The Issue Whether the tomatoes sold to A. Sam and Sons Co., Inc. (Sam and Sons), conformed to the terms of the agreement of sale and whether Sam and Sons paid an appropriate adjusted price for the tomatoes.
Findings Of Fact On June 3, 1985, A. Sam and Sons Co., Inc. (Sam and Sons), purchased by telephone two loads of tomatoes from Quincy Tomato Co., Inc. (Quincy Tomato). The terms of this sale were $6.00 per 25 pound box F.O.B. for 85 percent or better per box, U.S. Department of Agriculture number one tomatoes of fine quality. There is contradictory testimony whether the terms included "no rain checked tomatoes." (A rain check tomato is one which has suffered damage due to a combination of rain or humidity and heat which manifests itself in damage to the shoulder of the tomato.) (Testimony of parties and Page 1, Hearing Officer Composite Exhibit 1.) On June 3, 1985, two loads of tomatoes were picked up by Sam and Sons at Quincy Tomato. Of these two loads, one totalling 1520 25 pound boxes of tomatoes is the subject of this case. This load was received by Sam and Sons in Dunkirk, New York, on June 5, 1985, and inspected by the U.S. Department of Agriculture. The report stated, regarding the grade of the tomatoes: "Meets quality requirements, but fails to grade U.S. No. 1 account condition, now contains approximately 75 percent U.S. No. 1 quality." (Testimony of parties and page 2, Hearing Officer Composite Exhibit 1.) This inspection revealed the following percentages regarding the quality and condition of the tomatoes: Damage 7 percent Decay less than 1 percent Sunscald 1 percent Shoulder bruises 10 percent Skin checks 5 percent Total 23+ percent Sam and Sons sent Quincy Tomato a telegram (See Page 3, Hearing Officer Composite Exhibit 1) on June 5, 1985, which stated as follows: Re UL-127 invoice #3 Arrived June 5 1985 on trailer #811TPZ New Jersey Tomato received under protest. Tomatoes show rain check, decay, sun scaled (sic), brown spot and discoloration. Tomatoes will be reinspected by June 10 1985. An adjustment (sic) on prices will be made. On June 10, 1985, the load of tomatoes was reinspected by the U.S. Department of Agriculture. This inspection report (See Page 4, Hearing Officer Composite Exhibit 1) stated with regard to grade: "Meets quality requirements but fails to grade U.S. No. 1 only account condition. Lot now contains approximately 75 percent U.S. No. 1 Quality." The report revealed the following concerning the quality and condition of the tomatoes: Damage 8 percent Decay 1 percent Shoulder bruises 9 percent Skin checks 9 percent Total 27 percent When first inspected, the shipment contained over 23 percent of tomatoes which failed to meet the quality and grade standards. When reinspected on June 10, 1985, the shipment 27 percent of the tomatoes did not meet the quality and grade standards. Quincy Tomato was permitted up to 15 percent tomatoes which did not meet the quality and grading standards. The load contained an average of 10 per cent more substandard tomatoes that it was permitted to contain. Sam and Sons had the right to refuse the shipment or to accept the shipment and adjust the price after notice. They elected to do the latter. Having been notified and having not responded, the Seller is deemed to have accepted these terms. On September 11, 1985, Sam and Sons tendered a check for $6,266 to Quincy Tomato. (See Page 6, Hearing Officer Composite Exhibit 1.) This worked out to $4.1224 per 25 pound box, or a 31 percent reduction in price. Quincy Tomato accepted the check and proceeded against the agricultural bond of Sam and Sons.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Petitioner be permitted to recover up $1,942 from Respondents bond if this amount is not paid by Respondent to Petitioner within 30 days of the entry of the agency's final order. DONE and ORDERED this 8th day of December 1986 in Tallahassee, Florida. STEPHEN F. DEAN 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 8th day of December 1986. COPIES FURNISHED: Mr. Graves Williams Quincy Tomato Company, Inc. Post Office Box 245 Quincy, Florida 32351 Mr. Esau Sam A. Sam and Sons Produce Co., Inc. West Lake Road Dunkirk, NY 14048 William C. Harris, Esquire Senior Attorney Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Ted Helms, Chief Bureau of License and Bond 418 Mayo Building Tallahassee, Florida 32301 Joe W. Kight Bureau of License and Bond Mayo Building Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Department of Agriculture and Consumer Services 513 Mayo Building Tallahassee, Florida 32301 Travelers Indemnity Company One Tower Square Hartford, Conn. 06115
The Issue Whether Homestead Pole Bean Cooperative, Inc., is owed $10,475.35 for agricultural products ordered by and delivered to Mo-Bo Enterprises, Inc.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Homestead is an agent for producers of Florida-grown agricultural products. Mo-Bo is a dealer in such products in the normal course of its business and is bonded by Armor. During the period from December 2, 1994, until January 9, 1995, Mo-Bo ordered green beans and squash from Homestead. In accordance with the longstanding practice of Homestead when doing business with Mo-Bo, the orders were accepted by telephone and the items were loaded onto trucks sent by Mo-Bo to Homestead's warehouse. Homestead sent the following invoices to Mo-Bo for agricultural products order by and delivered to Mo-Bo: December 6, 1994 Invoice Number 75636 $2,590.00 December 15, 1994 Invoice Number 75895 5,253.85 December 21, 1994 Invoice Number 75994 200.00 January 2, 1995 Invoice Number 76161 576.00 January 5, 1995 Invoice Number 76232 (109.00) January 12, 1995 Invoice Number 76348 1,332.00 January 12, 1995 Invoice Number 76349 632.50 TOTAL $10,475.35 The invoice amounts were adjusted by Homestead to account for credits given for products which were unsatisfactory, and payment was due twenty days from the date of each invoice. Despite repeated demands, Mo-Bo has not paid any of the amounts reflected in these invoices. As of September 6, 1995, the date of the formal hearing, $10,475.35 remained due and owing to Homestead.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering Mo-Bo Enterprises, Inc., to pay $10,475.35 to Homestead Pole Bean Cooperative, Inc., and, if Mo-Bo Enterprises, Inc., does not pay this amount, ordering Armor Insurance Company to pay this amount, up to its maximum liability under its bond. DONE AND ENTERED this 10th day of October 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1995. COPIES FURNISHED: Charles W. Nelson, Jr., Comptroller Homestead Pole Bean Cooperative, Inc. 26000 South Dixie Highway Post Office Box 2248 Naranja, Florida 33032 Charles D. Barnard, Esquire 200 Southeast 6th Street Suite 205 Fort Lauderdale, Florida 33301 Mark J. Albrechta, Esquire Armor Insurance Company Legal Department Post Office Box 15250 Tampa, Florida 33684-5250 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire 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
Findings Of Fact During January, February, and early March, 1982, Respondent entered into several oral contracts for the purchase of tomatoes from Petitioner. Specifically, orders were placed by Respondent on January 28, February 3 and 5, and March 3, 1982, for US. No.3 grade tomatoes to be shipped f.o.b. origin to receivers in Puerto Rico and Alabama. The first three orders were shipped by boat to Puerto Rico and the fourth by truck to Alabama. The shipment of January 28, 1982 (Shipment #1), consisted of 1,296 boxes, and the invoice cost was 9,288.90. Payment was due on or before February 17, 1982, per the handwritten note placed on the invoice by Ms. Ernst before it was mailed out. A similar notice as to payment due date was placed on each of the other invoices before they were mailed out. The shipment of February 3, 1982 (Shipment #2), consisted of 1,368 boxes; the invoice cost was $9,188.10; and "payment was due on or before February 22, 1982. The shipment of February 5, 1982 (Shipment #3), also consisted of 1,368 boxes; was priced at $9,188.10; and payment was due on or before February 24, 1982. The shipment to Alabama of March 3, 1982 (Shipment #4), consisted of 1,178 boxes; the invoice cost was $7,748.70; and payment was due on or before March 23, 1982. Shipment #1 was inspected by a United States Department of Agriculture (USDA) inspector in the receiver's cool room in Puerto Rico on February 5, 1982, eight days after it was shipped. At that time, the inspector noted that the condition of the tomatoes was "approximately 40 percent green and breakers, 45 percent turning pink, 10 percent light red and red. Decay ranges from 2 to 6 percent, average 3 percent, Bacterial soft rot in early stages." The grade was noted: "Fails to grade US. No. 3, account of grade defects." Quality was noted as: "Mature fairly clean to clean, well developed, generally fairly smooth to slightly rough. Grade defects ranges 40 to 56 percent, average 47 percent, mostly scars, catfaces, cuts and rough texture." Shipment #2 was inspected by a USDA inspector in the receiver's cool room on February 16, 1982, 13 days after shipment. At that time, the inspector noted as to condition: "Average approximately 95 percent red. From 2 to 8 percent, average 4 percent decay; Bacterial soft rot and Gray Mold rot in various stages." Quality was listed as: . . . grade defects ranges 12 to 28 percent, average 19 percent, mostly growth [sic] crack, catfaces, cuts and scars. Grade was noted: "Fails to grade US. No. 3 account of grade defects." Shipment #3 was inspected by a USDA inspector in the receiver's cool room on February 17, 1982, 12 days after shipment. On the inspection report, condition was noted: "Average approximately 85 percent red. Decay ranges 5 to 24 percent, average 14 percent. Gray Mold rot and Bacterial soft rot in various stages." Quality was listed as: . . . From 12 to 32 percent, average 18 percent grade defects, mostly scars, catfaces, mechanical damage and rough texture." Grade was listed as: "Fails to grade US. No. 3 account of grade defects." Shipment #4 was inspected by a USDA inspector in the receiver's warehouse in Alabama on March 5, 1982, two days after shipment. Upon inspection, condition was noted as: "Strano's Pride lot: Average approximately 30 percent green, 5 percent breakers, 20 percent turning, 20 percent pink, 15 percent light red, 10 percent red." As to Select Lot: "Average approximately 20 percent green, 20 percent breakers, 15 percent turning, 20 percent pink, 10 percent light red, and 15 percent red." Each lot was average 1 percent decay. Grade was not quoted, nor was quality. Ordinary shipping time by ship from the Port of Miami to Puerto Rico is four to five days. Inspections under the USDA Perishable Agricultural Commodities Act rules must be conducted within 24 hours after delivery. The USDA inspector is generally accepted as the only nonpartisan means of determining grade, condition, and quality of produce. While the condition of a shipment may change during transit, the grade of the produce normally will not. When the delivery inspections on Shipments #1, #2, and #3 were conducted in Puerto Rico and the receivers complained to Respondent about the produce they received, Elliott, who had been in daily telephone contact with his dissatisfied customers and had verified the condition of the shipments in conversations with the inspectors in question, contacted Tom Banks, Sales Manager for Petitioner, who authorized adjustments in payment saying, "Work it out and get back what you can, or words to that effect. Discussion between these two men as to the adjustments included such topics as charges for gassing and freight to the gashouse, along with the fact that the tomatoes failed to grade out at destination as US. No. 3, as ordered. Mr. Banks failed to get the approval of Mr. Strano before authorizing those adjustments, however Respondent had ordered green tomatoes without gassing so that there would be less chance of spoilage during the several days it took in transit for the tomatoes to get from Miami to Puerto Rico. Gassing, a procedure designed to speed up the ripening of tomatoes, would not have been an appropriate process in a situation such as this. With regard to Shipment #4, Respondent wanted vine-ripened tomatoes for quick delivery to a close-by market. He described his order as for 40 to 50 percent color in the shipment. The tomatoes delivered contained color well below the desired level; and as a result, the Respondent's customer, who had to hold them for an extended period before sale to allow them time to ripen, was dissatisfied with the shipment. The tomatoes in Shipments #1, #2, and #3 were graded as US. No. 3 by a USDA inspector at Petitioner's plant outside Miami prior to shipment. The procedure followed is for the inspector to inspect batch lots containing amounts far greater than that in any one of the shipments in question here. The inspector puts his stamp of grade on a master inspection certificate. Thereafter, whenever any tomatoes are drawn from that batch for sale and shipment, the Petitioner's employees are authorized to mark the appropriate grade for that shipment onto the documentation relating to it. There is no additional inspection by the USDA at origin. However, Petitioner could provide a document trail for only two shipments. One, of 1,368 boxes to Puerto Rico on February 3, 1982, was Shipment #2. Certificate No. B 135642, referring to Gas Lot 306, reflecting a grading of US. No. 3 on February 2, 1982, can be traced to that shipment. Certificate No. B 135588, which was offered in support of Shipment #3, on February 5, 1982, affords reasonable connection to that shipment. There is no documentation, other than Petitioner's own shipping memorandum, which relates to the preshipment grading of the tomatoes in Shipment #1. No credible evidence was introduced to establish the grade of produce in this shipment which failed to grade out as US. No. 3 upon delivery. I therefore find that the grade assigned by the inspector at the delivery point is controlling and that the shipment of 1,296 boxes on January 28, 1982, was not US. Grade No. 3. Respondent deducted $3.25 per box on Shipment #1 ($4,212), $1.50 per box on Shipment #2 ($2,050), $2.50 per box on Shipment #3 ($3,420), and $2 per box on Shipment #4 ($2,356), plus $752.40 each on Shipments #2 and #3 for gassing and freight to the gashouse.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department of Agriculture and Consumer Services enter an order finding that Respondent is indebted to Petitioner in the amount of $5,470. RECOMMENDED this 7th day of June, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 7th day of June, 1983. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Kenneth M. Clayton, Esquire Michael T. Hand, Esquire 220 North Palmetto Avenue Orlando, Florida 32801 Homestead Tomato Packing Company, Inc. c/o Mr. Rosario Strano Post Office Box 3064 Florida City, Florida 33034 Peerless Insurance Company 62 Maple Avenue Keene, New Hampshire 0343
The Issue The issue for determination is whether Respondents owe Petitioner approximately $591 for a quantity of watermelons provided by Petitioner; secondarily, resolution of this issue 1 Correction of obvious error has been made to the style of this case, adding the name of Co-Respondent U.S. Fidelity and Guaranty Co., and eliminating the Department of Agriculture and Consumer requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.
Findings Of Fact Petitioner is a farmer who produces agricultural products, including watermelons. Petitioner also has trucks in which he hauls agricultural products, including watermelons. When all his trucks are in use, he frequently calls a friend, Freddy Bell, to provide some of Bell’s trucks to haul his products. Petitioner, in turn, helps Bell when Bell’s trucks are all in use. Respondent Wilson is a dealer of such products in the course of normal business activity. Respondent Wilson acts as a broker in these arrangements, receives the gross sales receipts from buyers and from that sum deducts costs of labor, freight, inspections, any other associated costs and his commission. The net balance of the gross sales receipts are paid to the melon producers. Respondent U. S. Fidelity and Guaranty Company is the bonding agent for Respondent pursuant to Section 604.20, Florida Statutes. Petitioner had not discussed any arrangement for the sale of his melons with Respondent Wilson. Instead, Petitioner discussed the sales price of his melons with Freddy Bell. Petitioner testified that Bell represented to Petitioner that he could get a price of $4.00 per hundred weight for Petitioner’s melons. Petitioner relied on Bell to provide transport his melons and obtain the promised price. While Bell did not testify at the final hearing, the parties are in agreement that Bell arranged for sale and shipment of Petitioner’s melons through Wilson. Wilson’s President, Robert M. Wilson, testified at hearing that Bell was not empowered by him to represent a guaranteed price for melons to anyone and that he could not affirm that Bell operated as his agent. He added that Melons were plentiful this past season and no melons were brokered on a guaranteed price basis. Testimony of Robert M. Wilson at the final hearing establishes that the arrangement between Respondent Wilson and Freddy Bell on Petitioner’s behalf was a brokerage arrangement and that the sale of the melons was subject to conditions and demands of the market place, i.e., that the melons would sell for the best possible price which Wilson could obtain for them. Testimony of Petitioner is uncorroborated and fails to establish that the agreement between the parties contemplated a direct sale of the melons to Respondent Wilson or a guaranteed price by Wilson.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing Petitioner's complaint.DONE AND ENTERED this 12th day of March, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 12th day of March, 1997. COPIES FURNISHED: Bo Bass 2829 Southwest SR 45 Newberry, FL 32669 John M. Martirano, Esquire US Fidelity and Guaranty Co Post Office Box 1138 Baltimore, MD 21203-1138 Robert M. Wilson, President Wilson and Son Sales, Inc. 2811 Airport Road Plant City, FL 33567 Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol - Plaza Level 10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, FL 32399-0800
The Issue Does the Florida Department of Agriculture and Consumer Services (Department)'s proposed rule 5E-1.023 constitute an invalid exercise of delegated legislative authority?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: On February 2, 1996, the Department published in the Florida Administrative Weekly, Volume 22, Number 5, the text of proposed rule to be known as Rule 5ER-1.023, which the Department indicated that it intended to adopt. The proposed rule reads: 5E-1.023 Fertilizer. Procedures for Landowners and Leaseholders to Submit the Notice of Intent to Comply with Nitrogen Best Management Practices (BMPs). Definitions "Interim Measures" means primarily horticultural practices consistent with the fertilizer recommendations published by the University of Florida or the Florida Agricultural and Mechanical University, or modified by the Department, to reflect public input. "Notice of Intent to Comply with BMPs" means a notice of intent to comply with nitrogen Interim Measures and/or BMPs, or to no longer apply fertilizers or other soil-applied nutritional materials containing nitrogen. Notice of Intent to Comply with Nitrogen BMPs and all document requests made of the department must be submitted to the Environmental Administrator, Florida Department of Agriculture and Consumer Services, Division of Agricultural Environmental Services, 3125 Conner Blvd., Tallahassee, Florida 32399-1650. Proof of providing Notice of Intent to the Department must be retained by the submitter. The Notice must contain the following information related to the implementation of the BMPs and Interim Measures: the name of the BMP or Interim Measures to be followed, the date of implementation, the name or other identification of the parcel or land unit upon which the practices will be implemented, the county(s) where said parcels are located, and the signature of the landowner(s) or leaseholder(s). The Department will consider requests to: (a) adopt Best Management Practices and Interim Measures as defined in this rule, other than those incorporated herein, in accordance with Section 576.045(3)(b), Florida Statutes; and, (b) modify adopted Best Management Practice and Interim Measures as defined in this rule based upon submission of adequate data in accordance with Section 576.045(3)(b), Florida Statutes. Approved Nitrogen BMPs Shadehouse Grown Leatherleaf Ferns. The BMP for Shadehouse grown leatherleaf ferns found in the University of Florida, Cooperative Extension Service, Institute of Food and Agricultural Sciences Bulletin 300 (published February 1995), Irrigation and Nutrient Management Practices for Commercial Leatherleaf Fern Production in Florida" is hereby adopted. Copies may be obtained from Central Florida Research and Education Center, Institute of Food and Agricultural Sciences, University of Florida, 2807 Binion Road, Apoka, Florida 32707. The associated record keeping requirements specified in "Record- keeping For The Nitrogen Best Management Practices For Shadehouse Grown Leatherleaf Ferns" dated 12-01-95 is also adopted. Copies are available from the Department of Agriculture and Consumer Services, Division of Agricultural Environmental Services, 3125 Conner Blvd., Doyle Conner Building, Tallahassee, Florida 32399-1650. (a) Approved Nitrogen Interim Measures. Citrus. [The approved "Nitrogen Interim Measure For Florida Citrus", dated 12-01-95], and the associated recordkeeping requirements dated 12-01-95 [are hereby adopted and incorporated by reference into this rule]. Copies may be obtained from the Department of Agriculture and Consumer Services, Division of Agricultural Environ- mental Services, 3125 Conner Blvd. Doyle Conner Building, Tallahassee, Florida 32399-1650. The foregoing documents are incorporated by reference into this rule. [Emphasis added] Specific Authority 576.045 FS. Law Implemented 576.045. History - New Section 576.011(2), Florida Statutes, provides: (2) "Best-management practices" means practices or combinations of practices determined by research or field testing in representative sites to be the most effective and practicable methods of fertilization designed to meet nitrate groundwater quality standards, including economic and technological considerations. Because of the lack of research or field testing with citrus to determine the most practicable methods of fertilization of citrus in conjunction with nitrate groundwater quality standards, the Department is proposing the Nitrogen Interim Measure for Florida Citrus rather than Best-management practices for citrus. Interim Measures is not defined by statute. However, the Department has defined Interim Measure in proposed rule 5E-1.023. For 1, 2, and 3 year old citrus groves, the Approved Nitrogen Interim Measure For Florida Citrus (Nitrogen Interim Measure), dated 12-01-95, provides for maximum nitrogen (N) rates per calendar year to be determined by set amounts of N per tree. The range of annual N rates for groves four years old or older is set out in pounds per acre. For oranges the range is 120 - 240 pounds of N per acre per year. For grapefruit the range is 120 - 210 pounds N per acre per year. On February 21, 1996, Petitioners filed a Petition challenging the Department's proposed rule 5E-1.023 on the basis that the proposed rule was an invalid exercise of delegated legislative authority. More specifically, the Petitioners challenges the Nitrogen Interim Measure dated 12-01-95, and more particularly, that portion of the Nitrogen Interim Measure setting the range of annual N rates for grapefruit and oranges in groves four years old or older which Petitioners contend is arbitrary and capricious. GBS Groves, Inc. is a Florida corporation which owns a grapefruit grove in Polk County, Florida and such corporation is solely owned by James T. Griffiths and Anita N. Griffiths. Withers and Harshman, Inc. is a Florida corporation owning grapefruit groves in Polk County and Highlands County, Florida with its principal place of business located in Sebring, Highlands County, Florida. Petitioners would be substantially affected by the adoption of this proposed rule and thereby have standing to bring this action. The parties have stipulated that: on November 5, 1993, the Department gave notice in the Florida Administrative Weekly of its intent to adopt proposed rule 5E-1.023; and proposed rule 5E-1.023 implements Section 576.045(6), Florida Statutes, by: establishing procedures for landowners and leaseholders to submit notice of intent to comply with nitrogen best management practices (BMPs) and interim measures; (2) adopting a specific BMP for shadehouse grown fern; and (3) adopting an interim measure for citrus. Petitioners concede that their challenge to the proposed rule is based solely on Section 120.52(8)(e), Florida Statutes, in that the proposed rule is arbitrary and capricious. Prior to, and independent of, the Department's work on proposed rule 5E-1.023, the faculty of the University of Florida, Institute of Food and Agricultural Sciences (IFAS), had begun work on revising IFAS's citrus fertilization guidelines. This revision eventually became SP 169, Nutrition of Florida Citrus Trees (SP 169), and supersedes the Agricultural Experiment Station Bulletin 536 series A through D, Recommended Fertilizers and Nutritional Sprays for Citrus (Bulletin 536), which had provided guidelines for Florida citrus fertilization since 1954. SP 169 is the official position of IFAS on the subject of nutritional requirements for citrus in Florida. Sometime around August 1994, Department met with and requested IFAS to provide the Department with a interim measure for citrus fertilization which could be adopted by the Department. The Department reviewed the first draft of the proposed interim measure for citrus fertilization prepared by IFAS and concluded that it would not be acceptable to the citrus industry because it was too detailed. Thereafter, the first draft was revised by IFAS and now appears as: 6. Fertilizer Guidelines, SP 169, pages 21 through 25. While IFAS's interim measure contains many recommendations, the recommendation most relevant to this proceeding is the recommended range of the annual rate of N for groves four years old or older. The recommended rates are expressed in pounds of N per acre per year. For oranges a range of 120 - 200 pounds of N per acre per year is recommended. For grapefruit a range of 120 - 160 pounds of N per acre per year is recommended. For other varieties a range of 120 - 200 pounds per acre per year is recommended. SP 169 also provides the criteria, including, but not limited to, soil load, varieties, leaf and soil analysis, fertilizer placement and application frequency and timing for determining a rate within the recommended range and to exceed the upper level of the range. Using these criteria a range of 120 - 180 pounds of N per acre per year for grapefruit can be supported and range of 120 - 240 pounds of N per acre per year for oranges can be supported. SP 169 also recommends that all available sources of N, including, but not limited to, organic sources and foliar applications, be included in the calculation of the annual N rate. Also recommended is that while the annual N rate may be exceeded in any given calendar year, the average annual rate over three years should not exceed the guidelines. Subsequent to receiving the proposed citrus interim measure from IFAS, the Department held a series of meetings and public workshops wherein growers and representatives from the fertilizer industry and grower organizations were given an opportunity to be heard and to make suggestions. In an effort to make the interim measure more flexible so as to gain industry acceptance, the Department compromised on several of the citrus fertilization guidelines set out in SP 169. The comprises were: (a) not to include any N from foliar application in the calculation of the annual N rate; (b) to include only fifty percent of the total N content of the source from all organic sources in the calculation of the annual rate of N; and (c) increase the recommended range of the annual rate of N for grapefruit and oranges to 120 - 210 pounds per acre and 120 - 240 pounds per acre, respectively, without considering the criteria set out in SP 169 for determining a rate within the recommended range or to exceed the upper limits of the range. In deciding not to include any N from foliar application in the calculation of the annual rate of N, the Department considered: (a) the fact that N from foliar application would be quickly absorbed through the leaf and reduce the likelihood of any N leaching into the ground water; (b) that the cost of foliar application of N would prevent the indiscriminate use of foliar application of N; and (c) that foliar application would give the grower wishing to obtain maximum yield a source of N not included in the calculation of the annual rate. However, the Department did not consider the additional cost of the N to the grower who heretofore had used sources of N other than foliar application for obtaining maximum yield. In making the decision to include only 50 percent of the content of the source of N from all organic sources the Department took into consideration the public policy of encouraging the use of municipal sludge and other similar products, and the fact that on an average only fifty percent of the content of the source of N would be an available source of N. Although IFAS disagreed with the Department on not counting all the N in organic sources, IFAS did agree that since it was not known how much of the N in organic sources was immediately available, the figure of 50 percent of the content of the source was as good a figure as any. Increasing the range of the annual rate of N per acre from 120 - 160 pounds to 120 - 180 pounds for grapefruit and from 120 - 200 pounds to 120 - 240 pounds for oranges came about as a result of a meeting on April 20, 1995, at Florida Citrus Mutual. Apparently, the justification for the increase was due to the recommendations contained in the Criteria for selecting a rate within the recommended rate set out in SP 169, Fertilizer Guidelines which provides: Crop load. Nitrogen requirements vary as crop load changes. Replacement of N lost by crop removal is the largest requirement for N. Groves producing low to average crops do no require high fertilizer rates. Higher rates may be considered for very productive groves. Rates for oranges up to 240 lb per acre may be considered for groves producing over 700 boxes per acre. However, rates above 200 lb per acre should be used only if there is a demonstrated need based on leaf analysis, and if optimal fertilizer placement, timing, and irrigation scheduling are employed. For grapefruit producing over 800 boxes per acre, 180 lb N may be considered. The increase in the range of the annual rate per acre of N from 120 - 180 pounds to 120 - 210 pounds for grapefruit came about as result of Dr. Koo's concern over a potassium deficiency. Most fertilizers are formulated on a 1 to 1 ratio of N and potassium, and the application of only 180 pounds of potassium could result in a potassium deficiency. The Department did not consider if citrus trees could absorb N and potassium in a ratio other than a 1 to 1 which would have allowed the proper application of potassium without increasing the annual N rate. The following language appears in SP 169, Fertilizer Guidelines, 6.2 Bearing Trees: Rates of 0.4 lb N per box for oranges land lb N per box for grapefruit were recommended previously. With good manage- ment, oranges frequently exceed 600 boxes per acre and grapefruit production is commonly above 800 boxes per acre. Use of lb N per box in groves producing over 500 boxes per acre results in application of over 200 lb N per acre. The advantage of rates above 200 lb has not been demonstrated. Economic benefits are quest- ionable, and the potential for groundwater contamination increases. A significant yield response to rates above 200 lb N per acre appears unlikely, and other management practices should be first evaluated if grove performance at 200 lb N per acre is not satisfactory. Experts, both growers and researchers, testifying for Petitioners and previous IFAS Research Bulletins on citrus fertilization, disagree with the statements: (a) that the advantage of annual rates of N above 200 pounds per acre has not been demonstrated; (b) that economic benefits of annual rates of N above 200 pounds per acre are questionable; and (c) that a significant yield response to annual rates of N above 200 pounds per acre appears unlikely. This language also appears to be in conflict the language quoted above dealing with the criteria, "Crop load". Petitioners' experts and previous IFAS Research Bulletins disagree with the conclusion that there is a basis for a higher annual rate of N per acre for oranges over grapefruit. On November 14, 1995, the Department presented the citrus Interim Measure which recommended a range of 120 - 210 pounds N per acre annual rate for grapefruit and a range of 120 - 240 pounds N per acre annual rate for oranges to the Fertilizer Technical Council. After hearing testimony on the merits of the citrus Interim Measure, the Fertilizer Technical Council voted to recommend changing the citrus Interim Measure to provide that oranges and grapefruit be treated the same with a range of annual N rate per acre of 120 - 240 pounds for both. The Commissioner of Agriculture did not accept the recommendation from the Fertilizer Technical Council. In addition to the Fertilizer Technical Council, a large segment of the citrus industry, including, but not limited to, growers and grower organizations, expressed their approval of using the same range of annual rates of 120 - 240 pounds of N per acre for both oranges and grapefruit. However, the Department had already compromised by increasing the maximum annual rate of nitrogen per acre for grapefruit by 30 pounds above the maximum annual rate suggested by IFAS in SP 169, while leaving the maximum annual rate of nitrogen per acre for oranges at 240 pounds, the maximum rate suggested by IFAS in SP 169.
The Issue Whether Southern violated the terms of the contract, whether the breach caused any damage to CLG; and if so, what the amount of the damages were.
Findings Of Fact Southern is a licensed citrus fruit dealer. CLG is the corporate owner of a citrus grove located generally south of Highway 54, east of Livingston Avenue, and west of Cyprus Creek. This grove contains citrus fruit to include Robinson tangerines, Dancy tangerines, Murcott tangerines, Hamlin oranges, Navel oranges, and Pineapple oranges, together with some seedling orange trees. Southern and CLG entered into a contract (Exhibit 1) for the picking, hauling and marketing of the citrus fruit. Pursuant to the terms of this contract, Southern purchased the entire citrus crop in the grove. CLG alleges breach of that contract and filed a timely complaint with the Department pursuant to Section 601.66, Florida Statutes. Under the provisions of this contract, Robinson tangerines were picked on October 27, 28 and 29, 1976. Navel oranges were picked on December 5 and 6, 1976. Both the Robinson tangerines and Navel oranges were marketed as fresh fruit. Picking of the orange crop for the juice market commenced on January 17, 1977. Oranges for this market were picked on January 17, 19, 21, 22 and 23. Picking of the orange crop for the juice market recommenced on February 21 and contained on February 22, 23, 24, 25 and March 3, 1977. In addition, Navel oranges were picked for the juice market on January 28, 29 and February 1, 1977. The contract between CLG and Southern provides for the sale of all citrus in the grove described above by CLG to Southern. The price to be paid was set forth as follows: ORANGES APPROX. BOXES PRICE PER 90 LB. WEIGHT BOX Early & Midseason 8,000 1/ 35 /# of Solids + (100 percent) Rise in Market When Picked Less 60 + Picking Per Box Valencia 8,000 GRAPEFRUIT APPROX. BOXES PRICE PER 85 LB. WEIGHT BOX M.S. or Duncan Fresh Fruit-Robins Tang; Dancey Tang; Navels; Murcotts; Tangelos-ETC, Red or Pink Market Price When Picked Other The provisions regarding the time of performance of the contract are as follows: All fruit contracted to be purchased shall be picked as and when buyer is ready, the picking to be completed on or before E & M - Jan. 15 Val. - May 30, 1977, 1/ provided the Buyer shall not be hampered or prevented from picking or shipping the same within said period by Act of God, strikes, railroad or other embargoes, quarantine or any other condition, manner or thing, beyond its control, in which case the time for gathering and shipping said fruit shall be extended a length of time equal to the period of hampering or prevention caused as aforesaid. 1/ Although Southern had been urged by Potts to commence picking in the grove, Southern delayed picking all the fruit until after January 15, 1977. A severe freeze occurred on January 19, 20, and 21, 1977. As a result of this freeze, an embargo was established on the shipment of fresh fruit from Florida. Subsequent to the freeze, Southern re-entered the grove and picked some fruit as noted above, but thereafter discontinued picking. Southern did not notify CLG of its intention to abandon the contract until after May 10, 1977. The date of last activity by Southern, March 3, 1977, when 40 boxes of oranges were picked. Southern does not controvert nor raise any defense to the allegation that it failed to pick early and midseason juice oranges by January 15, 1977, as required by the contract. Southern does controvert the quantity of juice oranges lost and thereby the amount of money damages CLG alleges to have suffered as a result of Southern's failure to pick the juice oranges by January 15, 1977. Various estimates concerning the quantity of juice oranges within the grove were presented. The Hearing Officer finds that there were 2,536 Hamlin orange trees, 366 seedling orange trees, 561 Pineapple orange trees within the grove. (See Exhibit 8) The Hearing Officer further finds that there were 4.5 boxes of oranges on each tree, except seedling trees, the fruit from which is not included in these computations. The Hearing Officer finds that there were 1,080 Naval orange trees within the grove bearing 4.5 boxes per tree. The total orange crop by variety within the grove was 11,412 boxes of Hamlin oranges, 2,524 boxes of Pineapple oranges, and 4,860 boxes of Navel oranges. There were a total of 5,899 boxes of Hamlin oranges picked, and a total of 1,381 Navel oranges picked (1,041 boxes as juice oranges and 840 boxes as fresh fruit) . The portion of the orange crop not picked by variety was 5,513 boxes Hamlin oranges, 2,524 boxes Pineapple oranges, and 2,979 boxes of Navel oranges. The total number of boxes not picked and lost excluding the Navel oranges is 8,037 boxes. The weighted average of pound solid from the fruit picked before and immediately after the freeze is 4.9 pound solid per box. At 35 per pound solid, $13,783.46 would have been the gross proceeds from the sale of the fruit, Less $1.25 per box for pick and haul ($10,046.25) the net loss to CLG was $3,737.21 on the round orange crop excluding the Navel oranges. The Navel oranges were designated a portion of the fresh fruit crop. The fresh fruit price of Navels was $1.50 per box. The loss of the Navel orange crop box at that price was $4,468.50. The total loss to the orange crop was $8,205.71. There were 1,027 Robinson tangerine trees, 1,302 Dancy tangerine trees, and 1,400 Murcott tangerine trees in the grove. Again, varying estimates of the quantity of tangerines within the grove were presented. The Hearing Officer finds that there were 4.5 boxes of tangerines on the Dancy tangerine trees and 4 boxes on the Robinson and Murcott trees. The total number of boxes of tangerines in the grove by variety were 5,859 boxes of Dancy tangerines, 4,108 boxes of Robinson tangerines, and 5,600 boxes of Murcott tangerines. The record reveals that 1,077 boxes of Robinson tangerines were picked. The record also reveals that there was no market existing for Murcott tangerines. The total number of boxes of tangerines for which a market existed and which were not picked were, by variety, 5,859 boxes of Dancy tangerines, and 3,031 boxes of Robinson tangerines. The Dancy tangerines matured around Christmas time but Southern elected to delay picking them. The weighted average price per box of tangerines based on those Robinson tangerines which were sold was $2.42 per box. The total cash value of the tangerine crop for which there was a market and were not was $21,513.80. The total damages suffered by CLG as the result of Southern's failure to pick the fruit by January 15, 1977, as provided in the contract, was $29,719.51.
Recommendation Based upon the Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Southern Citrus Corporation be required to pay County Line Groves the amount of $29,719.51 within 90 days together with interest from the date of this order at 5 percent per annum. DONE and ORDERED this 27th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issues presented for decision in this case are whether Respondent violated Section 760.10, Florida Statutes, as alleged, by discriminating against Petitioner in her employment on the basis of her sex and her condition of pregnancy, and, if that violation occurred, what relief is appropriate.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Petitioner, Minchi Torres, was 34 years old at the time of the hearing. She is married and has three children. In January 1995, she began working for Garden Fresh Restaurant Corporation, d/b/a Sweet Tomatoes Restaurant, a restaurant chain with its main corporate offices in California. Sweet Tomatoes operates restaurants in Brandon, Carrollwood, and Sarasota, Florida. Ms. Torres began her employment as a manager trainee in the Carrollwood restaurant. After completing her training, Ms. Torres transferred to the Brandon restaurant and began work as a service manager late in the summer of 1995. The service manager in a Sweet Tomatoes restaurant supervises the "front of the house": the area where guests are seated and the salad bar. After about a year and a half, Ms. Torres was promoted to production manager. The production manager supervises the "back of the house," i.e., the kitchen area. The production manager also performs inventories, orders food and supplies for the restaurant, and monitors expenses. While working as production manager in the Brandon store, Ms. Torres became pregnant. She had complications, and her physician allowed her to undertake only "light duty," which was inconsistent with her position as production manager. Ms. Torres was placed on unpaid maternity leave, effective April 1, 1997. During her maternity leave, Ms. Torres approached Robert Wilson, the local director of operations for the Sweet Tomatoes chain. She told Mr. Wilson that she needed income and asked if there was anything she could do with her limited capabilities. At the time, Mr. Wilson had an opening for a "technical shopper," a person who evaluates the restaurants for service, quality, and cleanliness. This was a contractual position, paid on an hourly basis. Mr. Wilson offered Ms. Torres the position, and she accepted. Ms. Torres worked part-time in the technical shopper position from April 1997 until shortly before she gave birth to her daughter on July 1, 1997. She then reverted to unpaid maternity leave. She requested and was granted an extension of the maternity leave and returned to work on September 13, 1997. She reported to the Tampa restaurant and was promoted to assistant general manager. Ms. Torres remained an assistant general manager in Tampa until September 1998, when she was promoted to general manager of the Brandon restaurant. In late 1999, Ms. Torres again became pregnant. She developed problems with this pregnancy in November 1999. She expressed to Mr. Wilson concern that she might lose the baby. Ms. Torres requested that she be relieved of her general manager's duty and placed in the less arduous position of service manager, at a different restaurant. Mr. Wilson accommodated her request, moving her to a service manager's position at the Carrollwood restaurant, but leaving her salary at a general manager's level. Ms. Torres' health problems kept her out of work from late November until December 27, 1999. Mr. Wilson testified that from November 15, 1999, through March 8, 2000, Ms. Torres was able to work a total of approximately four weeks. On February 9, 2000, Ms. Torres was at work when she began to have contractions. She left work and went directly to her physician's office. The physician determined that Ms. Torres required bed rest while he monitored her progress. She remained off work for the remainder of February. Ms. Torres returned to work on March 4, 2000, pursuant to a written release signed by her physician. The release specified that Ms. Torres should spend "limited hours on [her] feet," and that her work day should be limited to 6 hours of "limited activity" or "light duty." The job description for Ms. Torres' position as service manager called for a minimum shift of 10 hours, five to eight hours of which are spent standing or walking. Ms. Torres gave the release to the general manager of the Carrollwood restaurant, who relayed it to Mr. Wilson. The general manager told Ms. Torres that she would need to have a meeting with Mr. Wilson before resuming her duties. Ms. Torres met with Mr. Wilson at 10:30 a.m. on March 3, 2000. She requested light duty with limited time on her feet, consistent with her medical release. She asked if she could perform the technical shopping job she had done during her previous pregnancy. She also suggested performing marketing and auditing for the company or traveling to the various restaurants and updating their files. Mr. Wilson responded that none of these positions were available. He told Ms. Torres that accommodating her would require him to create a position for her, or to displace people who were already performing the jobs, and that he could not do either one. Mr. Wilson also noted that none of the jobs suggested by Ms. Torres were consistent with her actual position as a service manager in a restaurant. At the hearing, Ms. Torres testified that, though she requested a change in her duties, she also told Mr. Wilson that she was capable of performing as a service manager if that was her only option. She estimated that the job required her to spend three to four hours on her feet and that she could delegate duties and sit down occasionally. Mr. Wilson told her that the duties of a service manager were inconsistent with the medical release calling for "light duty." At the hearing, Mr. Wilson testified that he believed Ms. Torres could not perform the functions of a service manager. He stated that he was "torn," because Ms. Torres wanted to work, but he had nothing for her that did not conflict with the terms of her medical release. Mr. Wilson consulted Wendy Jewell, at that time the employee relations manager for Sweet Tomatoes. Ms. Jewell testified that, after Mr. Wilson apprised her of the situation, she investigated Ms. Torres' request. She independently confirmed that there were no openings for the type of light duty requested by Ms. Torres. She also consulted the company's vice-president for human resources and in-house legal counsel. She discussed the matter with Ms. Torres and told her that accommodating her request would mean displacing someone already in a job or creating a new job, which Sweet Tomatoes could not do. Ms. Jewell, in consultation with Sweet Tomatoes' director of employee benefits, made the decision not to accommodate Ms. Torres' request for light duty and to place Ms. Torres on unpaid leave under federal Family Medical Leave Act ("FMLA"). Ms. Jewell testified that this decision was consistent with the company's practice regarding employees who are unable to perform the essential elements of their jobs. Ms. Jewell pointed out that this decision was consistent with the company's actions toward Ms. Torres in 1997, when she was also placed on unpaid maternity leave. Ms. Jewell stated that the only distinction was that in 1997 the company happened to have an opening for a technical shopper, paid by the hour on a contractual basis, and that in 2000 there was no such opening. Ms. Torres was placed on FMLA leave, effective February 15, 2000, and continuing until April 31, 2000. She requested and was granted an extension of her leave until September 1, 2000. She delivered her child on June 29, 2000. Ms. Torres returned to work on September 11, 2000, as a production manager. She was dismissed by Sweet Tomatoes in November 2000, for reasons unrelated to her pregnancy. Ms. Torres claimed that Sweet Tomatoes' failure to accommodate her situation in 2000 was discriminatory because the company had made such an accommodation early in 1999 for a male employee, James Smith. In January 1999, James Smith was production manager in the Brandon restaurant. Ms. Torres was the general manager and his immediate supervisor. Early in January, Mr. Smith fell through the ceiling of his attic at home. He suffered four fractured vertebrae and two herniated discs. He was off work for virtually the entire month of January, taking either vacation days or sick leave. At some point in January, he attempted to return to work, but was sent home by Mr. Wilson because he was in obvious pain. Mr. Smith returned to work with a "light duty" physician's release on February 7. Mr. Smith's light duty release specified that he perform no heavy lifting and work for a period of six to eight hours. He followed these instructions until March 8, 1999, when he was transferred to the Sarasota restaurant as general manager. At that time, he resumed a full work schedule without restrictions. Ms. Torres testified that during the period of Mr. Smith's light duty restriction, he was unable to perform his duties as production manager. She stated Mr. Wilson asked her to "see what we can do for him," meaning that she should find work that Mr. Smith could do consistent with his physician's release. She had Mr. Smith perform office work, such as preparing schedules and placing orders. Ms. Torres testified that Mr. Smith worked about five hours per day during this period. Mr. Smith was allowed to take time off during the work day to attend physical therapy. Mr. Wilson testified that he was unaware that Ms. Torres had extended an accommodation to Mr. Smith and was unaware whether Ms. Torres had consulted the human resources department of Sweet Tomatoes about allowing Mr. Smith to work while injured. He did not recall telling Ms. Torres to make work for Mr. Smith. Mr. Wilson testified that the only accommodation he made for Mr. Smith was to allow him to attend physical therapy, because it was available only during working hours. Mr. Wilson testified that he knew Mr. Smith had been injured in a fall, but that he became aware of the extent of Mr. Smith's injuries only when he came to the restaurant and saw Mr. Smith attempting to work, in obvious pain. Mr. Wilson recalled that this occurred on or about January 21. Mr. Wilson testified that he ordered Mr. Smith to seek further medical attention and to obtain a medical release before returning to work. Mr. Smith's testimony corroborated Mr. Wilson's version of this event. Ms. Torres' testimony on the question of Mr. Smith's treatment by Sweet Tomatoes is not entirely reliable. She changed her testimony as to when and how long Mr. Smith was on light duty. Her testimony was inconsistent as to whether Mr. Wilson asked her if she had work that Mr. Smith could do or whether Mr. Wilson ordered her to create work for Mr. Smith. Mr. Wilson's version of events was more consistent with the documentary evidence and is therefore credited. Even if Ms. Torres' testimony were credited on this point, it would not establish that Mr. Smith enjoyed an accommodation denied to Ms. Torres. Mr. Smith's period of light duty lasted for a period of three to four weeks, whereas Ms. Torres would have required light duty from March 2000 until the completion of her pregnancy, a period of approximately four months. For that reason, the two situations are not comparable. In summary, the evidence established that Sweet Tomatoes was able to accommodate Ms. Torres' limitations in 1997, because there happened to be an opening for a technical shopper. The evidence established that Sweet Tomatoes made a good faith effort to accommodate Ms. Torres in 2000, but that no work was available and that Sweet Tomatoes reasonably declined to create a position or to displace other workers.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint and Petition for Relief. DONE AND ENTERED this 20th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON 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 20th day of February, 2001. COPIES FURNISHED: Donald E. Cope, Esquire Fine, Boggs, Cope & Perkins, LLP 225 South Cabrillo Highway Suite B-200 Half Moon Bay, California 94019 Scott Charlton, Esquire Clark, Charlton, Martino & Borders, P.A. 3407 West Kennedy Boulevard Post Office Box 24268 Tampa, Florida 33623-4268 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether, under the provisions of sections 604.15 - 604.34, Florida Statutes, Lester Towell Distributors, Inc., is entitled to recover $2,098 for agricultural products ordered by and delivered to VBJ Packing, Inc
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made. Lester Towell is a dealer in Florida-grown agricultural products. VBJ is a dealer in Florida-grown agricultural products. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of extra-large green bell peppers. Lester Towell delivered 200 boxes of such peppers to VBJ on May 23, 1995. To fill this order, Lester Towell purchased 63 boxes of peppers from producer Ott Farms, Inc., in Estero, Florida, and 137 boxes from producer Thomas Produce, in Boca Raton, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of yellow corn. Lester Towell delivered 100 boxes of such corn to VBJ on May 24, 1995. To fill this order, Lester Towell purchased 100 boxes of corn from producer Wilkinson-Cooper, in Belle Glade, Florida. Lester Towell did not act as agent for this producer; it purchased the products outright. On May 24, 1995, VBJ placed an order with Lester Towell to purchase a quantity of jalapeno peppers, white corn, and red radishes. Lester Towell delivered two boxes of jalapeno peppers, 26 boxes of white corn, and 20 boxes of red radishes to VBJ on May 25, 1995. To fill this order, Lester Towell purchased 2 boxes of jalapeno peppers from producer Ott Farms, Inc., in Estero, Florida, and 26 boxes of white corn and 20 boxes of red radishes from producer American Growers in Belle Glade, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. Lester Towell filed its complaint with the Department of Agriculture and Consumer Services ("Department") pursuant to the provisions of section 604.21(1), Florida Statutes, because VBJ did not pay for the products identified above. There is, however, no evidence to establish that Lester Towell was a producer or the agent or representative of a producer with respect to the products for which it seeks payment. It is, therefore, not a "person" entitled to file a complaint with the Department against VBJ and its surety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the complaint of Lester Towell Distributors, Inc. DONE AND ENTERED this 3nd day of July 1996 in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July 1996
The Issue Does Respondent Horizon Produce Sales, Inc. (Horizon) owe Petitioner Richard Sapp, d/b/a Sapp Farms (Sapp Farms) $5,484.50 as alleged in the Amended Complaint filed herein by Sapp Farms?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At times pertinent to this proceeding, Sapp Farms was a "producer" as defined in Section 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Tomatoes come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. Horizon is a Florida Corporation, owned entirely by Donald E. Hinton, and located in Sydney, Florida. At times pertinent to this proceeding, Horizon was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Horizon was issued License Number 10584, supported by Bond Number 58 84 19 in the amount of $16,000 written by Gulf Life Insurance Company, as Surety, with an inception date of September 26, 1998, and an expiration date of September 25, 1999. By Invoice numbered 1262, Sapp Farms’ Exhibit numbered 6, dated June 18, 1999, with a shipping date of June 16, 1999, Sapp Farms sold and delivered to Horizon several varieties and sizes of tomatoes in 25-pound cartons at an agreed-upon price of $9.00 per 25-pound carton for 267 cartons and $8.00 per 25-pound carton for 104 cartons for a total amount of $3,235.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. By check dated July 3, 1999, Horizon paid Sapp Farms $1,415.00 on these tomatoes leaving a balance owing of $1,820.00. By Invoice numbered 1263, Sapp Farms’ Exhibit numbered 10, dated June 22, 1999, with a shipping date of June 22, 1999, Sapp Farms sold and delivered to Horizon 122 25-pound cartons of extra large pink tomatoes at $8.00 per 25-pound carton, 51 25- pound cartons of large pink tomatoes at $8.00 per 25-pound carton, and 296 25-pound cartons of 125-150 count Roma tomatoes at $8.00 per 25-pound carton for a total invoiced price of $3,752.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for these tomatoes. By Invoice numbered 1272, Sapp Farms’ Exhibit numbered 15, dated June 24, 1999, with a shipping date of June 23, 1999, Sapp Farms sold and delivered to Horizon 70 25-pound cartons of extra large tomatoes at an agreed upon price of $8.50 per 25- pound carton for a total price of $595.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for those tomatoes. Sapp Farms agrees that it owes Horizon $682.50 in freight charges. See Sapp Farms’ Exhibit numbered 12 and the Amended Complaint filed by Sapp Farms. Horizon contends that it did not agree to purchase the tomatoes at an agreed upon price per 25-pound carton but agreed to "work" the tomatoes with Horizon’s customers and to pay Sapp Farms based on the price received for the tomatoes from its customers less any freight charges, etc. Additionally, Horizon contends that it made contact or attempted to make contact with Sapp Farms regarding each of the loads and was advised, except possibly on one load, by either Mark Davis or Richard Sapp that a federal inspection was not necessary and to "work" the tomatoes as best Horizon could. The more credible evidence is that neither Mark Davis nor Richard Sapp was timely advised concerning the alleged condition of the tomatoes. Furthermore, there is insufficient evidence to show that the condition of the tomatoes when delivered to Horizon’s customers had deteriorated to a point that resulted in rejection by Horizon’s customers. The more credible evidence shows that neither Mark Davis nor Richard Sapp advised Horizon that there was no need for a federal inspection or that Horizon could "work" the tomatoes with Horizon’s customers. The more credible evidence is that Horizon agreed to purchase Sapp Farms’ tomatoes at an agreed-upon price and that upon those tomatoes being loaded on Horizon’s truck, Horizon was responsible to Sapp Farms for the agreed-upon price. Sapp Farms timely filed its Amended Complaint in accordance with Section 604.21(1), Florida Statutes, and Horizon owes Sapp Farms for tomatoes purchased from Sapp Farms on Invoice numbered 1262, 1263, and 1272 less the partial payment on Invoice numbered 1262 of $1,415 and freight charges of $682.50 for total amount due of $5,484.50.
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 granting Sapp Farms relief by ordering Horizon Produce Sales, Inc. to pay Sapp Farms the sum of $5,484.50. DONE AND ENTERED this 24th day of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2000. COPIES FURNISHED: Honorable Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Sapp Sapp Farms 4720 Gallagher Road Plant City, Florida 33565 Donald E. Hinton, Qualified Representative President, Horizon Produce Sales, Inc. 1839 Dover Road, North Post Office Box 70 Sydney, Florida 33587 Michael E. Riley, Esquire Rumberger, Kirk and Caldwell A Professional Association Post Office Box 1050 Tallahassee, Florida 32302 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether Respondents are indebted to Petitioner for agricultural products and, if so, the amount of the indebtedness.
Findings Of Fact Petitioner delivered to Respondent, Fresh Pick Farms, Inc., (Fresh Pick) a total of 932 bushels of green beans on November 21 and 22, 1992. These beans were delivered and received with the agreement that Fresh Pick would attempt to sell the beans on a consignment basis in the wholesale market. At the times pertinent to this proceeding, communication in South Florida was limited because of the aftermath of Hurricane Andrew. Telephone lines were down, packing houses and storage facilities had been destroyed, and many businesses were not operating. The packer that Petitioner customarily used was out of business. Fresh Pick was operating out of temporary facilities. Lewis Walker, the president of Fresh Pick, had inspected Petitioner's beans on November 18, 1992. Mr. Walker advised Petitioner to have his beans harvested no later than November 20, 1992. This advice was based on the condition of the beans, on the fact that there was a great deal of rain in the area, and the fact that markets slow down and prices drop as Thanksgiving approaches. The beans delivered to Fresh Pick on November 21 and 22, 1992, were damaged due to the wet weather. These beans were of such poor quality that they could not be sold given the marketing conditions. Fresh Pick made every reasonable effort to find a market for Petitioner's beans without success. After it became apparent to Fresh Pick that it would be unable to sell Petitioner's beans, employees of Fresh Pick made efforts to locate Petitioner, explain to him why the beans could not be sold, and ask him for instructions. Petitioner could not be located despite good faith efforts by Fresh Pick employees to do so. Rather than dump the unsold beans, Fresh Pick gave the beans to a charity referred to as Food Share. The disposition of the beans was consistent with industry practices in South Florida.
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 in this case dismissing the Petitioner's complaint and denying the relief requested by the Petitioner. DONE AND ENTERED this 28th day of December, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1993. COPIES FURNISHED: Mr. Harvey Johnson 538 Northwest 13th Street Florida City, Florida 33304 J. James Donnellan, III, Esquire 1900 Brickell Avenue Miami, Florida 33129 Legal Department Florida Farm Bureau Mutual Insurance Company 5700 Southwest 34th Street Gainesville, Florida 32608 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
