The Issue Whether Respondent, Debruyn Produce Co. owes Petitioner, Florida Farm Management Inc. the sum of $4,846.00 for watermelons shipped by Petitioner and handled by Respondent as Petitioner's agent during the period from May 30, 1989 through July 5, 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant fact are found: At all times material to this proceeding, Petitioner, Florida Farm Management, Inc. was a "producer" of agricultural products in the state of Florida as that term is defined in Section 605.15(5), Florida Statutes. At all times material to this proceeding, Respondent, Debruyn Produce Co. was a licensed "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes. Respondent was issued license number 596 by the Department, and bonded by Peerless Insurance Company (Peerless) for the sum of $47,000.00, bond number R2-27-13, with an effective date of November 13, 1988 and a termination date of November 13, 1989. At all times material to this proceeding, Debruyn was authorized to do business in the state of Florida. Around the last week of April, 1989, Petitioner and Respondent orally agreed, among other things, for Petitioner to produce certain quantities of Mickey Lee Watermelons and for Respondent to market those watermelons. This oral agreement was reduced to writing, executed by the Respondent and sent to Petitioner to execute. Petitioner, after making certain changes in the agreement and initialing those changes, executed the agreement and returned it to the Respondent. It is not clear if Respondent agreed to the change since they were not initialed by Respondent. However, the parties appeared to operate under this agreement as modified by Petitioner. Under the agreement, Respondent was to advance monies for harvesting and packing, furnish containers and labels for packing and agreed to pay certain chemical bills. Petitioner was to reimburse any monies advanced by the Respondent for (a) harvesting or packing; (b) containers and labels and; (c) chemicals, from the proceeds of the sale of watermelons. Any balance owed Petitioner for watermelons was to be paid within 30 days. Additionally, Respondent was to receive a commission of 8% of net FOB, except 30 cent maximum on sales of less than $6.25 per carton and 40 cents per carton for melons delivered on contract to National Grocers Co. The relationship of the parties was to be that of producer and sales agent. Before entering into the agreement with Respondent, Petitioner had agreed to furnish National Grocers Co. four shipments of melons totalling 8,000 cartons. Respondent agreed to service that agreement. Although Petitioner's accounts receivable ledger shows a credit of $6,007.13 for chemicals paid for by Respondent, the parties agreed that only $3,684.68 was expended by Respondent for chemicals and that Respondent should receive credit for that amount. The parties agree that Respondent advanced a total of $18,960.00 for harvesting and packing and the Respondent should be given credit for this amount. The parties agree that Respondent paid to Petitioner the sum of $12,439.32 and the Respondent should be given credit for this amount. Cartons and pads for packing the melons were shipped on two occasions and the total sum paid by Respondent for those cartons and pads was $17,225.00. The cartons were printed with the logo of Respondent on one side and the logo of Petitioner on the other side. Petitioner agrees that the number of cartons and pads used by him came to $12,463.78 and the Respondent should be given credit for that amount. All cartons and pads in the sum of $17,255.00 were delivered to Petitioner's farm. The amount in dispute for the remainder of the carton is $4,762.22. The Respondent was responsible under the agreement to furnish cartons and pads (containers). Respondent ordered the cartons and pads after determining from Petitioner the number needed. There were two orders for cartons and pads placed and delivered. There was an over supply of cartons and pads delivered to Petitioner. This over supply was the result of a miscommunication between Petitioner and Respondent as to the amount of cartons and pads needed. Petitioner agrees that all of the cartons and pads were delivered to his farm but that he was unable to protect these cartons and pads from the weather. However, Petitioner advised Respondent that the remainder of the carton and pads could be picked up at his farm. Respondent contended that he was denied access to the farm and was unable to pick up the remainder of the cartons and pads and, therefore, they were ruined by exposure to the weather. While there may have been times when Respondent attempted to retrieve the carton and Petitioner was unavailable, there is insufficient evidence to show that Respondent was intentionally denied access to Petitioner's farm to retrieve the cartons. Clearly, the ordering, purchasing and storing of the cartons and pads was a joint effort and both Petitioner and Respondent bear that responsibility. Therefore, the Petitioner is responsible for one-half of the difference between the total cost of the cartons ($17,225.00) and the amount used by Petitioner ($12,462.78) which is $2,381.11 and Respondent should be given credit for this amount. Petitioner's accounts receivable ledger shows that Petitioner shipped melons to Respondent in the amount of $54,715.63, after adjustments for complaints and commission. Respondent's accounts payable ledger shows receiving melons from Petitioner in the amount of $51,483.00, after adjustments for complaints and commission. The difference in the two ledgers in the amount of is accounted for as follows: Invoice No. 210066 - Customer paid $2.00 per carton less on 93 cartons, Petitioner agreed to the reduction. However, Petitioner's account is in error by 9 cents which reduces total amount to $54,715.54. Invoice No. 210067 - Respondent paid for more melons than Petitioner shows were shipped - $39.60. Invoice No. 210068 - difference in calculation of commission $13.32 Invoice No. 2100105 - difference due to Petitioner not agreeing to adjustment in price taken by customer. $2,886.00 Invoice No. 2100239 - difference of $108.04 due to Respondent allowing customer adjustment which Petitioner did not agree to. Invoice No. 2100267 - difference of $210.00 for same reason stated in (e) above. Petitioner should be allowed the difference due to miscalculation of commission in invoice Nos. 210068, 2100134 and 2100160 in the sum of $68.10 since Petitioner's calculation was in accordance with the agreement. There was no dispute as to the condition of melons being as contracted for upon receipt. There was insufficient evidence to establish that the melons shipped under invoice Nos. 2100105, 2100239 and 2100267 by Petitioner were not of the size and number contracted for by the customer. As to invoice Nos. 2100239 and 2100267, the adjustments were made after the fact without contacting Petitioner. As to invoice No. 2100105, the Petitioner shipped the melons to Russo Farms, Inc., Vineland, N.J., as per Respondent's order who then unloaded the melons and reloaded on Russo's truck and shipped to another buyer. It was this buyer's complaint that resulted in Russo demanding an adjustment. Respondent granted such adjustment without approval of the Petitioner. Although Respondent did contact Petitioner in regard to this complaint, Petitioner would not authorize a federal inspection, which he could have, but instead, requested that Respondent obtain an independent verification of the basis of the complaint. Instead of an independent verification of the complaint, Respondent had Russo evaluate the load as to size of melons and number of boxes. No complaint was made as to condition of the melons. Petitioner would not accept Russo's evaluation because based on the total weight of the melons shipped, as indicated by the freight invoice, Russo's evaluation could not have been correct. The only evidence presented by Respondent as to size and number of melon in regard to invoice Nos. 2100105, 2100239 and 2100267 was hearsay unsupported by any substantial competent evidence. Petitioner should be allowed the difference in invoice Nos. 2100105, 2100239 and 2100267 for a sum total of $3,204.00. No adjustment should be made for the differences in invoice No. 210067 other than the 9 cent error made by Petitioner because this amount is not used in Petitioner's calculation of the gross amount due for melons shipped. Therefore, the sum total of all melons sold and shipped is $54,715.63 - 0.09 = $54,715.54. The amount due Petitioner is calculated as follows: Sum total of melons shipped with proper adjustments $54,715.54 Subtract from that the following: Chemicals 3,684.68 Advances 18,960.00 Cost of Cartons $12,462.78 + 2,381.11 14,773.89 Payment 12,439.32 Subtotal of Deductions 49,857.89 Difference and amount owed $4,857.65
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent Debruyn Produce Company, Inc. be ordered to pay the Petitioner Florida Farm Management, Inc. the sum of $4,857.65. It is further RECOMMENDED that if Respondent Debruyn Produce Company, Inc. fails to timely pay Petitioner, Florida Farm Management, Inc. as ordered, the Respondent, Peerless Insurance Company be ordered to pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse the Petitioners in accordance with Section 604.21, Florida Statutes. DONE and ORDERED this 23rd day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner. 1. Not a finding of fact but the issue in this case. 2.-3. Adopted in findings of fact 2 and 4. Adopted in finding of fact 8. Adopted in finding of fact 4. First sentence adopted in finding of fact 7. The balance is not material but see findings of fact 16-23. Not material but see findings of fact 16-23. Rejected as not being supported by substantial competent evidence in the record but see findings of fact 9-14. Adopted but modified in findings of fact 21 and 22. 10(A), 10(C)(1), 10(E), and 10(F) adopted in finding of fact 24. 10(C)(2)(3), 10(d) rejected as not being supported by substantial competent evidence in the record. See findings of fact 5, ,7, 9 - 15. Rulings on Proposed Findings of Fact Submitted by Respondent. 1.-7. Adopted in findings of fact 2, 1, 4, 4, 4, 6, and 7 respectively as modified. Not material. This involved invoice Nos. 210066 and 210067 and adjustment were agreed to be Petitioner and is not part of this dispute. See Petitioner's accounts receivable ledger, Petitioner's Exhibit 1. Adopted in finding of fact 21 as modified. Rejected as not being supported by substantial competent evidence in the record. Not material. This involved invoice No. 2100160 and adjustments were granted by Petitioner and is not part of this dispute. See Petitioner's Exhibit 1. 12.-13.Adopted in finding of fact 21 as modified. Adopted in finding of fact 5, and 9-15 as clarified. Rejected as not supported by substantial competent evidence in the record but see findings of fact 9-15. Adopted in finding of fact 13 as clarified. Adopted in finding of fact 23 as clarified but see findings of fact 9-22.
Findings Of Fact Liberty National Fire Insurance Company (hereinafter referred to as "Liberty National") is a licensed foreign insurer in the State of Florida and subject to the jurisdiction and regulation of the Florida Department of Insurance (hereinafter referred to as "Department"), pursuant to Chapter 624, Florida Statutes. Liberty National is headquartered in Birmingham, Alabama, and writes business in 45 states, in direct personal lines business, direct commercial lines business, and almost an equal amount of assumed reinsurance. Prior to Hurricane Andrew, as of August 1, 1992, Liberty National had approximately 40,000 personal line policies in the State of Florida. This figure includes all personal lines; the homeowners, preferred homeowners, special homeowners, industrial fire, business resale, and mobile homes. In 1987 Liberty National started writing mobile home programs with the Raymond Patterson Agency as their managing general agent. On May 19, 1993, the Department of Insurance promulgated emergency Rule 4 ER93-18. Subsection (3) imposed a 90 day moratorium on cancellations and nonrenewals of personal lines residential property insurance on the basis of hurricane claims. Subsection (4) provided: "This rule shall not apply if the insurer can affirmatively demonstrate to the Department that the proposed cancellation or nonrenewal is necessary for the insurer to avoid an unreasonable risk of insolvency." In direct response to the devastation in the wake of Hurricane Andrew and the resulting nonrenewals and cancellations of homeowner coverage by insurers, at Special Session B (1993) of the Florida Legislature, Section 1 of Chapter 93-401, Laws of Florida (HB 89-B) was passed which provided for a "moratorium on cancellation and nonrenewal of residential property coverage." This "moratorium law" was signed by the Governor on June 8, 1993, and by its terms was effective from May 19, 1993, until November 14, 1993. Subsection (1) of the moratorium law sets forth the "Findings and Purpose" of the Legislature in passing the bill: FINDINGS AND PURPOSE. -- The Legislature finds that property insurers, as a condition of doing business in this state, have a responsibility to contribute to an orderly market for property insurance and that there is a compelling state interest in maintaining an orderly market for property insurance. . . . The Legislature further finds that the massive cancellations and nonrenewals announced, proposed, or contemplated by certain insurers constitute a significant danger to the public health, safety, and welfare, especially in the context of a new hurricane season, and destabilize the insurance market. In furtherance of the overwhelming public necessity for an orderly market for property insurance, it is the intent of the Legislature to impose, for a limited time, a moratorium on cancellation or nonrenewal of personal lines residential property insurance policies. Subsection (3) describes the nature of the moratorium imposed by the Legislature: (3) MORATORIUM IMPOSED. -- Effective May 19, 1993, no insurer authorized to transact insurance in this state shall, until the expiration of this section pursuant to subsection (6), cancel or nonrenew any personal lines property insurance policy in this state, or issue any notice of cancellation or nonrenewal, on the basis of risk of hurricane claims. All cancellations or nonrenewals must be substantiated by underwriting rules filed with and accepted for use by the Department of Insurance, unless inconsistent with the provisions of this section. The Department of Insurance is hereby granted all necessary power to carry out the provisions of this section. On June 4, 1993, Respondent, Department of Insurance (DOI) filed 4ER93- 20 (published in the Florida Administrative Weekly, Vol. 19, No. 24, pp. 3398- 3400), indicating that the laws implemented included the moratorium law, Subsections 626.9541(1)(a)(d)(x) and Section 627.4133 of the Florida Insurance Code. The Emergency rule 4ER93-20 is entitled "Procedures For Applying for Moratorium Exemption and Required Insurer Corrective Action on Previous Notices of Cancellation or Nonrenewal" and indicates as follows: The purpose of this rule is to enumerate the procedures required for an insurer to be granted an exemption to that rule [the Department moratorium Rule 4ER93-18]; and to specify corrective action required of any insurer which has sent out a notice of cancellation or nonrenewal which is prohibited under the moratorium. On June 15, 1993, Liberty National submitted a request for an exemption from the Moratorium. In the request for partial exemption, Liberty National requested the nonrenewal of approximately 6,000 of 17,000 mobile home policies on one program only, which were written through Raymond Patterson Agency of Fort Lauderdale. The basis for Liberty National's request for exemption, was that subsequent to Hurricane Andrew they incurred problems with their ceded reinsurance program. Liberty National alleges that the problem with the reinsurance was that Liberty National was only able to secure foreign reinsurance and no domestic reinsurance. Liberty National is continuously trying to obtain domestic reinsurance. Effective July 1993 Liberty National's reinsurance provides caps for each county based on a Tier System dividing the counties in Florida into Tier 1, Tier 2, and Tier 3 counties. The cap for Tier 1 counties is $7,500,000; Tier 2 is $15,000,000; and Tier 3 is $25,000,000. A chart was submitted to the department as part of Liberty National's exemption application with the total exposure that Liberty National has in each county. Liberty National had also contracted with a firm, Applied Insurance Research, which does windstorm analysis for various companies, to develop loss scenarios, and this information was submitted to the Department as part of the application. On August 12, 1993, Liberty National submitted additional information to the Department, pursuant to their exemption request. In the material Liberty National reported surplus as of December 31, 1992, in the amount of $66,798,297, and a contribution by Tourchmark of $50,000,000 additional capital on July 16, 1993. On August 19, 1993, the Department held a public hearing on Liberty National's request for partial exemption at which Liberty National introduced two exhibits that contained supplemental information regarding Liberty National's application for partial exemption. On September 2, 1993, the Department issued a letter denying Liberty National's request for exemption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance issue a Final Order in this case denying the exemption sought by the Petitioner. DONE AND ENTERED this 14th day of February 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 14th day of February 1994. COPIES FURNISHED: Mark A. Cohen, Esquire Mark A. Cohen & Associates, P.A. 1221 Brickell Avenue, Suite 1780 Miami, Florida 33131 Nancy Aliff, Esquire Department of Insurance Division of Legal Services 612 Larson Building Tallahassee, Florida 32399 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). However, since the pallets were not an agricultural product produced by Petitioner and were not considered in the price of the bahia sod but were exchanged back and forth between Petitioner and his customer, including Respondent American, they are not considered to be an agricultural product in this case and are excluded from any consideration for payment under Section 604.15-604.30, Florida Statutes. The amount charged Respondent American for these pallets was $1,188.00. At all times pertinent to this proceeding, Respondent American was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 3774 by the Department, and bonded by Respondent Peerless Insurance Company (Peerless) in the sum of $15,000 - Bond No. SK-2 87 38. At all times pertinent to this proceeding, Respondent Peerless was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). During the month of January, 1985 Respondent American purchased numerous pallets of bahia grass sod from Petitioner paying $16.00 per pallet but has refused to pay for 240 pallets at $16.00 per flat for a total amount of $3,840.00 picked up by Respondent American's employees and billed by Petitioner between January 16, 1985 and January 26, 1985. Respondent American did not contest having received 204 pallets of bahia grass sod represented by invoice number. 6774- for 18 pallets on 1/16/85; 6783, 6785, and 6788 for 18 pallets each on 1/17/85; 6791, 6793, 6794, 6795, and 6800 for 16 pallets each on 1/18/85 and 6799 for 18 pallets on 1/18/85, 6831 for 18 pallets on 1/28/85; and 6834 for 16 pallets on 1/30/85 but contested invoice numbers 6835 and 6836 for 18 pallets each on 1/26/85. Gary L. Curtis stipulated at the hearing that Respondent American had received the 36 pallets of bahia grass sod represented by invoice numbers 6835 and 6836 which left only the matter of Respondent American's contention that it was owed credit for 20 pallets of bahia sod received in December, 1984 that was of poor quality and fell apart and had to be replaced because it could not be used. The evidence was insufficient to prove that any of the sod purchased by Respondent American from Petitioner fell apart or was of poor quality and as a result could not he utilized by Respondent American.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein it is RECOMMENDED that Respondent American be ordered to pay to the Petitioner the sum of $3,840.00. It is further RECOMMENDED that if Respondent American fails to timely pay the Petitioner as ordered then Respondent Peerless be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 10th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of March, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Gary L. Curtis, President American Sod Company, Inc. Post Office Box 1370 Longwood, Florida 32750 Mid Florida Sod Company 4141 Canoe Creek Road St. Cloud, Florida 32769 Peerless Insurance Company 611 Aymore Road/Suite 202 Winter Park, Florida 32789 Raymond E. Cramer Esquire Post Office Box 607 St. Cloud, Florida 32769
Findings Of Fact Essential Background. The Respondent, Larry Wayne Lindsay, is and has been at all times pertinent to this case, eligible for licensure as a general lines agent and as a life and health agent. Effective between December 31, 1987, and January 1, 1988 (the written agreement is dated December 24, 1987), Lindsay's Friendly Auto Insurance of Polk County, Inc., formerly Friendly Auto Insurance Agency of Lake Wales, Inc. (Friendly of Lake Wales), and Friendly Auto Insurance of Winter Haven, Inc. (Friendly of Winter Haven), sold their assets, including the leasehold on the Friendly of Winter Haven business location, to Central Florida Insurance Agency of Winter Haven, Inc. (Central), for $500. The Respondent, Larry Wayne Lindsay (Lindsay), signed the agreement on behalf of the sellers. Kimberly Strayer, then Lindsay's fiance, now his wife, is the sole legal owner, officer and director of Central. Effective between December 31, 1987, and January 1, 1988 (the written agreement is dated January 27, 1988), Friendly Auto Insurance of Haines City, Inc. (Friendly of Haines City), sold its assets, including the leasehold on its business location, to Ridge Insurance Agency, Inc. (Ridge), for $200. Lindsay signed the agreement on behalf of the seller. Kimberly Strayer is the sole legal owner, officer and director of Ridge. When it was formed in approximately April of 1984, Lindsay and Ruth Kent were the initial directors of Friendly of Winter Haven. The two of them remained the directors and officers of the corporation through at least January of 1987, according to the corporation's annual reports. At some point before December 31, 1987, Kent transferred all of her interest in the corporation to Lindsay, who became the sole owner, officer and director of the corporation. But the evidence was not clear when Kent transferred her interest to Lindsay or what Lindsay's ownership interest in the corporation was up to the time of the transfer. Lindsay was the full-time agent in charge of Friendly of Winter Haven in March of 1983, according to Department of Insurance records, but the evidence was not clear how long he remained full-time agent in charge. At some point, he was replaced by Thomas Shaw. The evidence was not at all clear who were the owners, directors or officers of Friendly of Lake Wales at any point in time before Lindsay, acting on its behalf, transferred its assets to Central. Robert Seese was its nominal full-time agent in charge starting approximately in July, 1986, until approximately September, 1988, according to the evidence, but he was not actually in charge of the office, had little to do with the business and spent little time at the business. He essentially allowed Friendly of Lake Wales to use his name, license and facsimile stamp. Lindsay also submitted some applications for insurance from the Lake Wales office in the fall of 1987. The evidence was not at all clear when Seese's nominal role as the full-time agent in charge was terminated or who was the full-time agent in charge when Seese was not. When it was formed in approximately September of 1983, Lindsay and Ruth Kent were the initial directors of Friendly of Haines City. The two of them remained the directors and officers of the corporation through at least January of 1987, according to the corporation's annual reports. At some point before December 31, 1987, Kent transferred all of her interest in the corporation to Lindsay, who became the sole owner, officer and director of the corporation. But the evidence was not clear when Kent transferred her interest to Lindsay or what Lindsay's ownership interest in the corporation was up to the time of the transfer. When it was formed in approximately September of 1984, Lindsay and Ruth Kent were the initial directors of Friendly Auto Insurance Agency of Bartow, Inc., (Friendly of Bartow). The two of them remained the directors and officers of the corporation through at least January of 1987, according to the corporation's annual reports. In May, 1987, Lindsay was the full-time agent in charge of Friendly of Bartow, according to Department of Insurance records in evidence. At some point in time, Lindsay transferred all of his interest in the corporation to Kent. But the evidence was not clear when Lindsay ceased acting as full-time agent in charge of Friendly of Bartow, when Lindsay transferred his interest to Kent or what Lindsay's ownership interest in the corporation was up to the time of the transfer. When Central began doing business at the former Friendly of Winter Haven location in January, 1988, Seese transferred his license there and began to pose as its full-time agent in charge. In fact, Seese was not in charge of Central's business, had very little to do with the business and spent practically no time at Central's office. Essentially, all he did was allow Central to use his name, license and facsimile stamp. Lindsay often was at Central giving advice to Strayer and, as a practical matter, acting in the role of the full-time agent in charge of Central. Ridge began doing business at the former Friendly of Haines City location in January, 1988, without having notified the Department of Insurance of the identity of its full-time agent in charge. Strayer testified that Ridge had no full-time agent in charge but conceded that she knew it was illegal to operate without one. In fact, Lindsay spent much of his time at Ridge and essentially ran the office, acting as if he were the full-time agent in charge. Business with the FJUA is produced by agents who are licensed by the FJUA to produce business at a certain location and assigned to a particular insurance company. When they began doing business, neither Ridge nor Central had a relationship with FJUA. Lindsay had been an FJUA producer assigned to State Farm Mutual Insurance Company (State Farm) and licensed to produce business at Friendly of Bartow. Although the evidence is not clear when Lindsay stopped producing FJUA business at Friendly of Bartow, he officially was terminated as a producer at that location on or about April 21, 1988. Seese had been an FJUA producer at Friendly of Lake Wales assigned to State Farm from July, 1987, officially until approximately February 9, 1988. Thomas Shaw, who was the full-time agent in charge of Friendly of Winter Haven, had been an FJUA producer assigned to State Farm at that location--the same location Central later assumed. There is no evidence when or if Shaw officially was terminated as a producer at the Friendly of Winter Haven location. Lindsay knew, and should have known, that Ridge had not yet been licensed by the FJUA to produce FJUA business at its location or that it had been assigned to State Farm. When Ridge began doing business, applications for FJUA insurance coverage first were transmitted to Central to be submitted by Central, over Seese's facsimile stamp, to State Farm. Transactions Alleged Under Counts I Through VIII. On or about January 14, 1988, Ridge took from David Doolin of Davenport, Florida, an application and $70 as a down payment for coverage under the FJUA and bound the coverage. (Count I.) On or about January 20, 1988, Ridge took from Rachel McKenny of Haines City, Florida, an application and $56 as down payment for six months of personal injury protection (PIP) coverage with United States Underwriters (USU) and bound the coverage. When coverage under USU became unavailable, Ridge advanced McKenny $12 to pay for the down payment on a year of coverage under the FJUA. (Count II.) On or about January 12, 1988, Ridge took from Richard Truett of Haines City, an application and $109 as down payment for a year of coverage under the FJUA and bound the coverage. (Count III.) On or about January 13, 1988, Ridge took from Bruce Tish, Jr., an application and $150 as down payment for and with Dairyland Insurance Company and bound the coverage. When Dairyland insurance became unavailable, Ridge advanced Tish $16 for the down payment on a year of coverage with the FJUA. (Count IV.) On or about January 15, 1988, Ridge took from Germaine Collier of Winter Haven an application and $56 as down payment for six months of PIP coverage with USU and bound the coverage. When USU coverage became unavailable, Ridge advanced Collier $2 for the down payment for a year of coverage under the FJUA. (Count V.) On or about January 15, 1988, Ridge took from Callie Robinson, Jr., of Haines City an application and $56 as down payment for six months of PIP coverage with USU and bound the coverage. When the USU coverage became unavailable, Ridge advanced Robinson $2 for the down payment for a year of coverage under the FJUA. (Count VI.) On or about January 15, 1988, Ridge took from James Belcher, through his wife Peggy, an application and $56 as down payment for six months of PIP coverage with USU and bound the coverage. When the USU coverage became unavailable, Ridge advanced Belcher $12 for the down payment for a year of coverage under the FJUA. (Count VII.) On or about January 15, 1988, Ridge took from Gerald Dempsey of Winter Haven an application and $60 as down payment for six months of PIP coverage with USU and bound the coverage. When the USU coverage became unavailable, Ridge submitted the application for a year of coverage under the FJUA (the down payment for which was only $58.) (Count VIII.) It was not proven, as alleged, that Ridge did not secure the necessary money order for the down payment for the FJUA coverage referred to in Counts I through VIII until on or after March 24, 1988, or that Ridge did not submit the applications referred to in Counts I through VIII until on or about April 12, 1988. To the contrary, it never was made clear from the Department's evidence whether the FJUA applications referred to in Counts I through VIII (Petitioner's Exhibits 18 through 25, in evidence) were among the applications received by State Farm for the first time on or about April 12 and 19, 1988, or whether they were among the applications previously submitted to State Farm but returned by State Farm for various reasons. Lindsay's evidence, which is more persuasive, suggests that Ridge transmitted the applications to Central for processing, money orders for the down payments were obtained and Central sent the applications to State Farm within approximately a week from when they were taken by Ridge. According to Lindsay's version of the events that transpired, State Farm rejected the applications once because Seese's facsimile stamp had been used on the applications. (The applications themselves would support Lindsay's version in this respect. Seese's name is signed over a part of the application that appears to have been "whited-out.") State Farm returned the applications and the money orders. Central then repurchased money orders, had Seese sign the applications and re-submitted the applications. For a second time, State Farm rejected and returned the money orders, this time because the effective date of the coverage was before Seese became licensed by the FJUA and assigned to State Farm as agent at the Central location. The applications also support Lindsay's version in this respect because the effective date of the coverage is changed to start coverage one month later, after Seese's February 9, 1988, appointment date. Central re-purchased money orders again, dated March 24, 1988, and submitted the applications for at least the third time on or about April 12, 1988. All of these applicants received coverage as of the revised effective date. Transactions Alleged Under Counts IX And X. On or about March 11, 1988, Ridge, through Lindsay, took from Charles and Erna Bluschke an application and Erna's $236 check for the down payment for a year of FJUA coverage on their 1984 Thunderbird. (Count IX.) Ridge gave the Bluschkes a Florida Automobile Insurance Identification Card indicating that State Farm was the carrier and that the coverage was bound effective March 11, 1988. When the Bluschkes received no paperwork from State Farm or the FJUA within approximately a month, Mr. Bluschke returned to Ridge and talked to Lindsay. Lindsay told him that the paperwork had not come through but should be in "any day." Approximately another month went by without any paperwork, and Bluschke again went to speak to Lindsay. Bluschke was concerned because State Farm had cancelled him previously, and he wanted to know how he could be sure he had coverage. Lindsay responded, "Don't worry, you're covered." In fact, as Lindsay knew, the Bluschkes' application had not been submitted to State Farm. By the time the Bluschkes had applied, Ridge and Central were in the midst of dealing with problems they were having getting older applications accepted by State Farm and had put the Bluschkes' application aside until the older problems were resolved. They also were attempting to be assigned to an FJUA carrier other than State Farm. Indeed, on or about April 12, 1988, certainly by the time of Bluschke's second inquiry, and perhaps even by the time of his first inquiry, Lindsay had submitted an application as Ridge's general lines agent to be licensed to produce for the FJUA and to be assigned to Allstate instead of State Farm. The representations Lindsay made to Bluschke on the first and second inquiries were knowing misrepresentations made for the purpose of concealing from the Bluschkes the actual status of Ridge's relationship to the FJUA and State Farm. After his second inquiry, Bluschke demanded and received a full refund of his $236 down payment. On or about February 12, 1988, Paris and Helen Dalton of Hamilton, Florida, went to Ridge to purchase insurance for a 1979 Pontiac and a 1977 Dodge Van. (Count X.) They completed an FJUA application and paid $409 down. They were given a Florida Automobile Insurance Identification Card indicating that State Farm was the carrier and that coverage was bound effective February 12, 1988. For the same reasons that Ridge did not submit the Bluschke application, Ridge never submitted the Dalton application to State Farm. In March, 1988, after 30 days had passed, Helen Dalton returned to Ridge because the Daltons had not yet received a payment book from State Farm. "Wanda," who worked at Ridge, assured the Daltons that the policy and payment book would come in the mail and that it sometimes took as much as 90 days. Later in March, 1988, the Daltons' bank asked for proof of insurance on their vehicles. Helen Dalton went to Ridge and got from "Wanda" a copy of the binder, signed by Lindsay. "Wanda" told Dalton that Ridge would call the bank. Ridge never called the bank, as the bank informed the Daltons in June, 1988. Helen Dalton again returned to Ridge, and this time a different person working at Ridge told her that "it's hard to get through to State Farm." Helen Dalton called State Farm directly and was told that State Farm never had received the application and that Ridge and Lindsay were not authorized to write FJUA insurance through State Farm. Dalton returned to Ridge and confronted Lindsay directly with this information. Lindsay offered to "re-write" the policy, but Dalton demanded her money back. Lindsay sent Dalton to Central in Winter Haven to have Strayer refund the money, saying he had no authority to write a refund check, and the Daltons finally got their refund on or about June 27, 1988. Transactions Alleged In Count XI. At least from on or before July 1, 1985, continuously until after December 31, 1986, Friendly of Winter Haven, Friendly of Bartow, Friendly of Haines City, and Friendly of Lake Wales arranged customers' premium financing through Time Premium, Inc., of Boca Raton, Florida. As part of each premium finance transaction, the agency submitted to Time Premium, Inc., an agency check representing the down payment received from the customer and an executed premium finance contract. The agencies also collected monthly payments from insureds and forwarded agency checks to Time Premium on behalf of these insureds. From August, 1985, through July, 1986, these corporate agencies wrote approximately $13,000 in checks payable to Time Premium drawn on the agencies' business accounts. Lindsay personally signed in excess of seven thousand dollars worth of these checks. These checks were returned due to insufficient funds. On December 10, 1986, these four corporate agencies, through Lindsay and Ruth Kent as the directors, executed a promissory note in favor of Time Premium, Inc., in the amount of $13,076.34 to satisfy the outstanding indebtedness on the returned checks. The promissory note required repayment at the rate of $500 per month. As of July 1, 1988, only $2,000 had been repaid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Insurance and Treasurer, enter a final order finding the Respondent, Larry Wayne Lindsay, guilty of some, but not all, of the violations alleged in the Administrative Complaint in this case, as reflected in this Recommended Order, and suspending, for a period of one year, his general lines, health and life insurance agent licenses and his eligibility to hold those licenses. RECOMMENDED this 22nd of November, 1989, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 22nd day of November, 1989.
Conclusions THIS CAUSE, arising under Florida’s “Agricultural License and Bond Law” (Sections 604.15-604.34), Florida Statutes, came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On August 26, 2009, the Petitioner, Dixie Growers, Inc., an Agent for producers of Florida agricultural products as defined by Section 604.15(10), Florida Statutes, timely filed an administrative claim pursuant to Section 604.21, Florida Statutes, to collect $176,869.20 (including the $50 claim filing fee) for strawberries they sold to Respondent, a licensed dealer in agricultural products. Respondent’s license for the time in question was supported by a surety bond required by Section 604.20, Florida Statutes, written by Lincoln General Insurance Company in the amount of $100,000. On September 2, 2009, a Notice of Filing of an Amended Claim was mailed to Respondent and Co-Respondent. The September 2, 2009 certified claim mailing to the Respondent was returned by the United States postal service on October 5, 2009 marked “UNCLAIMED”. A second certified mailing was sent by the Department to the Respondent at another address of record on October 9, 2009 and it was received by the Respondent on October 23, 2009. On November 10, 2009, the Respondent filed an ANSWER OF RESPONDENT with an attachment to the Department and requested a hearing. Accordingly, this case was referred to the Division of Administrative Hearings (“DOAH”) for a administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. DOAH issued a NOTICE OF HEARING on December 2, 2009 for a hearing to be held on February 25, 2010. The hearing was held with DOAH on February 25, 2010 and the Administrative Law Judge (the “ALJ”) entered her RECOMMENDED ORDER (“R.O.”) on March 24, 2010, a copy of which is attached hereto as Exhibit “A”, to which neither party filed written exceptions with this Department. Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is ORDERED: The Department adopts the ALJ’s R.O. in toto including the following technical corrections to the R.O.: 1. In the caption on page one (1) of the R.O. the Respondent is shown as America Growers, Inc. and it should read American Growers, Inc. 2. On page one (1), paragraph (1) of the R.O., it states Counsel for Respondent, the witness and court reporter appeared ... . It should read Counsel for Petitioner, the witness and court reporter appeared ... . 3. On page two (2) under PRELIMINARY STATEMENT, paragraph (2), it states Petitioner filed a response on the Department’s form titled, .... It should read Respondent filed a response on the Department’s form titled ... . 4. On page three (3) under FINDINGS OF FACT, paragraph number one (1), it states; Petitioner, Dixie Growers, Inc., is a producer of agricultural products in Florida, i.e.., strawberries. It should read; Petitioner, Dixie Growers, Inc., is an Agent for the Producer(s) of agricultural products in Florida, i.e., strawberries. 5. On page five (5), paragraph eleven (11), under CONCLUSIONS OF LAW, it states; Petitioner is a “producer” of agricultural products as defined in subsection 604. 15(9), Florida Statutes. It should read; Petitioner is a “producer’s agent” for the producer(s) of agricultural products as defined in subsection 604.15(10), Florida Statutes. The ALJ’s recommendation that the Respondent, American Growers, Inc., pay Petitioner, $176,819.20 and the $50 filing fee is hereby adopted. For purposes of this Final Order consistent with the requirements of Sections 604.21(7) and (8), Florida Statutes, the ALJ’s recommendation is modified to include that payment shall be made within fifteen (15) days after this Final Order is adopted. In the event Respondent fails to pay Petitioner $176,869.20 within fifteen (15) days of the Final Order, Lincoln General Insurance Company, as Surety for Respondent, is hereby ordered to provide payment under the conditions and provisions of the Bond to CHARLES H. BRONSON, COMMISSIONER OF AGRICULTURE AND CONSUMER SERVICES, as Obligee on the Bond. The Department will notify the Surety in the event it (the Surety) is required to pay. This Order is final and effective on the date filed with the Agency Clerk of the Department. Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to Section 120.68, Florida Statutes (2002) and Rule 9.110, Florida Rules of Appellate Procedure (2003). Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5" Floor, Mayo Building, Tallahassee, FL 32399-0800. A copy of the petition for review or notice of appeal, accompanied by the filing fees prescribed by law must also be filed with the appropriate District Court of Appeal within thirty (30) days of the date this Final Order was filed with the Agency Clerk. = DONE AND ORDERED this27_ day of Frrnach , 2010. TERRY L.’RHODES Assistant Commissioner of Agriculture WA. Filed with Agency Clerk this”? _ day of Bel , 2010. Agency Clerk COPIES FURNISHED TO: Judge Carolyn S. Holifield Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Certified Receipt No. 7160 3901 9848 8028 7649) Mr. Glenn C. Thomason, Registered Agent American Growers, Inc. P. O. Box 1207 Loxahatchee, FL 33470 (Certified Receipt No. 7160 3901 9848 8028 7656) Ms. Rene Herder, Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Blvd., Suite 155 Tampa, FL 33634 (Certified Receipt No. 7160 3901 9848 8028 7663) Mr. John Northrop, Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Blvd., Suite 155 Tampa, FL 33634 (Certified Receipt No. 7160 3901 9848 8028 9230) Gregg E. Hutt, Attorney for Petitioner Dixie Growers, Inc. TRENAM, KEMKER, SCHARF, BARKIN, FRYE, O’NEILL & MULLIS, P.A. 101 East Kennedy Boulevard, Suite 2700 P. O. Box 1102 Tampa, FL 33601-1102 (Certified Receipt No. 7160 3901 9848 8028 9247) Ms. Linda Terry Lawton, Vice President Dixie Growers, Inc. P. O. Box 1686 Plant City, FL 33564-1686 (Certified Receipt No. 7160 3901 9848 8028 9254) Steven Hall, Attorney Florida Department of Agriculture and Consumer Services, Suite 520 Mayo Building, M-11 Tallahassee, FL 32399-0800 Mr. Mark Moritz and Mr. Brad Robson, Field Representatives
Findings Of Fact At all pertinent times, respondent Beach Landscaping, Inc. d/b/a Landscape Technologies or Landscape Technologies, Inc. or as Land Tech (Beach) operated as a dealer in agricultural products under license No. 2889 issued by the Department of Agriculture and Consumer Services (DACS). On Beach's behalf, respondent Regency Insurance Company posted a surety bond with DACS, No. SF00356 in the amount of $3,000, effective September 24, 1988, through September 23, 1989, to secure payment for Florida agricultural products. Testimony of Brooks. On August 30, 1989, Beach took delivery from petitioners of seven live oak trees petitioners grew near Chiefland, Florida, agreeing to pay $125 for each which, with sales tax, aggregated $927.50. Petitioners's Exhibit No. 1, Inv. No. 716280. Testimony of Cochran. Having earlier made a deposit of $637.50, Beach took delivery from petitioners on September 18, 1989, of 15 Florida-grown live oak trees, agreeing to pay $170 for each. With sales tax (but less the deposit) Beach owed petitioners $2,065.50 on account of this transaction. Petitioners's Exhibit No. 1, Inv. No. 716788. Testimony of Cochran. The next day Beach took delivery from petitioners of 15 more Florida- grown trees again agreeing to pay $170 for each. Again with sales tax and less an earlier deposit, indebtedness on account of the transaction aggregated $2,065.50. Petitioners's Exhibit No. 1, Inv. No. 716790. Testimony of Cochran. Finally, on September 20, 1989, Beach took delivery from petitioners of 16 Florida-grown live oak trees, agreeing to pay $170 for each, which with sales tax and less an earlier deposit, amounted to $2,203.20. Petitioners's Exhibit No. 1, Inv. No. 716791. Testimony of Cochran. On March 3, 1990, Beach or Landscape Technologies, Inc. paid petitioners $1,000, thereby reducing indebtedness to petitioners on account of the foregoing transactions from $7,261.70 to $6,261.70. Petitioners applied a check in the amount of $1,500 to reduce the indebtedness to $4,761.70, even though the check purported to be in payment of another invoice. In the answer it filed with DACS, Landscape Technologies, Inc., admitted indebtedness of $4,661.10.
Recommendation It is, accordingly, RECOMMENDED: That DACS order Beach to pay petitioners four thousand seven hundred sixty-one dollars and seventy cents ($4,761.70) within fifteen (15) days of the final order. That, in the event Beach fails to pay petitioners four thousand seven hundred sixty-one dollars and seventy cents ($4,761.70) within fifteen (15) days of the final order, DACS order Regency Insurance Company to pay three thousand dollars ($3,000) or such lesser sum as satisfies the requirements of Section 604.21(8), Florida Statutes (1989), for disbursal to petitioners. DONE and ENTERED this 19th day of April, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1991. COPIES FURNISHED TO: CHRISTOPHER B. PHILLIPS LANDSCAPE TECHNOLOGIES, INC. 523 LAKEVIEW ROAD CLEARWATER, FL 34616 REGENCY INSURANCE COMPANY POST OFFICE BOX 190 HALLANDALE, FL 33009-0190 CLINTON H. COULTER, JR., ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES TALLAHASSEE, FL 32399-0800 J. COCHRAN & RUSSELL STRANGE C & S TREE FARM ROUTE 1, BOX 738 CHIEFLAND, FL 32626 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE DEPARTMENT OF AGRICULTURAL AND CONSUMER SERVICES THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURAL AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800
Findings Of Fact Robert J. Walsh and Company, Inc. has been in the business of selling agricultural products since 1962. It is a "dealer in agricultural products" as defined in s. 604.15(1), Florida Statutes (1985). It is not a "producer" as defined in s. 604.15(5), Florida Statutes (1985). Walsh's modus operandi which it has used for many years is to have its salesmen call on landscapers, nurseries and other customers for trees, plants and other agricultural products to determine their needs. These salesmen have the prices of products and their availability from producers and the salesmen take orders from these purchasers. This order is sent to the producer who delivers the product to the purchaser and sends Walsh a copy of the delivery ticket. Walsh bills the customer for the product delivered and the producer bills Walsh for the consumer-cost of the product less a 20-25 percent discount from which Walsh derives its profit from the sale. The producer relies solely on Walsh for payment for the product it produces and delivers to the customer. Walsh has no authority to sell the product at a price other than that set by the producer. In any event, the producer bills Walsh for the product delivered at the producer's established price less the discount it gives Walsh for acting as intermediary in the sale. If products are damaged in transit, the producer's driver will make any necessary adjustment with the customer or return the damaged plant for replacement by the producer. Walsh does not represent the grower if such a situation develops. Similarly, if the product is rejected by the purchaser for not meeting quality standards, that issue is resolved between the grower and the customer without input from Walsh. Whatever agreement is reached between the grower and the customer is reflected on the invoice signed by the customer and forwarded to Walsh who has the responsibility of collecting from the customer. The grower bills Walsh for the cost of the product less Walsh's commission. The sales forming the bases for the complaints filed by Walsh with Respondent involve sales to Paul Pent, d/b/a Paul Pent Landscape Company, Dean Pent and J & W Landscape. On January 31, 1985, Walsh sold Pent three laurel oaks grown by Stewart Tree Service for a total price of $467.46 including sales tax (Ex. 2). On March 27, 1985, Walsh sold various trees and plants grown by Goochland Nurseries to J & W Landscape for a total price of $403.98 (Ex. 3). On April 22, 1985, Walsh sold two live oaks grown by Stewart Tree Service to Pent Landscape Company for a total price of $336.00 (Ex. 4). On July 3, 1985, Walsh sold various plants grown by Goochland Nurseries to J & W Landscape for a total price of $564.96 (Ex. 5). On all of these sales the producers billed Walsh for the product and were paid by Walsh. Walsh billed the customers who did not pay and Walsh filed the complaints (Ex. 8, 9 and 10), denied by Respondent on grounds Walsh was not an agent or representative of the producers. In 1976, Petitioner filed a complaint against the bond of the Ernest Corporation, a licensed dealer in agricultural products and received $5,589.20 from Respondent who recovered from the bonding company. In the complaint Walsh alleged that it was agent for Southeast Growers, Inc., selling their nursery stock throughout Florida. Respondent's witnesses could not recall what additional evidence they saw to conclude that Walsh was, in fact, an agent for the producer. However, these witnesses all testified that had they then believed Walsh was solely responsible to the producer for payment for the products sold they would not have concluded Walsh was the agent or representative of the producer. The bond on which Petitioner is attempting to recover provides that if the principal "shall faithfully and truly account for and make payment to producers, their agents or representatives, as required by Sections 604.15 - 604.30, Florida Statutes, that this obligation to be void, otherwise to remain in full force and effect." (Ex. 11 and 12)
Conclusions The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Section 604.21, Florida Statutes (1985) provides in pertinent part: Any person claiming himself to be damaged by any breach of the conditions of a bond or certificate of deposit, assignment or agreement given by a licensed dealer in agricultural products as herein before provided may enter complaints thereof against the dealer and against the surety, if any, to the department, which complaint shall be a written statement of the facts constituting the complaint. Section 604.15(1) , Florida Statutes (1985) provides: "Dealers in agricultural products" means any person, whether itinerant or domiciled within this state, engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer or his agent or representative for resale or processing for sale; acting as an agent for such producer in the sale of agricultural products for the account of the producer on a net return basis; or acting as a negotiating broker between the producer or his agent or representative and the buyer. (emphasis supplied) One of the complexities of this case which leads to some confusion is the fact that both Pent and Walsh were dealers in agricultural products as above defined. Walsh fits into the category of a person claiming himself to be damaged by a breach of any condition of the bond of Pent. However, he has the burden of showing that he is a person covered by the bond. According to the terms of the bond, coverage is provided only for "producers, their agents or representatives." Walsh is clearly not a producer in this case but claims coverage as an agent or representative. In construing "agent" or "representative" the legislative intent should be considered. The purpose of these provisions of the statute requiring licensing and bonding of dealers in agricultural products, as expressed in Section 604.151, Florida Statutes, is to protect producers from economic harm. Economic harm sustained by an agent or representative is imputed back to the principals, which in this case are the producers. An agency may be defined as a contract either expressed or implied upon a consideration, or a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in the former's name or on his account, and by which the latter assumes to do the business and render an account of it. 2 Fl. Jur. 2d "Agency," Section 1. Here, Walsh was selling agricultural products on its own account, which products it was purchasing from the producers. The producer sold its product to Walsh and delivered it to the address Walsh indicated. The customer receipted for the product and the producer billed Walsh for the total cost, including transportation, to the ultimate buyer, less the 20-25 percent commission Walsh received. Walsh paid the producer and billed the customer. Whether or not Walsh collected from the customer had no bearing on the debt Walsh owed the producer for the product. It could be said that the producer was the agent for Walsh in delivering the product to the user. Even though Walsh never had actual possession of the product the sale to Walsh was complete when the producer delivered the product to the user. The entire transaction clearly is a buy-and-sell operation by Walsh and not Walsh acting as an agent for the producer. The fact that Walsh sells the producer's product does not make Walsh the agent or representative of the producer, when the producer holds only Walsh responsible to pay for the product. Nor was Walsh a representative of the producers. Representative is defined in Webster's New Collegiate Dictionary (1977 Ed.) as: "standing or acting for another esp. through delegated authority." Walsh had no delegation of authority to act for the producer. Walsh had no authority to modify the price, settle disputes, or any other function normally performed by a representative. The above interpretation of those having standing to file a complaint against a dealer in agricultural products is the same interpretation of the applicable statutory provisions that is made by Respondent. As stated in Natelson v. Dept. of Insurance, 454 So.2d 31 (Fl 1st DCA 1984): Agencies are afforded a wide discretion in the interpretation of a statute which it [sic] administers and will not be overturned on appeal unless clearly erroneous. The reviewing court will defer to any interpretation within the range of possible interpretations. (citations omitted). This interpretation limiting recovery on an agricultural bond to producers and their agents or representatives is certainly within the range of possible interpretations, especially considering the purpose of these statutory provisions to be the protection of the economic well being of the producer. From the foregoing, it is concluded that Robert J. Walsh & Company, Inc. was not the agent or representative of Goochland Nurseries and Stewart Tree Service and does not have standing to file a complaint against Dean Pent, d/b/a Pent Landscape Company, and Paul Pent, d/b/a Paul Pent Landscape Company, and their surety, Transamerica Insurance Company.
Recommendation It is recommended that a Final Order be entered dismissing the petition as contained in Petitioner's letter dated March 24, 1986. ENTERED this 14th day of July 1986 in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July 1986. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building, Room 513 Tallahassee, Florida 32301 Thomas M. Egan, Esquire Phillip Kuhn, Esquire Post Office Box 7323 Winter Haven, Florida 33883 Ronnie H. Weaver, Esquire Mayo Building, Room 513 Tallahassee, Florida 32301 Mr. Joe W. Right Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301
The Issue Whether Respondent is indebted to Petitioners for agricultural products and, if so, in what amount?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties Petitioners are producers and sellers of tomatoes. They own and operate Sunfresh Farms in Florida City, Florida. Respondent is a dealer in agricultural products. The Controversy The instant case involves two separate transactions involving the sale of tomatoes pursuant to verbal agreements between Petitioners (as the sellers) and Respondent (as the buyer). Both transactions occurred in January of 1995. The First Transaction (Petitioners' Invoice Number 5270) Under the terms of the first of these two verbal agreements (First Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 96 boxes of cherry tomatoes for $12.65 a box (which was the market price at the time). In accordance with the terms of the First Agreement, Petitioners delivered 96 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 23, 1995. Respondent accepted the delivery. Respondent sold these 96 boxes of cherry tomatoes to a local produce house, which subsequently sold the tomatoes to another local produce house. The tomatoes were eventually sold to a company in Grand Rapids, Michigan. On January 28, 1995, five days after Petitioners had delivered the 96 boxes of cherry tomatoes to Respondent, the tomatoes were inspected in Grand Rapids, Michigan. According to the inspection certificate, the inspection revealed: "Decay (3 to 28 percent)(mostly early, some advanced stages);" "Checksum;" and "Average approximately 85 percent light red to red." Petitioners have yet to be paid any of $1,214.40 Respondent owes them (under the terms of the First Agreement) for the 96 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the agreement. The Second Transaction (Petitioners' Invoice Number 5299) Under the terms of the second verbal agreement at issue in the instant case (Second Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 132 boxes of ("no grade") cherry tomatoes for $12.65 a box. In accordance with the terms of the Second Agreement, Petitioners delivered 132 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 27, 1995. Respondent accepted the delivery. Respondent sold 84 of these 132 boxes of cherry tomatoes to a Florida produce house, which subsequently sold the tomatoes to a company in Houston, Texas. These 84 boxes of cherry tomatoes were inspected in Houston, Texas, on January 31, 1995, four days after Petitioners had delivered them to Respondent. The defects found during the inspection were noted on the inspection certificate. Petitioners have yet to be paid in full for the 132 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the Second Agreement. Respondent tendered payment (in the form of a check) in the amount of $811.20, but Petitioners refused to accept such payment because it did not represent the full amount ($1,669.80) Respondent owed them (under the terms of the Second Agreement) for these cherry tomatoes. (Although they have not endorsed or cashed the check, Petitioners are still holding it in their possession.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that Respondent is indebted to Petitioners in the amount of $2,884.20, (2) directing Respondent to make payment to Petitioners in the amount of $2,884.20 within 15 days following the issuance of the order, (3) indicating that the $811.20 check that was previously tendered to Petitioners by Respondent (and is still in Petitioners' possession) will be considered partial payment of this $2,884.20 indebtedness, if Respondent advises Petitioners, in writing, that it desires the check to be used for such purpose and if it provides Petitioners written assurance that the check is still a valid negotiable instrument; and (4) announcing that if payment in full of this $2,884.20 indebtedness is not timely made, the Department will seek recovery from the Farm Bureau, Respondent's surety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February, 1996. STUART M. LERNER, 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 2nd day of February, 1996.
