Findings Of Fact Respondent, Lincoln A. Herreid, was, at all times material hereto, licensed to practice land surveying in the State of Florida, having been issued license number 3015. At issue in these proceedings are three surveys, which Respondent admits he performed, signed and sealed, to wit: A survey of the real property located at 9 East Lucy Street, Florida City, Florida; a survey of a portion of the real property located in Florida Fruitland Company's Subdivision No. One, Dade County, Florida; and, a survey of the real property located at 20301 S.W. 117 Avenue, Miami, Florida. 9 East Lucy Street Survey On December 17, 1983, Respondent signed and sealed a Sketch of Survey" for Lots 1 and 2, Block 1, Hays Subdivision, Plat Book 55, Page 53, Public Records of Dade County, Florida, commonly known as 9 East Lucy Street, Florida City, Florida. The Lucy Street property is rectangular in shape, and abuts streets on its north, east and west sides. The survey shows only one angle and no bearings, fails to reflect the measured distance to the nearest intersection of a street or right-of-way, and fails to reflect whether any monument was found, or set, at the southeast corner of the property. The evidence establishes that no monument was found, or set, at the southeast corner of the property. Respondent avers that no monument was set because debris, composed of paints and chemicals, preempted the area and precluded the setting of a monument. However, no offset witness point was set, nor did the survey reflect why a monument had not been set. Florida Fruitland Company Subdivision Survey On February 24, 1984, Respondent signed and sealed a "Waiver of Plat," a survey of a portion of Tract 21, Section 15, Township 53 South, Range 40 East, of Florida Fruitland Company's Subdivision No. One, Plat Book 2, Page 17, Public Records of Dade County, Florida. The Waiver of Plat shows only one angle and no bearings, indicates the four corners of the property by "Pipe," without reference to whether the pipe was set or found, fails to reflect the measured distance to the nearest intersection or right-of- way, fails to reference the source documents for the legal description of the property, and fails to provide vertical datum and benchmark descriptions. Further, the survey incorrectly positioned the property, reflected inaccurate boundary measurements, and established an incorrect elevation. The property, which is the subject of the Waiver of Plat, is rectangular in shape, zoned commercial (no side set- backs required), and its front (the northern boundary of the property) abuts Northwest 70th Street, between N.W. 82nd Avenue and N.W. 84th Avenue, Miami, Florida. The evidence establishes that the north/south dimensions of the property, as reflected by Respondent's survey, were overstated by 2.1' on the west boundary line, and 2.01' on the east boundary line. Although Respondent correctly depicted the correct distances of the east/west property line, the positioning of that line in relation to the fractional line was in error by .12', and the northwest and northeast corner placements were in error by .24' and .20', respectively. The elevation established by Respondent's survey was in error by one foot. 20301 S.W. 117 Avenue Survey On June 13, 1984, Respondent signed and sealed a "Sketch of Survey," for Lot 17, Block 6, Addition J., South Miami Heights, Plat Book 68, Page 74, Public Records of Dade County, Florida commonly known as 20301 S.W. 117 Avenue, Miami, Florida. The Sketch of Survey reflects only one angle and no bearings, and failed to set a monument or offset witness point for the northeast corner of the property.
The Issue Whether the Respondent owes payment to the Petitioners for citrus sold by the Petitioners to the Respondent and, if so, what amount of payment is due.
Findings Of Fact Rogers Brothers Fruit Company was a licensed Florida citrus dealer in Lakeland, Florida, license #110, and as such posted a dealers bond for the 1992- 93 production season. Rogers Brothers Fruit Company, Incorporated was also a licensed Florida citrus dealer in Lakeland, Florida, license #111, and as such posted a dealers bond for the 1992-93 production season. In these cases, both Rogers Brothers Fruit Company and Rogers Brothers Fruit Company, Incorporated dealt interchangeably with, and are equally liable to, the Petitioners. CASE NO. 94-5393 R. T. Poppell and Carl Carpenter, Jr. are citrus growers in Florida. By contract entered into in October, 1992, Poppell and Carpenter sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation based on Erly Juice contract." CASE NO. 94-5394 R. T. Poppell is a citrus grower in Florida. By contract entered into in October, 1992, Poppell sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Holly Hill contract." CASE NO. 94-5395 Jack P. Sizemore is a citrus grower in Florida. By contract entered into in October, 1992, Sizemore sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Holly Hill contract." CASE NO. 94-5396 Mac A. Greco, Jr., and R. T. Poppell are citrus growers in Florida. By contract entered into in October, 1992, Greco and Poppell sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Erly Juice contract." CASE NO. 94-5397 Maple Hill Groves, Inc., is in the business of growing oranges in Florida. By contract entered into in November 1992, Maple Hill sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Erly Juice contract." Erly Juice was a Florida company in the business of acquiring and processing citrus for juice. Although two of the contracts at issue in this proceeding indicate payment is based on participation in the Holly Hill contract, all parties apparently agree that the Erly Juice contract was the relevant payment reference. In this case, Rogers Brothers had entered into agreements with Erly Juice for a specified quantity of oranges. Rogers, in turn, contracted with growers to obtain the fruit Rogers needed to meet the obligation to Erly. Payment to the growers was to be based on "participation." Essentially, "participation" payment means that individual citrus growers get a proportionate share of the proceeds obtained by the buyer. During the 1993 citrus production season, Erly began experiencing financial difficulties. By letter of August 25, 1993, Erly notified citrus suppliers that the Erly plant in Lakeland had been sold and that the company had been reorganized. The letter further states as follows: We have now completed the calculation of the amount due for participants in our early/mid season orange pool. Our interim estimation of the final participation price is $.57 per lb. solid. We are, however, unable to pay the 25 percent advance amount due at this time. Negotiations continue with our bank to resolve this problem. By letter of September 29, 1993, Erly notified Rogers Brothers that Erly was unable to pay its obligations. The letter states: As we discussed on the phone this morning, ERLY Juice is unable to pay 100 percent of the amount due under our fruit contracts. We have, however, negotiated additional credit to allow us to offer 75 percent of the amount due in order to settle without litigation expense.... ...If you agree to settle our obligations to you for $22,630.54, please sign the attached Settlement Agreement and Release.... Rogers Brothers accepted the settlement offer. The settlement amount was calculated at 75 percent of the originally estimated $.57 lb. solid payment. The resulting payment is $.4275 lb. solid. Rogers Brothers, in turn, paid each Petitioner an amount equal to $.4275 lb. solid for the fruit obtained from each grower. The Petitioners assert that they are entitled to additional funds from Rogers Brothers in the amount of the 25 percent of the original $.57 estimate. The evidence fails to support the assertion.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: The Florida Department of Agriculture and Consumer Services enter a Final Order dismissing the Petitions for Relief filed in these cases. DONE and RECOMMENDED this 16th day of August, 1995, 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 16th day of August, 1995. APPENDIX TO RECOMMENDED ORDER The following constitute rulings on proposed findings of facts submitted by the parties. Petitioners The Petitioners' proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: I. Rejected, contrary to the evidence. Two of the contracts specify payment is based on the Holly Hill contract. Rejected, cumulative. Rejected, contrary to the evidence which establishes that the $.57 lb. solid payment was estimated. P, Q, R. Rejected, irrelevant. The Petitioners had no contract with Erly. S, T, U, V, W, X. Rejected, unnecessary. The evidence fails to establish that further payment from Rogers Brothers to the Petitioners is due under the terms of the contracts. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. 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 Michael S. Edenfield, Esquire 206 Mason Street Brandon, Florida 33511 Michael D. Martin, Esquire 200 Lake Morton Drive, Suite 300 Lakeland, Florida 33801
The Issue The issues for determination in this case are whether Respondent as a licensed citrus fruit dealer breached an agreement with Petitioner relating to the purchase of citrus fruit during the 1991-1992 shipping season and further whether the breach of such agreement constitutes a violation of the Florida Citrus Code for which the proceeds of the citrus fruit dealer's bond should be paid to Petitioner pursuant to section 601.66, Florida Statutes.
Findings Of Fact Petitioner, Lykes Pasco, Inc., is a Florida corporation located in Pasco County, Florida, in the business of citrus fruit processing. Respondent, L & M Fruit Company, Inc., is a dissolved Florida corporation that formerly was in the business of selling and delivering citrus fruit. Jerry M. Mitchell was the past president of Respondent. During the 1991-1992 shipping season, Respondent was a licensed citrus fruit dealer in Florida. Co-Respondent, American Surety and Casualty Company, a registered surety company, during the 1991-1992 shipping season executed a citrus fruit dealer's bond to Respondent in the amount of $49,000 pursuant to the provisions of section 601.66, Florida Statutes. On or about September 20, 1991, Petitioner entered into an express written contract with Respondent for the sale and delivery of citrus fruit. Specifically, the contract provided for the sale and delivery of 35,000 boxes of early and midseason oranges at $0.85 pounds net delivered, and 35,000 boxes of valencia oranges at $1.05 pounds net delivered. The contract was executed by Tom O'Neal on behalf of Petitioner, and by Jerry M. Mitchell on behalf of Respondent. Of the 35,000 boxes of early and midseason oranges provided for in the contract, Respondent delivered 21,706 boxes leaving a shortage of 13,294 boxes. Of the 35,000 boxes of valencia oranges provided in the contract, Respondent delivered 1,180 boxes, leaving a shortage of 33,820 boxes. Because of the Respondent's breach of contract Petitioner was required to purchase fruit solids on the open market to cover its business needs. Petitioner incurred costs in the amount of $91,980.53 to replace the fruit which Respondent failed to deliver under the terms of the contract. In addition to the costs incurred by the Petitioner in replacing the fruit, Petitioner also made an advancement of funds against the contract to the Respondent. The funds advanced to Respondent which have not been repaid nor applied against the fruit delivered total $15,567.55. The damages incurred by the Petitioner resulting from Respondent's breach of contract total $107,548.08.
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 adjudicating that the amount of indebtedness owed to Petitioner from Respondent is $107,548.08, that Respondent shall have thirty (30) days in which to satisfy such indebtedness, and that upon failure of the respondent to make satisfaction of this claim, any remaining proceeds of the citrus fruit dealer's bond executed by Co-Respondent shall be distributed to Petitioner. RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of May, 1995. RICHARD HIXSON 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 8th day of May, 1995. APPENDIX Petitioner' Proposed Findings: Paragraphs 1 through 7 are adopted and incorporated herein. COPIES FURNISHED: Commissioner Bob Crawford Commissioner of Agriculture The Capitol, P1-10 Tallahassee, Florida 32399-0810 Patrick T. Lennon, Esquire H. Vance Smith, Esquire Attorneys for Lykes Pasco, Inc. Post Office Box 1531 Tampa, Florida 33601 Mr. Jerry M. Mitchell, President L & M Fruit Company, Inc. Post Office Box 1048 Bartow, Florida 33880 F. J. Manuel, Jr. Sears & Manual, P.A. Attorneys for American Surety & Casualty Company 511 North Ferncreek Avenue Orlando, Florida 32803 Clerk Department of Citrus Post Office Box 148 Lakeland, Florida 33802-0148 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue presented for decision is whether Proposed Rules 20-15.001, 20-15.002, and 20-15.003 constitute an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(a)-(e), Florida Statutes.
Findings Of Fact Based on the stipulated facts, and the entire record in this proceeding, the following findings of fact are made: The Florida Citrus Commission was established in 1935 to organize and promote the growing and sale of various citrus products, fresh and processed, in the State of Florida. The purpose of the Citrus Commission is today reflected in Section 601.02, Florida Statutes. The powers of the Florida Citrus Commission ("the Commission") and the Department, are set forth in full in Section 601.10, Florida Statutes. The powers of the Department include the power to tax and raise other revenue to achieve the purposes of the Department. In particular, Section 601.10(1) and (2), Florida Statutes, state: The Department of Citrus shall have and shall exercise such general and specific powers as are delegated to it by this chapter and other statutes of the state, which powers shall include, but shall not be confined to, the following: To adopt and, from time to time, alter, rescind, modify, or amend all proper and necessary rules, regulations, and orders for the exercise of its powers and the performance of its duties under this chapter and other statutes of the state, which rules and regulations shall have the force and effect of law when not inconsistent therewith. To act as the general supervisory authority over the administration and enforcement of this chapter and to exercise such other powers and perform such other duties as may be imposed upon it by other laws of the state. The Department is authorized to set standards by Section 601.11, Florida Statutes, as follows: The Department of Citrus shall have full and plenary power to, and may, establish state grades and minimum maturity and quality standards not inconsistent with existing laws for citrus fruits and food products thereof containing 20 percent or more citrus or citrus juice, whether canned or concentrated, or otherwise processed, including standards for frozen concentrate for manufacturing purposes, and for containers therefor, and shall prescribe rules or regulations governing the marking, branding, labeling, tagging, or stamping of citrus fruit, or products thereof whether canned or concentrated, or otherwise processed, and upon containers therefor for the purpose of showing the name and address of the person marketing such citrus fruit or products thereof whether canned or concentrated or otherwise processed; the grade, quality, variety, type, or size of citrus fruit, the grade, quality, variety, type, and amount of the products thereof whether canned or concentrated or otherwise processed, and the quality, type, size, dimensions, and shape of containers therefor, and to regulate or prohibit the use of containers which have been previously used for the sale, transportation, or shipment of citrus fruit or the products thereof whether canned or concentrated or otherwise processed, or any other commodity; provided, however, that the use of secondhand containers for sale and delivery of citrus fruit for retail consumption within the state shall not be prohibited; provided, however, that no standard, regulation, rule, or order under this section which is repugnant to any requirement made mandatory under federal law or regulations shall apply to citrus fruit, or the products thereof, whether canned or concentrated or otherwise processed, or to containers therefor, which are being shipped from this state in interstate commerce. All citrus fruit and the products thereof whether canned or concentrated or otherwise processed sold, or offered for sale, or offered for shipment within or without the state shall be graded and marked as required by this section and the regulations, rules, and orders adopted and made under authority of this section, which regulations, rules, and orders shall, when not inconsistent with state or federal law, have the force and effect of law. The Department is authorized to conduct citrus research by Section 601.13, Florida Statutes. To help pay for these duties of the Department, the Legislature first enacted the "box tax" in 1949. The box tax is now codified as Section 601.15(3), Florida Statutes. Section 601.15(3)(a), Florida Statutes, provides in relevant part: There is hereby levied and imposed upon each standard-packed box of citrus fruit grown and placed into the primary channel of trade in this state an excise tax at annual rates for each citrus season as determined from the tables in this paragraph and based upon the previous season's actual statewide production as reported in the United States Department of Agriculture Citrus Crop Production Forecast as of June 1. Section 601.15(3)(a), Florida Statutes, goes on to set forth specific rates for fresh grapefruit, processed grapefruit, fresh oranges, processed oranges, and fresh or processed tangerines and citrus hybrids. Section 601.15(1), Florida Statutes, sets forth the Department's authority to administer the box tax, as follows: The administration of this section shall be vested in the Department of Citrus, which shall prescribe suitable and reasonable rules and regulations for the enforcement hereof, and the Department of Citrus shall administer the taxes levied and imposed hereby. All funds collected under this section and the interest accrued on such funds are consideration for a social contract between the state and the citrus growers of the state whereby the state must hold such funds in trust and inviolate and use them only for the purposes prescribed in this chapter. The Department of Citrus shall have power to cause its duly authorized agent or representative to enter upon the premises of any handler of citrus fruits and to examine or cause to be examined any books, papers, records, or memoranda bearing on the amount of taxes payable and to secure other information directly or indirectly concerned in the enforcement hereof. Any person who is required to pay the taxes levied and imposed and who by any practice or evasion makes it difficult to enforce the provisions hereof by inspection, or any person who, after demand by the Department of Citrus or any agent or representative designated by it for that purpose, refuses to allow full inspection of the premises or any part thereof or any books, records, documents, or other instruments in any manner relating to the liability of the taxpayer for the tax imposed or hinders or in anywise delays or prevents such inspection, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. The box tax was challenged in 1936 under various provisions of the Florida Constitution as well as the Export Clause, Article 1, s. 9, cl. 5, of the United States Constitution. The Florida Supreme Court issued an opinion in 1937 upholding the validity of the box tax. C.V. Floyd Fruit Company v. Florida Citrus Commission, 128 Fla. 565, 175 So. 248 (1937). In 1970, the Legislature enacted the "equalization tax," codified as Section 601.155, Florida Statutes. The statute mirrored Section 601.15, Florida Statutes, but added certain processors who were mixing foreign citrus products with Florida products. The purpose of the equalization tax was to have all Florida processors of citrus products help pay for the costs of the Department, rather than have the burden fall entirely on the Florida growers subject to the box tax. Section 601.155, Florida Statutes, provides, in relevant part: The first person who exercises in this state the privilege of processing, reprocessing, blending, or mixing processed orange products or processed grapefruit products or the privilege of packaging or repackaging processed orange products or processed grapefruit products into retail or institutional size containers or, except as provided in subsection (9) or except if a tax is levied and collected on the exercise of one of the foregoing privileges, the first person having title to or possession of any processed orange product or any processed grapefruit product who exercises the privilege in this state of storing such product or removing any portion of such product from the original container in which it arrived in this state for purposes other than official inspection or direct consumption by the consumer and not for resale shall be assessed and shall pay an excise tax upon the exercise of such privilege at the rate described in subsection (2). Upon the exercise of any privilege described in subsection (1), the excise tax levied by this section shall be at the same rate per box of oranges or grapefruit utilized in the initial production of the processed citrus products so handled as that imposed, at the time of exercise of the taxable privilege, by s. 601.15 per box of oranges. In order to administer the tax, the Legislature provided the following relevant provisions in Section 601.155, Florida Statutes: Every person liable for the excise tax imposed by this section shall keep a complete and accurate record of the receipt, storage, handling, exercise of any taxable privilege under this section, and shipment of all products subject to the tax imposed by this section. Such record shall be preserved for a period of 1 year and shall be offered for inspection upon oral or written request by the Department of Citrus or its duly authorized agent. Every person liable for the excise tax imposed by this section shall, at such times and in such manner as the Department of Citrus may by rule require, file with the Department of Citrus a return, certified as true and correct, on forms to be prescribed and furnished by the Department of Citrus, stating, in addition to other information reasonably required by the Department of Citrus, the number of units of processed orange or grapefruit products subject to this section upon which any taxable privilege under this section was exercised during the period of time covered by the return. Full payment of excise taxes due for the period reported shall accompany each return. All taxes levied and imposed by this section shall be due and payable within 61 days after the first of the taxable privileges is exercised in this state. Periodic payment of the excise taxes imposed by this section by the person first exercising the taxable privileges and liable for such payment shall be permitted only in accordance with Department of Citrus rules, and the payment thereof shall be guaranteed by the posting of an appropriate certificate of deposit, approved surety bond, or cash deposit in an amount and manner as prescribed by the Department of Citrus. * * * (11) This section shall be liberally construed to effectuate the purposes set forth and as additional and supplemental powers vested in the Department of Citrus under the police power of this state. In March 2000, certain citrus businesses challenged Section 601.155(5), Florida Statutes, as being unconstitutional. At the time of the suit, Section 601.155(5), Florida Statutes, read as follows: All products subject to the taxable privileges under this section, which products are produced in whole or in part from citrus fruit grown within the United States, are exempt from the tax imposed by this section to the extent that the products are derived from oranges or grapefruit grown within the United States. In the case of products made in part from citrus fruit grown within the United States, it shall be the burden of the persons liable for the excise tax to show the Department of Citrus, through competent evidence, proof of that part which is not subject to a taxable privilege. The citrus businesses claimed the exemption in Section 601.155(5) rendered the tax unconstitutionally discriminatory, in that processors who imported juice from foreign countries to be blended with Florida juice were subject to the equalization tax, whereas processors who imported juice from places such as California, Arizona and Texas enjoyed an exemption from the tax. The case, Tampa Juice Service, Inc., et al. v. Department of Citrus, Case No. GCG-00-3718 (Consolidated) ("Tampa Juice"), was brought in the Tenth Judicial Circuit Court, in and for Polk County. Judge Dennis P. Maloney of that court continues to preside over that case. In a partial final declaratory judgment effective March 15, 2002, Judge Maloney found Section 601.155, Florida Statutes, unconstitutional because it violated the Commerce Clause of the United States Constitution due to its discriminatory effect in favor of non-Florida United States juice. In an order dated April 15, 2002, Judge Maloney severed the exemption in Section 601.155(5), Florida Statutes, from the remainder of the statute. The court's decision necessitated the formulation of a remedy for the injured plaintiffs. While the parties were briefing the issue before the court, the Florida Legislature met and passed Chapter 2002-26, Laws of Florida, which amended Section 601.155(5), Florida Statutes, to read as follows: Products made in whole or in part from citrus fruit on which an equivalent tax is levied pursuant to s. 601.15 are exempt from the tax imposed by this section. In the case of products made in part from citrus fruit exempt from the tax imposed by this section, it shall be the burden of the persons liable for the excise tax to show the Department of Citrus, through competent evidence, proof of that part which is not subject to a taxable privilege. Chapter 2002-26, Laws of Florida, was given an effective date of July 1, 2002. By order dated August 8, 2002, Judge Maloney set forth his decision as to the remedy for the plaintiffs injured by the discriminatory effect of Section 601.155(5), Florida Statutes. Judge Maloney expressly relied on the rationale set forth in Division of Alcoholic Beverages and Tobacco v. McKesson Corporation, 574 So. 2d 114 (Fla. 1991)("McKesson II"). In its initial McKesson decision, Division of Alcoholic Beverages and Tobacco v. McKesson Corporation, 524 So. 2d 1000 (Fla. 1988), the Florida Supreme Court affirmed a summary judgment ruling that Florida's alcoholic beverage tax scheme, which gave tax preferences and exemptions to certain alcoholic beverages made from Florida crops, unconstitutionally discriminated against interstate commerce. The Florida Supreme Court also affirmed that portion of the summary judgment giving the ruling prospective effect, thus denying the plaintiff a refund of taxes paid pursuant to the unconstitutional scheme. The decision was appealed to the United States Supreme Court. In McKesson Corporation v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18 (1990), the United States Supreme Court reversed the Florida Supreme Court's decision as to the prospective effect of its decision. The United States Supreme Court held that: The question before us is whether prospective relief, by itself, exhausts the requirements of federal law. The answer is no: If a State places a taxpayer under duress promptly to pay a tax when due and relegates him to a postpayment refund action in which he can challenge the tax's legality, the Due Process Clause of the Fourteenth Amendment obligates the State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation. 496 U.S. at 31 (footnotes omitted). The United States Supreme Court set forth the following options by which the state could meet its obligation to provide "meaningful backward-looking relief": [T]he State may cure the invalidity of the Liquor Tax by refunding to petitioner the difference between the tax it paid and the tax it would have been assessed were it extended the same rate reductions that its competitors actually received. . . . Alternatively, to the extent consistent with other constitutional restrictions, the State may assess and collect back taxes from petitioner's competitors who benefited from the rate reductions during the contested tax period, calibrating the retroactive assessment to create in hindsight a nondiscriminatory scheme. . . . Finally, a combination of a partial refund to petitioner and a partial retroactive assessment of tax increases on favored competitors, so long as the resultant tax actually assessed during the contested tax period reflects a scheme that does not discriminate against interstate commerce, would render Petitioner's resultant deprivation lawful and therefore satisfy the Due Process Clause's requirement of a fully adequate postdeprivation procedure. 496 U.S. at 40-41 (citations and footnotes omitted). The United States Supreme Court expressly provided that the state has the option of choosing the form of relief it will grant. In keeping with the United States Supreme Court opinion, the Florida Supreme Court granted the Division of Alcoholic Beverages and Tobacco (the "Division") leave to advise the Court as to the form of relief the state wished to provide. The Division proposed to retroactively assess and collect taxes from those of McKesson's competitors who had benefited from the discriminatory tax scheme. McKesson contended that a refund of the taxes it had paid was the only clear and certain remedy, because retroactive taxation of its competitors would violate their due process rights. McKesson II, 574 So. 2d at 116. The Florida Supreme Court remanded the case to the trial court for further proceedings on McKesson's refund claim, with the following instructions: While McKesson may not necessarily be entitled to a refund, it is entitled to a "clear and certain remedy," as outlined in the Supreme Court's opinion. Because nonparties, such as amici, will be directly affected by the retroactive tax scheme proposed by the state, all affected by the proposed emergency rule must be given notice and an opportunity to intervene in this action. Therefore, on remand, the trial court not only must determine whether the state's proposal meets "the minimum federal requirements" outlined in the Supreme Court's opinion, it also must determine whether the proposal comports with federal and state protections afforded those against whom the proposed tax will be assessed. We emphasize that the state has the option of choosing the manner in which it will reformulate the alcoholic beverage tax during the contested period so that the resultant tax actually assessed during that period reflects a scheme which does not discriminate against interstate commerce. Therefore, if the trial court should rule that the state's proposal to retroactively assess and collect taxes from McKesson's competitors does not meet constitutional muster and such ruling is upheld on appeal, the state may offer an alternative remedy for the trial court's review. However, any such proposal likewise must satisfy the standards set forth by the Supreme Court as well as be consistent with other constitutional restrictions. 574 So. 2d at 116. In the Tampa Juice case, Judge Maloney assessed the options prescribed by the series of McKesson cases and concluded that the only fair remedy was to assess and collect back assessments from those who benefited from the unconstitutional equalization tax exemption. His August 8, 2002, order directed the Department to "take appropriate steps, consistent with existing law, to assess and collect the Equalization tax from those entities which [benefited] from the unconstitutional exemption." On September 18, 2002, the Department promulgated the Emergency Rules that were at issue in DOAH Case No. 02-3648RE. The Emergency Rules were filed with the Department of State on September 24, 2002, and took effect on that date. Those emergency rules were held invalid in Peace River, and are not at issue in the instant case. In the November 15, 2002 issue of the Florida Administrative Weekly (vol. 28, no. 46, pp. 4996-4998), the Department published the Proposed Rules that were at issue in DOAH Case No. 02-4607RP. In the March 7, 2003, issue of the Florida Administrative Weekly (vol. 29, no. 10, p. 1036), the Department published amendments to the Proposed Rule. The Proposed Rules, as amended, read as follows: EQUALIZATION TAX ON NON-FLORIDA UNITED STATES JUICE 20-15.001 Intent. The Court in Tampa Juice Service, et al v. Florida Department of Citrus in Consolidated Case Number GCG-003718 (Circuit Court in and for Polk County, Florida) severed the exemption contained in Section 601.155(5), Florida Statutes, that provided an exemption for persons who exercised one of the enumerated Equalization Tax privileges on non-Florida, United States juice. The Court had previously determined that the stricken provisions operated in a manner that violated the Commerce Clause of the United States Constitution. On August 8, 2002, the Court ordered that the Florida Department of Citrus "take appropriate steps, consistent with existing law, to assess and collect the Equalization tax from those entities which [benefited] from the unconstitutional exemption." It is the Florida Department of Citrus' intent by promulgating the following remedial rule to implement a non- discriminatory tax scheme, which does not impose a significant tax burden that is so harsh and oppressive as to transgress constitutional limitations. These rules shall be applicable to those previously favored persons who received favorable tax treatment under the statutory sections cited above. Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, , 601.155 FS. History-- New . 20-15.002 Definitions. "Previously favored persons" shall be defined as any person who exercised an enumerated Equalization Tax privilege as defined by Section 601.155, Florida Statutes, but who was exempt from payment of the Equalization Tax due to the exemption for non-Florida, United States juice set forth in the statutory provision, which was ultimately determined to be unconstitutional and severed from Section 601.155(5), Florida Statutes. The "tax period" during which the severed provisions of Section 601.155(5), Florida Statutes, were in effect shall be defined as commencing on October 6, 1997, and ending on March 14, 2002. "Tax liability" shall be defined as the total amount of taxes due to the Florida Department of Citrus during the "tax period," at the following rates per box for each respective fiscal year: Fiscal Year Processed Rate Orange Grapefruit 1997-1998 .175 .30 1998-1999 .17 .30 1999-2000 .18 .325 2000-2001 .175 .30 2001-2002 .165 .18 Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, , 601.155 FS. History-- New . 20-15.003 Collection. The Florida Department of Citrus shall calculate the tax liability for each person or entity that exercised an enumerated Equalization Tax privilege outlined in section 601.155, Florida Statutes, upon non-Florida, United States juice based upon inspection records maintained by Florida Department of Agriculture and Consumer Services and the United States Department of Agriculture. Subsequent to adoption of this rule, the Florida Department of Citrus will provide to the previously favored persons by certified mail a Notice of Tax Liability which shall contain a demand for payment consistent with the above-referenced itemized statement. The Department will deem late payment of Equalization Taxes owed by previously favored persons to constitute good cause, and shall waive the 5 percent penalty authorized by Section 601.155(10), F.S., as compliance with either of the following is established by Department [sic]: Lump sum payment of the tax liability remitted with the filing of Department of Citrus Form 4R (incorporated by reference in Rule 20-100.004, F.A.C.) for the relevant years and then-applicable tax rate(s) per subsection 20-15.002(3), F.A.C., within 61 days of receiving Notice of Tax Liability; or Equal installment payments remitted with the filing of Department of Citrus Form 4R (incorporated by reference in Rule 20- 100.004, F.A.C.) for the relevant years and then-applicable tax rate(s) per subsection subsection [sic] 20-15.002(3), F.A.C., over a 60-month period, the first payment being due within 61 days of receiving Notice of Tax Liability pursuant to subsection 20- 15.003(2), F.A.C.; or The Good Cause provisions of 601.155(10), F.S., shall not apply to persons who do not comply with paragraph 20- 15.003(2)(a), F.A.C., or paragraph 20- 15.003(2)(b), F.A.C. Failure to pay the taxes or penalties due under 601.155, F.S. and Chapter 20-15, F.A.C., shall constitute grounds for revocation or suspension of a previously favored person's citrus fruit dealer's license pursuant to 601.56(4), F.S., 601.64(6), F.S., 601.64(7), F.S., and/or 601.67(1), F.S. The Florida Department of Citrus will not oppose the timely intervention of persons who previously enjoyed the subject exemption that wish to present a claim to the Court in the Tampa Juice Service, Inc., et al v. Florida Department of Citrus. However, the Florida Department of Citrus does not waive any argument regarding the validity of the calculation of the tax liability or that imposition of this tax is constitutional. Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, 601.15, 601.155 FS. History-- New . The Final Order in Peace River held that the Proposed Rules were not an invalid exercise of delegated legislative authority, for reasons discussed in the Conclusions of Law below. Judge Maloney has yet to rule on the backward-looking remedy proposed by the Department. On March 26, 2003, Judge Maloney entered an order extending until May 1, 2003, the time for interested parties to file motions to intervene with regard to the Department's proposed backward-looking relief. The order noted that the parties have stipulated to the suspension of the back tax as to plaintiffs and objecting non-parties until further order of the court. On February 19, 2003, Judge Maloney entered an "Order Granting Plaintiffs' Motion for Partial Summary Judgment-- Import-Export." The sole issue before Judge Maloney was "whether Section 601.155, Florida Statutes, (the 'Equalization Tax'), as it existed in 1997, violates Article I, Section 10, clause 2 of the Constitution of the United States (the 'Import- Export Clause')." (Emphasis in original) After setting forth the standard for analysis of whether a taxing scheme violates the Import-Export Clause under Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S. Ct. 535, 46 L.Ed.2d 495 (1976), Judge Maloney ruled as follows: It is precisely [the exemption for United States products found in 601.155(5), Florida Statutes] that causes the 1997 Equalization Tax to contravene the Import-Export Clause. Specifically, the court finds that because the statute exempts "citrus fruit grown within the United States," but does not exempt citrus fruit grown in foreign countries, the exemption causes the tax to "fall on imports as such simply because of their place of origin." Michelin, 423 U.S. at 286. Additionally, because the tax falls on foreign-grown citrus as such simply because of its origin but does not fall on domestic-grown citrus, the Equalization Tax, with the exemption, creates a "special tariff or particular preference for certain domestic goods." Id. (i.e. California, Arizona, and Texas citrus products). * * * In conclusion, because the court finds the exemption contained within the 1997 Equalization Tax violates both the first and third elements of the Michelin test,1 the court finds the 1997 Equalization Tax violates Article I, Section 10, clause 2 of the Constitution of the United States (the "Import-Export Clause"). On March 31, 2003, Judge Maloney entered an "Order Granting Plaintiffs' Motion for Partial Summary Judgment." In this order, Judge Maloney found that the box tax itself, Section 601.15, Florida Statutes, violates the First Amendment to the United States Constitution. Petitioners and Intervenor in the instant case are licensed citrus fruit dealers regulated by Chapter 601, Florida Statutes. As such, they are subject to the rules of the Department. Petitioners and Intervenor buy, sell, and manufacture citrus juices. They shipped products made with non- Florida U.S. juice during the tax period without paying equalization taxes. Petitioners and Intervenor have been notified by the Department that they are liable to pay back taxes pursuant to the Proposed Rules, as well as the invalid Emergency Rules.
The Issue Whether Respondent, Ridge Island Groves, Inc., is liable to Petitioner, Orange Bend Harvesting, Inc., on a contract to purchase citrus fruit, and, if so, the amount owed.
Findings Of Fact Petitioner, Orange Bend Harvesting, Inc. (Petitioner or Orange Bend), is a Florida for-profit corporation located in Leesburg, Florida, engaged in the business of citrus harvesting and management of citrus groves. Joyce D. Caldwell is the president and registered agent of Orange Bend. Ruben Caldwell and Cornelius Caldwell are Ms. Caldwell's brothers and co-owners of the business. Ruben Caldwell is Orange Bend's harvesting manager. Respondent, Ridge Island Groves, Inc. (Respondent or Ridge Island), is a Florida for-profit corporation headquartered in Haines City, Florida, engaged in the business of buying and packing fresh fruit for retail sale and gift-fruit shipping. Ridge Island is known in the industry as a "packing house." Although Ridge Island produces some fruit juice for sample and sale at the packing house, Ridge Island is not a juice processing plant. Respondent, Old Surety Insurance Company, holds the bond for Ridge Island, which has been assigned to the Department as security pursuant to section 601.61, Florida Statutes (2014). Orange Bend and Ridge Island first transacted business in 2010, and Ridge Island purchased fruit from Orange Bend "off and on" from 2010 through 2014. On October 17, 2014, Respondent entered into a contract with Petitioner to purchase fruit from five different citrus groves. The "Standard Fruit Contract" provided that Respondent would purchase from Petitioner the "entire crop of citrus fruit blooming in the year 2014 and merchantable at the time of picking on the grove blocks listed below . . . on the following terms." More specifically, Respondent was entitled to purchase the following described citrus from Petitioner: Variety Block Approximate number of boxes Price per unit Moving Date Red Navels Ronco 300+/- $15 on tree 12/31/14 Red Navels Sweet Blossom 1500+/- $20 on tree 12/31/14 Navels Powers 400+/- $15 on tree 12/31/14 Navels YMCA 400+/- $15 on tree 12/31/15 Satsuma Weatherspoon 400+/- $12 on tree 01/31/15 Prior to entering into the contract, Mr. Ritch visited the named grove blocks with Ruben Caldwell, inspected the blocks, and estimated the number of boxes to be picked from each block. The two men agreed on the price for each type of fruit. Ridge Island paid Orange Bend $2,500 in deposit on the contract. Pursuant to the contract, Orange Bend was responsible to "pick and haul" the fruit only from the Sweet Blossom grove. Respondent was responsible to pick and haul from the remaining groves. In the industry, the "on tree" price for fruit does not include the harvester's cost to pick and haul. If the harvester is to be paid his or her pick-and-haul costs, the pick-and-haul price is separate from the "on tree" price. Orange Bend and Ridge Island agreed on a pick-and-haul price of $3.25 per box. Orange Bend picked the Sweet Blossom block on December 8, 2014, yielding 225 boxes of red navels, which Orange Bend delivered to Ridge Island. Orange Bend picked the Sweet Blossom block again on December 9, 2014, and delivered another 217 boxes to Ridge Island. These first two deliveries "packed out" at nearly 100 percent, meaning there were few eliminations from the load. Citrus intended for the fresh market must be visually appealing, as well as free from insects, disease, and other damage. Fruit that is discolored, diseased, or damaged is eliminated from the packed fruit because it is unsuitable for the fresh fruit market. Ridge Island paid Orange Bend the full contract price per box for the first two deliveries of red navels from the Sweet Blossom block. Orange Bend picked the Sweet Blossom block again on December 26, 2014, yielding 447 boxes of red navels, which were delivered to Ridge Island. This delivery packed out at around 50 percent. Mr. Ritch sold the eliminations to a juice processer in Peace River, Florida.1/ Ridge Island paid Orange Bend the pick-and-haul price of $3.25 per box for eliminations from Orange Bend's deliveries of red navels from the Sweet Blossom block. Decisions regarding eliminations are made by the packing house. Generally, a harvester is unaware of the packing rate of fruit delivered. Ruben Caldwell contacted Mr. Ritch via text message on January 1, 2015, and asked whether Ridge Island was ready for another shipment of red navels from Sweet Blossom. Mr. Caldwell indicated the growers were anxious to get the fruit off the tree. Mr. Ritch responded, as follows: The last load of red navels packed out less than 50%. I tried degreening them but the greening fruit would not color. You can bring me another load but I just want you to know that the greening fruit will only return the cost of the pick and haul. Orange Bend picked the Sweet Blossom block several times between January 5 and 14, 2015, delivering an additional 1,295 boxes of fruit to Ridge Island. Ridge Island paid Orange Bend the contract price for 679 boxes. Orange Bend claims it is owed $16,820 from Ridge Island under the contract for red navels from the Sweet Blossom block. Ridge Island picked the YMCA block on January 15, 2015. The pick yielded 216 boxes of navels, of which 169 were eliminations. Ridge Island paid Orange Bend $705 for 47 boxes at $15 per box. Ridge Island picked the Powers block on November 15, 2014, and January 15, 2015. The picks yielded 284 boxes of navels, of which 119 were eliminations. Ridge Island paid Orange Bend $4,260 for 165 boxes at $15 per box. Ridge Island picked the Ronco block in February 2015.2/ Ridge Island picked 91 boxes, of which 62 boxes were eliminations, and paid the block owner, rather than Orange Bend, for 29 boxes at $15 per box. No evidence was introduced regarding whether the Weatherspoon block was picked by either party or whether Ridge Island paid any amount to Orange Bend under the contract for satsumas from the Weatherspoon block. Orange Bend maintains Ridge Island owes $27,540 for boxes of fruit picked by, or otherwise delivered to, Ridge Island, pursuant to the contract for fruit from the YMCA, Powers, and Ronco blocks. Orange Bend contends that the "on the tree" price quoted in the contract obligated Ridge Island to purchase every piece of fruit on the trees in the specified blocks and to assume the cost of eliminations. Ridge Island contends it was obligated to purchase only the fruit which was "merchantable at the time of picking," pursuant to the contract, and that the greening fruit was not merchantable. Petitioner offered the testimony of Jerry Mincey, owner of Southern Citrus Growers, who has operated as a harvester, fruit buyer, grove manager, and intermediary in the Florida citrus industry at various times throughout the past 50 years. Mr. Mincey testified that when a packing house buys fruit "on the tree," the packing house assumes all costs, including eliminations, as well as pick and haul. However, Mr. Mincey also testified that, while a buyer may make an offer to buy a crop "in bulk" (i.e., $x for the entire crop), the industry standard is "on the tree." The undersigned fails to see the difference between "in bulk" and "on the tree" under Petitioner's interpretation. If "on the tree" means the buyer is purchasing every piece of fruit produced on the trees in the specified block (blocks are just sections of groves), as Petitioner contends, the "in bulk" option would be rendered meaningless. Further, Petitioner's interpretation is contrary to the plain language of the contract, which entitles Respondent to the "entire crop of citrus fruit blooming in the year 2014 and merchantable at the time of picking." If Respondent was obligated to purchase all fruit on the trees in the named blocks, the phrase "and merchantable" would be meaningless. Having weighed all the testimony and evidence introduced, the undersigned finds the "on the tree" price in the subject contract means the buyer assumes the pick-and-haul costs. In the case at hand, Ridge Island purchased fruit in the Ronco, Powers, and YMCA blocks, absorbing its own costs to pick and haul the fruit. Ridge Island paid Orange Bend for Orange Bend's pick and haul costs for deliveries of fruit from the Sweet Blossom block. Pursuant to the contract, Ridge Island contracted for merchantable fruit. The contract does not define the term "merchantable." Citrus greening, or greening, is by all accounts a devastating disease caused by bacteria-infected insects. Trees affected with greening produce hard, knotty, fruit, which never fully colors (i.e., remains green on the bottom, or bottom half, of the fruit). Greening fruit is not fit for the purpose of fresh fruit packaging and gift shipping. Petitioner challenged Respondent's contention that fruit from the Sweet Blossom block was infected with greening. Petitioner presented the testimony of Mr. Mincey on this point. Mr. Mincey testified that he inspected the Sweet Blossom block in early October and made an offer to buy the navels for $18 per box. Mr. Mincey was back in the block in early November and testified that, although the tangerines in that grove were infected with greening, he saw no problem with the navels, which were of good size and on which color was beginning to break. On cross-examination however, Mr. Mincey admitted that, upon inspection, the red navel trees in the Sweet Blossom block did show some signs of greening. Further, Mr. Mincey testified that greening is a devastating disease that has infected almost every tree in Florida. Greening does not manifest itself early in the ripening process. While the fruit may color at the top, it usually does not color all the way to the bottom. Thus, a color break on the fruit in early November is not proof that the trees were not affected by greening. Despite the fact that some of the blocks were not picked by the moving date specified in the contract, neither party objected. In fact, Mr. Ritch testified that the fruit was late maturing throughout the region. Neither party ever terminated the subject contract.
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 Orange Bend Harvesting, Inc., against Ridge Island Groves, Inc., in the amount of $435. DONE AND ENTERED this 20th day of August, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 August, 2015.
Findings Of Fact Thomas J. Smith, principal at Citrus Grove Junior High School was Carter's supervisor during school years 1974 and part of 1975. It is a mandatory requirement at this school that all teachers sign in and out each school day. As alleged in charges (2) through (4) Carter did not sign in or out on November 27, December 11 and December 12, 1974; as alleged in charge (5) on December 18, 1974, Carter did not sign in until 12:30 P.M. and missed his first class which started at 11:37 A.M.; as alleged in charge (6) Garter on December 18, 1974, left school at 3:00 P.M. without permission; as alleged in charge (7), on December 19, 1974, Carter left school at 1:00 P.M. without permission; as alleged in charge (8), on December 20, 1974, Carter was absent from school without authority; as alleged in charge (9) on January 8, 1975, Carter appeared at school at 12:15 P.M. to sign in, but wrote that he arrived at 11:00 A.M.; and as alleged in charge (10) Carter signed in at 10:00 A.M., stated he had to take his son to the doctor, would return at 11:37 A.M., but remained absent without authority for the balance of the day. No statement from a physician indicating Carter was unable to work on the days he was charged with unauthorized absence was received. Principal Smith held numerous conferences with Carter to discuss his absence problems with the last conference occurring on January 6, 1975. At this conference he advised Carter he could not recommend him for employment next year. Carter did not return to Curtis Grove Junior High School subsequent to January 10, 1975. Richard Artmeier is assistant principal at Ponce de Leon High School, was so serving in October and November 1974, and was Carter's supervisor at his assigned school bus unloading duties. He maintained records of attendances at or absences from the assigned school bus duties. As alleged in charge (11), Carter failed to show up for these duties on October 11,14,15,24,25,30, and 31, and on November 4,5,6,7,8 and 12, 1974. He was due to report for this school bus duty at 8:15 A.M. and remain there until 8:40 A.M. Mr. Artmeier talked to Carter about Carter's absences from this assigned duty, and advised Carter that he (Artmeier) had been assigned to check on those assigned school bus unloading duties. Carter offered no legitimate excuse for his absences. Exhibit 1 is a copy of the original records maintained by Mr. Artmeier insofar as it reflects the absences of Carter. Its admission into evidence was objected to by Carter's Attorney on the grounds that the original showed absences of a Mr. Dixon which had been blanked out on the copy offered and it was, therefore, inconsistent with Mr. Artmeier's testimony. James B. Randolph has been principal at West View Junior High School since July, 1973, and maintains attendance records on assigned teachers. As alleged in Charge 12, as amended at the hearing, Carter was absent without authority on Aug. 28 and 31, 1973; September 10, 18, 21 and 24, 1973; October 1, 2, 3, 5, 8 and 9, 1973; November 7, 8, 9, and 29, 1973; December 5, 10, 14 and 17, 1973; January 2, 4, 7, 8, 9, 10, 14, 15, 16, 17, 18, 21, 22, 25 and 1/2 day June 28, 1974; February 6, 12, 13, 14, 15, 18, 19, 20, 21, 22, 25, 26 and 27, 1974; March 1, 7, 8, 11, 14, 18, 19, 20 and 21, 1974; April 24 and 29, 1974; and May 3, 10, 13, 14, 16, 17, 20, 21, 22, 23, 24, 27, 28, 29 and 30, 1974. Principal Randolph held numerous conferences with Carter relative to his absences. In August, 1973, he held a conference with Carter regarding Carter missing the first day of school. Carter's only excuse was he forgot school opened that day. He acknowledged a problem existed but did not reveal it to Mr. Randolph. At the expiration of the school year Principal Randolph submitted an evaluation of Carter as C, or 3.0, which is deemed unsatisfactory. Despite this evaluation Carter remained an employee of the school board during the school year commencing in the Fall of 1974. Carter's attorney was allowed to proffer that if Carter had been present he would testify that he had serious personal problems which started with a divorce in 1972. In 1973, he started having stomach troubles, was advised that he might be developing an uncer and was advised to take Malox.
The Issue What is the amount owed by D. L. Scotto and Company, Inc., d/b/a Tuxedo Fruit Company, to Thomas E. Davis, Inc., for Valencia oranges purchased in January, April, and May 2013?
Findings Of Fact A "dealer in agricultural products" is defined as a person, partnership, corporation, or other business entity, "engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer . . . for resale or processing for sale " § 604.15(2), Fla. Stat. (2013).1/ Respondent is licensed as a dealer in agricultural products. Petitioner is a "producer" for purposes of sections through 604.34, Florida Statutes. See § 604.15(9), Fla. Stat. (defining "producer" as "any producer of agricultural products produced in the state"). Contract #077 On January 25, 2013, Petitioner and Respondent entered into citrus fruit contract #077 wherein Respondent, for the price of $9.50 per box, agreed to purchase 5,000 boxes of Valencia oranges from Petitioner's Cock Pen grove. Petitioner delivered, and Respondent accepted, 2,925 boxes of the promised oranges. To date, Respondent has only paid Petitioner for 1,962 ($9.50 x 1,962 = $18,639) boxes of oranges from the Cock Pen grove. Contract #078 On January 25, 2013, Petitioner and Respondent entered into a second citrus fruit contract (#078) wherein Respondent, for the price of $9.50 per box, agreed to purchase 4,500 boxes of Valencia oranges from Petitioner's Patrick grove. Petitioner delivered, and Respondent accepted, 2,988 boxes of the promised oranges. To date, Respondent has only paid Petitioner for 792 ($9.50 x 792 = $7,524) boxes of oranges from the Patrick grove. Contract #M012 On April 25, 2013, Petitioner and Respondent entered into a third citrus fruit contract (#M012) wherein Respondent, for the price of $11.00 per box, agreed to purchase 1,200 boxes of Valencia oranges from Petitioner's Johnson grove and 1,500 boxes of Valencia oranges from Petitioner's Allegato grove. Petitioner delivered, and Respondent accepted, 1,161 boxes of the promised oranges from the Johnson grove and 1,296 boxes of oranges from the Allegato grove. To date, Respondent has not paid Petitioner for the oranges received from the Johnson and Allegato groves. Contract #M013 On May 2, 2013, Petitioner and Respondent entered into a fourth citrus fruit contract (#M013) wherein Respondent, for the price of $11.00 per box, agreed to purchase 1,500 boxes of Valencia oranges from Petitioner's Tommy Ann grove. Petitioner delivered, and Respondent accepted, 1,674 boxes of the promised oranges from the Tommy Ann grove. To date, Respondent has not paid Petitioner for the oranges received from the Tommy Ann grove. Respondent's defense Each of the citrus fruit contracts at issue provides that the oranges "must be merchantable for fresh usage at the time of harvest and delivery." Respondent claims that significant quantities of the oranges that were received from Petitioner were not merchantable for fresh usage at the time of harvest and delivery. In reviewing the documentary evidence presented by both parties, it is evident that Petitioner's oranges were harvested and delivered to Respondent during the months of January through May 2013. From this period forward to the date of the final hearing held herein, Respondent never informed Petitioner that there was an issue with the merchantability of the oranges. Instead, whenever Petitioner contacted Respondent about the status of payment for the oranges, Respondent repeatedly assured Petitioner that payment was forthcoming. Respondent's testimony regarding the alleged compromised merchantability of the oranges that he received from Petitioner is not credible.
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 finding that D. L. Scotto and Company, Inc., d/b/a Tuxedo Fruit Company, is indebted to Thomas E. Davis, Inc., in the amount of $75,501.50 (includes filing fee) for the balance due for the oranges it purchased from Petitioner on January 25, April 25, and May 2, 2013. DONE AND ENTERED this 17th day of April, 2014, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 17th day of April, 2014.
The Issue What amount, if any, is owed by Reiter Citrus, Inc., to Mark Olivenbaum, d/b/a AMR Groves, Inc., for oranges purchased pursuant to contract entered by the parties on November 5, 2014.
Findings Of Fact A "dealer in agricultural products" is defined as a person, partnership, corporation, or other business entity, "engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer . . . for resale or processing for sale." § 604.15(2), Fla. Stat. (2014).1/ Respondent is licensed as a dealer in agricultural products. Petitioner is a "producer" for purposes of sections 604.15 through 604.34, Florida Statutes. See § 604.15(9), Fla. Stat. (defining "producer" as "any producer of agricultural products produced in the state"). On November 5, 2014, Petitioner and Respondent entered into a written contract for the purchase of oranges from Petitioner’s grove. The written contract provides that the Sunburst variety fruit would be purchased for $16.00 “per on tree box.” The written contract is silent as to the purchase price of the tangelos and the Orlando variety oranges. As for the price of these items, the parties verbally agreed to a price of $4.00 per box. The verbal and written contracts are collectively referred to as the “contract.” Petitioner is an experienced producer of agricultural products. According to Petitioner, the fruit at issue was essentially ready for picking when the parties entered into their contract on November 5, 2014. Petitioner’s testimony as to the maturity of his fruit is supported by information from the Horticultural Sciences Department, University of Florida/IFAS Extension (HS168), which states that Sunburst tangerines will, in most years, “reach maturity by mid-November and will remain acceptable through late December.” Respondent, prior to entering into the contract with Petitioner, inspected the oranges in Petitioner’s grove. Respondent approved the oranges for purchase. Within days of signing the contract, Petitioner spoke with Respondent about a schedule for the picking of the oranges. Respondent was non-committal as to an exact time-frame for picking the oranges but did inform Petitioner that he would send someone to Petitioner’s grove to pick the oranges “within a few days.” After a few days had passed, and the oranges remained unpicked, Petitioner again contacted Respondent and like before, Respondent told Petitioner that someone would be out to pick the oranges “within a few days.” This pattern between Petitioner and Respondent continued for several weeks and at no time did Respondent arrange to have the oranges picked from Petitioner’s grove. The testimony from the final hearing establishes that Respondent intended to purchase Petitioner’s fruit and then re- sell the fruit to other buyers. However, Respondent was unable to find a buyer for the fruit that he was contractually obligated to purchase from Petitioner because, according to Respondent, “the fruit was too small to pack due to citrus greening.” Respondent claims that his contract with Petitioner provides that Respondent was obligated to purchase Petitioner’s oranges only if Respondent found a buyer for the oranges. Contrary to Respondent’s testimony, a review of the contract reveals no such contingency. Respondent claims that he is relieved of his obligation to perform under the contract because the oranges were compromised due to citrus greening. Specifically, Respondent cites to the “HAZARDS” provision of the contract which provides, in part, that “in the event said fruit shall become damaged by cold, hail, fire, windstorm or other hazard, [Respondent] shall have the right to terminate th[e] contract.” Respondent claims that citrus greening is a condition that falls within the “other hazard” provision of the contract. Respondent’s reliance on this contractual provision is misplaced because, as previously noted, Respondent was well aware of the condition of the oranges when he entered into the contract with Petitioner for the purchase of the same. The credible evidence establishes that there was not a material change in the condition of the oranges from the time of the execution of the contract to the time when the oranges should have been picked by Respondent. Because Respondent did not pick any oranges from Petitioner’s grove, Petitioner, in calculating his losses resulting from Respondent’s non-performance, reasonably determined that Respondent, had he met his contractual obligations, would have picked 700 boxes of Sunburst tangerines and 100 boxes (combined) of the Orlando and tangelo fruit. Petitioner, in quantifying his likely crop yield for the oranges covered by the contract with Respondent, utilized results from previous crop yields as well as a general assessment of the state of his grove in November and December 2014.
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 finding that Reiter Citrus, Inc., is indebted to Mark Olivenbaum, d/b/a AMR Groves, Inc., in the amount of $11,650 (includes filing fee). DONE AND ENTERED this 9th day of June, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 9th day of June, 2015.
The Issue The issues presented are whether Respondent, George Mason Citrus, Inc. (Mason), owes Petitioner $10,000 for citrus fruit that Mason purchased from Petitioner and, if so, whether the surety is liable for any deficiency in payment from Mason.
Findings Of Fact Petitioner is a Florida corporation licensed by the Department as a “citrus fruit dealer,” within the meaning of Subsection 601.03(8), Florida Statutes (2005) (dealer).1 The business address for Petitioner is 1103 Southeast Lakeview Drive, Sebring, Florida 33870. Mason is a Florida corporation licensed by the Department as a citrus fruit dealer. The business address for Mason is 140 Holmes Avenue, Lake Placid, Florida 33852. Western is the surety for Mason pursuant to bond number 42292005 issued in the amount of $100,000 (the bond). The term of the bond is August 1, 2004, through July 31, 2005. Petitioner conducts business in Highlands County, Florida, as a dealer and as a “broker” defined in Subsection 601.03(3). In relevant part, Petitioner purchases white grapefruit (grapefruit) for resale to others, including Mason. Mason conducts business in Highlands County as either an “agent,” “broker,” or “handler” defined in Subsections 601.03(2), (3), and (23). On January 31, 2003, Mason contracted with Petitioner to purchase grapefruit from Petitioner pursuant to Fruit Contract number 03-307 (the contract). Mason drafted the contract. The terms of the contract require Petitioner to sell grapefruit to Mason for the 2003, 2004, and 2005 “crop years.” The 2003 crop year began in the fall of 2002 and ended at the conclusion of the spring harvest in 2003. The 2004 and 2005 crop years began in the fall of 2003 and 2004 and ended in the spring of 2004 and 2005, respectively. Only the 2005 crop year is at issue in this proceeding. The contract required Petitioner to deliver grapefruit to a person designated by Mason. Mason designated Peace River Citrus Products, Inc. (Peace River), in Arcadia, Florida, for delivery of the grapefruit at issue. Mason was required by the terms of a Participation Agreement with Peace River to deliver 30,000 boxes of grapefruit to Peace River during the 2005 crop year. In an effort to satisfy its obligation to Peace River, Mason entered into the contract with Petitioner for an amount of grapefruit described in the contract as an “Approximate Number of Boxes” that ranged between 12,000 and 14,000. Petitioner delivered only 2,128 boxes of grapefruit to Peace River. The production of grapefruit was significantly decreased by three hurricanes that impacted the area during the 2005 crop year. The parties agree that Mason owed Petitioner $19,070.03 for the delivered boxes of grapefruit. The amount due included a portion of the rise in value over the base purchase price in the contract caused by increases due to market conditions and participation pay out after the parties executed the contract (the rise).2 On or about October 26, 2005, Mason mailed Petitioner a check for $9,070.03. The transmittal letter for the check explained the difference between the payment of $9,070.03 and the amount due of $19,070.03. Mason deducted $10,000 from the $19,070.03 due Petitioner, in part, to cover the cost of grapefruit Mason purchased from other dealers or growers to make up the deficiency in grapefruit delivered by Petitioner (cover). The $10,000 sum also includes interest Mason claims for the cost of cover and Mason's claim for lost profits. Petitioner claims that Mason is not entitled to deduct lost profits and interest from the amount due Petitioner. If Mason were entitled to deduct interest, Petitioner alleges that Mason calculated the interest incorrectly. The larger issue between the parties is whether Mason is entitled to deduct cover charges from the amount due Petitioner. If Mason were not entitled to cover the deficiency in delivered boxes of grapefruit, Mason would not be entitled to interest on the cost of cover and lost profits attributable to the deficiency. The parties agree that resolution of the issue of whether Mason is entitled to cover the deficiency in delivered boxes of grapefruit turns on a determination of whether the contract was a box contract or a production contract. A box contract generally requires a selling dealer such as Petitioner to deliver a specific number of boxes, regardless of the source of grapefruit, and industry practice permits the purchasing dealer to cover any deficiency. A production contract generally requires the selling dealer to deliver an amount of grapefruit produced by a specific source, and industry practice does not permit the purchasing dealer to cover any deficiency. The contract is an ambiguous written agreement. The contract expressly provides that it is a "Fruit Purchase Contract" and a "delivered in" contract but contains no provision that it is either a box or production contract. The contract is silent with respect to the right to cover. Relevant terms in the contract evidence both a box contract and a production contract. Like the typical box contract, the contract between Mason and Petitioner prescribes a number of boxes, specifically no less than 12,000, that are to be delivered pursuant to the contract. However, the typical box contract does not identify the number of boxes to be delivered as "Approximate No. of Boxes" that ranges between 12,000 and 14,000 boxes. Unlike a production contract, the contract does not identify a specific grove as the source of the required grapefruit. Best practice in the industry calls for a production contract to designate the grove by name as well as the number of acres and blocks. However, industry practice does not require a production contract to identify a specific grove as the source of grapefruit. In practice, Mason treated another contract that Mason drafted with a party other than Petitioner as a production contract even though the contract did not identify a specific grove as the source of grapefruit. The absence of a force majure clause in the contract may evidence either type of contract.3 A box contract typically requires the selling dealer to deliver the agreed boxes of grapefruit regardless of weather events, unless stated otherwise in the contract. However, the absence of such a clause may also be consistent with a production contract because "acts of God" are inherent in a production contract. Such acts, including hurricanes, necessarily limit grapefruit production, and a production contract obligates the selling dealer to deliver only the amount of grapefruit produced. The contract between Petitioner and Mason did not contain a penalty provision for failure to deliver the prescribed boxes of grapefruit (box penalty). The absence of a box penalty in the contract evidences a production contract. The contract identifies Petitioner as the "Grower." A grower typically enters into a production contract. A box contract does not limit the source of grapefruit to be delivered, and the selling dealer in a box contract may obtain grapefruit from anywhere in the state. The contract between Petitioner and Mason limits the source of grapefruit to grapefruit grown in Highlands County, Florida. Mason knew that Petitioner sold only grapefruit from groves in Highlands County, Florida, identified in the record as the Clagget Taylor groves. During the 2003 and 2004 crop years, Petitioner sold only grapefruit from the Clagget Taylor groves. Mason received trip tickets and other documentation related to the delivery of no less than 24,000 boxes of grapefruit, all from the Clagget Taylor groves. The boxes of grapefruit delivered during the 2005 crop year came only from the Clagget Taylor groves. Mason received documentation showing the grapefruit came from the Clagget Taylor groves. Ambiguous written agreements are required by judicial decisions discussed in the Conclusions of Law to be construed against the person who drafted the agreement. Mason drafted an ambiguous agreement with Petitioner. The agreement must be construed against Mason as a production contract. Mason owes Petitioner $10,000 for the delivered grapefruit during the 2005 crop year. The terms of the bond make Western liable for any deficiency in payment from Mason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order directing Mason to pay $10,000 to Petitioner, and, in accordance with Subsections 601.61 and 601.65, requiring Western to pay over to the Department any deficiency in payment by Mason. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 22nd day of August, 2007.
