The Issue Whether Respondents (“Dobson’s” and “Western Surety”) should be required to pay an outstanding amount owed to Petitioner, Doug Lancaster Farms, Inc. (“Lancaster Farms”).
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: Oden Hardy was the general contractor for a project in Apopka, Florida, known as the Space Box project. Dobson’s, a subcontractor on the Space Box project, contracted to purchase 269 trees (including Live Oaks, Crape Myrtles, Elms, and Magnolias) for $53,245.00 from Lancaster Farms. Dobson’s supplied Lancaster Farms with all the information needed to file a “notice to owner” as authorized by section 713.06, Florida Statutes. A truck from Dobson’s picked up the trees and transported them to the site of the Space Box project. Upon arriving with the trees, Dobson’s discovered that there was no means by which the trees could be watered at the site. Rather than attempting to jury rig some manner of watering system as requested by Oden Hardy, Dobson’s transported the trees to its place of business, and the trees remain there. The parties have stipulated that Dobson’s has paid all of the invoices except for Invoice No. 5810, totaling $12,580.00. There is no dispute that the trees at issue are “agricultural products” within the meaning of section 604.15(1). There is also no dispute that Dobson’s is a “dealer in agricultural products” within the meaning of section 604.15(2).
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 approving the claim of Doug Lancaster Farms, Inc., against Dobson’s Woods and Water, Inc., in the amount of $12,630.00. DONE AND ENTERED this 20th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 20th day of November, 2020. COPIES FURNISHED: Larry K. Dobson Dobson's Woods and Water, Inc. 851 Maguire Road Ocoee, Florida 34761-2915 Kelly Lancaster Doug Lancaster Farms, Inc. 3364 East County Road 48 Center Hill, Florida 33514 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Kristopher Vanderlaan, Esquire Vanderlaan & Vanderlaan, P.A. 507 Northeast 8th Avenue Ocala, Florida 34470 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
The Issue Petitioner claims that Respondent owes approximately $6,000.00 for the purchase of grass sod. Respondent argues that the funds claimed by Petitioner are for repairs on equipment, not sod, and that its only indebtedness to Petitioner is $6.00, mistakenly omitted from a payment. The issue is whether Petitioner's claim is proper and cognizable under section 604.31, F.S., related to complaints of breach of agreement by a licensed dealer in agricultural products.
Findings Of Fact Hillside Sod Farms, Inc. (Hillside) produces grass sod for sale to landscaping firms and similar customers. Its business address is 1620 East State Road 46, Geneva, Florida. Bill Hatfield Enterprises, Inc. d/b/a Bill's Landscaping (Hatfield) is a licensed dealer in agricultural products, bonded by Ohio Casualty Insurance Company, as surety. Hatfield's business address is 1116 State Road 434, Winter Springs, Florida. Sometime around April 1989, Hatfield began purchasing sod from Hillside. Hatfield uses a lot of sod in his landscaping business. The arrangement between the parties was that Hillside would charge an extra 1/2 cent a square foot on his price for the sod for the use of heavy equipment (forklifts). Hillside owns twenty-seven such machines and loaned three out to Hatfield. The equipment stayed at Hatfield's job sites and was operated by Hatfield's crew. When the equipment broke down, Hatfield notified Hillside, who had it repaired. At least some of the repair bills were sent to Hatfield, who paid them. Sometime around the end of September 1989, Avery Wisdom complained to Bill Hatfield about what he thought was an excessive amount of repairs on his equipment. He felt Hatfield's workers were rough on the machines. He suggested several alternatives, including pulling the machines off the jobs and letting Hatfield provide his own machines. He also suggested that he could purchase new equipment and let Hatfield pay all its expenses over a period of time, ultimately buying the equipment, in a lease-purchase type of arrangement. Another suggestion was that he would get the equipment overhauled and let Hatfield pay all the repair bills. Suggestions one and two were apparently rejected, and it is not clear that suggestion three was formally accepted. Nothing was put in writing. Hatfield claims now that he offered to pay an additional 1/2 cent per square foot of sod for the use of the equipment. Avery Wisdom claims that he did raise the price of his sod, but that it was an across-the-board price increase for all of his customers due to increased costs of production, and not related to rental. The October 9, 1989 invoice #13290 from Hillside to Bill's Nursery reflects an increase of $2.00 per pallet of Bahia sod and $2.50 per pallet of Floratam sod, or 1/2 cent per square foot increase. Debra Ludewig, the bookkeeper and general office manager for Hatfield, asked Hatfield why the price" went up, and he told her it was for the equipment. Hillside continued to bill Hatfield for repairs on the equipment after October 1989. These repair costs are reflected on invoices to Bill's Landscaping and are backed up by separate special "repair order" forms itemizing each repair bill. The "special repair order" forms were also furnished to Bill's Landscaping. The repairs are listed on the invoices with a date, reference to the "special repair order" (SRO number), and a total cost which is calculated into the purchaser's running total at the bottom of the invoice. Payments were made on a continuing basis by Hatfield in varying amounts, and rarely in an exact amount to correspond to the total on an invoice. That is, Bill's Nursery maintained a running balance of its account with Hillside, sometimes totalling as much as $20,000.00. Each time she made a payment to Hillside, Debra Ludewig wrote the invoice number on the check. Sometimes more than one check would reflect a single invoice number. After October 1989, Debra Ludewig started deducting the repair bill portion of the invoices when she computed her payments to Hillside. She did this on her own initiative, without direction from Hatfield, because she understood that the 1/2 cent price increase was to cover the repairs. She did not question why the repair bills were being sent and were still being included on the invoices; she just deducted them without any notice to Hillside. In the meantime, the invoices kept coming from Hillside, showing the running balance on Hatfield's account. The top of the invoices reflected the prior outstanding balance, then payments since the last invoice, then additional charges for sod, then repair orders (if any), and then the total amount outstanding. It is clear from the invoices maintained by Hillside and provided to Hatfield, that Hillside was applying Hatfield's checks to the total outstanding balance, which balance included any repair bills, as well as sod delivered. On the other hand, the invoice numbers referenced on Hatfield's checks to Hillside substantiate that Ms. Ludewig was unilaterally deducting sums from certain invoices, which sums corresponded to the amounts being charged for repairs. It is not clear that Hillside was aware of the bookkeeping discrepancy, as nothing was said about deducting the repair bills until the parties' relationship came to an end in June 1990. Hatfield found a new sod producer, claiming that a customer complained about the quality of Hillside's sod. The total amount of repairs charged by Hillside to Hatfield between October 1, 1989, and June 1990, was $7150.25, compared to approximately $300,000.00 for sod,. The final invoice from Hillside to Bill's Landscaping reflected a total balance due of $13,872.59. This invoice #14070 is dated June 18, 1990. On June 21, 1990 and June 29, 1990, payments were made by Hatfield in the amounts of $3,000.70 and $4,641.00 respectively. This left a balance due of $6,230.89. Avery Wisdom concedes that this total should be adjusted: an invoice #13256 (9/22/89) charged $4.50 sales tax in error, and invoice #13406 (11/13/89) included a math error in the amount of $206.70. The proper adjusted total is $6,019.69. The last invoice to include repairs to equipment is dated April 16, 1990. After that date, according to invoices dated from April 23, 1990 to June 18, 1990, Hatfield purchased $39,943.98 in sod from Hillside. The most recent $6,019.69, therefore, is not attributable to repairs.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department enter its final order finding Respondent indebted to Petitioner in the amount of $6,019.69 and requiring payment within fifteen (15) days after the order becomes final as provided in Section 604.21(7), F.S. DONE and ORDERED this 9th day of April, 1991, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1991. COPIES FURNISHED: Avery P. Wisdom, President Hillside Sod Farms, Inc. 1620 E. State Road 46 Geneva, FL 32732 Bill Hatfield, President Bill Hatfield Enterprises, Inc. d/b/a Bills Landscaping 1116 State Road 434 Winter Springs, FL 32708 Ohio Casualty Insurance Company 136 North Third Street Hamilton, OH 45025 Clinton H. Coulter, Jr., Senior Counsel Dept. of Agriculture & Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800 The Honorable Bob Crawford Commissioner of Agriculture Dept. of Agriculture & Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Dept. of Agriculture & Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800
The Issue Whether the Respondent Five Brothers Produce owes Petitioner an additional $13,965.00 for snap beans that Five Brothers Produce received, sold, and shipped to buyers as Petitioner's agent/broker.
Findings Of Fact Respondent Five Brothers Produce, Inc. ("Respondent" or "Five Brothers") accepts agricultural products from growers for sale or consignment and acts as an agent/broker for the growers. It has a surety bond issued by Old Republic Surety Company to secure payment of sums owed to agricultural producers. Petitioner Paul Hernandez ("Petitioner" or "Mr. Hernandez") grows snap beans. On March 26, 2010, Mr. Hernandez delivered 400 boxes of hand-picked snap beans to Five Brothers to sell. On March 27, 2010, Mr. Hernandez delivered an additional 750 boxes of snap beans to Five Brothers to sell for him. Five Brothers' Marketing Agreement and Statement included on the Grower Receipt was given to Mr. Hernandez on March 26 and 27, 2010. It 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 March 27, 2010, Five Brothers' invoice showed that it shipped 336 of the first 400 boxes of Mr. Hernandez' beans to Nathel and Nathel, Inc., at the New York City Terminal Market. From that shipment, Five Brothers received $12.00 a box, or a total of $4,032.00. After deducting its fee of $1.60 a box, Five Brothers paid Mr. Hernandez net proceeds of $3,494.40. On the next day, Five Brothers' records show it sold the remaining 64 boxes to Tolbert Produce, Inc., for $22.70 a box. On March 26, 2010, the United States Department of Agriculture ("USDA") Fruit and Vegetable Market News Portal reported sales prices ranging from $24.85 to $25.85 a box for round green handpicked snap beans grown in Central and South Florida. Mr. Hernandez had reason to question the accuracy of Five Brother's invoice, given the USDA data and the Tolbert Produce sale. Nathel and Nathel also documented the sales of the 336 boxes of beans and 160 boxes of squash it received from Five Brothers. By the time of its settlement with Five Brothers, it paid a total of $5,643.50, of which $4,032.00 came from the sales of beans as reported on the Five Brothers' invoice. On March 29, 2010, Five Brothers shipped all 750 boxes of beans it received from Mr. Hernandez on March 27, 2010, to A and J Produce, Inc., at the New York City Terminal in the Bronx. Five Brothers' invoice indicated that it received $9.00 a box, or a total of $6,750.00 from A and J. Five Brother's fee for that shipment was also $1.60 a box, or a total of $1,200.00, leaving Mr. Hernandez with a net return of $5,550.00. USDA market data showed prices for the handpicked snap beans, on March 29, 2010, ranged from $20.00 to $20.85 a box. The actual cost of production for Mr. Hernandez, including seeds, water, fertilizer, and labor can range from $6.00 to $10.00 a box. He would not have paid for the labor to hand-pick beans if he had known he could not get an adequate return on his investment. Relying on the USDA data, Mr. Hernandez reasonably expected his net return to be $13,965.20, higher than it was. Five Brothers sold the beans in a rapidly declining market. Pointing to the same USDA data, Five Brothers showed the drop towards the end of March and into April 2010. On March 30, the price was down to $16.85 to $18.85. On March 31, the price was $14.85 to $16.85. And, from April 1 through April 6, a box of snap beans was selling for $10.00 to $12.85. Mr. Hernandez alleged that Five Brothers' invoice for the sale of the 750 boxes was not correct. He pointed to an exhibit that showed Five Brothers shipped A and J Produce 1344 boxes of beans, including the 750 boxes grown by him, and another exhibit that appeared to show that A and J received the 1344 boxes, on March 31, 2010, and paid Five Brothers $20.00 a box. That same A and J document, however, tracks the declining prices as each part of the shipment was sold. In the end the value was 68.82 percent of the target price of $20.00, which equals an average sales price of $13.76. After Five Brothers deducted the $1.60 a box fee, proceeds for Mr. Hernandez were approximately $12.00 a box consistent with that reported as A and J's final settlement with Five Brothers. The evidence that there was no guarantee of a sales price in the agreement, that market prices were declining rapidly, and that the receivers' documents support those of the shipper, Five Brothers, is sufficient to rebut any evidence that Mr. Hernandez is entitled to additional payments for the beans delivered to Five Brothers on March 26 and 27, 2010.
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 Paul Hernandez against Five Brothers Produce, Inc. DONE AND ENTERED this 20th day of September, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 20th day of September, 2010.
The Issue Whether A. J. Sales Company owes petitioner $1,712.80 for watermelons loaded on June 18, 1986.
Findings Of Fact Petitioner, Michael C. Jones, is a watermelon grower who resides in Summerfield, Florida. In June of 1986, petitioner arranged to sell his watermelons through Larry Dimaria for four cents a pound. Mr. Dimaria advised petitioner that he would get four cents a pound at the weighing. In his complaint, the petitioner described Mr. Dimaria as his "salesman." At the hearing he stated that Mr. Dimaria was his broker working on commission. Regardless of the characterization, it is clear that Mr. Dimaria was acting as petitioner's agent for the sale of the watermelons in question. Acting on behalf of petitioner, Mr. Dimaria called Carl Boyles, an employee of A. J. Sales Company, to advise that petitioner had watermelons for sale. Mr. Boyles was able to locate a buyer for the watermelons, the Auster Company in Chicago, Illinois. Mr. Boyles then called Mr. Dimaria to inform him of the sale. Mr. Dimaria was specifically advised by Mr. Boyles that the melons would have to be in good condition, meaning that they would pass a USDA inspection, and that petitioner would have to "ride the watermelons in," meaning that petitioner would have to guarantee arrival of the watermelons in good condition in Chicago. In other words, if the melons failed a USDA inspection in Chicago, the Auster Company had the right to reject the watermelons and the risk of the loss would be on petitioner. Petitioner was guaranteed four cents a pound for the watermelons only upon successful delivery. The terms and conditions of the sale were made clear to Mr. Dimaria. Indeed, because A. J. Sales Company had experienced problems with Mr. Dimaria in 1985, which included Mr. Dimaria's misrepresenting the quality of the watermelons he was selling, A. J. Sales Company had determined that the only terms on which it would do business with Mr. Dimaria were that the farmers Mr. Dimaria represented would have to guarantee arrival of the watermelons in good condition and that the farmers would bear the risk of loss if the melons were not in good condition when delivered. Since A. J. Sales Company's representatives do not see the watermelons themselves and could not rely on Mr. DiMaria's representations, A. J. Sales Company felt these terms were necessary to protect its interests. The subject watermelons were shipped to Chicago on June 18, 1986. They were inspected in Chicago on June 20, 1986, by a United States Department of Agriculture inspector. The watermelons failed to grade U.S. No. 1 on account of their condition, which was that the samples averaged 66 percent overmature. Mr. Boyles was advised of the problem with the watermelons on Friday, June 20, the day they were inspected. He attempted to telephone Mr. Dimaria but was unable to reach him. He therefore called the petitioner to advise of the condition of the melons and find out what petitioner wanted done. Petitioner told Mr. Boyles that he knew of no buyer in the area and told Mr. Boyles to do what he could. Mr. Boyles called several people in the Chicago area but could not find anyone who was willing to buy the watermelons. The only possibility was to take the watermelons to a flea market being held on Sunday and sell as many melons as possible directly from the truck. Mr. Boyles was advised that the melons might get $400 or $500 at the flea market, but he knew it would cost $300 to keep the driver in Chicago through Sunday. Therefore, the best return possible from selling the watermelons at the flea market would be $100 or $200. Further, the truck driver advised Mr. Boyles that the melons were popping open and juice was running out the bottom of the truck. Based on all the information that he had, Mr. Boyles determined that the best option was not to add an additional $300 to the freight bill, but simply to tell the truck driver to dump the watermelons. Respondent received a receipt indicating that one load of watermelons, constituting 46 x 2.05 cubic yards, had been dumped at the Inox County, Illinois, landfill and that the charge for dumping had been $94.30. A. J. Sales Company never received any payment for the watermelons in question. A. J. Sales Company invoiced petitioner for the freight charges on the watermelons, but petitioner never paid the invoice. Petitioner never invoiced A. J. Sales Company for the watermelons. What apparently happened in this case is that the petitioner was not fully advised by his agent, Mr. Dimaria, of the terms and conditions of the sale. All negotiations concerning the watermelons were conducted between Mr. Dimaria and Carl Boyles. The petitioner did not talk to any representative of A. J. Sales Company concerning the terms and conditions of the sale. Petitioner's only knowledge of the terms and conditions of the sale came from Mr. Dimaria, and petitioner admitted that he had experienced problems with representations made by Mr. Dimaria on other loads of watermelons he handled for petitioner. On other loads, petitioner was advised by Mr. Dimaria that he would receive a half cent more per pound for the watermelons than he actually got. After the instant dispute, Mr. Dimaria ceased being a broker representing the petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing petitioner's complaint. DONE AND ENTERED this 18th day of February, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 18th day of February, 1987. APPENDIX TO RECOMMENDED ORDER Respondent's proposed findings of fact: 1-2. Accepted in paragraphs 1 and 2. Accepted in paragraph 9. Accepted in paragraphs 3 and 9. Rejected, not a finding of fact. 6-8. Accepted generally in paragraph 4. Accepted generally in paragraph 3. Accepted generally in paragraph 5. 11-12. Accepted generally in paragraphs 6 and 7. 13-15. Accepted in paragraph 8. Petitioner's proposed findings of fact: Accepted in paragraph 5. Accepted in paragraphs 3 and 9. Accepted in paragraph 9. Rejected in that the watermelons failed to grade USDA 1 due to their condition. Rejected as unnecessary and irrelevant. COPIES FURNISHED: Mr. Michael C. Jones Route 2, Box 26-E Summerfield, Florida 32691 Thomas B. Smith, Esquire McGUIRE, VOORHIS & WELLS, P.A. Two South Orange Plaza Post Office Box 633 Orlando, Florida 32802 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 Robert Chastain, Esquire General Counsel Department of Agriculture 513 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issue for determination is whether Respondents owe Petitioner approximately $591 for a quantity of watermelons provided by Petitioner; secondarily, resolution of this issue 1 Correction of obvious error has been made to the style of this case, adding the name of Co-Respondent U.S. Fidelity and Guaranty Co., and eliminating the Department of Agriculture and Consumer requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.
Findings Of Fact Petitioner is a farmer who produces agricultural products, including watermelons. Petitioner also has trucks in which he hauls agricultural products, including watermelons. When all his trucks are in use, he frequently calls a friend, Freddy Bell, to provide some of Bell’s trucks to haul his products. Petitioner, in turn, helps Bell when Bell’s trucks are all in use. Respondent Wilson is a dealer of such products in the course of normal business activity. Respondent Wilson acts as a broker in these arrangements, receives the gross sales receipts from buyers and from that sum deducts costs of labor, freight, inspections, any other associated costs and his commission. The net balance of the gross sales receipts are paid to the melon producers. Respondent U. S. Fidelity and Guaranty Company is the bonding agent for Respondent pursuant to Section 604.20, Florida Statutes. Petitioner had not discussed any arrangement for the sale of his melons with Respondent Wilson. Instead, Petitioner discussed the sales price of his melons with Freddy Bell. Petitioner testified that Bell represented to Petitioner that he could get a price of $4.00 per hundred weight for Petitioner’s melons. Petitioner relied on Bell to provide transport his melons and obtain the promised price. While Bell did not testify at the final hearing, the parties are in agreement that Bell arranged for sale and shipment of Petitioner’s melons through Wilson. Wilson’s President, Robert M. Wilson, testified at hearing that Bell was not empowered by him to represent a guaranteed price for melons to anyone and that he could not affirm that Bell operated as his agent. He added that Melons were plentiful this past season and no melons were brokered on a guaranteed price basis. Testimony of Robert M. Wilson at the final hearing establishes that the arrangement between Respondent Wilson and Freddy Bell on Petitioner’s behalf was a brokerage arrangement and that the sale of the melons was subject to conditions and demands of the market place, i.e., that the melons would sell for the best possible price which Wilson could obtain for them. Testimony of Petitioner is uncorroborated and fails to establish that the agreement between the parties contemplated a direct sale of the melons to Respondent Wilson or a guaranteed price by Wilson.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing Petitioner's complaint.DONE AND ENTERED this 12th day of March, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Bo Bass 2829 Southwest SR 45 Newberry, FL 32669 John M. Martirano, Esquire US Fidelity and Guaranty Co Post Office Box 1138 Baltimore, MD 21203-1138 Robert M. Wilson, President Wilson and Son Sales, Inc. 2811 Airport Road Plant City, FL 33567 Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol - Plaza Level 10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, FL 32399-0800
The Issue 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
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order assessing petitioner A & K Feed Store $31,899.62, with interest on the $22,468.73 of tax at the rate of 12 percent per annum from October 23, 1981. RECOMMENDED this 14th day of June, 1984, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNTSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1984.
Findings Of Fact The Petitioner, Triple M Packing, Inc. (Triple M) is in the business of selling produce, particularly tomatoes from its principal business address of Post Office Box 1358, Quincy, Florida. The Respondent, Fair Chester Tomato Packers, Inc. (Fair Chester), is primarily engaged in the business of packaging, distributing and brokering tomatoes in the New York City metropolitan area. It purchases produce from various sellers around the country in tomato-producing areas for resale at markets in the New York City area. Since it is a licensed agricultural dealer, the Respondent is required under the pertinent provisions of Chapter 604, Florida Statutes, to file a surety bond with the Department of Agriculture and Consumer Services (Department), designed to guarantee payment of any indebtedness to persons selling agricultural products to the bonded dealer to whom the dealer fails to make accounting and payment. Fair Chester has thus obtained a 50,000 surety bond which is underwritten by its Co-Respondent, Hartford Accident and Indemnity Company (Hartford). During the 1984 growing season, the Petitioner sold certain shipments of tomatoes to the Respondent for a price of $12,276. Thereafter, curing middle-to-late 1984, the Respondent Fair Chester, found itself in straitened financial circumstances such that it was unable to pay its various trade creditors, including the Petitioner. In view of this, various creditors at the behest of a lawyer retained by Fair Chester, eventually entered into a composition agreement, whereby the unsecured trade creditors agreed to settle, release and discharge in full their claims against Fair Chester on the condition that each creditor signing that agreement be paid thirty-three and one-third percent of its claim. It was determined that the composition agreement would be operative if the trade creditors representing 95 percent or more in dollar amount of all unsecured debts accepted the terms and provisions of that composition agreement on or before November 13, 1984. All the Respondent's unsecured trade creditors were contacted and ultimately those representing more than 95 percent of the outstanding creditor claims against Respondent accepted the terms and provisions of the composition agreement by the deadline. A document indicating acceptance by the Petitioner was signed by one Robert Elliott, purportedly on behalf of the Petitioner, Triple M Packing, Inc. In this connection, by letter of November 13, 1984 (Respondent's Exhibit 4) Attorney Howard of the firm of Glass and Howard, representing the Respondent, wrote each trade creditor advising them that the required acceptance by 95 percent of the creditors had been achieved, including the acceptance of the agreement signed and stamped "received November 8, 1984" by Robert Elliott, sales manager of Triple M. In conjunction with its letter of November 13, 1984, Glass and Howard transmitted Fair Chester's check for one-third of the indebtedness due Triple M or $4,092. The Petitioner's principal officer, its president, Kent Manley, who testified at hearing, acknowledged that he received that letter and check, but he retained it without depositing it or otherwise negotiating it. In the meantime, on October 29, 1984 a complaint was executed and filed by Triple M Packing, Inc. by its president, Kent Manley, alleging that $12,276 worth of tomatoes had been sold to Respondent on June 13, 1984 and that payment had not been received. The purported acceptance of the composition agreement executed by Robert Elliott, sales manager, was not executed until November 8, 1984 and the check for $4,092 in partial payment of the Triple M claim was not posted until November 13, 1984. Mr. Manley's testimony was unrefuted and established that indeed Mr. Elliott was a commissioned salesman for Triple M, was not an officer or director of the company and had no authority to bind the company by his execution of the composition of creditors agreement. Mr. Manley acted in a manner consistent with Elliott's status as a commissioned salesman without authority to bind the Petitioner corporation since, upon his receipt of the "one- third settlement" check with its accompanying letter, he did not negotiate it, but rather pursued his complaint before the Department. In fact, in response to the Department's letter of December 20, 1984 inquiring why the complaint was being prosecuted in view of the purported settlement agreement, Mr. Manley on behalf of Triple M Packing, Inc. by letter of December 28, 1984, responded to Mr. Bissett, of the Department, that he continued to hold the check and was not accepting it as a final settlement. Thus, in view of the fact that the complaint was filed and served before notice that 95 percent of the creditors had entered into the composition agreement and never withdrawn, in view of the fact that on the face of the complaint Robert C. Elliott is represented as a salesman indeed, for an entity known as "Garguilo, Inc.," and in view of the fact that Mr. Manley as president of Triple M, retained the check without negotiating it and availing himself of its proceeds, rather indicating to the Department his wish to pursue the complaint without accepting the check as settlement, it has not been established that the Respondent, Fair Chester, was ever the recipient of any representation by Manley, or any other officer or director of the Petitioner corporation, that it would accept and enter into the above-referenced composition of creditors agreement. It was not proven that Triple M Packing, Inc. nor Mr. Manley or any other officer and director either signed or executed the composition agreement or authorized its execution by Robert C. Elliott. Respondent's position that Mr. Manley and Triple M acquiesced in the execution of the settlement agreement by Elliott and the payment of the one-third settlement amount by the subject check has not been established, especially in view of the fact that the complaint was filed after Attorney Howard notified Triple M of Respondent's settlement offer and prior to notice to Triple M that the settlement agreement had been consummated by 95 percent of the creditors and prior to the sending of the subject check to Triple M. Mr. Manley then within a reasonable time thereafter, on December 28, 1984, affirmed his earlier position that the entire indebtedness was due and that the settlement had not been accepted.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That Fair Chester Tomato Packers, Inc. pay Triple M Packing Company, Inc. $12,276. In the event that principal fails to or is unable to pay that indebtedness, Hartford Accident and Indemnity Company should pay that amount out of the surety bond posted with the Department of Agriculture and Consumer Services. DONE and ENTERED this 16th day of September, 1985 in Tallahassee, Florida. Hearings Hearings 1985. COPIES FURNISHED: Mr. Kent Manley, Jr. Post Office Box 1358 Quincy, Florida 32351 P. MICHAEL RUFF 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 16th day of September, Arthur Slavin, Esquire BLUM, HAIMOFF, GERSEN, LIPSON, GARLEY & NIEDERGANG 270 Madison Avenue New York, New York 10016 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Mr. Joe W. Kight Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301 =========================================================== ======
The Issue The issue to be determined in this proceeding is whether Respondents Wilson and Son Sales, Inc. (Wilson), and Ohio Casualty Insurance Company, as surety, are indebted to Petitioner for certain Florida-grown agricultural products.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a producer of several vegetable crops in Hardee County. Wilson is a dealer in agricultural products. More specifically, Wilson operates an agricultural broker business in Plant City. Wilson’s surety is Ohio Casualty Insurance Company. Although Wilson has written contracts with some producers, Wilson does not have written contracts with all producers. In the absence of a contract, the terms of Wilson’s broker services are almost always the same; that is, Wilson gets a commission of 10 percent on the sale of the produce and $.35 per box for palletizing and pre-cooling the produce, in return for which Wilson makes a reasonable and good faith effort to sell Petitioner’s produce for the best price. Petitioner contacted Wilson in January 2007, about bringing flat beans to Wilson to sell. Wilson expressed interest and informed Petitioner about Wilson’s standards terms as described above. These terms were agreeable to Petitioner and he brought the beans to Wilson later that month. Although Petitioner and Wilson had no written contract, the parties’ mutual understanding of the terms of their agreement created an enforceable oral contract. Wilson sold Petitioner’s beans and no dispute arose from this first transaction. The parties’ subsequent transactions for other produce were undertaken pursuant to the same oral contract terms. Because Wilson works on a commission basis, it is generally in Wilson’s self-interest to sell growers’ produce for the best price. Petitioner contacted Robert Wilson, Wilson’s owner, by telephone in February 2007, and informed Wilson of his plans to grow wax beans and “hard squash.” It was not stated in the record whether all three varieties of hard squash later grown by Petitioner, butternut squash, acorn squash, and spaghetti squash, were discussed by Petitioner and Robert Wilson during their February 2007 telephone conversation. A major dispute in the case was whether the parties’ February discussion about hard squash created some obligation on the part of Wilson beyond the oral contract terms described above. Petitioner claims that Wilson encouraged him to plant the squash and that Petitioner would not have planted the squash otherwise. Petitioner never made clear, however, what additional obligation was created by Robert Wilson’s encouragement beyond the obligation to accept delivery of and make good faith efforts to sell Petitioner’s squash at the best price. Petitioner did not use the word “guarantee,” but his claim seems to be that Wilson became obligated to guarantee that the squash would be sold for a price close to the price published in the Columbia (South Carolina) Market Report, a periodic publication of produce prices. Such an obligation on the part of a broker is contrary to the general practice in the trade. Petitioner’s evidence was insufficient to prove more than that Robert Wilson thought he could sell Petitioner’s squash and had a genuine interest in acting as broker for Petitioner’s squash. The evidence was insufficient to prove the existence of a contractual guarantee that Wilson would obtain a certain price for Petitioner’s hard squash or do more than was promised with regard to the beans that Wilson had sold for Petitioner; that is, to try to sell the produce for the best price. When Petitioner’s wax beans were picked in late April, he brought them to Wilson to sell. No dispute arose regarding the sale of the wax beans. Petitioner brought squash to Wilson in five deliveries between May 12 and May 29, 2007. Petitioner said that on one of these deliveries, he had to leave the boxed squash in the parking lot of Wilson’s facility because there was so much cantaloupe that had been delivered ahead of him. Petitioner says he was told by a Wilson employee that the squash would not be put in the cooler. Petitioner thinks Wilson was more interested in moving the cantaloupe than the hard squash. Petitioner thinks his squash was not put in the cooler or was put in too late. Wilson denies that Petitioner’s squash was not put into the cooler or was put in late. Robert Wilson claims that he made many calls in an effort to sell Petitioner’s squash, but he could not find interested buyers for all of the squash because (1) the demand for hard squash dried up, (2) some of Petitioner’s squash was of low quality, and (3) the squash began to spoil. Petitioner denied these allegations. Petitioner received invoices and other paperwork from Wilson showing that Wilson sold Petitioner’s first delivery of 490 boxes of acorn squash for $10.18 per box. It sold Petitioner’s second delivery of 519 boxes of acorn squash for $2.08 per box. For Petitioner’s third delivery of 110 boxes of acorn squash and 240 boxes of spaghetti squash, Wilson “dumped” the acorn squash by giving it to away for free to the Society of St. Andrews food bank, and sold the spaghetti squash for $5.15 per box. Wilson sold petitioner’s fourth delivery of 279 boxes of butternut squash for $.55 per box.1 Competent substantial evidence in the record established that it is a regular occurrence for agricultural products awaiting sale to decay and become unsellable, and for the broker to dump the products in a landfill or give the products to a charitable organization and then provide the grower a receipt for tax deduction purposes. It was undisputed that Wilson did not notify Petitioner before disposing of his squash. Petitioner claims he should have been notified by Wilson if the squash was beginning to spoil. However, Petitioner did not prove that prior notification was a term of their oral contract. Petitioner claims further that the federal Perishable Agricultural Commodities Act required Wilson to notify Petitioner before dumping the squash and to have the squash inspected to determine whether, in fact, it was spoiled. As discussed in the Conclusions of Law below, this federal law is not applicable. Competent substantial evidence in the record established that the market for agricultural products fluctuates and, at times, can fluctuate rapidly. For hard squash, which is normally prepared in an oven, the market demand can drop dramatically due to the onset of warm weather simply because people tend not to cook hard squash dishes in warm weather. Petitioner’s squash was being marketed in May, which means the beginning of warm weather for most areas of the United States. This fact supports Wilson’s claim that the demand for hard squash had been good, but fell rapidly just at the time Wilson was trying to sell Petitioner’s squash. The problem with the claims made by Petitioner in this case is simply one of insufficient proof. It is not enough for Petitioner to offer theories about what he thinks happened or to raise questions which are not fully answered. Petitioner had no proof that his squash was not put in Wilson’s cooler, that his squash did not begin to decay, that the demand for hard squash did not fall rapidly, that Wilson did not make reasonable efforts to sell the squash, that Wilson had willing buyers for Petitioner’s squash at a better price, or that Wilson sold squash from other growers at a better price. Petitioner’s evidence for his claims consisted primarily of market price reports that he contends show the approximate price Wilson should have gotten for the hard squash. Market price reports have some relevance to the issues in this case, but competent evidence was presented that the prices quoted in the publications are not always reliable to indicate the price a grower can expect to get on any given day, because there are factors that cause the published market price to be an inflated price (and applicable to the highest grade of produce) and because the market price can change rapidly with a change in demand for the product. The oral contract between Petitioner and Wilson required Wilson to try to get the best price for Petitioner’s squash, not some particular price appearing in a particular market price report. Petitioner did not show that Wilson got a better price for hard squash of equal quality, or that other brokers in the area got a better price for hard squash of equal quality at the times relevant to this case. Petitioner’s evidence was insufficient to prove that Wilson did not make a reasonable and good faith effort to sell Petitioner’s squash at the best price.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order dismissing Petitioner’s amended claim. DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2008.
Findings Of Fact The Petitioners and the Respondents had a contractual agreement, whereby the Respondents agreed to purchase watermelons from the Petitioners during the 1978 harvest season. The Petitioners were to be compensated for their watermelons by the pound as the melons crossed the scales during loading of the melons onto trucks. The actual price fluctuated based upon the market conditions. The Respondents' employees were responsible for picking and loading the melons. Pete Potenza was in charge of the loading operation for the Respondents. Mr. Potenza advised the Respondents that the price for the watermelons would be two and one-half cents per pound for the medium watermelons and three cents per pound for large ones. At the agreed price, the Petitioners would have been entitled to compensation of $1,197.75 for one load of watermelons, and $1,083.50 for another load. The Respondents compensated them $958.20 and $866.80 for the respective loads. The price paid by the Respondents was less than had been agreed upon. The Petitioners are entitled to $217.50 additional compensation for the first load, and $239.55 additional compensation for the second load. The Petitioners are entitled to total additional compensation in the amount of $457.05. There was no dispute as to the quality of the Petitioners' melons. The Respondents picked several loads of melons from the Petitioners subsequent to those which were disputed. Mr. Potenza advised the Petitioners that they would receive additional compensation, but they have not. The Respondents are licensed with the Department of Agriculture and Consumer Services as an agricultural commodity dealer. The Respondents have filed a $20,000.00 bond with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final order be entered by the Department of Agriculture and Consumer Services finding that the Petitioners are entitled to $457.05 in additional compensation for agricultural goods which they sold to the Respondents and requiring the Respondents to pay this sum to the Petitioners. DONE and ENTERED this 20th day of February, 1979, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert A. Chastain, Esq. General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, FL 32304 William F. York, Esq. GILMAN, MCLAUGHLIN & HANRAHAN Ten Post Office Square Boston, MA 02109 J. Victor Africano, Esq. P. O. Box 1450 Live Oak, FL 32060 Joseph Pellegrino, President A. Pellegrino & Sons, Inc. 24 New England Produce Center Chelsea, MA 02150 E. G. Musleh, Esq. P. O. Box 924 Ocala, FL 32670
