Findings Of Fact Petitioner, Rosario and Vito Strano d/b/a Strano Farms (Strano Farms), is a grower and shipper of fresh produce in Florida City, Florida (Dade County). Respondent, Mager Corporation d/b/a Gulf Provision Company (GPC), is an agricultural dealer in Jacksonville, Florida, subject to the licensing requirements of the Department of Agriculture and Consumer Services (agency). As such, GPC is obligated to obtain a dealer's license from the agency and to post a surety bond executed by a surety corporation to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this latter requirement, GPC has obtained a surety bond in an undisclosed amount from respondent, Aetna Casualty and Surety Company. This controversy involves a dispute over payment for a shipment of tomatoes purchased from Strano Farms by GPC for further sale to retail vendors. The origins of the dispute began on or about February 2, 1987, when a salesman for Strano Farms accepted a telephone order from Neil R. Sandler, president of GPC, for two lots of "Poppa's Famous" tomatoes. The order was later memorialized by petitioner in a memorandum dated February 7, 1987 reflecting the following: Quantity Description Pkq. Grade Size Price Amount 176 Tomatoes 20# Poppa's Famous 5x6 5.60 $985.00 176 Tomatoes 20# Poppa's Famous 6x6 3.80 528.00 Palletizing .15 52.80 352 Total Due: 1566.40 In addition, Strano Farms prepared a broker's memorandum on February 5, 1987 reflecting that GPC ordered two lots of "breakers," a specific grade of tomato. However, Strano Farms contended the reference to "breakers" was a typographical error by the clerical employee who prepared the document and that actually a different grade had been ordered. According to Rosario Strano, a partner and owner of petitioner, Sandler ordered 176 cartons each of light pink and pink tomatoes. This was corroborated by the fact that in early February, 1987 petitioner had no breaker tomatoes in stock. Sandler could not dispute this since more than fifteen months had passed since the order was placed, and he had no independent recollection of the transaction. The United States Department of Agriculture has established a color classification for tomatoes that sets forth the color of tomatoes by stage of maturity. In ascending order of maturity and color, they are green, breakers, turning, pink, light red and red. Homestead Tomato Packing Company, Inc. (Homestead) is the exclusive packer and shipper for Strano Farms. Homestead processed GPC's order and shipped the tomatoes to GPC on February 3, 1987. Prior to the shipment, sub-lot inspections of the produce from which GPC's shipment was drawn were made by an agency inspector on January 28 and February 2, 1987. The inspector's report indicates that the produce had a "mixed color", that there was no decay and the produce was within the tolerance limits for defects. It reflected further that the shipment met the pink and light pink standards. When the tomatoes arrived in Jacksonville on February 4 or 5, Sandler inspected the produce but was not satisfied with the condition of the tomatoes. He ordered a federal inspection the same day. The report reflected that the 6x6 lot of tomatoes was within federal standards while the 5x6 lot deviated slightly because of bruising and decay. However, the tomatoes conformed to pink and light pink standards. Sandler telephoned Strano Farms and requested that a price adjustment be made. When no agreement could be reached, GPC unilaterally adjusted the amount due to $894.80 and tendered Strano Farms a check in that amount. This amount was based upon a total price of $880.00 for both lots of tomatoes, $52.80 for pelletizing, less $38.00 spent by GPC for an inspection. The total payment was $618.80 less than originally agreed upon by the parties, or the amount being claimed by petitioner. Petitioner contends the adjustment made by respondent is "excessive" and not justified by the actual condition of the tomatoes. Strano Farms is willing to allow an adjustment of up to $1.15 per box for that percentage of boxes in the 5x6 lot that failed to meet standards. This adjustment is consistent with the quality of the tomatoes reflected in the federal inspection report. It is also consistent with the industry practice that any price adjustments should correspond with the condition of the produce as reflected on the federal inspection report. Because the adjustment proposed by petitioner is reasonable and consistent with the report, it should be made. Therefore, respondent should deduct $1.15 per box for those boxes in the 5x6 lot that failed to meet federal standards because of bruising and decay. It should also deduct the cost of the inspection report ($38) and pay petitioner all other amounts due.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent pay petitioner the additional amount due within thirty days from date of final order. In the event payment is not timely made, the surety company should be required to pay this amount. DONE AND ORDERED this 14th day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1988.
The Issue This matter began with the filing of a complaint by Homestead Tomato Packing Company, Inc., (Homestead Tomato) with the Florida Department of Agriculture asserting that it was due $9,502.50 for tomatoes sold January 21, 1985, to Seymour Cohen Brokerage Company (Cohen Brokerage). While Cohen Brokerage did not appear, due to the death of the owner, Seymour Cohen, the surety on its Agricultural Products Bond, Fidelity and Deposit Company of Maryland did appear. Because it represents the interest of Cohen Brokerage, in this order its position will be characterized as that of Cohen Brokerage. Cohen had already paid $16,360.00 for the tomatoes. The dispute centers upon the agreement between the parties as to the price of the tomatoes. The parties agree that the price was to be set after the tomatoes were shipped, due to an impending freeze which had caused volatility in the price for tomatoes. Homestead Tomato contends that other purchasers bought tomatoes at about the same time and agreed to the price which Homestead Tomato claims is due from Cohen Brokerage. Cohen Brokerage maintains that the price claimed is excessive, and that the payment made was full payment.
Findings Of Fact Homestead Tomato Packing Company, Inc., sells tomatoes as agent for Strano Farms of Florida City, Florida, which produces tomatoes. Cohen Brokerage is a licensed dealer in agricultural products holding license number 3047, which is supported by a bond written by the Fidelity and Deposit Company of Maryland, number 9634509. Seymour Cohen died, apparently before the complaint in this action was filed. See the Verified Suggestion of Death of Party and Motion to Dismiss filed on June 26, 1986. On Thursday, January 17, 1985, Rosario Strano, the President of Homestead Tomato, learned that a freeze would occur in South Florida on or about January 22, 1985. Strano notified Homestead Tomato's sales staff, including Thomas Banks, that beginning January 19, 1985, all sales were to be made at prices to be determined following the freeze. On January 21, 1985, Cohen Brokerage, acting through Rick Cohen (the son of Seymour Cohen, now deceased), purchased 1,600 boxes of Strano Pride #25, 6X7 (medium) tomatoes. Both parties testified that the price was not established on Monday, January 21, but that it would be established "sometime in the middle of the week" (Testimony of T. Banks, Transcript 177)) on or about Wednesday, January 23, 1985 (Testimony of R. Cohen, Transcript 225). This is consistent with the brokerage confirmation from Cohen Brokerage dated January 21, 1985, which was belatedly submitted to Homestead Tomato, stating that the tomatoes were "to be priced on or about Wednesday, 1/23/85, in line with Florida Tomato industry Market". The parties intended that the tomatoes would be priced by Wednesday, January 23, 1985, in accordance with the market price for U.S. number one tomatoes 85 percent or better. The freeze did occur on January 21 and 22, 1985, which caused a shortage of high quality unfrozen tomatoes. The expectation of the freeze had caused uncertainty in the market price for tomatoes during the period January 19 through January 25, 1985. From January 19 through January 22, 1985, Homestead Tomato sold 43 loads of tomatoes to buyers at prices to be determined later. On Wednesday, January 23, 1985, Rosario Strano set his price for 6x7 Strano Pride tomatoes at $16.00 a box and told sales staff to inform those who had purchased from Homestead Tomato before the $16.00 per box price had been set that they could return the tomatoes if they were dissatisfied with his price. According to Mr. Strano, he was unable to compare his prices the week after the freeze to what competitors were charging for like quality, unfrozen tomatoes because there were not enough others with tomatoes to make a price comparison. (Transcript 44-45). On January 23, Homestead Tomato's salesman Banks called Rick Cohen and gave him the price. The Florida Fruit and Vegetable Report is a market quotation service for agricultural commodities published by the United States Department of Agriculture, Agricultural Marketing Service, Fruit and Vegetable Division and the Florida Department of Agriculture and Consumer Services, Division of Marketing, Bureau of Market News. It is used and generally relied on by those in agriculture. It shows that tomatoes sold January 21, 1985, were sold with sales prices to be established later. The January 24th edition of the report shows that on January 23, 6x7 tomatoes sold for $16.00 per box. Homestead Tomato also introduced evidence that other buyers purchased 6 x 7 tomatoes which were shipped between January 19 and January 23, 1985, who were invoiced at $16.00 per box and paid that amount. This evidence of price is undercut, however, by the testimony of Rosario Strano with respect to disputes he had with other tomato purchasers, such as acme Pre-Pack over his price of $16.00 for medium tomatoes. Under cross-examination about whether he had reduced his billing or given a discount to protesting purchasers, Mr. Strano testified: The only -- Way back last -- latter part of February, I told them I would not give rebates. I told Mr. -- when they bought future tomatoes, when we got back in the tomatoes, we would work out an arrangement. I never quoted $2. I heard quoted $2, 4, 6, 8. I never quoted the price. I told them that I understood their plight but that I was not -- they had to take that then and there, settle and pay in full, or I was not going to do anything, and [there] was a reason for that, [which] was to expedite the collections of some very, very serious money, as you can see in this [case] right here. Transcript pages 165-166. Cohen Brokerage was invoiced $16.00 per box on January 25, 1986, for the tomatoes it had received on January 21, 1985. The total amount of the bill was $25,862.50. Cohen Brokerage made a payment on the invoice in the amount of $16,360.00 which then caused Homestead Tomato to file the instant complaint for the balance billed of $9,502.50.
Recommendation It is RECOMMENDED that the complaint filed by Homestead Tomato against Cohen Brokerage be dimissed. DONE AND ORDERED this 2nd day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 2nd day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3923A The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Covered in Finding of Fact 4. 4. Covered in Finding of Fact 5. 5. Covered in Finding of Fact 6. 6. Covered in Finding of Fact 6. 7. Covered in Finding of Fact 7. 8. Covered in Finding of Fact 7. 9. Covered in Finding of Fact 8. Covered in Finding of Fact 9. Covered in Finding of Fact 10. Covered in Findings of Fact 9 and 11. Covered in Finding of Fact 11. Rejected as argument. Covered in Finding of Fact 11. Covered in Finding of Fact 11. Rejected as inconsistent with the more significant testimony of Mr. Strano relied on in Finding of Fact 9. Rejected as unnecessary. Rejected as inconsistent with other evidence, see for example Petitioner's Exhibit #29. Covered in Finding of Fact 12. Covered in Finding of Fact 13. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 6. Rejected because the prices quoted were asking prices but not necessarily market prices. See Conclusion of Law 3. Rejected as a recitation of evidence. Rejected as a recitation of evidence. Rejected as a recitation of evidence. Rejected as unnecessary. Rulings on Proposed Findings of Fact Submitted by Respondent (Seymour Cohen Brokerage Company) Covered in Finding of Fact 1. Covered in Finding of Fact 3 and the statement of the issues. Covered in Finding of Fact 6. Covered in Finding of Fact 7. Covered in Finding of Fact 9. To the extent relevant, covered in Finding of Fact 11. Covered in Finding of Fact 12. Covered in Finding of Fact 13. Covered in Finding of Fact 6. Rejected as a conclusion of law. To the extent necessary, covered in Finding of Fact 11. Covered in Finding of Fact 11. Rejected because the testimony of Mr. Scherer was unpersuasive because the methodology implied to determine the price of $10.00 per box for 6x7 tomatoes was not adequately explained. Rejected as unnecessary. Sentence 1 rejected as unnecessary. Sentence 2 covered in Finding of Fact 9. Rejected as unnecessary. COPIES FURNISHED: Alexander J. Pires, Jr., Esquire 2501 M. Street, N.W., Suite 400 Washington, D.C. 20037 Murray H. Dubbin, Esquire 1000 Rivergate Plaza 444 Brickell Avenue Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 =================================================================
The Issue Whether the Respondent is indebted to the Petitioner as stated in the complaint filed by the Petitioner and, if so, in what amount.
Findings Of Fact Petitioner, Rosario and Vito Strano d/b/a Strano Farms, is a producer of Florida-grown agricultural products as set forth in Chapter 604, Florida Statutes. Respondent, Kelly Marinaro d/b/a Sunny Fresh Citrus Export & Sales Company, is a dealer of agricultural products doing business at 2101 15th Avenue, Vero Beach, Florida. On April 2, 1999, Respondent purchased garden variety tomatoes from Petitioner. The driver accepting the tomatoes on Respondent’s behalf acknowledged that the tomatoes were received in good condition by signing a truck manifest. The truck manifest provided, in pertinent part, "Any complaint must be made to [sic] Stano Farm in writing, during unloading, and accompanied by U.S.D.A. inspection." Subsequently, Respondent’s agent telephoned Petitioner to advise that there was a problem with the condition of the tomatoes. Respondent did not immediately forward an inspection report and did not promptly make an accounting for the tomatoes that were subsequently liquidated. Eventually, Respondent forwarded a copy of an inspection certificate for an inspection done on April 5, 1999. That certificate, while largely illegible, reportedly found the subject tomatoes to be in poor condition. Petitioner requested payment for the tomatoes as originally agreed by the parties. Its invoice for the 1040 tomatoes claimed $6,084.00 as the amount due. The invoice provided that checks should be payable to Homestead Tomato Packing Co., Inc., but that "any complaint must be made to Strano Farms in writing immediately during unloading, and accompanied by U.S.D.A. inspection." On or about June 29, 1999, by check made payable to Homestead Tomato Packing Co., Inc., Respondent forwarded the sum of $208.00 in payment for the subject tomatoes. On the backside of the payment check Respondent had stamped the following: "Acceptance of this check constitutes payment in full for invoice #12819." Subsequently, Homestead Tomato Packing Co., Inc., negotiated the check. Petitioner did not provide a written dispute regarding the subject tomatoes prior to the tender of the partial payment. In July of 1999 Petitioner filed a Complaint in the amount of $5,876.00 with the Department of Agriculture and Consumer Services, Bureau of License and Bond, Division of Marketing. The Complaint acknowledged receipt of the $208.00 partial payment but maintained no account of the sales or inspection report was included with the payment to justify the low return on the subject tomatoes. At the hearing in this cause Respondent provided an accounting for the tomatoes that claimed the subject tomatoes were sold for $2,984.00. The accounting acknowledged that $336.00 would have been due to Petitioner. Such amount was not the tendered payment and was not provided to Petitioner at the time of partial payment. To date the parties have been unable to resolve the disputed value of the tomatoes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services, Bureau of License and Bond, Division of Marketing, enter a final order requiring Respondent to remit $5,876.00 to Petitioner as provided by law. DONE AND ENTERED this 13th day of March, 2000, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2000. COPIES FURNISHED: United Pacific Insurance Company Three Parkway Philadelphia, Pennsylvania 19102-1376 Brenda D. Hyatt, Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 Kelly Marinaro Sunny Fresh Citrus Export & Sales Company 2101 15th Avenue Vero Beach, Florida 32960 Jack Moon Strano Farms Post Office Box 343064 Florida City, Florida 33034 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0810
The Issue This proceeding was initiated on June 27, 1985, when Petitioner filed its complaint for $51,680.00 with the Florida Department of Agriculture. Respondents were Dade Tomato and its surety, State Automobile Mutual Insurance Co. of Columbus, Ohio. After payment of $38,880.00 was received, Homestead Tomato reduced its claim to $12,800.00 in an amended complaint dated July 22, 1985. Dade Tomato responded with a timely request for formal hearing. The issue at hearing was whether $12.00 or $16.00 was the price per box of 5 x 7 tomatoes purchased by Dade Tomato from Homestead Tomato on January 13th and 21st, 1985. Homestead Tomato presented the testimony of two witnesses and nineteen exhibits; Dade Tomato presented seven witnesses and thirteen exhibits; State Automobile Insurance Company was noticed, but did not appear. Both parties submitted Proposed Findings of Fact and Conclusions of Law. These have been carefully considered in the preparation of this Recommended Order, and an outline of the adoption or rejection of each proposed finding is included in Appendix A, attached to, and incorporated in this order. A document styled Reply Brief of Petitioner Homestead Tomato Packing Company, Inc., was filed on January 9, 1986. It was not authorized and was not considered in the preparation of this Recommended Order.
Findings Of Fact Homestead Tomato is agent for Strano Farms of Florida City, Florida, a producer of tomatoes. Rosario Strano is president of Homestead Tomato and co-owner of Strano Farms. (R. Strano) Dade Tomato, a tomato repacking company, is located in Miami, Florida. Its president is Joe Lococo. It is licensed as a dealer in agricultural products and is bonded by State Automobile Mutual Insurance Company. (J. Lococo, Amended Complaint dated July 22, 1985) The week of January 20-26, 1985, was a memorable week for the Florida tomato industry: a savage freeze hit south Florida, crops were devastated and the market awoke from its earlier torpor. For days prior to the 20th, Rosario Strano had carefully watched the weather services. By the 15th, when the freeze forecast appeared to be a sure thing, Strano Farms worked night and day and into the weekend harvesting tomatoes. (T. Banks, R. Strano) On January 19th, a representative from Dade Tomato contacted Tom Banks, an employee of Homestead Tomato, and asked for a load (1600 boxes) of 6 x 7 tomatoes. Banks explained that they were ready to sell, but not ready to price, since they expected a high demand as a result of the impending freeze. It was established that the "following week's price would control." The load was shipped that same day. On Monday, the Dade Tomato called for another load the same size. Prices still had not been established, but the load was shipped, again the same day. (T. Banks) After the freeze, around the middle of the week, Rosario Strano called together Tom Banks and a few other key employees and established a price for their tomatoes: $20.00 box for 5 x 6 (largest) $18.00 box for 6 x 6 (next size down) $16.00 box for 6 x 7 (medium) $12.00 box for 7 x 7 (small) Banks was instructed that the buyers were to be notified the price was set. Anyone "booked in" didn't have to take the order or could back out. Strano wanted to be told immediately of any problems with the tomatoes on the other end, and he would take them back. He was confident that he had a good market for his unique, pre-freeze tomato supply. Several buyers backed out, some tomatoes did come back, but the entire supply was sold (approximately 40-48 loads). (T. Banks. R. Streno) In setting his prices for the week of the freeze, Strano obtained information from the Florida Fruit and Vegetable Report, a daily publication of the U.S. Department of Agriculture and the Florida Department of Agriculture and Consumer Services, out of Winter Park, Florida. (R. Strano) The sheets include price quotations for a wide variety of commodities in different parts of the state obtained by telephone survey of packing houses and producers the prior date. (Petitioner's Exhibits #15-19) It is a guideline rather than an "official" market price indicator. (J. Strother, R. Cohen) In some eases the prices quoted to the survey are later adjusted by the producer. (R. Cohen) The issue dated January 24, 1985, reflected for #1 quality tomatoes a price of $20.00, $18.00 and $16.00 for 5 x6, 6 x 6, and 6 x 75 respectively. The following two days showed the same. Prior days, January 22 and 23 quoted no prices but stated "practically all sales prices to be established later". (Petitioner's Exhibits #15-19) After hearing the prices established by Strano, some of his customers, including Joe Lococo and his broker, began to protest. (T. Banks, J. Lococo) While refusing to budge, end arguing that he was charging the same price to his other customers for his pre-freeze, quality tomatoes, Strano resorted to offering rebates of 2.00 a box for prompt payment and, later, for settlement of cases that otherwise would have gone to court. (T. Banks) In short, Strano had difficulty getting some of his customers to pay the price he had set. Not all of Strano's customers bought and had tomatoes shipped on a price to be settled basis. Of the ten invoices admitted as Petitioner's Exhibits #5- 14, three represented sales on the same basis as the sales to Dade Tomato: Exhibits 5, 6 and 7. The remaining invoices represented sales to customers who had the price established prior to sale. Each of the invoices reflect the price of a box of 5 x 7 tomatoes to be $15.00. The invoices do not reveal which may have received the $2.00 rebate. Dade Tomato purchased ten loads of tomatoes during the week of the freeze. With the exception of the two loads from Homestead Tomato, the highest price for 6 x 75 was $12.00. Most of the tomatoes picked prior to the freeze were priced from $10- 12.00, with tomatoes picked after the freeze (salvage) going for as low as $6.00 for 6 x 7s. (J. Lococo, Respondent's Exhibits #1- 12) "Market price" is a highly fluid, highly subjective standard. During the course of a tomato season from 25-30% of sales are made on a "market price" basis, that is, the parties do not establish a firm price prior to sale, but wait to see what the market does. The market can be settled in a few days in a normal condition or longer in an abnormal condition, such as after a freeze. Market relates to supply and demand. A price is tried, then accepted or rejected, depending on whether the buyer in turn can find a market to sell at this price. Failure by a seller to adjust downward, or overpricing can result in animosity and the refusal of customers later to purchase at reasonable prices in a different season. (J. Strother, R. Cohen, F. Campisi) Various agents and brokers testified at the hearing on behalf of Dade Tomato as to what they felt was the market during the week of January 20-26th, 1985. James Strother, with thirty- three years in the produce business, came out that week with prices of $16.00, $14.00 and $12.00, and $16.00, $15.00 and $12.00, with $12.00 for the 6 x 75. He told his customers, "You're looking at the low and I expect to get paid for it." He had heard rumblings of a higher market, but set his market price to insure that he would get paid, and he moved his tomatoes. While he avowed respect for Strano, he testified that their thoughts on the market that week differed. He knew others were quoting higher than $12.00, he just wanted to be sure he sold. Florida Tomato Packers, Inc., is one of the largest packers in Florida. They initially sold 6 x 7 tomatoes during the freeze market at $16.00, but later adjusted the invoices down to $12.00. (D. Holden, Respondent's Exhibit #1) No one explained exactly how or why this was done by Florida Tomato Packers. Other exhibits produced by Respondent showed adjustments downward to varying prices. (Respondent's Exhibits # 7 and 8) After the initial complaint was filed by Homestead Tomato, Lococo made two payments for a total which amounts to $12.00 a box, the level which he insists the proper price should be. He does not dispute the quality or condition of the tomatoes sold by Homestead Tomato. (J. Lococo)
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby RECOMMENDED: That a Final Order be entered requiring that the balance of $12,800.00 be paid by Dade Tomato to Homestead Tomato. In the absence of payment, Co-Respondent, State Automobile Insurance Company, should be required to pay said sum in accordance with Section 604.21(8), Florida Statutes. DONE and ORDERED this 15th day of January, 1986, in MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3487A The following constitutes my specific rulings pursuant to Section 120.59(2) Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Submitted by the Petitioner Adopted in paragraph 1, Findings of Fact. Adopted in paragraph 2, Findings of Fact. Adopted in paragraph 3, Findings of Fact. Adopted in substance in paragraph 4, Findings of Fact. Adopted in paragraph 4, Findings of Fact. Adopted in paragraph 4, Findings of Fact. Adopted in paragraph 3, Findings of Fact. Adopted in paragraph 3, Findings of Fact. Adopted in paragraph 5, except that instead of a set number of loads of tomatoes sold, the testimony of R. Strano was a range from forty to forty-eight loads. Adopted in paragraph 5, Findings of Fact. Adopted in substance in paragraph 7. The names of the buyers and total amounts of each purchase are immaterial. Adopted in paragraph 6, Findings of Fact. The substance of this paragraph relating to Florida Tomato Packers, Inc., is adopted in paragraph 10, Findings of Fact. The sentence relating to the market price is incorporated in essence in paragraph 5, Conclusions of Law. These facts are covered in the "Issues and Procedural Matters" preceding the Findings of Fact, and in paragraph 11, Findings of Fact. The substance of this paragraph relating to when the market settles is adopted in paragraph 9, Findings of Fact. The bias of witnesses who testified as to when the market settled is irrelevant as the time that the market settled is irrelevant. The statement that " Respondent agrees that the contract for the tomatoes was at a price to be established during the week of January 21-26 1985' . . . " is not supported by competent substantial evidence. Adopted in substance in paragraph 10, Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Respondent The first sentence is adopted in paragraph 4, Findings of Fact. The second sentence is substantially modified in paragraph 4 by a finding that the agreement was that the following week's price would control". Same as paragraph 1, above. Adopted in substance in paragraph 5, Findings of Fact. Adopted in paragraph 7, Findings of Fact. Adopted in paragraph 11, Findings of Fact. Adopted in paragraph 5, Findings of Fact. The second sentence, relating to all of the sales at $16.00 as being a set price, is rejected as contrary to the weight of the evidence. The remaining sentences are adopted in paragraphs 5 and 7, Findings of Fact. Partially adopted in paragraph 8, Findings of Fact. The basis of the price paid is immaterial. Adopted in paragraph 10, Findings of Fact. Rejected as cumulative and unnecessary. Rejected as cumulative and unnecessary. Rejected as a misconstruction of the testimony. James Strother testified that his price was 12.00 a box. Adopted in paragraph 6, Findings of Fact. 14 - 16. The substance of these paragraphs have been adopted. However, they are presented here as simply testimony of witnesses rather than findings of fact. The "market price" description is rejected for reasons set out in paragraph 4, Conclusions of Law. Adopted in paragraph 11, Findings of Fact. COPIES FURNISHED: David V. Lococo, Esquire LOCOCO, KLEIN, TOUBY & SMITH 901 Northeast 125th Street Suite C North Miami, Florida 33161 Joe W. Kight, Chief Bureau of License and Bond Florida Department of Agriculture and Consumer Services Room 416 - Mayo Building Tallahassee, Florida 32301 Ron Weaver, Esquire Florida Department of Agriculture and Consumer Services Mayo Building, Tallahassee, Florida 32301 State Automobile Insurance Company 515 E. Broad Street Columbus, Ohio 43216 Alexander Pires, Esquire SCOTT, HARRISON and McLEOD 2501 M. Street N.W. Suite 400 Washington, D.C. 20037 Robert Chastain, Esquire Department of Agriculture and Consumer Services Room 513 - The Mayo Building Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
The Issue Whether Respondent owes payment to Petitioner for tomatoes sold by Petitioner to Respondent and, if so, in what amount payment is due.
Findings Of Fact Six L's Packing Company, Inc., (Six L's) is a corporation doing business in Immokalee, Florida. Insofar as relevant to this case, Six L's produces tomatoes for shipment and sale. DeBruyn Produce Company (DeBruyn) is a corporation headquartered in Michigan and doing business in Castleberry, Florida. Insofar as relevant to this case, DeBruyn purchases produce for resale to other buyers. On March 3, 1992, DeBruyn contacted Six L's and inquired about availability of "vine ripe" tomatoes. DeBruyn subsequently placed orders for Six L's tomatoes. DeBruyn purchased the tomatoes on behalf of and for resale to C. H. Robinson Company. Under the terms of the sales, the tomatoes were purchased F. O. B. ("Free On Board") point of shipping. The term F.O.B. point of shipping means that the buyer assumes responsibility for product in suitable shipping condition at time of delivery from the seller to the buyer. Otherwise stated, Six L's was not responsible for shipment of the tomatoes. The tomatoes were shipped pursuant to arrangements made by representatives of DeBruyn and C. H. Robinson Company. DeBruyn did not inform Six L's of the final destination of the tomatoes. DeBruyn asserts that, as to both loads of tomatoes, the tomatoes were defective when shipped and were not in suitable shipping condition. The greater weight of the evidence establishes that during all relevant periods of time, tomatoes shipped by Six L's were inspected pursuant to federal guidelines by a state inspector prior to shipment and were found to be within tolerances allowed by the State of Florida for shipment outside the state. On March 4, 1992, Six L's sold 640 cartons of tomatoes to DeBruyn. The tomatoes were largely mature green, with some breakers and pinks. Prior to shipment of the March 4 tomatoes, the Florida inspector noted that the produce displayed internal discoloration (commonly referred to as "gray wall") not exceeding four per cent of the produce examined. Such meets standards for suitable shipping condition of the produce. Gray wall is a common disorder which occurs throughout agricultural regions. The causes of gray wall are unknown. The malady causes discoloration spreading from the stem through the fruit. If gray wall occurs, it will be found throughout the entire harvest from a specific growing field. Tomatoes ripen at a temperature between 55 and 75 degrees. Gray wall is exacerbated when tomatoes are chilled to below 50 degrees. The damage will become apparent when the tomatoes become warm and begin to further ripen. DeBruyn took delivery of the produce and shipped it to Salt Lake City, Utah, where it arrived on March 8, 1992. Upon arrival, the quality of the tomatoes was unsatisfactory. An inspection was requested and performed on March 10, 1992. The inspection at the delivery point indicated gray wall discoloration of approximately 70 per cent of the lot. The greater weight of the evidence establishes that such damage occurred through improper chilling and shipment of the tomatoes after control of the produce passed to DeBruyn. On March 6, 1992, Six L's sold 1,120 cartons of tomatoes to DeBruyn. Again, the tomatoes were largely mature green, with some breakers and pinks. Prior to shipment of the March 6 tomatoes, the Florida inspector noted that the produce displayed internal discoloration (commonly referred to as "gray wall") not exceeding four per cent of the produce examined. As previously stated, such produce meets standards for suitable shipping condition. DeBruyn took delivery and shipped the produce to Salt Lake City where it arrived on March 10, 1992. Again, the quality of the tomatoes was unsatisfactory upon arrival. An inspection was requested and performed on March 11, 1992. The inspection at the delivery point found light red to red tomatoes. A large quantity of the tomatoes were bruised and rotting. The greater weight of the evidence establishes that such damage occurred through lack of proper refrigeration of the produce during shipment. DeBruyn asserts that the March 6 tomato shipment was improperly packed in bulk boxes and should have been packed in layers to prevent bruising during the shipment to Salt Lake City. There is no evidence that DeBruyn informed Six L's that the tomatoes should have been packed in layered boxes or that the March 6 tomatoes would be shipped a substantial distance. Six L's was to have received $11,888 for the March 4 shipment. Six L's was to have received $20,167.50 for the March 6 shipment. The total of the two shipments is $32,055.50. DeBruyn salvaged 354 cartons of the March 4 load of tomatoes and dumped the remainder. The salvaged tomatoes were sold for a total of $6,170. DeBruyn paid to Six L's $4,953.60 for the produce which Six L's rejected. DeBruyn salvaged 640 cartons of the March 6 load of tomatoes and dumped the remainder. The salvaged tomatoes were sold for a total of $10,459.10. DeBruyn paid to Six L's $8,897.50 for the produce which Six L's retained. Six L's is due a balance of $23,158 for the tomato shipments. Six L's asserts that, based on the sales invoices, it is due interest on the outstanding balance due at an annual rate of 18 per cent compounded monthly. However, none of the sales invoices relevant to this proceeding indicate any agreement between the parties as to interest charges and the evidence fails to establish that any interest is due to be paid.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: The Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent DeBruyn Produce Company to pay to Petitioner Six L's Packing Company, Inc., the sum of $23,158. DONE and RECOMMENDED this 17th day of June, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4925A To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3, 7-9, 11, 13-14. Rejected as unnecessary or cumulative. 15. Rejected. Request for fees is not supported by citation to legal authority. 16-17. Rejected, not supported by the greater weight of credible and persuasive evidence. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6-8, 13, 18. Rejected, contrary to credited evidence. The fact that tomatoes had ripened between inspections does not preclude improper shipping conditions. The greater weight of the evidence establishes that sufficient time passed between initial inspection, shipping, delivery, and subsequent inspection to permit the tomatoes to have continued ripening. 9, 19-21, 23, 29. Rejected, unnecessary. 17, 28. Rejected, immaterial. 22. Rejected, not supported by greater weight of credible and persuasive evidence. COPIES FURNISHED: The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Mark S. London, Esq. 4030-C Sheraton Street Hollywood, Florida 33021 Clayton D. Simmons, Esquire 200 West First Street, Suite 22 Post Office Box 4848 Sanford, Florida 32772-4848
The Issue The issue presented for decision herein is whether or not the Petitioner is entitled to an award of $11,952 for payment of a shipment of tomatoes made to Respondent, Georgia Tomato Company, Inc.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, including the proposed ore tenus requests by Petitioner's counsel, I hereby make the following relevant factual findings. Petitioner, Corky Foods Corporation, is a diversified agri-business company engaged in, among other things, the sale of produce from one of its warehouses in Boynton Beach, Florida. On January 21, 1985, Pat Adams, a broker for Adams brokerage company in Bonita Springs, Florida, placed an order with Petitioner's salesman, Daniel Garcia, for a load of tomatoes from Georgia Tomato Company. The tomatoes were sold to Respondent, Georgia Tomato Company, on January 21, 1985. The invoice of these products (No. 18917) was dated January 23, 1985 and contained a total of 1,440 boxes. Respondent was allowed a $1 credit under the market price which amount reflects the amount of the initial claim by Petitioner against Respondent, Georgia Tomato Company; i.e., $25,560 less the credit of $1,440 for a total claim of $24,120. During this period of time, there was a freeze in South Florida which occurred on January 20, 1985 and the price of produce dropped substantially for products picked after January 20, 1985. The market value for tomatoes picked on January 19, 1985 was as follows: 5 x 6 #1 @ $18.00 6 x 6 #1 @ $16.00 6 x 7 #1 @ $14.00 This amount, less the $1 credit given to Respondent, Georgia Tomato Company, by Petitioner represents the amount initially claimed by Petitioner; i.e., $24,120. Respondent, Georgia Tomato Company, failed to pay Petitioner's invoiced amount which resulted in a complaint being filed by Petitioner against Respondent, Georgia Tomato Company, on March 4, 1985. Once that complaint was filed, Respondent, Georgia Tomato Company, tendered to Petitioner an amount of $12,168 which reduced the complaint by that amount leaving a balance now due and owing Petitioner of $11,952 based on its amended claim filed herein dated April 24, 1985. Respondent, Georgia Tomato Company, contends that it was overcharged on the amount of this shipment of tomatoes and attempted to substantiate its position by showing several invoices for tomatoes that it purchased subsequent to January 21, 1985. Daniel Garcia, Petitioner's vice-president in charge of marketing, determined the market price for the tomatoes shipped to Respondent, Georgia Tomato Company, on January 21, 1985. In doing so, he called brokerage houses in Homestead, Bonita Springs, and other brokers, including Pat Adams, the broker who purchased the tomatoes here in question on behalf of Adams Brokerage House, and established the market price as per the invoice sent to Respondent, Georgia Tomato Company. In addition, Mr. Garcia referred to the Southeastern Fruit and Vegetable Report, Volume 30, No. 17, which is a guide to the pricing information for fruit and vegetables in the southeast and which is relied upon to ascertain fruit and vegetable prices in this area. (Petitioner's Exhibit 1) This data supports Petitioner's claim for the amount invoiced to Respondent, Georgia Tomato Company. Respondent, Georgia Tomato Company, did not dispute the quality of the tomatoes shipped by the Petitioner. Respondent offered no other defenses against the amount claimed by Petitioner. Based thereon, it is herein concluded that the Petitioner is entitled to an award of the amount in its amended claim of $11,952.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Georgia Tomato Company, Inc., be ordered to pay Petitioner, Corky Foods Corporation, the amount of $11,952 as set forth in its amended complaint filed herein dated April 24, 1985, within fifteen (15) days of the date of entry of the Final Order by the Department of Agriculture and Consumer Services, Bureau of License and Bond. DONE and ORDERED this 9th day of October, 1985, in Tallahassee, Florida. JAMES E. BRADWELL, 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 9th day of October, 1985. COPIES FURNISHED: Roger C. Lambert, Esquire 250 South County Road, Suite 201 West Palm Beach, Florida 33480 Glenn Vaughn, General Manager Georgia Tomato Company, Inc. Building F State Farmers Market Forest Park, Georgia 30050 Joe Kight, Chief Bureau of License & Bond Department of Agriculture and Consumer Services Mayo Building, Room 418 Tallahassee, Florida 32301 Continental Insurance Company Legal Section (License & Bond) 80 Maiden Lane New York, New York Robert Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Doyle Conner Commissioner Department of Agriculture The Capitol Tallahassee, Florida 32301
Findings Of Fact Shortly before January 21, 1985, Tommy P. Adams, on behalf of Mid-South Distributors, placed an order with salesman Daniel Garcia, of Corky Foods Corporation, for the purchase of tomatoes. Mid-South Distributors was to purchase one hundred and forty-four (144) 5x6, eight hundred and sixty-four (864) 6x6, and five hundred and seventy-six (576) 6x7 boxes of tomatoes from Corky Foods. The parties agreed that the price of each unit would be fixed at $1.00 less than "market price." However, no price was established at the time of sale because tomato prices were unstable due to a freeze which passed through the area on January 19 and 20, 1985. Mid-South Distributors and Corky Foods had used this type of billing arrangement satisfactorily in past business transactions. On January 21, 1985, the tomatoes were shipped to Mid-South Distributors from the packing house in Boynton Beach, Florida. Thereafter, on January 23, 1985, an invoice was sent by Corky Foods to Mid-South Distributors establishing the price of the tomatoes as follows: $19.15 per unit for the 5x6 containers; $17.15 per unit for the 6x6 containers; and $15.15 per unit for the 6x7 containers. Mid-South Distributors remitted payment to Corky Foods based on the following assumed market prices: $16.00 for the 5x6; $14.00 for the 6x6; and $12.00 for the 6x7 boxes of tomatoes. Corky Foods Corporation sold 5x6 boxes of tomatoes to other dealers during the period in question for 519.15 per unit; 6x6 boxes of tomatoes during the period in question for $17.15; and 6x7 boxes of tomatoes during the time in question for $15.15. Adams Brokerage (Tommy P. Adams) purchased 5x6 boxes of tomatoes from area sellers during the time in question for $16.00; 6x6 boxes of tomatoes from area sellers during the time in question for $14.00; and 6x7 boxes of tomatoes from area sellers during the time in question for $12.00. The Southeastern Fruit and Vegetable Report, printed in Thomasville, Georgia on Thursday, January 24, 1985, set market prices on tomatoes in "South and Central Florida" at $20.00 for 5x6, $18.00 for 6x6, and $16.00 for 6x7. The Southeastern Fruit and Vegetable Report is often used as a guideline in establishing prices for the industry; the prices reported are based in part on information or "quotes" received from different shippers in the area under consideration. Notably, a shipper's quoted price for a particular day may not be the same price at which the shipper actually sells the commodity. The Southeastern Fruit and Vegetable Report used the geographical area of "South and Central Florida" in establishing market prices for tomatoes. The south and central Florida area is a reasonable geographical boundary to consider in establishing market prices for tomatoes sold at individual locations within those boundaries. The customary way in which Corky Foods Corporation determines market prices is by calling other large area packing houses, and by referring to the Southeastern Fruit and Vegetable Report. In establishing the prices for the tomatoes herein discussed, Corky Foods Corporation consulted (among other area packers) Florida Tomato Packers, a large tomato packer located in Homestead, Florida. The locations at which Tommy P. Adams purchased tomatoes for the lower prices included Lantana, Naples, Bonita Springs, Boca Raton, and Immokalee. Area market prices for tomatoes immediately prior to the freeze were as low as $11.00 for 5x6; $10,00 for 6x6; and $8.00 for 6x7. Generally, severe weather conditions, such as a freeze, will cause market prices for tomatoes to rise. The Respondents did not dispute the quality or condition of the tomatoes; market price was the sole source of disagreement between the parties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing Corky Foods Corporation's Amended Complaint herein. DONE AND ORDERED this 8th day of November, 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 8th day of November, 1985. APPENDIX Pursuant to Section 120.59(2), Florida Statutes (1983), following is submitted in response to Petitioner's and Respondent's Proposed Findings of Fact: Petitioner's Proposed Findings of Fact Paragraph: Ruling: Accepted; see paragraphs 1 and 2, Recommended Order. Rejected as a conclusion of law and not supported by the evidence. Partially accepted; see paragraph 7, Recommended Order. Partially accepted; see paragraphs 6 and 7, Recommended Order. Facts not included therein were rejected as not being established by evidence presented at the hearing. Rejected; irrelevant and not supported by the evidence. Accepted; see paragraph 4, Recommended Order. Accepted; see paragraphs 1 and 2, Recommended Order. Accepted; see paragraph 10, Recommended Order. Rejected; not a finding of fact. Respondent's Proposed Findings of Fact Paragraph: Ruling: a law. 1 Partially accepted; see paragraphs 1-10, Recommended Order. Rejected to the extent that the majority of this paragraph contains statement of the issues and conclusions of COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building Room 513 Tallahassee, Florida 32301 Mr. Joe W. Kight Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301 Donna L. Fuller Vice-President Corky Foods Corporation Post Office Box 1019 Boynton Beach, Florida 33425 Mid-South Distributors, Inc. 2601 South Blossom Trail Orlando, Florida 32805
Findings Of Fact Petitioner, Sunbelt Tomato Company (STC), is a tomato producer located in Quincy, Florida. Respondent, Terrific Tomato Company (TTC), is an agricultural dealer in Pompano Beach, Florida, subject to the licensing requirements of the Department of Agriculture and Consumer Services (agency). As such, TTC is obligated to obtain a dealer's license from the agency, and to post a surety bond executed by a surety corporation to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet the latter requirement, TTC has obtained surety bond number 987-78-50 in the amount of $25,000 from respondent, Fidelity and Deposit Company of Maryland. On or about July 5, 1985, STC's president, Branch Mahaffey, accepted a telephone order from Emerson Elliott, whose wife Teresa owned Orlando Tomato Company (OTC). Elliott wished to purchase two loads of tomatoes on behalf of TTC. They agreed upon a price of $12,909.60 and $11,780.80, respectively, for the two loads. It was further understood that TTC was to receive the invoices, and that they were to be shipped to TTC in care of Quality Tomato and Produce (QTP) in Kansas City, Missouri, which was the ultimate buyer. In addition, both loads were to be U.S. combination grade (1 and 2 grades), which means that 75 percent of the tomatoes in each lot must meet U.S number 1 grade standards and the remaining 25 percent must meet U.S. number 2 grade standards. However, this was an erroneous instruction by OTC, because TTC had actually instructed Elliott to arrange for the purchase of two loads having at least 85 percent of the tomatoes meeting U.S. grade number 1 standards. The latter standard is more stringent than the combination grade erroneously ordered by OTC. It was also understood that TCC would arrange to send two trucks to Quincy to pick up the loads on July 8. Shortly after talking with Elliott, Mahaffey had a second telephone call concerning the order from TTC's president, Broderick Bolton. Bolton asked Mahaffey if Elliott had made arrangements on behalf of TTC to buy two loads of tomatoes at the agreed upon prices. Mahaffey responded that he had, and Bolton then told him he would have two trucks sent to Quincy on July 8 to pick up the shipments. The first load was picked up as scheduled on July 8 by a QTP vehicle which carried the tomatoes to its warehouse in Kansas City. After the second truck failed to arrive on the same day, Mahaffey telephoned Bolton on July 9 and asked where was the truck for the second load. Bolton told Mahaffey to arrange the transportation since QTP evidently did not have a truck available. Mahaffey then hired Steve Miller Produce Company in Thomasville, Georgia to pick up the second load. By this time, however, the tomatoes had been picked and had sat in the summertime heat for 24 hours because of TTC's failure to provide transportation. The second load, consisting of three lots, left Quincy on July 9 and arrived in Kansas City where it was stored in QTP's warehouse facilities. QTP was apparently dissatisfied with the quality of tomatoes and arranged for an inspection of the produce on July 11 by an inspector of the United States Department of Agriculture. The inspection report has been received in evidence as petitioner's exhibit 1. It reflected that there was "no decay" and that the load met "quality requirements." However, the inspector found 8 percent of lot 1 to have damage by bruising, 5 percent to have damage by sunken discolor, and 20 percent to have damage by skin checks. Lot 2 was found to have 4 percent damage by sunken discolored areas and 21 percent to have damage by skin checks. The final lot was found to have 6 percent damage by sunken discolored areas and 18 percent damage by skin checks. This information was relayed to Bolton who telephoned Elliott and told him there were problems with the load, and that less than 85 percent of the tomatoes met U.S. grade number 1 standards. The two agreed that Bolton should simply try to get the highest price possible for the second load. Bolton telephoned Mahaffey around July 12 and told him there was a problem with the second load. However, Mahaffey felt no price adjustment was necessary because of the buyer's delay in picking up the shipment. Even so, in an effort to resolve the matter quickly, Mahaffey told Bolton he would settle for $6.00 per box instead of the previously agreed upon prices which ranged from $6.50 to $8.00 per box. Mahaffey also asked for a copy of the inspection report. Bolton was noncommittal as to the $6.00 offer and said that he would be back in touch with Mahaffey at a later date. Mahaffey did not hear from Bolton again. Sometime later, Bolton telephoned QTP and relayed Mahaffey's offer to settle for $6.00 per box. The offer was apparently refused. In the last half of August, Mahaffey received the original inspection report dated July 11 and a second report dated July 17. The latter report contained the results of a second inspection of the second load conducted by the same federal inspector. Surprisingly, on the second inspection the inspector found the tomatoes to be of better quality than when he had first inspected them a week earlier. No explanation for this variance was given. The inspector noted on the second report that 1 percent of the tomatoes were now decaying, and that only 4 percent of the tomatoes were damaged by bruising while 24 percent had sunken discolored ranges. On an undisclosed day in late August Mahaffey received a check drawn on TTC's account on August 19 made payable to OTC in the amount of $3,680. The check was originally sent by Bolton to OTC which then forwarded the unendorsed check to Mahaffey. The $3,680 represented the amount which QTP paid TTC after disposing of the second load. Mahaffey did not cash the check, and immediately filed the complaint herein with the agency. In October, he received full payment from OTC for the first load, but the second load remains in controversy. Bolton stated he was forced to accept whatever price QTP was willing to pay for the second load of tomatoes since the goods were damaged and did not meet the specifications that the buyer requested. He acknowledged that leaving the tomatoes in the field for an extra day could affect the quality and color of the tomatoes. Bolton took no brokerage fee on the shipment, and turned over to STC all of the proceeds ($3,680) received from QTP. It is TTC's position that if STC has a claim, it should be against OTC rather than his company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Terrific Tomato Company be directed to pay Sunbelt Tomato Company, Inc. $11,780.80 as full payment for a shipment of tomatoes sold by STC to TTC on July 9, 1985. In the event TTC does not comply with this directive, the surety for said dealer shall pay the amount due to the agency for the benefit of the producer. DONE and ORDERED this 25th day of July, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1986. COPIES FURNISHED: Branch Mahaffey, President Sunbelt Tomato Co. Post Office Box 201 Quincy, Florida 32351 Broderick Bolton, President Terrific Tomato Co. Post Office Box 2145 Pompano Beach, Florida 33061 Mr. Joe Kight Bureau of License & Bond Room 418, Mayo Bldg. Tallahassee, Florida 32301 Fidelity and Deposit Co. of Maryland 909 Brickell Plaza, Suite 501 Miami, Florida 33131
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 these proceedings, respondent MacDonald was a licensed dealer in agricultural products, licensed by the State of Florida, and bonded by Sentry Indemnity Company in the sum of $10,000.00. At all times pertinent to these proceedings, petitioner was a producer of agricultural products produced in the State of Florida. At all times pertinent to these proceedings, respondent Sentry Indemnity Company was authorized to transact business in the State of Florida. At all times pertinent to these proceedings, Rosario Strano was president of Homestead Tomato Packing Company, Inc. On December 30, 1983, petitioner at respondent MacDonald's request, loaded 704-20 pound flats of Poppas Famous tomatoes, size "5 x 6", and 88-20 pound flats of Poppas Famous tomatoes, size "6 x 7", onto the truck of respondent MacDonald's customer, V. F. Lanasa, Inc., and loaded 88-20 pound flats of Poppas Famous, size "6 x 6", tomatoes on respondent MacDonald's truck. Respondent MacDonald was billed $7.50, $6.50, and $5.50 per flat for size "5 x 6", "6 x 6", and "6 x 7", respectively, plus $132.00 for palletizing, for a total invoice of $6,1460.00. All tomatoes (880 flats) loaded by petitioner on respondent MacDonald's truck and the truck of V. F. Lanasa, Inc. had been inspected by a federal inspector and graded as "U. S. COMB." prior to loading and each flat was stamped as having been inspected. Upon the tomatoes arriving at the warehouse of V. F. Lanasa, Inc., in Richmond, Virginia, they were inspected by USDA Inspector C. E. Short on January 3, 1984. The inspection report indicated some damage. Respondent MacDonald contacted petitioner's business manager, Phyllis Ernst and she, without seeing the inspection report, but relying on respondent MacDonald as to its contents, agreed with respondent MacDonald to a reduction of $1.50 per flat on all sizes. This reduced the original invoice to $5,118.00. On March 12, 1984, respondent MacDonald paid petitioner $3,344.00 leaving a balance of $1,804.00 which respondent MacDonald has refused to pay.
Recommendation Based upon the Findings of Fact and Conclusion of Law recited herein, it is RECOMMENDED that respondent MacDonald Import Company, Inc. be ordered to pay to the petitioner, Homestead Tomato Packing Co., Inc., the sum of $1,804.00. It is further RECOMMENDED that if respondent, MacDonald Import Company, Inc. fails to timely pay the petitioner as ordered, then respondent, Sentry Indemnity Company 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). DONE and ORDERED this 10th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1985. COPIES FURNISHED: Rosario Strano, President Homestead Tomato Packing Company, Inc. P. O. Box 3064 Florida City, Florida 33030 Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Mr. Glenn Bissett Room 418 Mayo Building Tallahassee, Florida 32301 Homestead Packing Company, Inc. Post Office Box 3064 P. O. Box 3064 Florida City, FL MacDonald Import Company, Inc. P. O. Box 97134 Miami, FL
The Issue Does Respondent Horizon Produce Sales, Inc. (Horizon) owe Petitioner Richard Sapp, d/b/a Sapp Farms (Sapp Farms) $5,484.50 as alleged in the Amended Complaint filed herein by Sapp Farms?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At times pertinent to this proceeding, Sapp Farms was a "producer" as defined in Section 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Tomatoes come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. Horizon is a Florida Corporation, owned entirely by Donald E. Hinton, and located in Sydney, Florida. At times pertinent to this proceeding, Horizon was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Horizon was issued License Number 10584, supported by Bond Number 58 84 19 in the amount of $16,000 written by Gulf Life Insurance Company, as Surety, with an inception date of September 26, 1998, and an expiration date of September 25, 1999. By Invoice numbered 1262, Sapp Farms’ Exhibit numbered 6, dated June 18, 1999, with a shipping date of June 16, 1999, Sapp Farms sold and delivered to Horizon several varieties and sizes of tomatoes in 25-pound cartons at an agreed-upon price of $9.00 per 25-pound carton for 267 cartons and $8.00 per 25-pound carton for 104 cartons for a total amount of $3,235.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. By check dated July 3, 1999, Horizon paid Sapp Farms $1,415.00 on these tomatoes leaving a balance owing of $1,820.00. By Invoice numbered 1263, Sapp Farms’ Exhibit numbered 10, dated June 22, 1999, with a shipping date of June 22, 1999, Sapp Farms sold and delivered to Horizon 122 25-pound cartons of extra large pink tomatoes at $8.00 per 25-pound carton, 51 25- pound cartons of large pink tomatoes at $8.00 per 25-pound carton, and 296 25-pound cartons of 125-150 count Roma tomatoes at $8.00 per 25-pound carton for a total invoiced price of $3,752.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for these tomatoes. By Invoice numbered 1272, Sapp Farms’ Exhibit numbered 15, dated June 24, 1999, with a shipping date of June 23, 1999, Sapp Farms sold and delivered to Horizon 70 25-pound cartons of extra large tomatoes at an agreed upon price of $8.50 per 25- pound carton for a total price of $595.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for those tomatoes. Sapp Farms agrees that it owes Horizon $682.50 in freight charges. See Sapp Farms’ Exhibit numbered 12 and the Amended Complaint filed by Sapp Farms. Horizon contends that it did not agree to purchase the tomatoes at an agreed upon price per 25-pound carton but agreed to "work" the tomatoes with Horizon’s customers and to pay Sapp Farms based on the price received for the tomatoes from its customers less any freight charges, etc. Additionally, Horizon contends that it made contact or attempted to make contact with Sapp Farms regarding each of the loads and was advised, except possibly on one load, by either Mark Davis or Richard Sapp that a federal inspection was not necessary and to "work" the tomatoes as best Horizon could. The more credible evidence is that neither Mark Davis nor Richard Sapp was timely advised concerning the alleged condition of the tomatoes. Furthermore, there is insufficient evidence to show that the condition of the tomatoes when delivered to Horizon’s customers had deteriorated to a point that resulted in rejection by Horizon’s customers. The more credible evidence shows that neither Mark Davis nor Richard Sapp advised Horizon that there was no need for a federal inspection or that Horizon could "work" the tomatoes with Horizon’s customers. The more credible evidence is that Horizon agreed to purchase Sapp Farms’ tomatoes at an agreed-upon price and that upon those tomatoes being loaded on Horizon’s truck, Horizon was responsible to Sapp Farms for the agreed-upon price. Sapp Farms timely filed its Amended Complaint in accordance with Section 604.21(1), Florida Statutes, and Horizon owes Sapp Farms for tomatoes purchased from Sapp Farms on Invoice numbered 1262, 1263, and 1272 less the partial payment on Invoice numbered 1262 of $1,415 and freight charges of $682.50 for total amount due of $5,484.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order granting Sapp Farms relief by ordering Horizon Produce Sales, Inc. to pay Sapp Farms the sum of $5,484.50. DONE AND ENTERED this 24th day of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2000. COPIES FURNISHED: Honorable Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Sapp Sapp Farms 4720 Gallagher Road Plant City, Florida 33565 Donald E. Hinton, Qualified Representative President, Horizon Produce Sales, Inc. 1839 Dover Road, North Post Office Box 70 Sydney, Florida 33587 Michael E. Riley, Esquire Rumberger, Kirk and Caldwell A Professional Association Post Office Box 1050 Tallahassee, Florida 32302 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
