The Issue The issue in this case is whether Respondents owe Petitioner $13,512.09 for watermelons, as alleged in the Amended Complaint.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Cook Brown Farms is a melon farm in Punta Gorda, Florida. At all times pertinent to this proceeding, Cook Brown Farms was a "producer" as defined in Subsection 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Melons come within the definition of "agricultural products" as defined in Subsection 604.15(3), Florida Statutes. J.G.L. Produce is a Florida Corporation, owned by John W. Johnson, Jr., and located in Pompano Beach, Florida. At times pertinent to this proceeding, J.G.L. Produce was licensed as a "dealer in agricultural products" as defined in Subsection 604.15(1), Florida Statutes. Andrew J. Cook, a principal owner of Cook Brown Farms, and Mr. Johnson of J.G.L. Produce entered into an oral agreement regarding the sale of watermelons grown at Cook Brown Farms. The core of this case is a dispute concerning the nature of this agreement. Mr. Cook testified that, under the agreement, J.G.L. Produce would purchase the melons at the farm at their daily market price, plus 1/2 cent to cover Cook Brown Farms' cost of picking, sorting, and placing the melons in special bins and in special pallets required by the ultimate purchaser, Kroger Supermarkets. J.G.L. Produce would provide the bins and pallets and would provide the trucks to ship the melons. Mr. Johnson testified that the agreement was not for purchase but for brokerage of the melons. J.G.L. Produce would act as broker of Cook Brown Farms' watermelons, use its best efforts to sell the melons at the highest price available, and pay Cook Brown Farms the proceeds of the sale, minus expenses and a brokerage fee of one cent per pound. Mr. Johnson testified that J.G.L. Produce never took title to or purchased the melons, and that the risk of loss always remained on Cook Brown Farms. Mr. Johnson testified that he approached Mr. Cook about the melons because he had a ready buyer in another local dealer, Delk Produce, which had a longstanding arrangement to provide melons to Kroger. Mr. Johnson agreed with Mr. Cook that the arrangement included the provision of bins and pallets by J.G.L. Produce, though Mr. Johnson stated that the arrangement also called for J.G.L. Produce to retain $0.015 per pound from the amount paid to Cook Brown Farms to cover the cost of the bins and pallets. J.G.L. Produce took approximately 24 truck loads of watermelons from Cook Brown Farms. J.G.L. Produce deducted a one cent per pound brokerage fee from each load of melons it took, except for certain loads noted below, without contemporaneous objection from Cook Brown Farms. The Amended Complaint claims that J.G.L. Produce owes money to Cook Brown Farms for five of the loads taken by J.G.L. Produce. In sum, the Amended Complaint states that J.G.L. Produce owes Cook Brown Farms $19,991.74 for the five loads, less $6,479.65 already paid, for a total owing of $13,512.09. Item One of the Amended Complaint alleges that J.G.L. Produce owes $4,438.54 for a load of 38,596 pounds at a price of $0.115 per pound, sold on April 20, 2000. Item Two of the Amended Complaint alleges that J.G.L. Produce owes $4,625.30 for a load of 40,220 pounds at a price of $0.115 per pound, sold on April 21, 2000. The Amended Complaint alleges that the melons on these two loads were inspected and approved for shipment during loading by Delk Produce employee Freddie Ellis. The Amended Complaint states that Cook Brown Farms was paid in full for the loads on May 3, 2000, but that the contested amounts were deducted from subsequent settlements by J.G.L. Produce. The evidence established that the melons claimed under Item One were initially sold to Delk Produce for delivery to Kroger. On May 3, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $4,438.54, which constituted the price for 38,596 pounds of melons at $0.125 per pound, less $385.96 for the one cent per pound brokerage fee. Jay Delk, the principal of Delk Produce, testified that this load was rejected by Kroger's buyer in Virginia due to "freshness," meaning that the melons were unsuitably green. Mr. Delk stated that the melons were taken to North Carolina to ripen and eventually sold at $0.06 per pound. The final return on this load, less the brokerage fee, was $1,543.84. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $4,438.54 and the final payment of $1,543.84. The evidence established that the melons claimed under Item Two were initially sold to Delk Produce. On May 3, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $5,809.80, which constituted the price for 50,520 pounds of watermelons at $0.125 per pound, less $505.20 for the one cent per pound brokerage fee. Seminole Produce purchased 10,300 pounds of this load at $0.145 per pound, or $1,493.50. The remainder of the load was rejected by Kroger due to freshness and had to be resold at a lesser price of $0.0346 per pound, or $1,391.00. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $5,809.80 and the final payment (after deduction of the brokerage fee) of $2,576.11. The evidence established that the melons claimed under Item Three were sold to Delk Produce. On May 9, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $2,731.30, which constituted the price for 42,020 pounds of watermelons at $0.0675 per pound, less $105.05 for the brokerage fee, reduced to $0.0025 per pound. Mr. Johnson testified that he decided to forego the full brokerage fee to save money for Mr. Cook and his farm, because it was "hurting" due to the rapidly plummeting price for watermelons. Mr. Johnson discovered at this time that Delk Produce had not been retaining the agreed- upon $0.015 per pound to cover the cost of bins and pallets and decided not to lose any more money on that item. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $2,731.30 and $2,206.05, deducting $525.25 from the original payment to cover the cost of the bins and pallets. The evidence established that the melons claimed under Items Four and Five were originally shipped to Wal-Mart in Kentucky on April 29, 2000, and were rejected on the ground that the melons were not packed to specifications. The melons were trucked back to Florida at J.G.L. Produce's expense. The melons claimed under Item Four totaled 41,100 pounds. J.G.L. Produce divided the melons into four loads and sold them to four local dealers at an average price of $0.775 per pound, totaling $3,185.41. J.G.L. Produce deducted its $0.015 charge for bins and pallets, reducing the total to $2,671.51. J.G.L. Produce then deducted $1,750.00 from the total as reimbursement for the freight charge it paid to bring the melons back to Florida after their rejection by Wal-Mart. J.G.L. Produce did not include a brokerage fee. On May 26, 2000, J.G.L. Produce paid the remaining $921.51 to Cook Brown Farms as part of the final settlement. The melons claimed under Item Five totaled 45,600 pounds. J.G.L. Produce sold 2,426 pounds to Seminole Produce at $0.10 per pound, or $242.60. J.G.L. Produce sold the remaining 43,174 pounds to Belle Glade Produce at $0.065 per pound, or $2,800. From the total for Item Five, J.G.L. Produce deducted its $0.015 charge for bins and pallets and $1,950.00 for the freight charge it paid to bring the melons back to Florida after their rejection by Wal-Mart. J.G.L. Produce did not include a brokerage fee on this load of melons. On May 26, 2000, J.G.L. Produce paid the remaining $416.64 to Cook Brown Farms as part of the final settlement. The weight of the credible evidence, excluding the hearsay that was not supported by the direct testimony of Mr. Johnson, leads to the finding that there was a brokerage arrangement between the parties. J.G.L. Produce routinely deducted brokerage fees from its payments, without objection by Cook Brown Farms. This course of dealing strongly indicates a brokerage arrangement. Mr. Cook testified as to prior dealings with J.G.L. Produce, which also involved a brokerage arrangement. The evidence indicated that J.G.L. Produce fully accounted for the five loads of melons at issue, and paid Cook Brown Farms the full amounts due and owing for those loads.
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 Amended Complaint filed by Gin Brown Matthews, d/b/a Cook Brown Farms. DONE AND ENTERED this 21st day of March, 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2001. COPIES FURNISHED: Redland Insurance Company 222 South 15th Street, Suite 600, North Omaha, Nebraska 65102 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 John W. Johnson, President Post Office Box 1123 Pompano Beach, Florida 33061 Harold M. Stevens, Esquire Post Office Drawer 1440 Fort Myers, Florida 33902 Edward L. Myrick, Jr., Esquire Beighley & Myrick, P.A. 1255 West Atlantic Boulevard Suite F-2 Pompano Beach, Florida 33069 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact Based upon all of the evidence, including the stipulation of the parties, the following findings of fact are determined: Petitioner, Charles W. Ward, Jr., is a co-owner, with other members of his family, of a cattle ranch in south Hendry County known as Ward Farms. Respondent, Maddox Brothers Produce, Inc., is a licensed agriculture dealer engaged in the business of brokering agriculture products in the State of Florida. As an agriculture dealer, respondent is subject to the regulatory jurisdiction of the Department of Agriculture and Consumer Services (Department). One such requirement of the Department is that all dealers post a surety bond with the Department's Division of Licensing and Bond. To this end, respondent has posted a $50,000 surety bond with Fireman's Fund Insurance Company as the surety. In addition to raising livestock, petitioner also grows watermelons on his property. Pursuant to an agreement by the parties, between April 16 and May 15, 1990, respondent harvested and then transported petitioner's watermelons to other destinations outside the state. The parties have stipulated that respondent still owes petitioner $53,980.92 as payment for the watermelons. Respondent has agreed to pay petitioner the above sum of money on or before February 15, 1991, or within fifteen days after the agency's order becomes final, whichever is later. Otherwise, payment shall be made from respondent's bond posted by the surety, Fireman's Fund Insurance Company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent, a licensed agriculture dealer, is indebted to petitioner in the amount of $53,980.92, and that such debt be satisfied in accordance with the time limitations set forth in this recommended order. Otherwise, Fireman's Fund Insurance Company shall be obligated to pay over to the Department the full amount of the bond, or $50,000. DONE and ENTERED this 24th day of January, 1991, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 24th day of January, 1991. COPIES FURNISHED: Charles W. Ward, Jr. Star Route, Box 72 LaBelle, Florida 33440 Patricia Maddox Harper 4253 Kingston Pike Knoxville, Tennessee 37919 Barbara J. Kennedy, Esquire Fireman's Fund Insurance Company Post Office Box 193136 San Francisco, California 94119-3136 Bob Crawford Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire General Counsel Department of Agriculture 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Chief Bureau of Licensing & Bond 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issue to be determined in this proceeding is whether Respondents Wilson and Son Sales, Inc. (Wilson), and Ohio Casualty Insurance Company, as surety, are indebted to Petitioner for certain Florida-grown agricultural products.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a producer of several vegetable crops in Hardee County. Wilson is a dealer in agricultural products. More specifically, Wilson operates an agricultural broker business in Plant City. Wilson’s surety is Ohio Casualty Insurance Company. Although Wilson has written contracts with some producers, Wilson does not have written contracts with all producers. In the absence of a contract, the terms of Wilson’s broker services are almost always the same; that is, Wilson gets a commission of 10 percent on the sale of the produce and $.35 per box for palletizing and pre-cooling the produce, in return for which Wilson makes a reasonable and good faith effort to sell Petitioner’s produce for the best price. Petitioner contacted Wilson in January 2007, about bringing flat beans to Wilson to sell. Wilson expressed interest and informed Petitioner about Wilson’s standards terms as described above. These terms were agreeable to Petitioner and he brought the beans to Wilson later that month. Although Petitioner and Wilson had no written contract, the parties’ mutual understanding of the terms of their agreement created an enforceable oral contract. Wilson sold Petitioner’s beans and no dispute arose from this first transaction. The parties’ subsequent transactions for other produce were undertaken pursuant to the same oral contract terms. Because Wilson works on a commission basis, it is generally in Wilson’s self-interest to sell growers’ produce for the best price. Petitioner contacted Robert Wilson, Wilson’s owner, by telephone in February 2007, and informed Wilson of his plans to grow wax beans and “hard squash.” It was not stated in the record whether all three varieties of hard squash later grown by Petitioner, butternut squash, acorn squash, and spaghetti squash, were discussed by Petitioner and Robert Wilson during their February 2007 telephone conversation. A major dispute in the case was whether the parties’ February discussion about hard squash created some obligation on the part of Wilson beyond the oral contract terms described above. Petitioner claims that Wilson encouraged him to plant the squash and that Petitioner would not have planted the squash otherwise. Petitioner never made clear, however, what additional obligation was created by Robert Wilson’s encouragement beyond the obligation to accept delivery of and make good faith efforts to sell Petitioner’s squash at the best price. Petitioner did not use the word “guarantee,” but his claim seems to be that Wilson became obligated to guarantee that the squash would be sold for a price close to the price published in the Columbia (South Carolina) Market Report, a periodic publication of produce prices. Such an obligation on the part of a broker is contrary to the general practice in the trade. Petitioner’s evidence was insufficient to prove more than that Robert Wilson thought he could sell Petitioner’s squash and had a genuine interest in acting as broker for Petitioner’s squash. The evidence was insufficient to prove the existence of a contractual guarantee that Wilson would obtain a certain price for Petitioner’s hard squash or do more than was promised with regard to the beans that Wilson had sold for Petitioner; that is, to try to sell the produce for the best price. When Petitioner’s wax beans were picked in late April, he brought them to Wilson to sell. No dispute arose regarding the sale of the wax beans. Petitioner brought squash to Wilson in five deliveries between May 12 and May 29, 2007. Petitioner said that on one of these deliveries, he had to leave the boxed squash in the parking lot of Wilson’s facility because there was so much cantaloupe that had been delivered ahead of him. Petitioner says he was told by a Wilson employee that the squash would not be put in the cooler. Petitioner thinks Wilson was more interested in moving the cantaloupe than the hard squash. Petitioner thinks his squash was not put in the cooler or was put in too late. Wilson denies that Petitioner’s squash was not put into the cooler or was put in late. Robert Wilson claims that he made many calls in an effort to sell Petitioner’s squash, but he could not find interested buyers for all of the squash because (1) the demand for hard squash dried up, (2) some of Petitioner’s squash was of low quality, and (3) the squash began to spoil. Petitioner denied these allegations. Petitioner received invoices and other paperwork from Wilson showing that Wilson sold Petitioner’s first delivery of 490 boxes of acorn squash for $10.18 per box. It sold Petitioner’s second delivery of 519 boxes of acorn squash for $2.08 per box. For Petitioner’s third delivery of 110 boxes of acorn squash and 240 boxes of spaghetti squash, Wilson “dumped” the acorn squash by giving it to away for free to the Society of St. Andrews food bank, and sold the spaghetti squash for $5.15 per box. Wilson sold petitioner’s fourth delivery of 279 boxes of butternut squash for $.55 per box.1 Competent substantial evidence in the record established that it is a regular occurrence for agricultural products awaiting sale to decay and become unsellable, and for the broker to dump the products in a landfill or give the products to a charitable organization and then provide the grower a receipt for tax deduction purposes. It was undisputed that Wilson did not notify Petitioner before disposing of his squash. Petitioner claims he should have been notified by Wilson if the squash was beginning to spoil. However, Petitioner did not prove that prior notification was a term of their oral contract. Petitioner claims further that the federal Perishable Agricultural Commodities Act required Wilson to notify Petitioner before dumping the squash and to have the squash inspected to determine whether, in fact, it was spoiled. As discussed in the Conclusions of Law below, this federal law is not applicable. Competent substantial evidence in the record established that the market for agricultural products fluctuates and, at times, can fluctuate rapidly. For hard squash, which is normally prepared in an oven, the market demand can drop dramatically due to the onset of warm weather simply because people tend not to cook hard squash dishes in warm weather. Petitioner’s squash was being marketed in May, which means the beginning of warm weather for most areas of the United States. This fact supports Wilson’s claim that the demand for hard squash had been good, but fell rapidly just at the time Wilson was trying to sell Petitioner’s squash. The problem with the claims made by Petitioner in this case is simply one of insufficient proof. It is not enough for Petitioner to offer theories about what he thinks happened or to raise questions which are not fully answered. Petitioner had no proof that his squash was not put in Wilson’s cooler, that his squash did not begin to decay, that the demand for hard squash did not fall rapidly, that Wilson did not make reasonable efforts to sell the squash, that Wilson had willing buyers for Petitioner’s squash at a better price, or that Wilson sold squash from other growers at a better price. Petitioner’s evidence for his claims consisted primarily of market price reports that he contends show the approximate price Wilson should have gotten for the hard squash. Market price reports have some relevance to the issues in this case, but competent evidence was presented that the prices quoted in the publications are not always reliable to indicate the price a grower can expect to get on any given day, because there are factors that cause the published market price to be an inflated price (and applicable to the highest grade of produce) and because the market price can change rapidly with a change in demand for the product. The oral contract between Petitioner and Wilson required Wilson to try to get the best price for Petitioner’s squash, not some particular price appearing in a particular market price report. Petitioner did not show that Wilson got a better price for hard squash of equal quality, or that other brokers in the area got a better price for hard squash of equal quality at the times relevant to this case. Petitioner’s evidence was insufficient to prove that Wilson did not make a reasonable and good faith effort to sell Petitioner’s squash at the best price.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order dismissing Petitioner’s amended claim. DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2008.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, 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) At all times pertinent to this proceeding, Respondent Gopherbroke was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4528 by the Department, and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $25,000. At all times pertinent to this proceeding, Respondent Hartford 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). Prior to April 1, 1985, Petitioner and Robert Neill, President of Gopherbroke, verbally agreed for Respondent Gopherbroke to act as agent in the sale of certain zucchini squash produced by Petitioner in 1985 on a net return basis, i.e. Petitioner to receive the gross sale price of the squash minus a handling fee of $0.50 per carton and a sales commission of 1/ 6.5 per cent of the gross sales price. Between April 1, 1985 and April 12, 1985 Petitioner through Tommy York delivered to Respondent Gopherbroke 84, 107 and 19 cartons of small, medium and large zucchini squash respectively for a total of 210 cartons represented by receipt tickets numbers 276-282 issued by Respondent Gopherbroke. Petitioner and Tommy York (York) had an agreement whereby York would harvest, clean, grade, package and deliver the zucchini squash produced by Petitioner to Respondent Gopherbroke for a percentage of the net proceeds derived from the sale of the squash. Respondent Gopherbroke was not a party to the agreement between Petitioner and York and was not authorized to withhold any money derived from the sale of Petitioner's squash to be paid to York under York's agreement with Petitioner. The net return on the 210 cartons of zucchini squash referred to in paragraph 6 above was $698.17 of which Petitioner has received only $349.09, the balance of $349.08 was paid to York by Respondent Gopherbroke. After April 12, 1985 York was no longer involved in the harvesting of Petitioner's squash due to a disagreement between York and Petitioner. On April 15 and 17, 1985 Petitioner delivered 30, 62 and 3 cartons of small, medium and large zucchini squash, respectively to Respondent Gopherbroke. The net return on the 95 cartons of zucchini squash referred to in paragraph 10 above was $127.35 which has been paid to Petitioner in two separate checks. However, Petitioner was not paid for 5 cartons of medium zucchini squash that Respondent Gopherbroke shows on its exhibit 2 (4/19 - 8731) as being dumped and on 21 cartons of medium zucchini squash Respondent Gopherbroke shows on its exhibit 2 (4/17 - 87298) as open but later shows a gross sale of $47.25 with charges of $10.50 for handling and $3.07 commission and an adjustment of $43.29 for a minus net proceeds to Petitioner of $9.61. The evidence is clear that the zucchini squash delivered to Respondent Gopherbroke by Petitioner on April 15 and 17, 1985 were harvested, cleaned, graded and packaged by Petitioner and his family and were of good quality when delivered. Respondent Gopherbroke presented no testimony or documentary evidence to support the dumping of the 5 cartons of squash or any justification for the adjustment on the 21 cartons of squash. On at least one occasion, Petitioner advised Respondent Gopherbroke that it was not authorized to pay York any of moneys owed to Petitioner by Respondent Gopherbroke for zucchini squash delivered by York. The price of medium zucchini squash during the period that the 5 cartons were dumped was $2.00 per carton for a gross amount of $10.00 minus the handling fee of $2.50 for a net return of $7.50. A sales commission of $0.65 had been deducted in Respondent Gopherbroke's earlier calculation. Petitioner was not furnished an account of sales within 48 hours after Respondent Gopherbroke sold the squash and the earliest payment for the squash was made 9 days after Respondent Gopherbroke had collected for Petitioner's squash.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Gopherbroke be ordered to pay to the Petitioner the sum of $399.87. It is further RECOMMENDED that if Respondent Gopherbroke fails to timely pay the Petitioner as ordered, then Respondent Hartford 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 8th day of April, 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 day of April, 1986.
The Issue The issue is whether Respondent, Greenblades of Central Florida, Inc., and its surety, Western Surety Company, are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner operates a nursery supply company that produces trees, plants, and other landscaping supplies at a location in Bunnell, Florida. Respondent is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Respondent was a licensed dealer in agricultural products supported by a surety bond provided by Western Surety Company. This matter arose over a Producer Complaint filed by Petitioner on June 24, 2005, in which it alleged that Respondent owed $20,512.97, based upon five invoices for nursery goods delivered to various job sites where Respondent was providing landscaping services. The five invoices set forth in the original Producer Complaint are as follows: Date of Sale Invoice # Amount Dec. 28, 2004 64679 $2,884.72 Jan. 11, 2005 64828 3,878.75 Jan. 11, 2005 64829 1,926.00 Feb. 1, 2005 65229 2,086.50 Feb. 3, 2005 65127 9,737.00 Petitioner later amended its Complaint to withdraw its claims under Invoice Nos. 65229 and 65127, as untimely filed, resulting in an amended amount due of $8,689.47. Respondent filed a Response to the Producer Complaint on August 15, 2005, admitting the amounts due under Invoice Nos. 64679 and 64828, totaling $6,763.47, and denying the amount claimed in Invoice No. 64829, $1,926.00, as never having been filled, resulting in Respondent's using another vendor to fill the order. Respondent admitted the amounts due under Invoice Nos. 64679 and 64828; therefore, no further discussion is necessary for those items, except to note that Delivery Receipt No. 17751, relating to Invoice No. 64828 contains the note "Reject 1 Live Oak." Therefore, the amount of Invoice No. 64828 must be reduced by $214.00 ($200 for the tree and 7 percent Florida Sales Tax). With respect to Invoice No. 64829, however, Petitioner produced at hearing only an unsigned invoice without either a sales order or a receipt for delivery of goods, as was its custom concerning deliveries of nursery goods. Accordingly, Petitioner provided no proof that the order under Invoice No. 64829 was actually delivered to Respondent. Respondent and its surety, Western Surety Company, currently owe Petitioner $2,884.72 under Invoice No. 64679, and $3,664.75 under Invoice No. 64828, for a total amount owed of $6,549.47.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent, Greenblades of Central Florida, Inc., or its surety, Respondent, Western Surety Company, to pay Petitioner $6,549.47 for unpaid invoices. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2006. COPIES FURNISHED: Christopher E. Green, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Division of Marketing 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Joseph Robbins, Jr. Greenblades of Central Florida, Inc. 11025 Southeast Highway 42 Summerfield, Florida 34491 Tom Snyder Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Donald M. DuMond Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Tom Robinson Skinner Nurseries, Inc. 13000 State Road 11 Bunnell, Florida 32110 Honorable Charles H. Bronson Department of Agriculture and Consumer Services Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
The Issue Whether, 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 Consolidated Services, Inc. (CSI) owe Petitioner Richard Sapp Farms, Inc. (Sapp Farms) $24,677.66 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. Squash and eggplant come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. CSI is a Florida Corporation, owned entirely by Robert "Bo" Allen, and located in Pompano Beach, Florida. At times pertinent to this proceeding, CSI was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. CSI was issued License Number 8873 by the Department, which is supported by Bond Number L&P 66186 in the amount of $25,000.00 written by Respondent New York Surety Company, as Surety, with an Inception Date of November 18, 1997, and an Expiration Date of November 17, 1998. Sometime in early April or May 1998, Sapp Farms entered into a verbal contract with CSI, through its agents, to furnish CSI with fresh vegetables during the spring and summer of 1998. From early May 1998 through July 1998, Sapp Farms furnished CSI with eggplant and squash. From June 1, 1998 through August 8, 1998, CSI paid Sapp Farms a total of $51,300.00 for eggplant and squash furnished to CSI. The Complaint was timely filed by Sapp Farms in accordance with Section 604.21(1), Florida Statutes. Sapp Farms alleges in its Complaint that CSI owes Sapp Farms $24,677.06 for eggplant and squash furnished to CSI from early May 1998 through July 1998, for which CSI has not made any payment or has only made partial payment. Sapp Farms failed to present sufficient evidence to establish facts to show an accurate or reliable market price for eggplant or squash during the period in question. Michelle Sapp, the person who gathered the information concerning the market prices, testified that she: (a) did not view the market reports for each day in question; (b) did not remember what geographic area the market reports she viewed pertained to; (c) did not know whether the market prices she viewed were "shipping point" or "terminal point" prices; (d) did not know what the range was for market price each day; and (e) did not know where in the range she chose to establish the market price. Sapp Farms contends that CSI agreed to pay a minimum price of $4.00 for squash and $5.00 for eggplant. Richard Sapp testified that CSI agreed to pay Sapp Farms a minimum price of $4.00 for squash and $5.00 for eggplant. However, I find that Richard Sapp's testimony lacks credibility in this regard due to the fact that this alleged "minimum price" applied regardless of the grade, which is highly unlikely. There is insufficient evidence to establish facts to show that CSI agreed to pay Sapp Farms a minimum price for eggplant and squash. The following is a listing of the eggplant and squash delivered to CSI by Sapp Farms for which CSI has failed to pay Sapp Farms: Date Product Grade Quantity *Price Amount Owed Ticket 6/10/98 Eggplant Fancy 208 $ 4.75 $ 988.00 422 6/10/98 Squash (CN) No. 2 4 $ 6.75 $ 27.00 425 6/15/98 Eggplant Fancy 160 $ 4.40 $ 704.00 443 6/16/98 Squash (SN) Fancy 80 $ 6.25 $ 500.00 447 6/16/98 Squash (SN) Medium 80 $ 4.25 $ 340.00 447 6/16/98 Squash (CN) No. 1 10 $ 8.50 $ 85.00 447 6/20/98 Squash (SN) Medium 47 $ 4.50 $ 211.50 466 6/27/98 Squash (CN) No. 1 126 $ 4.90 $ 617.40 497 6/27/98 Squash (CN) No. 2 59 $ 3.75 $ 221.25 497 6/29/98 Squash (CN) No. 1 113 $10.00 $1,130.00 502 6/29/98 Squash (SN) Fancy 154 $ 2.00 $ 308.00 502 7/07/98 Squash (CN) No. 2 20 $ 5.25 $ 105.00 509 7/08/98 Squash (CN) No. 1 13 $ 9.50 $ 123.50 515 7/08/98 Squash (CN) No. 2 20 $ 5.75 $ 115.00 515 Total $5,475.65 *Prices used in this calculation are the same as the price paid by CSI to Sapp Farms for the same product, with the same grade, on the same day or the nearest day to that day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating circumstances, it is recommended that the Department enter a final order granting Sapp Farms relief by ordering CSI to pay Sapp Farms the sum of $5,475.65. DONE AND ENTERED this 27th day of August, 1999, 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 27th day of August, 1999. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 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 David H. Galloway, P.A. Attorney at Law 506 North Alexander Street Post Office Box 848 Plant City, Florida 33564-0848 Robert E. Goldman, Esquire 1543 Seventh Street, Suite 202 Santa Monica, California 90401 Joseph Monahan New York Surety Company 123 William Street New York, New York 10038-3804
Findings Of Fact From before January 1, 1974, until the time of the final hearing in this matter, petitioner owned a DC-6 airplane, During the calendar year 1974, this airplane was leased to Surinam Air Cargo for approximately a half dozen flights. Petitioner's employees, Messrs. Goodman, Davis and Williams, crewed the airplane back and forth between Miami and Surinam, in accordance with the unwritten agreement between petitioner and Surinam Air Cargo. On some or all of these flights, petitioner transported its own goods as well as Surinam Air Cargo's. The parties stipulated that the purchases listed in schedule B attached to joint exhibit No. 1 were made for the flights back and forth to Surinam. In September of 1975, petitioner entered into agreements with Paul H. Jones & Co., Inc., to lease the DC-6 for approximately four flights, some of which were agreed upon orally; the others were the subject of written agreements. All of the agreements contemplated that petitioner would furnish the airplane crew and petitioner's employees, Messrs. Goodman, Davis and Wright, did in fact operate the DC-6 while it was leased to Paul H. Jones & Co., Inc. Miami International Hatcheries, Inc. (MIH) deals in hatching eggs. CWT Farms of Gainesville, Georgia, is a principal supplier of eggs to MIH and has been for some time. Until the fall of 1975, MIH regularly shipped eggs it received from CWT Farms to Kingston, Jamaica, using the facilities of Pan American Airways or Air Jamaica, which are common carriers. On October 13, 1975, however, petitioner entered into a contract with CWT Farms, which was evidenced by two writings, joint exhibits Nos. 2 and 3. Joint exhibit No. 2 sets up a "proposed flight schedule every Monday and Thursday," requires petitioner "to arrange and pay for cargo insurance" and specifies the manner and amount of CWT Farms' payment to petitioner; payments (covering "all operational costs") vary with the weight of the cargo and are "due and payable at the completion of each flight." Joint exhibit No. 4 is a writing evidencing an extension of the original agreement to a date beyond December 31, 1976. Joint exhibit 3 contains, inter alia, a provision which recites "that the person responsible for the operational control of this aircraft during the term of this lease shall be CWT Farms." The provisions of joint exhibits Nos. 3 and 4 notwithstanding, there was from the beginning a clear understanding between Mr. Goodman, on behalf of petitioner, and Raymond H. Burch, on behalf of CWT Farms, that petitioner would hire the crew and that it was petitioner's "responsibility to take care of the crew and to fly the plane." Petitioner's exhibit No. 5, p. 12. Petitioner's employees, ordinarily Messrs. Goodman, Davis and Wright, did in fact fly the DC-6 twice a week from Miami to Kingston, Jamaica, and back. These employees looked for payment of their salaries to petitioner rather than to CWT Farms or to any predecessor lessee. Occasionally, petitioner transported to Jamaica goods belonging to firms other than CWT Farms, but petitioner did not transport its own cargo on the flights to Jamaica. In aviation jargon, a dry lease is an agreement, analogous to a bareboat charter in maritime law, under which the lessee of aircraft undertakes to furnish the crew and gasoline, takes responsibility for maintenance and pays a pro-rata fee for engine time. A wet lease, in contrast, is an agreement under which the lessor furnishes the crew and gasoline and takes responsibility for maintenance; there is no provision for engine time and no penalty for a failed engine. The Federal Aviation Administration imposes more stringent safety regulations on wet lessors of aircraft than on dry lessors. In February of 1977, the Federal Aviation Administration began an investigation of petitioner which resulted in the filing of a complaint against petitioner and others on April 15, 1977, in the United States District Court for the Southern District of Florida. United States of America v. Kimex, Inc., et al., No. 77-1267-CIV-JE. This proceeding eventuated in a stipulation of dismissal in which petitioner agreed to a civil penalty (partially suspended) of thirty thousand dollars ($30,000.00) and admitted that, under the agreement with CWT Farms, it had "engaged in the carriage of property for compensation or hire in air commerce as a private carrier" and that the leases to CWT Farms "were 'wet leases'." During the period of the lease between petitioner and CWT Farms, MIH was normally in debt to CWT Farms because MIH did not pay in advance for the eggs it received from CWT Farms. At CWT Farms' behest, MIH paid petitioner moneys due petitioner from CWT Farms, in partial discharge of MIH's own obligations to CWT Farms. A practice developed under which MIH drew and delivered four checks to petitioner's employees before each flight, which, in the aggregate, constituted CWT Farms' payment to petitioner for the preceding flight. H. Goodman was the payee on one check, in the amount of one hundred seventy-five dollars ($175.00), C. Wright was the payee on one check in the amount of one hundred fifty dollars ($150.00), R. Davis was the payee on one check, in the amount of one hundred twenty-five dollars ($125.00). These checks also operated to discharge part of petitioner's salary obligations to these employees. Kimex, Inc. was the payee on the fourth check, the amount of which varied, depending on the weight of the cargo petitioner had transported on the previous flight. In calculating the amount of the fourth check, the amount CWT Farms owed petitioner was first computed, and four hundred fifty dollars ($450.00) was then subtracted. Before each flight, MIH delivered eggs in cases, which weighed fifty-two (52) pounds each, to a freight loading company at Miami International Airport. Because MIH kept track of the number of cases it delivered, it was a simple matter to compute CWT Farms' obligation to petitioner, as specified in the lease, viz., "16 per pound for the minimum weight of 26,000 pounds to 30,000 pounds and 15 per pound from 30,001 pounds to 32,000 pounds." Joint exhibit 2. From this figure was subtracted the sum of the checks drawn in favor of petitioner's employees. This procedure obtained until some time after December 31, 1976. By the time of the hearing, however, petitioner's employees were paid with weekly pay checks which petitioner itself drew in their favor; and petitioner received lease payment checks which were not reduced by four hundred fifty dollars ($450.00). Before the change to the practice in effect at the time of the hearing, MIH caused Internal Revenue Service Forms 1099 to be prepared to reflect the total MIH payments to petitioner's employees for each year involved. Petitioner prepared W-2 Forms to reflect the salary moneys it paid to its employees directly for each year involved.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent reduce its proposed assessment to four percent of the total dollar cost of the items listed on schedule B attached to the notice of proposed assessment, together with applicable penalties and interest, if any. DONE and ENTERED this 22nd day of December, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraphs one, two, four through thirteen, fifteen and sixteen of petitioner's proposed findings of fact have been adopted, in substance. Paragraph three of petitioner's proposed findings of fact recites that petitioner's lease to Jones & Co. was oral whereas the evidence was that the agreements with Jones & Co. with respect to some of the flights were reduced to writing. Paragraph fourteen of petitioner's proposed findings of fact has been adopted, in substance, assuming that "direction or control" is intended to mean responsibility or authority for navigation of the aircraft. Paragraph one of respondent's proposed findings of fact has been rejected as unsupported by or contrary to the evidence. Petitioner employs Messrs. Goodman, Davis and Wright, Miss Goodman and several mechanics. Mr. Goodman, Mr. Davis and Miss Goodman are petitioner's corporate officers. Petitioner's stockholders are Mr. Davis, Mr. and Mrs. Goodman. The evidence did not establish who petitioner's directors are. Although the evidence showed that petitioner owned a DC-6 airplane based in Miami, it was not proven that petitioner had no other assets. Paragraph two of respondent's proposed findings of fact has been adopted in substance, insofar as relevant, except that there was no evidence that petitioner was exporting its own goods on the flights made pursuant to its agreements with Paul H. Jones & Co. Paragraphs three, four, five and six of respondent's proposed findings of fact have been adopted in substance, insofar as relevant. The final paragraph of respondent's proposed findings of fact lacks support in the evidence. For a given flight, CWT Farms would owe petitioner at least the agreed price for shipping 26,000 pounds of eggs, regardless of how few eggs were in fact shipped. On a given flight, CWT Farms could ship up to 32,000 pounds, but, if CWT Farms shipped less, petitioner sometimes transported eggs for other firms. The semiweekly flight schedule was set by mutual agreement between petitioner and CWT Farms. COPIES FURNISHED: Mr. Norman S. Segall, Esquire Suite 607, 100 Biscayne Tower 100 North Biscayne Boulevard Miami, Florida 33132 Mr. Michael A. Rubin, Esquire Suite 4-B 420 South Dixie Highway Coral Gables, Florida 33146 Mr. Edwin J. Stacker, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32304
The Issue The issue is whether the claims of $98,935.20 and $19,147.70, filed by Petitioner under the Agricultural Bond and License Law, are valid. §§ 604.15 - 604.34, Fla. Stat. (2008).
Findings Of Fact At all material times, Petitioner has been a producer of agricultural products located in Plant City, Florida. At all material times, American Growers has been a dealer in agricultural products. Respondent Lincoln General Insurance Company, as surety, issued a bond to American Growers, as principal. American Growers is licensed by the Department of Agriculture and Consumer Services ("DACS"). Between December 16, 2008, and February 4, 2009, Petitioner sold strawberries to American Growers, each sale being accompanied by a Passing and Bill of Lading. Petitioner sent an Invoice for each shipment, and payment was due in full following receipt of the Invoice. Partial payments have been made on some of the invoices, and as of the date of this Recommended Order, the amount that remains unpaid by American Growers to Petitioner is $117,982.90, comprising: Invoice No. Invoice Date Amount Balance Due 103894 12/16/08 $7,419.00 $1,296.00 103952 12/22/08 $18,370.80 $1,944.00 103953 12/23/08 $3,123.60 $648.00 193955 12/26/08 $8,164.80 $1,728.00 103984 12/28/08 $28,764.40 $28,764.40 104076 12/31/08 $17,236.80 $17,236.80 104077 1/5/09 $17,658.00 $17,658.00 104189 1/5/09 $1,320.90 $1,320.90 104386 1/20/09 $16,480.80 $16,480.80 104517 1/29/09 $17,449.20 $17,449.20 104496 2/4/09 $13,456.80 $13,456.80 TOTAL $117,982.90
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 requiring Respondent, American Growers, Inc., and/or its surety, Respondent, Lincoln General Insurance Company, to pay Petitioner, Crown Harvest Produce Sales, LLC, the total amount of $117,982.90. DONE AND ENTERED this 18th day of May, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture and Consumer Services The Capital, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, Mail Station 38 Tallahassee, Florida 32399-0800 Glenn Thomason, President American Growers, Inc. 14888 Horseshoe Trace Wellington, Florida 33414 Katy Koestner Esquivel, Esquire Meuers Law Firm, P.L. 5395 Park Central Court Naples, Florida 34109 Renee Herder Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Boulevard, Suite 155 Tampa, Florida 33634 Glenn C. Thomason, Registered Agent American Growers, Inc. Post Office Box 1207 Loxahatchee, Florida 33470
