by the check from the Department. In January of 1999, the Petitioner again began to sell sod to R & R, but only on a cash basis. In the latter part of February of 1999, R & R bought approximately $2,500.00 of sod from the Petitioner which they paid for with a $2,500.00 cashier's check payable to the Petitioner. Although the cashier's check was given to the Petitioner by R & R, the face of the cashier's check identified the remitter as "Ely Sod, Inc." 3/ At the time the Petitioner received the $2,500.00 cashier's check described above, the Petitioner had an unsatisfied judgment against Ely Sod, Inc. When the cashier's check first went through the Petitioner's bookkeeping system, it was treated as a payment by Ely Sod, Inc., to the Petitioner, and was applied to reduce the amount of the judgment owed by Ely Sod, Inc. Consequently, none of the $2,500.00 cashier's check was initially applied towards the amounts owed by R & R. The misapplication of the proceeds of the $2,500.00 cashier's check discussed above apparently produced a great deal of confusion between the Petitioner and R & R regarding the status of R & R's account with the Petitioner. In this regard the Petitioner was especially concerned about the fact that R & R, which was supposed to be on a "cash only" basis, appeared to be $2,500.00 in arrears in its payments to the Petitioner. During the course of resolving the issue of the misapplied cashier's check, the Petitioner became aware of the fact that R & R had never paid the Petitioner's costs and attorney's fees related to the 1998 litigation. Ultimately, it was agreed between the attorneys representing the Petitioner and R & R that the proceeds of the $2,500.00 cashier's check should be applied to pay the costs and attorneys fees in the amount of $1,644.00 incurred by the Petitioner in the 1998 litigation, and that the balance of $856.00 would be paid to R & R or would be applied to any outstanding debts of R & R. Consistent with the agreement, $1,644.00 was applied to pay the Petitioner's costs and attorneys fees, and $856.00 was applied towards the unpaid amounts owed by R & R for sod purchased from the Petitioner Review of the invoices, payments, and accounts between the Petitioner and R & R reveals that, after the agreed application of funds described in paragraph 7, above, R & R still owes the Petitioner the amount of $1,844.00 for sod purchased from the Petitioner. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that R & R is indebted to the Petitioner in the amount of $1,844.00; (2) directing R & R to make payment to the Petitioner in the amount of $1,844.00 within 15 days following the issuance of the order; and (3) announcing that if payment in full of this $1,844.00 indebtedness is not timely made, the Department will seek recovery from ICNA, R & R's surety. DONE AND ENTERED this 7th day of April, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. 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 7th day of April, 2000.
Findings Of Fact On August 6, 1986, an indemnity bond was executed between RAINMAKER as principal and FIDELITY as surety. The effective dates of the bond were from October 21, 1986, to October 20, 1987. The bond was required under Sections 604.15-604.30, Florida Statutes, in order for RAINMAKER to become licensed as a dealer in agricultural products in Florida. The purpose of the bond is to secure the faithful accounting for a payment to producers or their agents or representatives of the proceeds of all agricultural products handled or purchased by RAINMAKER. The Petitioner, SHAN-RON, is a corporation whose address is 276 Cypress Street, La Belle, Florida. Its purpose is to conduct business by finding buyers for sod located on acreage owned by various cattle ranchers in Lee County, Florida. This practice is commonly known as "bird dogging" in the agricultural trade. The way the business is conducted is as follows: SHAN-RON is contracted by sod installers to whom it sells sod in specific quantities for a fixed price. Once the oral agreement is made, SHAN-RON tells the sod installer where a sod field is located. At this point in the business transaction, the sod installer sends independent truck drivers to the designated sod field. If the sod installer is unable to locate truckers, he telephones a SHAN-RON field foreman. The foreman, as a courtesy, will check to see if any of the independent truckers currently as the sod field can haul a load for the sod installer. Once a trucker is located, employees from SHAN-RON mow the grass, cut the sod, and load it onto pallets owned by SHAN-RON. The truck is loaded with pallets by SHAN-RON employees and the driver is given two copies of the load ticket, one for him and one for the sod installer. The driver delivers the sod and pallets to the address placed upon the load tickets. Upon delivery, the driver has the responsibility to deliver the load ticket to the business office of the sod installer. If he does not deliver the ticket, he does not get paid for hauling the sod. Employees of the sod installer are usually at the delivery site. The sod is laid and the empty pallets are returned to the sod field by the truckers. Every Friday, a representative of SHAN-RON personally delivers a weekly bill to the sod installer in order to collect is owed. When the money is collected, the funds are divided between the rancher whose sod was sold and SHAN-RON. The accountability system used within the sod industry leaves room for a high margin of error at various stages. The SHAN-RON employees occasionally short pallet loads or two layers of sod. The truck drivers occasionally misnamed the sod installer to whom the sod is to be delivered. The truck drivers also occasionally do not take empty pallets under their control back to SHAN-RON. They sell the pallets and pocket the money. The sod installer is financially responsible for the pallet costs. RAINMAKER is a corporation whose address is Post Office Box 7385, Ft. Myers, Florida. The company is primarily in the business of installing sod. It transacted business with SHAN-RON between November 11, 1986, and January 8, 1987. At the time of these transactions, RAINMAKER was licensed as a dealer in agricultural products supported by surety bond number 974 52 23 in the amount of $13,500.00. SHAN-RON, through testimony and the introduction of its business records, proved a prima facie case that RAINMAKER owes $12,964.00 for the purchase of sod between November 11, 1986, and January 8, 1987. Both parties Stipulated that $4,000.00 has been paid on the balance of the account which should be deducted from the balance owed SHAN-RON. In rebuttal to SHAN-RON's presentation, RAINMAKER presented testimony and a business record summary which revealed that six invoices were improperly charged, against its account in the amount of $1,260.00. The record summary was based upon a comparison of load tickets against production records during the time period involved. In addition, RAINMAKER's records reveal that the two drivers, Stormy and Fred Bower, were not paid for delivering the sod to RAINMAKER under the load ticket presentation to the sod installer which was previously described as an accounting method within the business. Because RAINMAKER set forth the issue of delivery discrepancies in its answer to the complaint and competent evidence was presented, $1,260.00 should be deducted from the `balance owed. SHAN-RON presented testimony that it is customary for the company to spray the sod for pest control. RAINMAKER received defective sod from SHAN-RON which contained "Creeping Charlie" weeds during the time of the deliveries in dispute. SHAN-RON was timely notified of the problem, and toad RAINMAKER to have the sod sprayed. A copy of the invoice for $300.00 was sent to SHAN-RON and has not been paid. Although the issue was not raised in RAINMAKER's answer to the complaint, it is properly before the Hearing Officer because of RAINMAKER's timely notification and cure of the defect in the product. The $300.00 should be deducted from the amount owed. Testimony relating to possible sod shortages was rejected as no evidence was presented that shortages occurred in the orders for which SHAN-RON seeks payment. The customary procedure In the sod business for handling credits for shortages requires the buyer to notify the seller within a responsible length of time of the shortages. Such notification did not take place as to the orders in dispute. The amount owed to SHAN-RON by RAINMAKER is $7,404.00. It is officially noticed that SHAN-RON's complaint was originally filed with the department on June 19, 1987, within nine months from the date of sale.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Agriculture enter a final order requiring the Respondent RAINMAKER to make payment to the petitioner SHAN-RON in the amount of $7,404.00. In the event that RAINMAKER does not comply with the department's order within fifteen days from the date it final, FIDELITY should be ordered to provide payment and the conditions and provisions of the bond furnished to RAINMAKER. DONE and ENTERED this 12th day of April, 1988, in Tallahassee, Florida. VERONICA E. DONNELLY 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 12th day of April, 1987. COPIES FURNISHED: Clinton H. Coutler, JR., Esquire Department of Agriculture Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of License and Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 Shan Ron Sod, Inc. 276 Cypress Street LaBELLE, FLORIDA 33935 Rainmaker Sod, Inc. 2290 Bruner Lane, South East Fort Myers, Florida 33912 Fidelity & Deposit Company of Maryland Post Office Box 1227 Baltimore, Maryland 21203 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain General Counsel Department of Agriculture Mayo Building, Room 513 Tallahassee, Florida 32399-0800
Findings Of Fact K & B Enterprises, Respondent, purchased plants from Roy Amerson, Inc., Petitioner, and they were delivered to Respondent on February 19, 1980. Respondent had ordered Bottlebrush and Cuban laurel (Ficus Nitida) packaged in wire baskets to protect root ball in shipment. Upon arrival Respondent noted that the wires were mangled and some root balls appeared separated from the roots. Before the trees were unloaded Mrs. Benway telephoned the salesman for Petitioner and told him about the condition of the trees. The salesman advised her to accept the trees, water them, and they (Amerson) would make an allowance for the damage. This, he said, would be better and cause less damage to the trees than if they were sent back on the truck that brought them. The driver was requested by Mr. Benway to note the condition of the trees on the invoice accompanying the shipment (Exhibit 1). No such notation was made. The driver did note the date of delivery. Respondent Benway acknowledged receipt of the merchandise by signing Exhibit 1 below the following statement printed near the bottom of Exhibit 1: STOCK MAY BE REFUSED AT TIME OF DELIVERY FOR A DEFINITE REASON, BUT ONCE SIGNED FOR CUSTOMER ASSUMES RESPONSIBILITY FOR TOTAL AMOUNT OF INVOICE. OPEN ACCOUNTS PAYABLE BY THE 10TH OF THE MONTH. 1 1/2 PERCENT CHARGE ADDED IF NOT PAID BY THE 25TH WHICH IS ANNUAL RATE OF 18 PERCENT. Respondent is a plant retailer and landscape contractor. After accepting the February 19, 1980 delivery the Cuban laurel was planted as were the other plants. Attempts to settle the dispute with Petitioner's salesman were unsuccessful. Nine of the Bottlebrush died but all of the Cuban laurel have survived. At the instruction of the salesman these plants were watered but not trimmed or fertilized. Respondent paid for the other plants received on this invoice and for the damaged plants as they have been sold. As of the date of the hearing the balance owed on the stock delivered on Exhibit 1 was $1,494.90.
The Issue The issue in this case is whether Respondent Southern Corporate Packers, Inc. owes Petitioners money for watermelons and, if so, how much.
Findings Of Fact Prior to the 1995 growing season, Petitioners and Respondent Southern Corporate Packers, Inc. (Respondent) formed a partnership. Their respective interests were Respondent--40 percent, Petitioner Juman--38 percent, and Petitioner Carter--22 percent. Petitioners agreed to grow the watermelons, and Respondent agreed to sell them and remit the sale proceeds to the partnership after deduction for a standard one cent sales commission and freight costs. Petitioner Juman agreed to contribute farming equipment to the partnership. Petitioner Carter agreed to contribute $10,000 cash, and Respondent agreed to contribute $25,000. Petitioner Juman and Respondent made their respective contributions of equipment and money, but Petitioner Carter may not have made his contribution of money. In any event, the actual contributions were insufficient. The agreement required each partner to advance any additional expenses based on his respective share in the partnership. Petitioner Juman and Respondent made additional contributions of equipment and cash, but Petitioner Carter did not, unless his contribution could be made in services, which the evidence does not address. Problems plagued the farming operation from the start. Petitioners planted crimson sweet watermelons because Petitioner Carter could acquire these seeds inexpensively. Such watermelons are less valuable than the more- marketable sangria watermelons. The watermelons grew poorly. Petitioners failed to produce a single load of large melons. Instead, they produced twelve loads of mediums and nine loads of peewees, for which demand is relatively slight. As agreed, Respondent transported the watermelons to distant markets for sale. Unable to demand market prices, Respondent sold the melons for the highest possible price. In 21 transactions Respondent realized gross proceeds of $59,184.55. The parties dispute the available price for the watermelons. Respondent failed to obtain inspections of the melons, as it was required to do. Despite this failure, Respondent has shown that it obtained the highest available prices for the melons. In transporting the melons Respondent incurred freight charges of $22,288.76 and earned sales commissions of $6780.75. Additionally, Respondent paid an additional partnership expense of $11,799.53 in harvesting costs, which were not its obligation under the partnership agreement. Thus, the total allowable reductions are $40,880.94, leaving Responsible liable to pay the partnership the remaining $18,303.61. A partnership accounting might identify additional setoffs and counterclaims available to Respondent against the partnership or one or both of the partners. However, the record does not permit such an accounting, even if the law were to provide for such a remedy in this administrative proceeding. The central facts are that Respondent acquired watermelons from the partnership, sold the melons on behalf of the partnership, properly deducted from the sales proceeds certain allowable expenses in the form of freight, sales commissions, and harvesting expenses, and improperly retained the remaining $18,303.61 that it should have paid to the partnership. Less Respondent's share of 40 percent of the net proceeds, which Respondent may properly retain, the final balance due at this time to the two partners is $10,982.17.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring Respondent to pay Petitioners $10,982.17 within 10 days of the final order and, absent such a payment, requiring Amwest Surety Insurance Company, after notice of nonpayment, to pay the same amount to Petitioners up to the total amount remaining under the bond. ENTERED on December 20, 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 this 20th day of December, 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 Ronald W. Carter Roshan Juman 321 7th St. LaBelle, FL 33935 Bryan Arrigo, President Southern Corporate Packers, Inc. 424 New Market Rd. Immokalee, FL 33934 Amwest Surety Insurance Co. Legal Department Box 4500 Woodland Hills, CA 91365-4500
