Findings Of Fact At all pertinent times, respondent Beach Landscaping, Inc. d/b/a Landscape Technologies or Landscape Technologies, Inc. or as Land Tech (Beach) operated as a dealer in agricultural products under license No. 2889 issued by the Department of Agriculture and Consumer Services (DACS). On Beach's behalf, respondent Regency Insurance Company posted a surety bond with DACS, No. SF00356 in the amount of $3,000, effective September 24, 1988, through September 23, 1989, to secure payment for Florida agricultural products. Testimony of Brooks. On August 30, 1989, Beach took delivery from petitioners of seven live oak trees petitioners grew near Chiefland, Florida, agreeing to pay $125 for each which, with sales tax, aggregated $927.50. Petitioners's Exhibit No. 1, Inv. No. 716280. Testimony of Cochran. Having earlier made a deposit of $637.50, Beach took delivery from petitioners on September 18, 1989, of 15 Florida-grown live oak trees, agreeing to pay $170 for each. With sales tax (but less the deposit) Beach owed petitioners $2,065.50 on account of this transaction. Petitioners's Exhibit No. 1, Inv. No. 716788. Testimony of Cochran. The next day Beach took delivery from petitioners of 15 more Florida- grown trees again agreeing to pay $170 for each. Again with sales tax and less an earlier deposit, indebtedness on account of the transaction aggregated $2,065.50. Petitioners's Exhibit No. 1, Inv. No. 716790. Testimony of Cochran. Finally, on September 20, 1989, Beach took delivery from petitioners of 16 Florida-grown live oak trees, agreeing to pay $170 for each, which with sales tax and less an earlier deposit, amounted to $2,203.20. Petitioners's Exhibit No. 1, Inv. No. 716791. Testimony of Cochran. On March 3, 1990, Beach or Landscape Technologies, Inc. paid petitioners $1,000, thereby reducing indebtedness to petitioners on account of the foregoing transactions from $7,261.70 to $6,261.70. Petitioners applied a check in the amount of $1,500 to reduce the indebtedness to $4,761.70, even though the check purported to be in payment of another invoice. In the answer it filed with DACS, Landscape Technologies, Inc., admitted indebtedness of $4,661.10.
Recommendation It is, accordingly, RECOMMENDED: That DACS order Beach to pay petitioners four thousand seven hundred sixty-one dollars and seventy cents ($4,761.70) within fifteen (15) days of the final order. That, in the event Beach fails to pay petitioners four thousand seven hundred sixty-one dollars and seventy cents ($4,761.70) within fifteen (15) days of the final order, DACS order Regency Insurance Company to pay three thousand dollars ($3,000) or such lesser sum as satisfies the requirements of Section 604.21(8), Florida Statutes (1989), for disbursal to petitioners. DONE and ENTERED this 19th day of April, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 19th day of April, 1991. COPIES FURNISHED TO: CHRISTOPHER B. PHILLIPS LANDSCAPE TECHNOLOGIES, INC. 523 LAKEVIEW ROAD CLEARWATER, FL 34616 REGENCY INSURANCE COMPANY POST OFFICE BOX 190 HALLANDALE, FL 33009-0190 CLINTON H. COULTER, JR., ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES TALLAHASSEE, FL 32399-0800 J. COCHRAN & RUSSELL STRANGE C & S TREE FARM ROUTE 1, BOX 738 CHIEFLAND, FL 32626 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE DEPARTMENT OF AGRICULTURAL AND CONSUMER SERVICES THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURAL AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800
The Issue The issue is whether Respondent, Mo-Bo Enterprises, Inc., or its surety is indebted to Classie Sales, Inc. for agricultural products sold to Mo-Bo Enterprises.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence, the following relevant findings of fact are determined: Petitioner, Classie Sales, Inc., is a producer of agricultural products in Florida. Products which it produces include cucumbers, peppers, squash, and eggplant. Respondent, Mo-Bo Enterprises, is a dealer of agricultural products in the normal course of its business activities. Respondent, Mo-Bo Enterprises, is licensed by the Florida Department of Agriculture and Consumer Services and is bonded by Co-Respondent, Armor Insurance Company. Petitioner sold cucumbers, peppers, squash, and eggplant to Respondent, Mo-Bo Enterprises, between the period November 12, 1994 and December 23, 1994. Respondent was given a shipping manifest and sent an invoice for each shipment of agricultural products it ordered and received from Petitioner. The invoice stated that payment in full was due within 21 days of the invoice date and that "thereafter 1 percent additional for each 30 day period or portion thereof." Petitioner sent nineteen (19) invoices to Respondent, Mo-Bo Enterprises, during the time relevant to these proceedings. Each invoice represented the price and quantity of the products which was agreed to by Petitioner and Mo-Bo Enterprises. As of the date of the formal hearing, Respondent, Mo-Bo Enterprises, had paid two (2) of the nineteen (19) invoices it received from the Petitioner. The invoices for cucumbers sold on November 14, 1994, and September 14, 1994, in the amount of $2400.00 and $4613.50, respectively, were paid in full. The total amount paid to Petitioner by Respondent was $7013.50. The total amount invoiced by Petitioner to Mo-Bo Enterprises for agricultural products sold and shipped to Mo-Bo Enterprises, and which remain unpaid, is $66,053.00. In addition to this amount, in accordance with the terms stated on the invoices, Respondent owes Petitioner 1 percent of the amount of each invoice for each 30 day period or portion thereof that the balance remains unpaid. Despite repeated demands by Petitioner, and promises by Respondent, Mo- Bo Enterprises, to pay the outstanding balance, Mo-Bo Enterprises has not paid seventeen (17) invoices which total $66,053.00. As of the date of the formal hearing, this amount remains due and owing and unpaid.
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 requiring Respondent, Mo-Bo Enterprises, Inc., or its surety, Co- Respondent, Armor Insurance Company, to pay Petitioner $66,053.00 plus an additional 1 percent of each invoice amount for each 30 day period or portion thereof that the payment remains outstanding. DONE and ENTERED this 17th day of October, 1995, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1995. COPIES FURNISHED: Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Mo-Bo Enterprises, Inc. P.O. Box 1899 Pompano Beach, FL 33061 Mark J. Albrechta, Esquire Legal Department Armor Insurance Company P.O. Box 15250 Tampa, FL 33684-5250 John Tipton Classie Sales, Inc. P.O. Box 1787 Bradenton, FL 34206 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, FL 32399-0800 Charles Barnard, Esquire 200 SE 6th Street Ste. 205 Ft. Lauderdale, Florida 33301
The Issue Did Respondent Williams fail to make an accounting for and payment to Petitioner for the proceeds of agricultural products purchased by Ray Gene Williams d/b/a Williams Produce Company?
Findings Of Fact Petitioner Six L's grows watermelons in Collier County, Florida. It is therefore a producer of agricultural products in the State of Florida. Respondent Ray Gene Williams d/b/a Williams Produce Company is a dealer in agricultural products who engages in business in Florida. Respondent Hartford Accident and Indemnity Company is the surety for a bond posted by Respondent Williams to insure compliance with Section 604.20, Florida Statutes (1979). On May 26, 1980, Six L's sold 46,700 pounds of field run, crimson sweet, watermelons to Respondent Williams at a price of 5 1/2 cents per pound for a total cost of $2,568.50. The sale was negotiated between Mr. Charles Weisinger, a salesman for Six L's, and Mr. Larry DiMaria. Mr. DiMaria at that time was a purchasing agent for Respondent Williams. They agreed that the sale would be F.O.B. at Immokalee, Florida. On May 26, 1980 a truck under contract to Respondent Williams was loaded with 46,700 pounds of crimson sweet field run watermelons from the farm of Petitioner Six L's. The weight was verified by the Immokalee State Farmer's Market at 6:59 p.m., May 26, 1980. At that time Mr. DiMaria inspected the watermelons and accepted them on behalf of Respondent Williams. On the following day, May 27, 1980, Mr. DiMaria made payment for the watermelons by issuing check #465 drawn on the account of Williams Farms in the amount of $2,568.50, payable to Six L's Packing Company. Before Six L's could collect on the check, payment was stopped by Respondent Williams, and no payment for the watermelons has since been made by either Respondent. The final hearing in this case was initially noticed for December 4, 1980. At the request of Respondent Williams and with the agreement of Six L's it was continued to a later date. The final hearing was rescheduled for May 11, 1981 in Fort Myers, Florida at 10:00 a.m. At that time neither Respondent made an appearance. In order to give them time to appear the hearing was recessed until 10:30 a.m. At that time it resumed and was concluded at 11:30 a.m. with still no appearance by either Respondent. To the knowledge of the undersigned no attempt was made by the Respondents to request a continuance or otherwise explain their failure to appear.
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 Ray Gene Williams d/b/a Williams Produce Company indebted to Six L's Packing Company, Inc. in the amount of $2,568.50. DONE and RECOMMENDED this 12th day of June, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981.
The Issue Whether the Petitioner's complaint that Respondent is indebted to Petitioner in the amount of $4,149.40 for two loads of melons, shipped on June 22, 1977, is valid. Respondent appeared at the hearing without counsel. After being advised of his rights in an administrative proceeding under Chapter 120, Florida Statutes, he acknowledged that he understood such rights and did not desire representation by legal counsel.
Findings Of Fact Petitioner Malvin Ford of Labelle, Florida and Respondent Charles L. Warren, Adel, Georgia are dealers in agricultural products. Pursuant to a telephonic agreement, Petitioner sold two truck loads of watermelons to Respondent which were shipped from Branford, Florida to Baltimore, Maryland on June 22, 1977. One load consisted of 43,680 pounds of melons and was shipped for cost plus freight in the total amount of $2,009.28. The other load weighed 45,220 pounds and was billed at $2,140.12, which included a charge of $60.00 for four "drops" along the way. Petitioner paid the grower of the melons, Hal Walker, and also the carrier. On June 27, 1977, he invoiced Respondent in the above amounts. The invoice stated "terms: net 10 days." (Testimony of Ford, Petitioner's Composite Exhibits 1, 5, 6) Petitioner did not receive payment for the produce from the Respondent and therefore proceeded to file a complaint with the Department of Agriculture and Consumer Services on December 8, 1977. Respondent thereafter issued a check to Petitioner on February 24, 1978, in the amount of $890.10. A statement attached to the check reflected that the amount represented the sum owing to Petitioner in the amount of $4,149.40, less $3,259.30 which apparently represented a setoff of sums owed Respondent by Petitioner for two transactions in the amounts of $1,625.30 and $1,634.00. Petitioner returned the check to Respondent by letter of March 1, 1978, in which he stated that he did not owe any outstanding indebtedness to Respondent. (Petitioner's Exhibits 2 - 4) Although Respondent conceded in his testimony at the hearing that he was indebted to Petitioner for the two loads of melons shipped on June 22, 1977, he claimed that in two separate 1974 transactions involving another two truck loads of melons Petitioner had not paid him in the total amount of $3,259.30. However, Respondent produced no documentary evidence concerning these transactions other than an unsworn statement of Frank Koza of Oliver, Pennsylvania, stating that he had received a load of watermelons weighing 47,803 pounds on August 13, 1974, from Petitioner and that he had paid Petitioner for the load. Petitioner testified that this dispute arose at a time when he and Respondent both had offices in Virginia and Respondent asked him how to get rid of a load of melons that he had been unable to sell on the Pennsylvania Turnpike. Petitioner says that he told him to contact Koza who had two fruit stands in Pennsylvania, and that that was his only connection with the transaction. He denied receiving any payment from Koza for the load. Respondent, on the other hand, testified that Petitioner had promised to sell the load for him and make arrangements for the driver hired by the Respondent to reach Koza's place of business. Respondent further testified that he turned over the delivery tickets from the load to Petitioner, but did not send an invoice for the amount because he had dealt many times with Petitioner in the past and that it was a question of trusting him to account for the proceeds from the load. He further testified that he talked to Petitioner several days after the transaction and Ford told him that he had never received a settlement for the load from Koza. Respondent testified that the other transaction occurred on June 28, 1974, when, pursuant to a telephonic agreement with Petitioner, Respondent shipped a load of melons from Georgia to a firm in Baltimore, Maryland and that thereafter Respondent provided Petitioner with delivery tickets on the load signed by the receiver of the goods. No documentary evidence was submitted in connection with this alleged transaction and Petitioner denied any knowledge of it. In view of the above conflicting evidence and the lack of writings to support the claimed oral agreements, it is found that Respondent has failed to establish by preponderance of the evidence that Petitioner is indebted to him on either of the purported 1974 transactions. The Koza statement which was purportedly signed on March 22, 1978, is hearsay and insufficient alone to support a finding that the facts contained therein are true and correct. It cannot serve as supplementary evidence to Respondent's testimony concerning the transaction because Respondent has no personal knowledge that payment for the goods was made by Koza to Petitioner. (Testimony of Ford, Warren, Respondent's Exhibit 1)
Recommendation That the Department of Agriculture and Consumer Services enter a Final Order requiring Respondent to pay Petitioner the sum of $4,149.40, as claimed. DONE and ENTERED this 12th day of June, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Harrell, II, Esquire Post Office Box 865 Labelle, Florida 33935 Charles L. Warren Warren Produce Farms 801 South Gordon Post Office Box 305 Adel, Georgia 31620 Robert A. Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
The Issue Whether Respondent owes Petitioner $14,080 on account for vegetables sold and delivered at the request of Respondent.
Findings Of Fact Petitioner, M.O. "Buster" Williams, is an agent for the producers of agricultural products, carrots, red radishes and white corn. Respondent, Dougal M. Buie, III, d/b/a Blue Star Citrus and Vegetables, is a dealer of such products in the normal course of its business activity. Respondent is licensed by the Department of Agriculture and Consumer Services and is bonded by First Union National Bank of Florida. Petitioner sold Respondent carrots, red radishes and white corn by the truck load between the period May 19, 1993 and June 14, 1993, and was given a Bill of Lading therefor. Respondent was sent an Invoice for each shipment and payment was due in full following receipt of the Invoice. As of the date of the formal hearing, each invoice for shipments made between May 19 and June 14, 1993 remains due and owing and unpaid. The total amount of indebtedness owed by Respondent, Buie, to Petitioner is $14,080.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $14,080.00 DONE and ENTERED this 16th day of March, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 March, 1994. COPIES FURNISHED: 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 & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Robert F. Vason, Jr., Esquire Potter, Vason and Clements 308 East Fifth Avenue Mount Dora, Florida 32757 M.O. Buster Williams 1412 Raintree Lane Mount Dora, Florida 32757 Lewis Stone, Esquire P. O. Box 2048 Eustis, Florida 32727-2048 First Union National Bank of Florida 21 North Grove Street Eustis, Florida 32726
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Holmes Nursery & Gardens Associates, LTD., is a wholesale and retail nursery providing a variety of landscape agricultural products. The east coast regional office for Petitioner is located at 1600 SW 20th Street, Fort Lauderdale, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highways Delray Beach, Florida. Respondent, Garden of Eden is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about April 23, 1986, Garden of Eden ordered and received delivery of $1770.00 worth of agricultural products from Petitioner. This purchase consisted of four viburnum odo., five weeping podocarpus and one bottlebrush. On or about April 25, 1986, Garden of Eden ordered and received delivery of $420.00 worth of agricultural products from Petitioner. This purchase consisted of three live oaks. On or about April 28, 1986, Garden of Eden ordered and received delivery of $312.50 worth of agricultural products from Petitioner. This purchase consisted of twenty-five viburnum odo. On or about April 29, 1986, Garden of Eden ordered and received delivery of $520.00 worth of agricultural products from Petitioner. This purchase consisted of four laurel oaks. On or about May 5, 1986, Garden of Eden ordered and received delivery of $1,130.00 worth of agricultural products from Petitioner. This purchase consisted of forty-seven crinum lily and six hundred and twenty-two liriope muscari. On or about May 13, 1986, Garden of Eden ordered and received delivery of $2,943.00 worth of agricultural products from Petitioner. This purchase consisted of seven cattley grava, and six paurotes. On or about May 28, 1986, Garden of Eden ordered and received delivery of $315.00 worth of agricultural products from Petitioner. This purchase consisted of one roebelinii single and one roebelinii double. On or about June 19, 1986, Garden of Eden ordered and received delivery of $300.00 worth of agricultural products from Petitioner. This purchase consisted of one paurotis 5 stem. The total amount of the agricultural products purchased by Garden of Eden was $7,710.50. On August 8, 1986, Garden of Eden paid $1060.00 on the account. On September 24, 1986, another $2500.00 was remitted to Holmes Gardens on this account. The balance of indebtedness owed by Garden of Eden to Holmes Gardens for the purchases listed above is $4,150.00. Petitioner claims it is due an additional sum of $436.04 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry; however, no written agreement or acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
The Issue The issue is whether the claims of $98,935.20 and $19,147.70, filed by Petitioner under the Agricultural Bond and License Law, are valid. §§ 604.15 - 604.34, Fla. Stat. (2008).
Findings Of Fact At all material times, Petitioner has been a producer of agricultural products located in Plant City, Florida. At all material times, American Growers has been a dealer in agricultural products. Respondent Lincoln General Insurance Company, as surety, issued a bond to American Growers, as principal. American Growers is licensed by the Department of Agriculture and Consumer Services ("DACS"). Between December 16, 2008, and February 4, 2009, Petitioner sold strawberries to American Growers, each sale being accompanied by a Passing and Bill of Lading. Petitioner sent an Invoice for each shipment, and payment was due in full following receipt of the Invoice. Partial payments have been made on some of the invoices, and as of the date of this Recommended Order, the amount that remains unpaid by American Growers to Petitioner is $117,982.90, comprising: Invoice No. Invoice Date Amount Balance Due 103894 12/16/08 $7,419.00 $1,296.00 103952 12/22/08 $18,370.80 $1,944.00 103953 12/23/08 $3,123.60 $648.00 193955 12/26/08 $8,164.80 $1,728.00 103984 12/28/08 $28,764.40 $28,764.40 104076 12/31/08 $17,236.80 $17,236.80 104077 1/5/09 $17,658.00 $17,658.00 104189 1/5/09 $1,320.90 $1,320.90 104386 1/20/09 $16,480.80 $16,480.80 104517 1/29/09 $17,449.20 $17,449.20 104496 2/4/09 $13,456.80 $13,456.80 TOTAL $117,982.90
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring Respondent, American Growers, Inc., and/or its surety, Respondent, Lincoln General Insurance Company, to pay Petitioner, Crown Harvest Produce Sales, LLC, the total amount of $117,982.90. DONE AND ENTERED this 18th day of May, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture and Consumer Services The Capital, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, Mail Station 38 Tallahassee, Florida 32399-0800 Glenn Thomason, President American Growers, Inc. 14888 Horseshoe Trace Wellington, Florida 33414 Katy Koestner Esquivel, Esquire Meuers Law Firm, P.L. 5395 Park Central Court Naples, Florida 34109 Renee Herder Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Boulevard, Suite 155 Tampa, Florida 33634 Glenn C. Thomason, Registered Agent American Growers, Inc. Post Office Box 1207 Loxahatchee, Florida 33470
The Issue Whether Petitioner, Wallace Moorehand, was an employee of Respondent, State Farm Mutual Automobile Insurance Company, as defined by the Florida Civil Rights of 1992, at the time alleged discriminatory employment practice(s) took place.
Findings Of Fact Petitioner, Wallace Bruce Moorehand, is an African- American male residing in Ft. Walton Beach, Florida. Petitioner holds Florida insurance agent license A183690, which was issued on February 27, 1991. Petitioner studied extensively and was subject to a formal examination in order to obtain his license. Respondent, State Farm Mutual Automobile Insurance Company (State Farm),1/ is a private entity headquartered in Bloomington, Illinois, engaged in the business of selling and servicing various types of insurance products including auto, health, and fire insurance for personal and business customers. Petitioner maintains that he is an employee of State Farm, rather than an independent contractor therefore, allowing him to bring a claim of unlawful employment discrimination under the Florida Civil Rights Act of 1992. Between March 1991 and February 1993, Petitioner worked as a Trainee Agent with State Farm. It is undisputed that Petitioner was a State Farm employee during his tenure as a Trainee Agent. On March 1, 1993, Petitioner executed a State Farm Agent’s Agreement. Among the relevant contractual provisions are the following: The purpose of this Agreement is to reduce to writing the objectives, obligations, and responsibilities essential to the relationship between the Agent, operating as an independent contractor, and State Farm. [State Farm] believe[s] that agents operating as independent contractors are best able to provide the creative selling, professional counseling, and prompt and skillful service essential to the creation and maintenance of successful multiple-line companies and agencies. We do not seek, and will not assert, control of your daily activities, but expect you to exercise your own judgment as to the time, place, and manner of soliciting insurance, servicing policyholders, and otherwise carrying out the provisions of this Agreement. You have chosen this independent contractor relationship, with its opportunities for financial reward and personal satisfaction, in preference to one which would place you in an employee status. * * * Section 1 – MUTUAL CONDITIONS AND DUTIES * * * You are an independent contractor for all purposes. As such you have full control of your daily activities, with the right to exercise independent judgment as to time, place, and manner of soliciting insurance, servicing policyholders, and otherwise carrying out the provisions of this Agreement. State Farm will furnish you, without charge, manuals, forms, records, and such other materials and supplies as we may deem advisable to provide. All such property furnished by us shall remain the property of [State Farm]. * * * Information regarding names, addresses, and age of policyholders of [State Farm]; the description and locations of insured property; and expiration or renewal dates of State Farm policies acquired or coming into your possession during the effective period of this Agreement, or any prior Agreement, except information and records of policyholders insured by [State Farm] pursuant to any governmental or insurance industry plan or facility, are trade secrets wholly owned by [State Farm]. All forms and other materials, whether furnished by State Farm or purchased by you, upon which this information is recorded, shall be the sole and exclusive property of [State Farm]. The expense of any office, including rental, furniture, and equipment; signs; supplies not furnished by us; the salaries of your employees; telegraph; telephone; postage; advertising; and all other charges or expense incurred by you in the performance of this Agreement shall be incurred at your discretion and paid by you. * * * L. We retain the right to prescribe all policy forms and provisions; premiums, fees, and charges for insurance; and rules governing the binding, acceptance, renewal, rejection, or cancellation of risks, and adjustment and payment of losses. Petitioner testified that it was his intent to enter into an independent contractor relationship with State Farm. On January 1, 1997, Petitioner entered into a second State Farm Agent’s Agreement, containing similar, if not identical, provisions. The record was not clear why Petitioner entered into a second Agent’s Agreement in 1997. Petitioner testified that State Farm eliminated some retirement benefits in 1997, requiring all agents to execute a new Agreement. However, on cross-examination, Petitioner testified, “I misspoke”2/ and admitted that the original Agent’s Agreement does not refer to a pension or other retirement benefit. Petitioner has conducted business as an agent of State Farm at the same location in Mary Esther, Florida, for 21 years. State Farm compensates Petitioner through commission on sales of insurance policies and other products. According to the Agent’s Agreement, State Farm also offers a sales incentive of five percent of production earnings in the prior year. State Farm has never paid Petitioner a salary. Pursuant to the Agent’s Agreement, State Farm also compensates Petitioner by providing a life insurance policy of $100,000 payable to his designated beneficiary upon his death, provided that Petitioner has not obtained age 70 or terminated the Agent’s Agreement. Petitioner has his own Federal employer tax ID number. Petitioner owns the building in which his State Farm office is located. Petitioner pays all the expenses of his office, including telephone, electricity, water, furniture, office supplies, and office equipment. Petitioner currently has two employees, but has previously employed up to nine people at his State Farm office. Petitioner pays his employees a salary, rather than on an hourly basis, at his choosing. Petitioner sets his employees’ work schedules. Petitioner pays his employees’ payroll taxes, decides whether they will receive commissions, and, if so, the amount of said commissions. Petitioner offers his employees paid holidays, vacation time, and sick leave. Petitioner does not receive either vacation time or sick leave from State Farm. Petitioner has elected to secure health insurance through State Farm for himself and his family. Petitioner offers his employees the opportunity to participate in the same health insurance plan he has elected to purchase. State Farm reports Petitioner’s earnings to the Federal Government on IRS Form 1099, not Form W-2. State Farm does not withhold social security, Medicare, or federal income taxes, from Petitioner’s commission checks. Despite overwhelming evidence of Petitioner’s independent contractor relationship with State Farm, Petitioner maintains that State Farm exercises a degree of control over Petitioner’s livelihood that renders the independent contractor status a sham. Petitioner testified that State Farm controlled Petitioner’s business, not only by contract, but also “by innuendo, by assertion, by intimidation.”3/ First, Petitioner testified that there was no difference between the way State Farm managed Petitioner’s business as a Trainee Agent and as an independent contractor. However, Petitioner admitted that only as a Trainee Agent was he required to submit daily time logs and weekly accountings of his activities. Petitioner offered into evidence a letter in which a State Farm Agency Manager criticized Petitioner’s priorities, time utilization, attitude, and required him to attend a series of training meetings. However, the letter was clearly written when Petitioner was a Trainee Agent. Next, Petitioner argues that State Farm controls whom he hires at his agency, as well as the hours his agency must be open to the public. Any employee of Petitioner who will be licensed to sell State Farm products on behalf of Petitioner is required to undergo background screening and enter into an Agent’s Licensed Staff Agreement. The Agreement defines the nature of the employment as with the Agent, rather than State Farm; defines the scope of the employee’s authority, i.e., the Agent may delegate to employees in-office binding authority on motor vehicle, residential risks, and personal property-casualty insurance coverage. Petitioner’s clerical staff, and any other non- licensed staff, is not required to undergo background screening or enter into an Agent’s Licensed Staff Agreement. Petitioner’s office is open 9:00 a.m. to 5:00 p.m. each weekday. Petitioner testified that he chose those hours because those are the ones “clients most wanted.” State Farm does not dictate the particular hours Petitioner works. State Farm provides an after-hours call center from 5:00 p.m. to 9:00 a.m. on weekdays to take calls from clients and potential clients when Petitioner’s office is closed. Petitioner maintains that because the call center is only available after 5:00 p.m., State Farm dictates that his office remains open until 5:00 p.m. daily. If Petitioner chose to close his office before 5:00 p.m. on weekdays, the only consequence would be missed business opportunities. Next, Petitioner argues that State Farm controls his business by requiring Petitioner to sell “multiple lines” of insurance, rather than selling only automobile or homeowners’ policies. Petitioner testified that State Farm pressures him to sell life and health insurance policies, as well as banking products more recently-available through State Farm. State Farm does not set quotas for any product line. Agents are free to choose which products they will sell as part of their overall business decisions. State Farm encourages its Agents to sell all products offered by the company in order to service the needs of clients. Some State Farm products require special licenses, such as a securities license to sell mutual funds offered by State Farm. State Farm does not require agents to obtain any specialty license. Petitioner voluntarily obtained a securities license to offer mutual funds to his clients. Next, Petitioner argues that State Farm does not allow him to operate his agency in a truly independent manner. Rather, Petitioner maintains that he is required to submit a business plan for approval by State Farm and attend extensive trainings which interfere with the independent nature of his relationship with State Farm. State Farm requires agents to attend one training session per year. The training is on compliance with State Farm customer service guidelines. Agents may access the training online and do not need to travel to take the training. State Farm provides a number of incentives to encourage agents to maximize their performance. For example, if an agent submits a business plan, laying out the goals and direction for his or her agency, the agent is eligible to receive leads on prospective clients that are received through the State Farm website. However, there are no negative consequences to those agents who choose not to submit a business plan. Finally, Petitioner argues that State Farm restricts Petitioner from writing policies for other insurer’s products. The parties offered a great deal of testimony regarding Petitioner’s authority to write policies for “take-out companies” assuming coverage previously provided by Citizens’ Insurance, and flood insurance policies through the Federal Emergency Management Agency. The undersigned finds this testimony irrelevant to the issue at hand. Petitioner is an agent of State Farm insurance company. He chose that relationship. He could have chosen to work with an independent insurance agency which writes policies for any number of companies. Petitioner did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Complaint of Discrimination No. 2014-00242 filed by Wallace B. Moorehand on August 14, 2014. DONE AND ENTERED this 6th day of January, 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 6th day of January, 2015.
The Issue The issue is whether Smallwood Design Group/Smallwood Landscape, Inc. (Respondent), and its surety, Hartford Fire Insurance Company, owe funds to American Farms, LLC, (Petitioner) for the sale of agricultural products.
Findings Of Fact At all times material to this case, the Petitioner was a licensed agricultural producer in the State of Florida. At all times material to this case, the Respondent was a licensed agricultural dealer in the State of Florida. From May 30 through October 27, 2006, the Respondent purchased agricultural products, specifically foliage plants, from the Petitioner. All charges for the plants sold by the Petitioner to the Respondent were billed on invoices that were sent to the Respondent by the Petitioner. The quantities and prices of the delivered plants were clearly identified on the invoices. The Respondent has failed to pay invoices totaling $11,777.18 that were sent by the Petitioner to the Respondent. There is no evidence that any of the charges were disputed by the Respondent at the time the sales were invoiced. There is no evidence that any of the plants sold by the Petitioner to the Respondent were unsatisfactory in terms of price or quality. As required by law, the Respondent had in place an Agricultural Products Dealer Bond dated December 9, 2005. The bond was executed by Joann Smallwood as "principal" for the Respondent. The bond was effective for one year and included the time period relevant to this proceeding. In correspondence filed during the course of this proceeding, the Respondent asserted that Joann Smallwood sold the business to another owner during the time relevant to this proceeding. The evidence established that at all times material to this case, Joann Smallwood acted as the owner/manager of the business. The plants sold by the Petitioner to the Respondent were picked up by trucks with Smallwood logos and signage. There was no evidence that the Petitioner was ever advised during the time the Respondent was purchasing plants from the Petitioner that Joann Smallwood had sold the business or that the Respondent would not be liable for payment of products purchased from the Petitioner.
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 directing that the Respondent pay the total of $11,777.18 to the Petitioner (plus the filing fee paid by the Petitioner to the DACS) and establishing such other procedures as are necessary to provide for satisfaction of the debt. DONE AND ENTERED this 3rd day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 3rd day of August, 2007.
The Issue Whether respondents owe petitioner money on account of sales of potatoes?
Findings Of Fact In order to finance his 1991 crops, petitioner Daniel Methvin of Hastings, had to borrow money at the end of the year before. To do that, he was told, he needed to execute contracts for the sale of the potatoes he intended to grow. He had been glad to have future contracts for the 1990 season, when a glut of potatoes pushed the price below three dollars a hundredweight (cwt). Respondent J.P. Mach Agri-Marketing, Inc. (or the company of which it is a subsidiary) had honored those contracts and paid considerably more than the market price for potatoes then. On November 24, 1990, Mr. Methvin executed a contract entitled "Sales Confirmation" agreeing to sell 10,000 cwt of "REPACK REDS", Petitioner's Exhibit No. 1 ("92% US #1 INCH AND 1/2 MIN. AT LEAST 95% SKIN, Id.) to J.P. Mach, Inc. during the period April 28 to May 31, 1991, at $6.50 per cwt. Petitioner's Exhibit No. 1. Consolidating smaller, earlier agreements, Mr. Methvin executed another contract entitled "Sales Confirmation" agreeing to sell 45,000 cwt of Atlantics ("85% U.S. #1") to J.P. Mach, Inc. during the period April 28 to May 31, 1991, at $5.75 per cwt, guaranteeing the potatoes would be suitable for chips. Petitioner's Exhibit No. 2. With these contracts (or, as to the chipping potatoes, their predecessors) as collateral, Mr. Methvin raised the funds necessary to plant. Both contracts between Mr. Methvin and J.P. Mach, Inc. had "act of god clauses" excusing Mr. Methvin's nondelivery of potatoes he failed to harvest on account of, among other things, tornadoes or hail. As it happened, tornadoes and hail prevented Mr. Methvin's reaping all he had sown. Petitioner only harvested 6,300 cwt of red potatoes and approximately 43,000 cwt of Atlantic potatoes. Another result of the bad weather was extremely high market prices, at some times exceeding $20 per cwt. On April 27, 1991, J.P. Mach visited Mr. Methvin's farm and the two men discussed incentives to keep Mr. Methvin from "jumping his contract," i.e., selling his potatoes to others at the market price. In the course of their conversation, Mr. Methvin said he needed to realize $450,000 from that year's potatoes; and Mr. Mach replied, "I will help you out", and "I will keep you in business." There was general talk of incentives and bonuses. Eventually, Mr. Mach said he would pay a premium over the contract price if Mr. Methvin fulfilled the original contracts to the fullest extent possible, by delivering all the potatoes he had; and Mr. Mach began remitting premium prices, as promised. On June 1, 1991, however, Mr. Methvin advised Mr. Mach of his intention to sell what remained of his harvest, some 1100 cwt of Atlantics, on the open market. When he carried through on this, Mr. Methvin realized approximately $200,000. Even at that, he lost $40,000 that season. Meanwhile Mr. Mach and his companies were sued for $550,000 for failure to deliver potatoes; and were not paid another $172,000 for potatoes they shipped to chip plants and others to whom they had promised still more potatoes. (Mr. Methvin was not the only grower who defaulted on contracts to ship potatoes to J.P. Mach, Inc.) As of June 1, 1991, Mr. Mach, his companies or his agents had paid Mr. Methvin "about $200,000," which was more than the contract price of the potatoes Mr. Methvin had loaded. Neither Mr. Mach nor his companies paid Mr. Methvin anything after June 1, 1991. At hearing, Mr. Methvin calculated the value of the loads as to which nothing had been remitted as of June 1, 1991, as "a few hundred more than $36,000," assuming the contract price plus the premium. But Mr. Mach and his companies or employees recalculated the price of the loads he had paid for by eliminating the premium, since Mr. Methvin had not, as promised on his side, delivered all his potatoes. J.P. Mach, Inc. was duly licensed during the 1990 season. After its license lapsed, a new license was issued to J.P. Mach Agri-Marketing, Inc. on April 24, 1991. A $50,000 certificate of deposit was filed with First Performance Bank as a condition of licensure.
Recommendation It is, accordingly, RECOMMENDED: That petitioner's complaint be denied. DONE and ENTERED this 3rd day of April, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of April, 1992. COPIES FURNISHED: Daniel Methvin Route 1, Box 92 Palatka, Florida 32131 Jeffrey P. Mach, President J. P. Mach Agri-Marketing, Inc. P.O. Box 7 Plover, Wisconsin 54467 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agricutlure 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
