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
The Issue Whether the Respondent Five Brothers Produce owes the Petitioner $16,493.00 for green beans that Five Brothers Produce accepted, sold, and shipped to the buyer as the Petitioner’s agent/broker.
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: Five Brothers Produce accepts agricultural products from growers for sale or consignment and acts as an agent/broker for the growers. Currently, Five Brothers Produce represents 25 to 30 growers as agent/broker. Five Brothers Produce has a surety bond issued by Old Republic Surety Company to secure payment of sums owed to agricultural producers. Veggie Growers grows agricultural produce in fields located in Homestead, Florida. On or about April 28, 2009, a buyer employed by Five Brothers Produce examined Veggie Growers' crop of green beans in the field. He suggested that Veggie Growers pick the beans and deliver them to Five Brothers Produce for sale. On April 28, 2009, Veggie Growers delivered 796 boxes of hand-picked green beans to Five Brothers Produce. The beans were inspected and accepted for sale by an employee of Five Brothers Produce. The Marketing Agreement and Statement included on the Grower Receipt for the produce given to Veggie Growers by Five Brothers Produce provided in relevant part: The grower gives Five Brothers Produce the right to sell or consign to the general trade. No guarantees as to sales price are made and only the amounts actually received by Five Brothers Produce, less selling charges, cooler charges, and any other charges will be paid to the grower. Final settlement will be made within a reasonable length of time and may be held until payment is received from the purchaser. On April 29, 2009, Veggie Growers delivered 514 boxes of hand-picked green beans to Five Brothers Produce. The beans were inspected and accepted for sale by an employee of Five Brothers Produce. The Marketing Agreement and Statement included on the Grower Receipt for the produce delivered by Five Brothers Produce to Veggie Growers on April 29, 2010, included the same provision as quoted above. Veggie Growers received a picking advance of $3980.00 on the beans from Five Brothers Produce on April 28, 2010, and it delivered a total of 1310 boxes of green beans to Five Brothers Produce on April 28 and 29, 2009. The beans picked by Veggie Growers on April 28 and 29, 2009, were in good condition when they were picked, packed, and delivered to Five Brothers Produce. On April 29, 2009, Five Brothers Produce sold 50 crates of Veggie Growers’ beans to J. H. Harvey for $15.00 per crate. On April 30, 2009, Five Brothers Produce shipped the remaining 1260 crates of green beans received from Veggie Growers to Chenail Fruits et Legumes (“Chenail”) in Montreal, Quebec, Canada. In this shipment, Five Brothers Produce also included 84 crates of beans obtained from growers other than Veggie Growers, for a total of 1344 crates of green beans. The invoice issued by Five Brothers Produce reflecting the sale of 1344 boxes of green beans to Chenail identified the price of the beans as $11.50 per box, together with a Ryan recorder, which is used to measure the temperatures during transit, and pallets furnished by Five Brothers Produce, for a total due from Chenail of $16,671.50. Chenail received the shipment of beans at 11:30 on May 3, 2009, and requested an inspection at 5:32 on May 4, 2009, stating on the inspection request that it was “protesting the above described load due to poor condition on arrival.” Pursuant to the agreement between Chenail and Five Brothers Produce, a private inspection report was ordered, which was to include digital temperatures, “as conclusive evidence of the condition of this product noted upon arrival at destination.” The Certificate of Inspection indicated that the inspection report was completed at 7:00 on May 4, 2009, and that no decay was in evidence; that an average of 15 percent of the beans exhibited “dark green pepper spot discoloration ((resembling bruising) affecting materially the appearance),” with a range of six percent to 22 percent; that an average of two percent of the beans exhibited russeting; an average of seven percent of the beans were flabby, with a range of three percent to 12 percent; and that an average of four percent of the beans exhibited wind scars, with a range of one percent to 10 percent. The report also reflected that the bean crates were “in good order properly packed. Finally, the pulp temperature of the beans was noted in the report at 40 degrees Fahrenheit; the warehouse temperature was noted as 40 degrees; and the outside temperature was noted as 63 degrees. No temperature was noted for the vehicle in which the beans had been shipped, presumably because the beans had been off-loaded. A Commodity References form for beans was attached to the inspection report. It included information that the United States Department of Agriculture recommended storing snap beans at 40 to 45 degrees Fahrenheit; that the “standard grade tolerances” for defects in U.S. No. 1 snap beans is 13 percent total, “including 5 % serious including 1 % soft decay.” The Commodity References form also included information that, for a “[m]aximum percentage for a 5 day normal transit,” the “Suitable Shipping Condition/F.O.B. Good Delivery Guideline” for snap beans is 18 percent total, “including 8 % serious including 3 % decay.” The condition of the beans shipped by Five Brothers Produce exceeded the standard tolerances. The Commodity References form also indicated that, if the beans were held at a temperature cooler than 40 degrees Fahrenheit, there would have been evidence of decay in the form of surface pitting and russeting, with rusty brown specks, and the beans would “then become spotted and sticky when removed to warmer temperatures.” There was no indication on the Certificate of Inspection that the beans exhibited any of these features except that an average of two percent of the beans were russeted. Pursuant to these standards, Chenail properly considered the 1344 crates of beans shipped from Five Brothers Produce to be defective. Based on the results of the inspection report of the 1344 crates of beans, Chenail sent Five Brothers Produce a statement reflecting that it would remit to Five Brothers Produce a total of $1,275.70 U.S. The statement showed that Chenail paid nothing for 374 crates of beans; $6.00 Canadian per crate for 112 crates; $8.00 Canadian per crate for 336 crates; and $9.00 Canadian per crate for 522 crates. Based on these figures, Chenail calculated that the total gross amount due to be paid to Five Brothers Produce for the 1344 crates of beans was $6,446.40 U.S. Chenail then deducted $5,170.70 U.S. for inspection, pallets, recorder, transport, and warehousing costs and indicated it would remit to Five Brothers Produce a net total of $1275.70, or an average of $0.95 per crate of beans. Five Brothers Produce subsequently sent an invoice to Chenail for $1,491.20 U.S., or a average of $1.11 per crate, after deducting the charges Chenail had included for the pallets and the recorder, which had been furnished by Five Brothers Produce. Five Brothers Produce sent Veggie Growers a Grower Lot Status form showing the history of the 1310 crates of hand-picked “bush” beans it received from Veggie Growers on April 28 and 29, 2009. The form reflects the sale of 50 crates of beans to J. H. Harvey on April 29, 2009, at $15.00 per crate. It also reflects a price $0.95 per crate for the 1260 crates of Veggie Growers snap beans included in the shipment to Chenail, for a total sale amount of $1,458.09. Five Brothers Produce deducted from this amount a $50.00 loading fee and a $30.00 selling charge for the beans sold to J. H. Harvey and the $3,980.00 advance paid to Veggie Growers for the beans. Five Brothers Produce did not take a loading charge or a selling charge for the 1344 crates of beans sent to Chenail. According to the calculations of Five Brothers Produce, Veggie Growers had a net return of -$2,601.91 on the 1310 crates of beans. The market dictates how quickly Five Brothers Produce can sell the produce it accepts as agent/broker. In late April, snap beans generally do not sell quickly because there are a lot of beans available. Beans should be sold and shipped as soon as possible after picking. Snap beans will usually last only seven days from the date of picking. It normally takes two or three days for a shipment of produce to travel from Five Brothers Produce to Canada. Sometimes beans that are in good condition at the time they are shipped are not good enough to survive the trip to Canada. Summary The evidence presented by Veggie Growers is not sufficient to establish that it is entitled to any additional payment for the beans it delivered to Five Brothers Produce on April 28 and 29, 2009. Veggie Growers established that it picked the beans and delivered them to Five Brothers Produce at the suggestion of a representative of Five Brothers Produce, who inspected the beans in the field and found them acceptable, and that the beans were acceptable when delivered to Five Brothers Produce. Indeed, on April 29, 2009, when the final 514 crates of beans were delivered to Five Brothers Produce, Five Brothers Produce sold 50 crates for $15.00 per crate, establishing that the beans were of good quality when delivered. Nonetheless, there was no evidence presented to suggest that Five Brothers Produce did not use its best efforts to locate a buyer for the remaining 1260 crates of beans within a reasonable time after the beans were delivered, nor was any evidence presented to suggest that Five Brothers Produce did not properly store, load, and ship the beans to Chenail. The beans were shipped from Five Brothers Produce on April 30, 2009; the inspection report shows that the beans were properly packed; and there is no indication that the beans had been stored at an improper temperature.
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 Veggie Growers, Inc., against Five Brothers Produce, Inc. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 29th day of July, 2010.
Findings Of Fact On March 14, 1973, Wesnofske Farms, Inc., of Crescent City, Florida, entered into an agreement with Richard Weller of Warehouse Point, Connecticut, as receiver and Morgan Produce, Inc., of Lincoln, Delaware, as agent/Broker for the receiver. Wesnofske agreed to deliver 10,000 hundredweight of potatoes at an agreed price of $4.10 per hundredweight f.o.b. Wesnofske Farms in Crescent City, Florida. The contract provided, inter alia, that the deliveries were to be prorated over or about seven week harvest period which began at the time of digging or about April 15, 1978, subject, of course, to weather, digging conditions and crop maturity. The contract also provided that in the event of crop failure due to drought, etc., or any act of God, the contract was to be probated in accordance with acreage yield, etc. (See Exhibit A). William B. Morgan, President of Morgan Produce, Inc. served as the broker for the parties. Mr. Morgan testified that due to the extended cold weather season, digging commenced on or about May 3, 1978. On that date, May 3, 1978, Morgan telephoned Respondent, Richard Weller, and advised him that the first deliveries were ready and inquired of Weller when his first trucks would be arriving to accept delivery. Weller indicated that marketing conditions extant at the time forced him to decline delivery of potatoes and instructed Morgan to contact Mr. Jack Rubin and offer his deliveries to him. Morgan contacted Rubin and offered the potatoes for $6.80 per hundredweight, whereupon Rubin advised that he had at that time more contracts at lower price that he could handle. Weller was advised of Rubin's response and instructed Morgan to sell his deliveries to the best of his ability on the open market. Beginning on May 6, 1978, Morgan began selling potatoes from the Weller contract to various co-ops and distributors at a profit through approximately May 16, 1978, when there existed a glut in the potato market. Weller was advised by Morgan that he would not be able to continue showing him a profit on his contract if the then present market conditions continued. Weller was advised by Morgan that the potatoes were presently bringing approximately $3.75 per hundredweight to the open market, which, of course, would represent a loss to him of 35 cents per hundred pounds. At that time, it appeared that the depressed market conditions would continue throughout the digging season and, this being the first contract that Petitioner had entered with Respondent, Morgan contacted Petitioner's farm manager, Joseph Froehlich. Morgan and Froehlich discussed the matter and decided that it would be advantageous to release Respondent from his contractual obligations with no loss to him and to credit Respondent's account for all profits accrued as of that date. According to Morgan, Weller agreed and was pleased with this proposal of being rid of the contractual obligations due to the depressed market conditions. From the period May 6, 1978, through June 1, 1978, when Weller was released from his, contract, Weller had earned a net profit of approximately $1,900 (See Exhibit B). During the period of May 16 through May 26, 1978, Morgan sold approximately 921,960 hundredweights at $3.75 per hundredweight, which had been grown for Richard Weller and Orlowski Produce Company, another contracting entity (See Exhibit C). However, on or about May 18, 1978, the market conditions turned around due to low acreage yields of area farms which caused a potato shortage with a resultant rise in market prices. At that time, Weller contacted Morgan and demanded a load of potatoes allegedly due on his contract on May 18, 1978. Morgan discussed the matter with farm manager Froehlich, and it was agreed that Petitioner would provide deliveries to Respondent from purchases of other area farms although Petitioner was of the opinion that it was not obligated to do so, inasmuch as Respondent had been released when market conditions were depressed. Deliveries to Weller resumed on May 18, 1978, and continued through June 7, 1978. From the period June 6 through June 8, 1978, Petitioner was unable to provide shipments from its supplies and, therefore, purchased on the open market, three shipments for the Weller contract at a price of $7.85 per hundred pounds. Based on these bulk loads purchased on the open market, the difference between the contract price and the open market price resulted in a deficiency of approximately $4,865.25 which was charged to Richard Weller's account when an invoice was forwarded him pursuant to contract. On June 26, 1978, Weller was invoiced for $32,202.41, of which amount Weller paid $27,337.16 on July 15, 1978, pursuant to the $4.18 per hundredweight contracted price for all deliveries (See Exhibit E). Joseph Froehlich testified that due to the inclement weather conditions, the late acreage yields were down to approximately 40 hundred pounds per acre, which was substantially less than the other acreage had yielded. Froehlich testified that had Respondent accepted deliveries of potatoes when offered during the early digging season, his contractual allotment could have been fulfilled; however, he opted to be released at a time when market conditions were poor. Thus, Froehlich contends, that Petitioner was not obligated to purchase potatoes on the open market for Weller and sustain a loss when market conditions dictated higher prices. This was so Froehlich contends, first of all because Respondent failed to accept delivery of the potatoes when they were available to him pursuant to the terms of the contract and, secondly, inasmuch as Respondent was relieved from the terms and obligations of the contract when market conditions were poor. During the course of the hearing, Petitioner's representative, Morgan, indicated that the Wesnofskes were not negotiating the partial tender of payment by Respondent in the amount of $27,337.16 until the administrative hearing herein was completed. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, hereby, RECOMMENDED: That the State of Florida, Department of Agriculture and Consumer Services uphold the claim of the Petitioner, Wesnofske Farms, Inc., in the amount of $32,202.41, plus normal interest accruing from July 15, 1978, as provided in the contract, plus a reasonable amount for costs and fees for preparation of this administrative claim. Based upon the testimony offered during the course of the hearing, a reasonable amount appears to be approximately $1,000. RECOMMENDED this 12th day of June, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Holmes Nursery & Gardens Associates, LTD., is a wholesale and retail nursery providing a variety of landscape agricultural products. The east coast regional office for Petitioner is located at 1600 SW 20th Street, Fort Lauderdale, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highways Delray Beach, Florida. Respondent, Garden of Eden is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about April 23, 1986, Garden of Eden ordered and received delivery of $1770.00 worth of agricultural products from Petitioner. This purchase consisted of four viburnum odo., five weeping podocarpus and one bottlebrush. On or about April 25, 1986, Garden of Eden ordered and received delivery of $420.00 worth of agricultural products from Petitioner. This purchase consisted of three live oaks. On or about April 28, 1986, Garden of Eden ordered and received delivery of $312.50 worth of agricultural products from Petitioner. This purchase consisted of twenty-five viburnum odo. On or about April 29, 1986, Garden of Eden ordered and received delivery of $520.00 worth of agricultural products from Petitioner. This purchase consisted of four laurel oaks. On or about May 5, 1986, Garden of Eden ordered and received delivery of $1,130.00 worth of agricultural products from Petitioner. This purchase consisted of forty-seven crinum lily and six hundred and twenty-two liriope muscari. On or about May 13, 1986, Garden of Eden ordered and received delivery of $2,943.00 worth of agricultural products from Petitioner. This purchase consisted of seven cattley grava, and six paurotes. On or about May 28, 1986, Garden of Eden ordered and received delivery of $315.00 worth of agricultural products from Petitioner. This purchase consisted of one roebelinii single and one roebelinii double. On or about June 19, 1986, Garden of Eden ordered and received delivery of $300.00 worth of agricultural products from Petitioner. This purchase consisted of one paurotis 5 stem. The total amount of the agricultural products purchased by Garden of Eden was $7,710.50. On August 8, 1986, Garden of Eden paid $1060.00 on the account. On September 24, 1986, another $2500.00 was remitted to Holmes Gardens on this account. The balance of indebtedness owed by Garden of Eden to Holmes Gardens for the purchases listed above is $4,150.00. Petitioner claims it is due an additional sum of $436.04 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry; however, no written agreement or acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
Findings Of Fact In 1983 William Lovett, Jr., Complainant, planted 65 acres of water melons, most of which were bought by Doyle L. Wadsworth, Respondent, either for himself or for William Manis Company. The only entity for which Respondent acted as agent was the Manis Company, for whom he has bought melons as its agent for many years. On behalf of himself or Manis, Respondent, in 1983, purchased melons from Complainant on June 16, 17, 20, 23, 24, 27, and 29. Complainant's melons were bought at prices ranging from seven cents to ten cents per pound. The melons were paid for by check signed by Respondent, dated zero to five days after the invoice date, on either Respondent's checking account at the Barnett Bank of Brandon or on Manis Company's account at Sun Bank of Tampa. Total payments to Complainant for these melons were $285,104.25 (Exhibits 2 and 3). Complainant and Respondent had met shortly before the 1983 water melon season through a mutual friend. Wadsworth agreed to buy water melons from Lovett, not to act as his broker. The grower had the water melons harvested, the buyer provided trucks and trailers to pick up the melons at the field, and the sale occurred when the melons were loaded. Wadsworth testified that he explained to Lovett that he buys melons on a load basis which he has done for many years, that he does not act as a broker to sell the melons, and that once the melons are loaded they are the responsibility of the then-owner, Wadsworth. 1983 was a good year for water melons and Wadwsorth bought nearly all of Lovett's production. Lovett asked Wadsworth if he would handle his melons if Lovett planted a crop in 1984 and Wadsworth agreed. Wadsworth also told Lovett that he preferred "grays," which Lovett planted. Lovett understood that Wadsworth had agreed to buy all of his water melons except for those Lovett sold independently, and to pay the prevailing prices. Wadsworth had no such understanding. Lovett's primary occupation is doctor of veterinary medicine and he relied on others for harvesting information. For reasons not fully explained at the hearing, the harvesting of Lovett's 1984 crop of water melons was a little late. Accordingly, any further delays resulted in overripe or sunburned water melons. The first harvesting of Lovett's melons occurred on Saturday, June 2, 1984, and Wadsworth bought 46,480 pounds at 3-1/2 cents per pound on behalf of Manis Company. Harvesting next occurred Monday, June 4, 1984, when Wadsworth bought 40,680 pounds for Manis and just over 100,000 pounds for himself. Payment for these water melons was made June 5, 1984, by a check in the amount of $3,050.60 on the Manis bank and $3,626.70 00 Wadsworth's bank. During the loading on June 4 a large number of water melons were discarded as culls. This made the task of grading and overseeing the grading much more onerous, and Wadsworth advised Lovett he would not be buying any more water melons from him that season. Lovett came to Wadsworth's motel to persuade him to do otherwise, but without success. Lovett asked Wadsworth if he could refer him to someone else to handle his melons, which request Wadsworth declined. Lovett subsequently obtained the services of a broker to handle his water melons but the additional delay in getting the crop harvested and the extra brokerage cost he incurred resulted in less income to Lovett than he would have received had Wadsworth bought all of Lovett's melons. Conflicting evidence was presented regarding the condition of the water melons grown by Lovett in 1984. Lovett's witnesses described the field as the finest ever seen, while Wadsworth testified that recent excess rainfall left part of the field wet, and some vines were wilting. All witnesses agreed that there were a large number of culls discarded from the water melons graded No. 1 on the first harvesting. In view of the recommended disposition of this case, a definitive finding of fact on this issue is unnecessary.
Findings Of Fact Petitioner, Monticello Nursery Company of Florida, Inc., is a corporation whose address is Post Office Box 190, Monticello, Florida. (Petitioner's Complaint) Respondent, Paul Pent, d/b/a Paul Pent Landscape Company, is located at 1660 Emerson Street, Jacksonville, Florida. At the time of the transactions involved, Respondent was licensed as a dealer in agricultural products under License No. 3531. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985) Corespondent, Transamerica Insurance Company as surety provided bond number 5182-39-34 for Respondent in the amount of $4,750. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985) Petitioner's complaint for $6,159.30 is based upon two invoices for nursery plants: Invoice 1060 in the amount of $2,612.80, and Invoice 1308 in the amount of $6,109.30. From the total of $8,722.10 is deducted "payments and credit" of $2,562.80. (Petitioner's Complaint) The figures on the complaint and the attached invoices accurately reflect the statement of account for the subject transactions. (Testimony of Sandy Mazza) Invoice No. 1060 is for several kinds of nursery plants and is dated 12/31/84. On the invoice the order date is 10/26/84 and the "ship date" is 12/07/84. Whether the sale occurred upon order, shipment or date of invoice is immaterial, as all three dates are more than nine months prior to the filing of the complaint on September 5, 1985. Invoice No. 1308 is for a quantity of crepe myrtle trees and is dated 1/31/85. The order date and "ship date" are both 1/28/85. One invoice supports, and the other conflicts with, the date of 12/31/84, stated on the face of the complaint as the "date of sale". The invoices are competent evidence as supported by the bookkeeper's testimony. The finding in the November 15, 1985 order of the Department of Agriculture and Consumer Services that the sale totaling $6,159.30 was made on September 5, 1985, conflicts with both the complaint and the invoices and is unsupported by any evidence in the record.
Recommendation Based on the foregoing, it is recommended that a Final Order be issued requiring Respondent Paul Pent, pay Petitioner $3,546.50. The Final Order should specify that failure to comply will result in a requirement that Transamerica Insurance Company pay said sum to the Department of Agriculture and Consumer Services for distribution to Monticello Nursery. DONE and RECOMMENDED this 1st day of May, 1986, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1986. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 John C. Cooper, Esquire Douglas, Cooper & Coppins, P.A. 211 East Call Street Tallahassee, Florida 32302-1674 Mr. Paul Pent Pent Landscape Company 1660 Emerson Street Jacksonville, Florida 32207 Transamerica Insurance Company 1150 South Olive Street Los Angeles, California 90015 Joe W. Kight, Chief Division of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Ron Weaver, Esquire Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Room 513 Tallahassee, Florida 32301
The Issue Whether Respondent Employer committed an unlawful employment practice against Petitioner on the basis of his race, color, disability/handicap, and/or age.1/
Findings Of Fact Petitioner is an African-American male who was 66-68 years of age at all times material. Petitioner worked successfully, in a variety of positions, for Respondent from March 20, 1999, until July 29, 2007. By all accounts, he was an excellent employee in each position. He has, at his own expense, trained for, and received, a security guard license and education as a fork lift operator. The published job description for employment as a Wal- Mart Garden Center Sales Associate, has, since May 2005, required, among other "essential functions," that one be able to: While moving within the department over uneven surfaces and moving up and down a ladder, frequently lifting, sorting, carrying, and placing merchandise and supplies of varying sizes, constantly lifting up to 50 pounds without assistance and over 50 pounds with team lifting. On March 3, 2006, Petitioner signed this job description, signifying that he possessed the ability at that time to perform all its essential functions. On a Saturday in July 2007, Petitioner was still working for Respondent as a Garden Center Sales Associate. Early that day, Petitioner and a cashier were alone in the garden center of Respondent's store at 13th Avenue, Gainesville, Florida. Upon her request, Petitioner loaded 83 bags of top soil into a customer's truck without assistance. Later that same day, Petitioner's wrist began to hurt. The following Monday, Petitioner’s hand was swollen. He approached Store Manager Thomas Horton, and told Mr. Horton that he needed to see a doctor. Petitioner did nothing to alert Mr. Horton that he might have had an on-the-job injury. Mr. Horton orally authorized Petitioner to go to a doctor. Petitioner unilaterally selected Dr. Youssef W. Wassef to treat his wrist. There is no evidence of the workers' compensation process, pursuant to Chapter 440, Florida Statutes, ever being invoked. On or about August 2, 2007, Dr. Wassef provided a note that said: Patient should not allowed [sic] to lift more then [sic] 15 lb. This note was provided to Respondent’s store personnel office by Petitioner at or about the same time he got it. According to the August 2, 2007, restrictions placed on Petitioner by his treating physician, Petitioner was unable to perform the essential functions of the Garden Center Sales Associate position. Petitioner testified that he last worked on July 29, 2007. On or about September 6, 2007, Petitioner delivered to his store’s personnel office another note from Dr. Wassef, stating: Patient should continue until further notice on full-time, light duties, no lifting or pushing. This note also placed medical restrictions on Petitioner which made him unable to fulfill the essential functions of his Garden Center Sales Associate position. It is unclear whether Petitioner was working or was on the equivalent of sick leave from Monday, July 30, 2007, until September 7, 2007. It is most probable, based on the evidence as a whole, that at least after receiving the August 2, 2007, doctor’s note, Wal-Mart did not allow Petitioner to work in the capacity of a Garden Center Sales Associate. Specifically, Mr. Horton testified that he “called back” Petitioner sometime during the back-to-school/college season, which “season” would have been in late August or early September, to work in a temporary position. The temporary position assigned Petitioner was described by Ms. Chewning, the store's Personnel Manager, as a “May I assist you?” position. In this temporary position, which lasted only a few weeks, Petitioner was only required to walk around and point out to inquiring shoppers their requested back-to-school/college materials. Wal-Mart did not require Petitioner to work outside his medical restrictions. When the back-to-school/college season ended, so did the temporary position. When the back-to-school/college season ended and the temporary sales associate position was eliminated, there were no positions available at Petitioner’s store that he could perform with his medical restrictions on lifting and pushing. Also, at that point in time, Mr. Horton began to lay off people in some positions. However, Petitioner remained on leave and was not laid off. Although Petitioner referred to a People Greeter position in his November 20, 2007, discrimination complaint before FCHR, there is no credible record evidence that Petitioner requested a Wal-Mart People Greeter position as an “accommodation” of his condition prior to filing his discrimination complaint or that a People Greeter position was vacant at any time material to this case. However, the published job description for employment as a Wal-Mart People Greeter has, since May 2005, required, among other "essential functions" that the incumbent be able to: Provide shopping carts to customers by pushing or pulling up to 10 pounds of pressure . . . Frequently lifting, placing and deactivating items weighing up to 10 pounds without assistance, and regularly lifting merchandise over 10 pounds with team lifting. Petitioner documented at hearing, via an old doctor’s report, that in 1991, he had severe arthritis in both his elbows and that surgery was contemplated at that time. However, there is no clear evidence that he had the surgery or, if he had the surgery, what was its outcome. There also is no persuasive evidence that Respondent’s personnel office or any Wal-Mart employee material to the instant case knew about this doctor’s report prior to the present litigation. Petitioner demonstrated at hearing that his elbows are visible in the short-sleeve shirts worn by Wal-Mart employees. He believes his elbows stick out farther than other people’s elbows, and he speculated that his superiors and store personnel office employees decided visually that he had a handicap because “my arms stick out” and because of a scar on one arm. The undersigned observed his demonstration. If there is a deformity, it is not substantial, and the scar is not visible without close inspection. Sometime in August-September 2007, probably during the back-to-school/college season, Mr. Horton observed Petitioner wearing what Mr. Horton believed to be a brace on Petitioner’s hand, but which was, in fact, a wristband. However, no evidence supporting Petitioner’s theory that any superiors or personnel office employees did, in fact, perceive him as disabled/handicapped was adduced. Petitioner denied ever being handicapped or unable to perform the essential functions of his job as a Wal-Mart Garden Center Sales Associate. Mr. Horton and Jennifer Chewning each credibly denied ever perceiving Petitioner as handicapped, even up to the date of the hearing. When he had been hired in 1999, Petitioner acknowledged receipt and understanding of the policies contained within Respondent’s Associates Handbook. Petitioner again acknowledged receipt and understanding of these policies on March 29, 2001, when he was issued a revised Associates Handbook. Wal-Mart regularly offers leaves of absence to any associate who has a medical condition that is not perceived by the employee or management as a “disability” under the Americans with Disabilities Act (ADA) or the Florida Civil Rights Act, but whose condition prevents him from performing his job. Ms. Chewning testified that the Request for Leave of Absence form described below is used specifically for situations not covered by the ADA or by State disability laws.3/ The form upon which an employee may apply for such a leave of absence advises that the leave of absence is without pay; that there will be no accrual of benefits or seniority during the leave of absence; and that the employee must pay his own insurance premiums during this period. Grant of the requested leave is dependent upon the treating physician’s verification of the employee's medical condition. (See Finding of Fact 20.) Based on Petitioner's inability to perform the essential functions of any available position within the store in September 2007, Ms. Chewning offered Petitioner such a leave of absence. Petitioner disputes some of the contents of the Request for Leave of Absence form in evidence, which completed form Mr. Horton retroactively approved on September 21, 2007, for Petitioner to be on continuous leave beginning September 7, 2007, with a return date of December 31, 2007. However, Petitioner admits that he signed this form. The date beside Petitioner’s signature seems to be September 19, 2007. Petitioner’s signature on this form signifies that he was requesting “medical leave,” thereby acknowledging: A medical condition (including pregnancy and childbirth, and on-the-job Workers’ Comp. injuries) requiring time away from work. The Health Care Provider’s Section, below, must be completed and signed. Before returning, associate must submit a return- to-work statement/release from a Health Care Provider detailing restrictions, if any. . . . * * * . . . I fully understand Wal-Mart’s Leave of Absence Policy. Petitioner also agreed that on or about September 19, 2007, as reflected on the portion of this Request for Leave of Absence form which was filled-in by Dr. Wassef, Petitioner’s doctor had certified that Petitioner should begin medical leave on September 9, 2007, and continue through September 30, 2007. Petitioner asserted that on or about September 13, 2007, he delivered to someone other than Ms. Chewning in Respondent's personnel office another note from Dr. Wassef stating: Patient has partial permanent disability.[4] Does not need sick leave. He needs to continue to work full-time with limited lifting, pulling, and pushing. Petitioner asserted that on or about October 29, 2007, Petitioner delivered to someone other than Ms. Chewning in Respondent's personnel office the last note he had received from Dr. Wassef, which stated: Patient able to work full-time with limited lifting to 20 pounds. Ms. Chewning testified that neither the September 13, 2007, nor the October 29, 2007, medical notes contemporaneously reached either herself or Petitioner’s personnel file. According to the last medical note she received prior to hearing, Petitioner could not even perform the essential functions of a People Greeter position. (See Findings of Fact 10 and 13.) Reviewing Dr. Wassef’s September 13, 2007, and October 29, 2007, notes for the first time at hearing, she pointed out that, according to the most recent note, Petitioner was still medically restricted from performing some of the essential functions of his Garden Center Sales Associate’s position. (See Findings of Fact 3 and 22.) She has never received a medical release permitting Petitioner to return to full functioning as a Garden Center Sales Associate. Ms. Chewning testified that Wal-Mart has a policy that a medical leave of absence may not extend beyond one year. However, neither its printed non-ADA leave of absence policy in evidence nor the Request for Leave of Absence form in evidence specifies a one year maximum leave. More than a year after Petitioner’s leave began on September 7, 2007, and nearly 10 months after the leave was supposed to end on December 31, 2007, Wal-Mart has not taken steps to terminate Petitioner, because of the current litigation that began with Petitioner’s filing his complaint with FCHR on November 20, 2007. Ms. Chewning testified that, as of the date of hearing on October 15, 2008, Respondent had not terminated Petitioner; Petitioner remained on his approved unpaid leave of absence; and if Petitioner brings in a doctor’s note saying he can perform all the essential functions listed on his Garden Center Sales Associate’s job description, including but not limited to being able to lift 50 pounds, Wal-Mart will put Petitioner back in his Garden Center Sales Associate position, and he will retain his salary level, his accrued years of service, and all his benefits as they existed at the beginning of his leave of absence. Petitioner erroneously perceives himself as having been terminated and wants to go back to work, but he has not yet presented any doctor’s release that allows him to perform regularly the functions of a Garden Center Sales Associate. There is no evidence herein that under similar conditions Wal-Mart has treated any person of any race other than African-American differently than Petitioner has been treated. There is no evidence herein that under similar conditions Wal-Mart has treated any person of any age other than 66-68 years of age, differently than Petitioner has been treated.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 2nd day of February, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 2nd day of February, 2009.
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.
The Issue This case arises from a complaint filed by Jay Nelson and Ernest Leclercq, d/b/a Sun Coast Farms, in which it is asserted that H. M. Shield, Inc., is indebted to the Complainants in the amount of $7,266.20 for agricultural products sold to the Respondent. At the hearing the representative for the Complainant stated that most of the matters asserted in the complaint had been resolved by settlement, but that six items remained in dispute and that the total amount remaining in dispute was $1,041.20. Ms. Ernst testified as a witness for the Complainant and also offered several documents as exhibits, which documents were marked as a composite exhibit and received in evidence.
Findings Of Fact Based on the testimony of the witness and on the exhibits offered and received in evidence, I make the following findings of fact: On February 23, 1984, the Complainant sold agricultural products consisting of Snap Beans, Wax Beans, and Zukes (Lot No. 1116) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $327.00 on this sale. On March 8, 1984, the Complainant sold agricultural products consisting of Snap Beans and Wax Beans (Lot No. 1294) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $184.20 on this sale. On March 8, 1984, the Complainant sold agricultural products consisting of Wax Beans (Lot No. 1295) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $184.20 on this sale. On March 19, 1984, the Complainant sold agricultural products consisting of Snap Beans and Zukes (Lot No. 1453) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $202.50 on this sale. On March 19, 1984, the Complainant sold agricultural products consisting of Snap Beans and Zukes (Lot No. 1454) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $110.00 on this sale. On March 19, 1984, the Complainant sold agricultural products consisting of Snap Beans and Zukes (Lot No. 1457) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $202.50. The total amount owed for agricultural products by the Respondent to the Complainant, which amount was unpaid as of the time of the hearing, is $1,401.20.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be entered directing H. M. Shield, Inc., to pay Jay Nelson and Ernest Leclercq, d/b/a Sun Coast Farms, the amount of $1,401.20 for the agricultural products described in the findings of fact, above. In the event the Respondent fails to make such payment within 15 days of the Final Order, it is recommended that the surety be required to pay pursuant to the bond. DONE and ORDERED this 6th day of June, 1985, at Tallahassee, Florida. Hearings Hearings MICHAEL M. PARRISH Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 6th day of June, 1985. COPIES FURNISHED: Jay Nelson & Ernest Leclercq d/b/a Sun Coast Farms P.O. Box 3064 Florida City, Florida 33034 H. M. Shield, Inc. Room 82 State Farmer's Market Pompano Beach, Florida 33060 Hartford Insurance Company of the Southeast 200 East Robinson Street Orlando, Florida 32801 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
