The Issue Whether the respondent is indebted to the complainant for the sale of Florida-grown agricultural products, and, if so, the amount of the indebtedness.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Rose has a grove of lychee trees on his property; each year he harvests the lychee nuts for sale, but the sale of agricultural products is not his sole source of income. In mid-June, 1996, Mr. Rose heard that the Growers Association was offering $3.50 per pound for lychees, the highest price of which he was aware. Mr. Rose took his fruit to the Growers Association on June 18, 1996. Mr. Rose had not done business with the Growers Association previously but had sold his fruit to another company. Mr. Rose received a grower's receipt showing that, on June 18, 1996, he had brought in 298 pounds of fruit, that 14 pounds were culls, and that the Growers Association had packed 27.9 ten- pound boxes of fruit. The Growers Association packed only marketable fruit. Ninety-nine percent of the tropical fruit grown in Florida is handled in pools.1 According to industry practice, the "handler" does not purchase the fruit outright but is responsible for packing, storing, selling, and shipping the fruit and for accounting for and remitting the proceeds of sale, minus expenses, to the members of the pool on a pro rata basis. The pools are composed of all growers whose fruit is packed during a designated period of time. Prices initially quoted to growers participating in a pooling arrangement are not guaranteed because the actual sales price may vary, depending on market conditions. It was the practice of the Growers Association to handle lychees under a pooling arrangement, and the receipt Mr. Rose received from the Growers Association contained the notation "P- 407LY," which designated the pool to which Mr. Rose's fruit was assigned. The Lychee P-407LY pool to which Mr. Rose's fruit was assigned consisted of fruit packed by the Growers Association between June 15 and 21, 1996. Mr. Rose was told on several occasions by employees of the Growers Association that he would receive $920.70 after expenses for the sale of his lychees. This amount was reflected in a Pool Price Report generated by the Growers Association on July 10, 1997, which also showed that a total of 107.6 pounds of fruit was included in the pool and that the Growers Association anticipated receiving a total of $4,088.65 for the sale of the fruit in the pool. The Growers Association maintained in its files a work order showing that 83 ten-pound boxes of lychees were sold to Produce Services of America, Inc., at a price of $38.00 per box and that the fruit was shipped on June 21, 1996. According to the July 10 report, the Growers Association had received payment of $932.90 for 24.55 ten-pound boxes of lychees sold to "L & V" on June 21, 1996, at $38.00 per box, but there is no indication in the report that the anticipated payment of $3,154.00 had been received from Produce Services of America. Mr. Rose repeatedly called the Growers Association during July and August to inquire about when he would receive payment for his fruit. In accordance with the information he had consistently been given by employees of the Growers Association, he expected to receive $920.70. When he received a check from the Growers Association dated August 29, 1996, in the amount of $367.48, he called the Growers Association for an explanation of why he had received that amount rather than the $920.70 he was expecting. Ultimately, he spoke with Mr. Kendall in early September, who told him that the $367.48 was all he was going to receive as his pro rata share of the pool because Produce Services of American had not paid in full for the 83 boxes of fruit it purchased. As reflected in the Pool Price Report dated September 19, 1996, the Growers Association received a total payment of only $1,847.42 for the fruit in the pool, rather than the $4,088.65 shown in the July 10, 1996, report. After the Growers Association's expenses were deducted, a total of $1,417.25 was distributed to the five growers in the pool. Although a copy of this final price report for the P-407LY pool should have accompanied Mr. Rose’s check, it did not. According to the information contained in the September 19 Pool Price Report, the shortfall in the amount received for the sale of the fruit in the pool is attributable to the Growers Association's receiving only $913.00, or $11.00 per box, for the sale of the 83 boxes of lychees to Produce Services of America, instead of the anticipated $3,154.00. The $913.00 was paid to the Growers Association by check dated August 19, 1996. Mr. Rose did not present sufficient evidence to establish that he had a contract for the outright sale of 27.9 ten-pound boxes of lychees to the Growers Association. Rather, the evidence establishes that Mr. Rose's fruit was handled by the Growers Association under a pooling arrangement and that, consistent with the practice in the tropical fruit industry, the Growers Association assumed responsibility for packing, storing, selling, and shipping the fruit. The Growers Association failed to offer any credible evidence to explain why Produce Services of America paid only $11.00 per box for the 83 boxes of fruit shipped from the pool, notwithstanding that the agreed sales price was $38.00 per box.2 Even if the fruit was damaged or in poor condition when it was delivered to Produce Services of America, the Growers Association packed 27.9 ten-pound boxes of marketable fruit on Mr. Rose’s account, and, once packed, it had complete control of the fruit in the pool. The Growers Association failed to offer any evidence to establish that it acted with reasonable care in fulfilling its responsibilities under the pool arrangement. Consequently, it bears the risk of loss rather than Mr. Rose and is indebted to him for $553.22, which is the difference between the $920.70 Mr. Rose would have received as his pro rata share of the pool had Produce Services of America paid the agreed-upon sales price of $38.00 per box and the $367.48 which the Growers Association paid to Mr. Rose by check dated August 29, 1996.
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 the South Florida Growers Association, Inc., is indebted to Mike Rose for the sale of agricultural products and ordering the South Florida Growers Association, Inc., to pay Mike Rose $553.22 within fifteen (15) days of the date its order becomes final. The Final Order should also provide that, in the event that the South Florida Growers Association, Inc., fails to pay Mike Rose $533.22 within the time specified, Aetna Casualty and Surety Company, as surety for the South Florida Growers Association, Inc., must provide payment under the conditions and provisions of its bond. DONE AND ENTERED this 10th day of April, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1997.
The Issue The ultimate issue for determination is whether Respondent owes Petitioner payment for approximately 728 crates of green cabbages. This requires a determination of whether Respondent acted properly in consigning the load to Tampa Bay Produce rather than returning the cabbages to Petitioner.
Findings Of Fact Petitioner is a grower doing business at his farm at Route 1, Box 1 in Hastings, St. Johns County, Florida. Respondent, Battaglia Produce, Inc., is a produce broker with an office in Virginia Beach, Virginia. Its President, Tony Battaglia, has been a produce broker for thirty-five years. Respondent, South Carolina Insurance Company, is the bonding agent for Battaglia pursuant to Section 604.20, Florida Statutes. On May 19, 1988, Burrell sold a load of 791 crates of cabbages to Battaglia for and on the account of Publix Supermarkets, Inc. It is uncontroverted that at the time the cabbages left the field they were of good quality. The load was rejected by Publix in Lakeland on May 20, 1988. A sample of 30 crates out of the load revealed 27 crates were under the industry standard weight of fifty pounds. Battaglia learned that freight for the load back to Hastings would be expensive, so he consigned the load to Tampa Bay Produce, Inc., in Tampa, Florida for the purpose of sale. The subsequent consignment to Tampa Bay Produce was without the prior consent of Burrell. Battaglia has had an ongoing good business relationship with Burrell. Burrell's loads have been rejected at times in the past and Battaglia has never had problems obtaining Burrell's prior permission for disposing of the loads. Battaglia handles a total of approximately 1000 loads of cabbage a season and approximately 15% get rejected. He typically tries to resell the load to get the best advantage for the grower. Tampa Bay had some delay in selling the load. Some cabbages spoiled, and on May 31, 1988, 420 crates were dumped. The remainder sold for $606.00. Tampa Bay Produce deducted its 15% handling charge and paid Battaglia $515.00 for the load. In his accounting to Charles Burrell dated June 22, 1988, Battaglia deducted freight from Hastings to Lakeland and from Lakeland to Tampa and a pre- cooling charge in Tampa. He showed a net loss of $153.15 for the load. Battaglia did not claim a brokerage fee. Battaglia deducted the $153.15 from other funds it owed Burrell for other cabbage loads and paid Burrell the balance appearing on an accounting of this and eight other loads of cabbage, dated June 23, 1988. At the hearing the Burrells amended their request for payment to add the $153.15 deducted for the load. Burrell computed an average underweight based on the 30-crate sample from Publix and adjusted his invoice to Battaglia to reflect an 8% reduction. The invoice is dated June 27, 1988. Burrell claims that the 791 crates were sold for $4.60 per crate, for a total of $3,638.60. The 30 crates weighed an average of 46.14 pounds or eight percent less than the 50-lb. industry standard. An eight percent adjustment in the cost yields a total of $3,347.51. Burrell does not contest the underweight findings by Publix. He insists that he should have been informed immediately and given a change to bring the shipment back, repack the cabbages and sell them again. Instead, someone from Battaglia called Barbara Burrell on May 21st to tell her the load was turned down by Publix and was shipped to Tampa. She called Battaglla several times to get details on the short weight so that she could adjust their bill, but she was unable to get any information until the latter part of June, and by then Battaglia's position was that the load was a net loss. She obtained the weight information eventually from Publix. Battaglia claims that he acted professionally in handling the load and that he owes no additional funds to Burrell.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered requiring that Respondent pay to Petitioner the sum of $3500.66 and informing Respondent that failure to make such payment within fifteen (15) days will result in recovery from its surety, as provided in Subsection 604.21(8), Florida Statutes. DONE and ENTERED this 20th day of March, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 20th day of March, 1989. COPIES FURNISHED: Charles R. Burrell Charles R. Burrell Farms Route 1, Box 1 Hastings, Florida 32045 Ralph V. Hadley, III, Esquire Hadley and Asma Post Office Box 1340 Winter Garden, Florida 32787 South Carolina Insurance Company Post Office Box 1 Columbia, South Carolina 29202 Ben H. Pridgeon, Jr., Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building, Room 418 Tallahassee, Florida 32399 =================================================================
The Issue Whether Respondent owes Petitioner $2,377.20 as alleged in the complaint filed by Petitioner in July 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Bigham Hide Company, Inc. (Petitioner), is a watermelon grower in Coleman and Lake Panasoffkee, Florida. Respondent, Florida-Georgia Produce, Inc. (Respondent), is a licensed dealer in agricultural products having been issued License Number 7666 by the Department of Agriculture and Consumer Services (Department). Respondent has posted a bond in the amount of $30,000.00 written by Cumberland Casualty & Surety Company, as surety, to assure proper accounting and payment to producers such as Petitioner. In a complaint filed with the Department in July 1997, Petitioner alleged that he entered into an agreement with Bobby Patton (Patton) on behalf of Respondent to sell one truckload of "pee wee" watermelons. Under that agreement, Respondent agreed to pay seven cents per pound for the watermelons, and it would advance Petitioner $700.00 to cover the labor costs associated with loading the truck. The remainder would be paid upon final delivery. The complaint goes on to allege that Petitioner subsequently learned that there was "some problem" with the delivered produce. After Respondent inspected Petitioner's field to verify the quality of the crop, Petitioner was told that Respondent would "fight the fight" to get the shipment accepted. Since that time, however, the complaint alleges that Petitioner did not receive payment, an accounting of the transaction, an inspection report, or any further explanation. Accordingly, Petitioner filed this complaint seeking $3,077.20, less the $700.00 advance, or a total of $2,377.20. In its answer, Respondent has alleged that it actually received a truckload of "old diseased watermelons that had been lying in the field or on [the] field truck for a week," and the receiver refused to accept the load. Since it received nothing for the shipment, Respondent contends it is owed $700.00 for the money advanced to Petitioner. The parties agree that in late May 1997, Petitioner was contacted by Bobby Patton, who was representing Respondent, regarding the sale of small size watermelons. Patton offered to buy one truckload of "pee wee" watermelons at a price of seven cents per pound, to be paid after delivery to the receiver. Patton also agreed to advance Petitioner $700.00 to cover his loading costs. Petitioner agreed to these terms, and the truck was loaded from his field on June 3, 1997. The net weight of the loaded produce was 43,960 pounds. The vehicle's tag number was recorded on the loading slip as "AH 39099" from the province of Quebec, Canada. There is no evidence that the crop was diseased when it was loaded, or that it had been picked and lying in the field for several days before being loaded, as suggested in Respondent's answer to the complaint. The shipment was destined for Ontario, Canada. On or about June 5, 1997, the product was delivered to the customer, Direct Produce, Inc., in Etobicoke, Ontario. Because of a perceived lack of quality, the buyer refused to accept the load. Respondent immediately requested a government inspection which was performed on June 6, 1997. The results of that inspection are found in Respondent's Exhibit 3. It reveals that 1 percent of the load was decayed, 3 percent were bruised, 6 percent had Anthrocnose (belly rot), and 75 percent had "yellow internal discolouration." In addition, a composite sample reflected that 20 percent had "Whitish Stracked Flesh" while 5 percent had "Hollow Heart." In other words, virtually the entire shipment was tainted with defects or disease. The report also reflected that the net weight of the shipment was 44,500 pounds, and the tag number of the vehicle was "ALP 390999." The weight and tag number were slightly different from those recorded on the loading slip at Petitioner's field. After learning of the results of the inspection, Respondent's president, James B. Oglesby, immediately contacted Petitioner's president, Greg Bigham, and requested an inspection of Bigham's field to verify the quality of watermelons. During the inspection, Oglesby did not find any signs of belly rot or other problems similar to those noted in the government inspection. If there had been any incidence of belly rot in Petitioner's field, it would have been present in other unpicked watermelons. At the end of his inspection, Oglesby told Petitioner that he would "fight the fight" to get the shipment delivered and sold. Oglesby eventually found a buyer who would accept the shipment as feed for cattle. The buyer agreed to pay the freight charges for hauling the watermelons to Canada but nothing more. Therefore, Respondent was not paid for the load. Petitioner was led to believe that he would receive payment and paperwork, including the inspection report, within a few days. When he did not receive any documentation, payment, or further explanation within a reasonable period of time, he filed this complaint. It would be highly unlikely that a farmer would have one completely bad load from a field without the same problems being present in other loads shipped from the field at the same time. Petitioner presented uncontroverted testimony that no other shipments from that field during the same time period were rejected or had similar problems. In addition, it was established that poor ventilation on the truck, or leaving the loaded truck unprotected in the sun, could be causes of the crop being spoiled or damaged before it was delivered to Canada. Finally, at hearing, Respondent suggested that Bigham may have shown him a different field than the one from which his load was picked. However, this assertion has been rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Affairs enter a final order determining that Respondent owes Petitioner $2,377.20. In the event payment is not timely made, the surety should be responsible for the indebtedness. DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this day 6th of February, 1998. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Terry T. Neal, Esquire Post Office Box 490327 Leesburge, Florida 34749-0327 James B. Oglesby Post Office Box 6214 Lakeland, Florida 33807 Cumberland Casualty & Surety Company 4311 West Waters Avenue Tampa, Florida 33614 Richard D. Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue in this case is whether Respondent H & R Packing & Sales Company, LLC, must pay Petitioner the full contract price for citrus fruit that said Respondent accepted upon tender despite knowing that the goods were nonconforming.
Findings Of Fact Petitioner Betty H. Shinn, d/b/a Shinn Groves ("Shinn"), is in the business of growing citrus fruit and hence is a "producer" within the regulatory jurisdiction of the Department of Agriculture and Consumer Services ("Department"). Respondent H & R Packing & Sales Company, LLC ("HRPS"), is a "citrus fruit dealer" operating within the Department's jurisdiction. On November 3, 2004, Shinn and HRPS entered into a contract (the "Contract") whereby HRPS agreed to harvest "fresh fruit quality" navel oranges from a particular section of Shinn's grove, which oranges Shinn agreed to sell to HRPS for the price of $8.00 per field box. The Contract provided, in pertinent part, as follows: The SELLER [that is, Shinn] shall take all reasonable and normal precautions to maintain fresh fruit quality during the life of this agreement. Failure to exercise close control to mites and other pests shall constitute a violation of this agreement. Further, the BUYER [i.e. HRPS] may at his option cancel this contract or renegotiate the price to be paid and the conditions of sale. In addition, the parties agreed that HRPS would pick the fruit no later than January 1, 2005, and pay for the oranges "within 45 days of the week of the harvest." An agent of HRPS's named Frederick Gaines inspected the crop identified to the Contract on a couple of occasions in November and December 2004. At some point he notified Shinn that the oranges were being damaged by rust mites. Shinn arranged to have the crop sprayed with Thiolux (a miticide), which was done around December 6, 2004. HRPS harvested the crop on January 3, 2005. (HRPS's performance in this regard was nonconforming, because the oranges were to be picked no later than January 1, 2005. By allowing HRPS to proceed after the deadline, however, Shinn waived HRPS's untimely performance.) At or about the time of the harvest, Mr. Gaines orally notified Charles Shinn (who is the son——and an agent——of Petitioner Betty Shinn) that the oranges had been damaged by rust mites and consequently were not fresh fruit quality. Mr. Shinn suggested that the oranges be "run through" the packing house (where the fruit would be graded on its quality), after which the parties could renegotiate the price, if necessary, to adjust for any material deficiencies in the quality of the crop. This proposal was evidently acceptable to HRPS, for it proceeded to harvest the oranges with knowledge that the crop was (or might not be) fresh fruit quality. HRPS picked 790 field boxes of oranges from Shinn's grove pursuant to the Contract. When these oranges were graded at the packing house, an unusually small percentage (approximately 34%) could be "packed out," that is, packaged and delivered for sale as fresh fruit.i The rest "graded out," i.e. failed to meet the standards for sale as fresh fruit, and were sold, at a loss, to juice processors. HRPS was obligated under the Contract to pay Shinn for the oranges on or before February 22, 2005, but HRPS let the deadline pass without either paying for the oranges or notifying Shinn of a breach with respect thereto. By letter dated March 17, 2005, Shinn demanded that HRPS pay the full contact price of $6,320 for the fruit harvested under the Contract.ii HRPS responded to Shinn's demand-letter via correspondence dated March 24, 2005. In this letter, HRPS acknowledged the Contract's existence but disclaimed the duty to pay in full due to the fruit's generally poor quality. HRPS expressed some willingness to resolve the matter amicably but offered no payment. Shinn was not satisfied and initiated this administrative proceeding. Ultimate Factual Determinations HRPS harvested and hauled away the oranges identified to the Contract. This performance constituted acceptance of the goods, and such acceptance was made with knowledge of a (possible) nonconformity, namely that the oranges were not fresh fruit quality due to rust mite damage. The apparent nonconformity was made manifest to HRPS shortly after the harvest, when an unusually small percentage of the pertinent crop was "packed out." HRPS failed, however, to notify Shinn of the breach within a reasonable time after confirming the nonconformity. Consequently, HRPS is barred from any remedy for breach. HRPS's failure to pay for the oranges at the Contract rate constituted a breach of the Contract entitling Shinn to recover the full price, together with pre-award interest. Accordingly, HRPS is obligated to pay Shinn the principal amount of $6,320.00, together with statutory interest of $378.20 (for the period 02/22/05 - 12/31/05). Interest will continue to accrue on the outstanding balance of $6,320.00 in the amount of $1.56 per day from January 1, 2006, until the date of the final order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order awarding Shinn the sum of $6,320.00, together with pre-award interest in the amount of $378.20 (through December 31, 2005), plus additional interest from January 1 2006, until the date of the final order, which will accrue in the amount of $1.56 per day. DONE AND ENTERED this 13th day of December, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2005.
The Issue The Issue is whether Homestead in indebted to Sun Coast for agriculture products sold under six invoices. Homestead maintains that the products it purchased were shipped to its customers, who either refused to accept them, or accepted them only after demanding a price concession from Homestead because of the poor condition of the products. Homestead remitted to Sun Coast the amount Homestead had received from its customers. The difference between the agreed sale price in the transactions between Sun Coast and Homestead and the price received by Homestead from its customers sets the amount at issue in this proceeding.
Findings Of Fact INVOICE 1527 Homestead Pole Bean bought 96 cases of fancy crook necked squash from Sun Coast on March 9, 1987, at $12.20 per crate, for a total price of $1,171.20. The squash was shipped on the same day. Homestead paid Sun Coast only $327.20, because Homestead's buyer, Veg Fresh, of Birmingham, Alabama, reported trouble with the product on March 11, 1987, when it received the squash and would not accept it at full price. The employee of Homestead who handled the sale transaction, Gary Syracuse, was not available to testify. The evidence of trouble with the squash proffered by Homestead for its failure to pay the full price for the squash to Sun Coast is unpersuasive. Because no one with knowledge of the facts testified, Homestead should pay $844.00 to Sun Coast on this invoice, to bring the total paid to the agreed price of $1,171.20. INVOICE 1528 On March 9, 1987, Homestead ordered 254 cases of fancy crook necked squash from Sun Coast at a price of $14.20 per case, for a total amount due of $3,606.80. The squash was shipped the same day. A number of Homestead's customers either refused to accept delivery of the squash or demanded a price concession due to the poor quality of the squash. 4, Seventy-five crates were delivered to Olympia Produce in Atlanta, Georgia, which notified Homestead by telephone on March 10, 1987, that it did not want to accept the produce due to its poor condition. Jack Johnson, the employee of Sun Coast who had handled the sale to Homestead, requested that Homestead's customer obtain a federal inspection on the squash delivered to it. Because other purchasers had also complained about squash Homestead had purchased under this invoice, Johnson did not request federal inspections on all the deliveries; the squash delivered to Olympia would be typical. The result of that one federal report would indicate the condition of the squash, and save the cost of obtaining federal inspections at each location to which the squash had been shipped. According to the federal inspection, the squash had decay from rhizopus rot of from 8-11 percent, which was mostly advanced. The 75 crates of squash that had been received by Olympia Produce were then dumped, i.e., used as hog feed. Twenty-five crates of fancy crook necked squash from that same lot were sold by Homestead to Josey Brothers Produce in Jacksonville, Florida. When it arrived it was rejected due to wind scarring and rot. Sun Coast did not request Homestead to obtain a federal inspection on this lot of squash for the reason stated above. Homestead received no payment for this squash from Josey Brothers, and consequently remitted no payment to Sun Coast Farms of Dade. Another twenty-five crates of the crook necked squash were delivered to John Shipp in Atlanta, Georgia, who notified Homestead on March 10 that the squash was unacceptable due to wind scarring. Once again Sun Coast did not request a federal inspection on this squash. The squash was regraded and handled by John Shipp for the account of Homestead. Shipp was able to sell 16 boxes of the squash after regrading it. The purchase price Shipp obtained was sent to Homestead, which in turn paid that amount to Sun Coast. Forty-five cases of the squash were sent to M. G. Syracuse in Greenville, South Carolina, by Homestead. This firm notified Homestead of complaints about the squash, but ultimately paid for it in full, and Homestead remitted the full amount to Sun Coast. The number of complaints which were received about the squash, coupled with the federal inspection report from Atlanta, gives rise to the inference that there was trouble with the squash Sun Coast sold to Homestead on March 9, 1987. Homestead has remitted to Sun Coast what it received for the squash. Homestead has sustained its burden of showing why it deducted $1,574.80 from the invoice price. No further payment is due to Sun Coast on Invoice 1528. INVOICE 1660 On March 19, 1987, Homestead purchased 150 crates of medium crook necked squash from Sun Coast at a price of $12.20 per crate. The squash was delivered to Homestead that same day. Homestead maintains that it received trouble reports with respect to 55 crates of the squash from Sol Salins in Washington, D.C., on March 23, who claimed the product had a bacterial soft rot. Salins paid only $4.20 per crate for the squash, a deduction in the amount paid to Homestead of $8.00 per crate. This $440 was also deducted from Homestead's remittance to Sun Coast. The salesperson at Sun Coast who handled the sale to Homestead had received no trouble report from Homestead on this squash. No one with personal knowledge of the sale testified on behalf of Homestead. There is no evidence that the squash was in poor condition when Homestead purchased it on March 19, 1987. Whether Sol Salins was entitled to a reduction due to its condition on March 23, 1987, is a matter between Homestead and Mr. Salins. Homestead should pay the full price agreed upon to Sun Coast of $12.20 per crate, and therefore owes Sun Coast Farms an additional $440 on this invoice. INVOICES 1661-1662 Although Sun Coast Farms initially sought an additional $905 from Homestead Pole Bean on these invoices, at the hearing the representative of Sun Coast indicated that the parties had reached an agreement with respect to these invoices and they were no longer a subject of dispute in this case. INVOICE 1677 On March 20, 1987, Homestead ordered from Sun Coast 307 crates of medium and 200 crates of fancy crook necked squash, at prices of $10.20 and $12.20 per crate respectively. The squash was delivered to Homestead on March 20, 1987. Some of the squash was rejected by Homestead itself for poor quality, so that it accepted only 290 crates of medium and 117 crates of fancy squash. Homestead Pole Bean in turn sold 50 crates of the medium squash to Pitman Produce in Jacksonville, Florida. Homestead received a trouble report on March 23, 1987, indicating that the medium squash it received had decay. Sun Coast requested a federal Department of Agriculture inspection on the produce, but Pitman failed to obtain an inspection. Pitman instead sold the squash for $3.85 per crate and remitted this reduced amount to Homestead, which in turn paid that amount to Sun Coast. Due to the failure of Pitman to obtain the requested inspection, there is insufficient reason to believe there was any problem with this squash. Moreover, Homestead itself inspected this squash, and accepted it before it was shipped to Pitman. Homestead should pay the full agreed upon price of $10.20 per crate to Sun Coast Farms for the squash. The additional amount due to Sun Coast on that invoice is $317.50. The written statement filed by Homestead had listed several deductions taken by its customers for squash shipped under this invoice which Homestead contended were justified. The rebuttal dated August 31, 1988, by Sun Coast accepted the deductions other than the one for the produce delivered to Pitman. Therefore, no ruling on these other deductions is necessary. INVOICE 1994 On April 16, 1987, Homestead ordered 168 crates of fancy crook necked squash from Sun Coast at an agreed upon price of $22.20 per crate. The produce was shipped the same day. Thirty crates of the squash were sold by Homestead to Tom Lange Produce of Wichita, Kansas. Libby Butler, the salesperson for Homestead, maintains that she notified the salesman at Sun Coast, Jack Johnson, of trouble reported by Lange with the produce, that Johnson did not request a federal Inspection, and that he authorized Lange to sell the product on an open basis for Sun Coast. Mr. Johnson left the employment of Sun Coast some time after the transaction at issue to work fcr Homestead. Before he left, he met with officers of Sun Coast to discuss the disputes which Sun Coast had with Homestead on the invoices which are the subject of this proceeding. Contemporaneous notes made during that meeting show that Mr. Johnson told Sun Coast's officers that he had received no trouble report from Ms. Butler about the squash which Homestead ultimately sold to Tom Lange in Wichita. At the hearing, Mr. Johnson testified that he now believes that he did receive a trouble report on the squash. The Hearing Officer finds more reason to believe the earlier statement Mr. Johnson made, that he had not receive a trouble report on that squash. That statement was closer in time to the sales transaction. Mr. Johnson's current testimony probably results from confusion of the many sales transactions he has been involved in. In addition, it seems unlikely that of the 168 crates of squash purchased under invoice 1994, 30 cases would have had problems. Lastly, due to the very perishable nature of crook necked squash, even if there may have been trouble with the product when it arrived in Wichita on April 20 this would not prove that there was any problem with the squash at the time it was purchased from Sun Coast by Homestead on the 16th of April 1987. Sun Coast should receive the full purchase price of $22.20 per crate for the squash rather than the $12.40 which Homestead received from Mr. Lange. Homestead should pay Sun Coast an additional $294 on this Invoice. INVOICE 2034 On April 20, 1987, Homestead ordered 65 crates of fancy zucchini and 100 crates of medium zucchini from Sun Coast at prices of $6.20 and $4.20 per crate respectively. The produce was shipped that day. Garren-Teed Produce purchased some of the zucchini from Homestead, and reported trouble with five crates of the fancy zucchini on April 24, 1987. According to records of Homestead, the salesman who handled the matter for it was not one of the employees who attended and testified at the final hearing. The evidence is insufficient to indicate that there was trouble with the five crates of zucchini, and Homestead should pay the agreed upon price of $6.20 per case for the zucchini, not the $1.00 per crate which Homestead Pole Bean received from Garren-Teed Produce. Homestead Pole Bean should pay an additional $26.00 on this invoice.
Recommendation It is recommended that a final order be entered by the Department of Agriculture and Consumer Services requiring Homestead Pole Bean Co-Op, Inc., to pay to Sun Coast Farms of Dade, Inc., the amount of $2,075.50, and that the surety on the agriculture products bond for Homestead Pole Bean Co-Op, Florida Farm Bureau Mutual Insurance Company, also be liable for the payment of this amount. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of January, 1989 WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florfflda 32399-1050 (904) 488-9765 Filed with the Clerk of the Division Administrative Hearings this 5 day of January, 1989. COPIES FURNISHED: Ms. Phyllis Ernst Vice President Sun Coast Farms of Dade, Inc. Post Office Box 3064 Florida City, Florida 33034 Ms. Libby Butler Post OffIce Box 2248 Naranja, Florida 33032 The Honorable Doyle Conner Commisioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, Esquire Ceneral Counsel 513 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $39,167.58 for mangoes grown by Petitioner and picked and sold by Respondent southeast
Findings Of Fact Petitioner Marcus D. Alston d/b/a Alston Groves is a grower of mangoes in Goulds, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the mangoes, then takes them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the mangoes pays Southeast after receipt of the mangoes, Southeast ascertain's what prices were paid for the mangoes and then calculates its costs and pays the grower the difference. Between June 24 and August 9, 1988, Southeast sold 3,861.2 bushels of mangoes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's mangoes sold by Southeast. Petitioner disputes Southeast's calculations as to the price which Southeast received for the mangoes, the percentage of the mangoes sold by Southeast which "graded out" for sale, and the amount of picking and inspection fees charged by Southeast. Although Petitioner claims he had a verbal contract whereby Southeast agreed to pay him a flat rate of $20 per bushel minus picking charges, his Complaint seeks payment based on prices ranging from $6 to $20 per bushel which he also alleges were the market prices quoted to him by Southeast. At final hearing, Petitioner took the position that he is not seeking reimbursement of $20 per bushel but for only the lesser per bushel prices. No competent, substantial evidence was offered to prove that the prices Southeast received for the mangoes were higher than those reflected in Southeast's records. Petitioner claims that 100% of each picking was high quality, saleable fruit. No competent, substantial evidence was offered to justify Petitioner's selection of 100% for all pickings. The 100% figure selected by Petitioner allows for no differences in the amount of marketable mangoes from each picking, and there is no evidence to support the proposition that no matter when during the season the mangoes were picked exactly 100% of them were marketable as top grade mangoes. Further, during final hearing, Petitioner testified regarding his low cull rate, thereby admitting he knew that his mangoes were not 100% marketable. Although Southeast's records erroneously reflect inspection fees paid by Southeast to be deducted by Southeast from the sale price of the mangoes, no inspection fees were actually paid by Southeast, and Southeast has not deducted any inspection fees from Petitioner's account in calculating the net amounts to be paid to Petitioner by Southeast. The parties have stipulated that Southeast is not entitled to deduct picking fees for those batches of mangoes which Petitioner picked himself and delivered to Southeast. Southeast's records reflect that no picking fees were charged to Petitioner for the mangoes grown by Petitioner and sold by Southeast relating to 19 of the 48 tickets at issue in this proceeding. As to the mangoes reflected in 13 additional tickets, at the conclusion of the final hearing the parties requested and were afforded additional time to jointly review the actual picking tickets (not offered in evidence) for the name of the picker on each ticket to ascertain if the picker was a member of Petitioner's crew, thereby entitling Southeast to no picking fee, or a member of Southeast's crew, thereby entitling Southeast to collect a picking fee. The parties were to then file a statement regarding which additional batches of mangoes were picked by Petitioner's own employees. The parties have failed to do so, and Petitioner offered no evidence regarding this point on which a Finding of Fact can be made. Southeast's accounting sheet contains a column entitled "Net Actual" which sets forth the figures Southeast claims it owes Petitioner for the mangoes represented by each picking ticket. The total for that column equals $35,874.68, the total figure which Southeast claims it owes Petitioner. Southeast has paid Petitioner a total of $28,888.51 for his mangoes. Therefore, Southeast owes Petitioner the additional amount of $6,986.17.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Marcus D. Alston d/b/a Alston Groves in the amount of $6,986.17 and that such monies should be paid to him within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31 day of January, 1990. LINDA M. RIGOT 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 31 day of January, 1990. COPIES FURNISHED: Cliff Willis Florida Farm Bureau Mutual Insurance Company 1850 Old Dixie Highway Homestead, Florida 33033 Don Reynolds c/o Aaron Thomas, Inc. 11010 North Kendall Drive, Suite 200 Miami, Florida 33176 Marcus D. Alston Alston Groves 14100 Southwest 232nd Street Goulds, Florida 33110 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue Does Respondent Sanford Produce Exchange, Incorporated (Sanford), owe Petitioner for agricultural products purchased by Sanford from Petitioner between April 1, 1997, and April 25, 1997?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Petitioner was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Sanford was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes. Sanford was issued license number 9434 by the Department, which is supported by bond number 957712 20250566 in the amount of $31,000, written by Auto Owners, as surety, with an inception date of October 25, 1996, and an expiration date of October 24, 1997. The Complaint was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes. Beginning April 1, 1997, and ending on April 25, 1997, Sanford ordered and agreed to pay for the following agricultural products from Petitioner, which Petitioner shipped by truck to Sanford: Date Item Quantity Price Total 4/1/97 Green Cabbage 100 $ 4.50 $ 450.00 4/1/97 Green Cabbage Bags 325 $ 3.50 $1,137.50 4/2/97 Green Cabbage 125 $ 4.50 $ 562.50 4/2/97 Green Cabbage Bags 100 $ 3.50 $ 350.00 4/17/97 Green Cabbage Bags 226 $ 3.00 $ 678.00 4/17/97 Medium Green Squash 77 $12.35 $ 950.95 4/18/97 Yellow Crookneck Squash 40 $ 5.00 $ 200.00 Fancy Yellow Squash 110 $ 8.35 $ 918.50 Medium Yellow Squash 40 $ 6.35 $ 254.00 Fancy Zucchini 79 $12.35 $ 975.65 Medium Zucchini 40 $10.35 $ 414.00 4/25/97 Yellow Crookneck Squash 40 $ 8.35 $ 334.00 Number 1 Yellow Crookneck Squash 120 $ 5.35 $ 642.00 Number 2 Fancy Zucchini 80 $ 6.35 $ 508.00 Medium Zucchini 50 $ 4.35 $ 217.50 4/25/97 Fancy Zucchini 92 $ 6.35 $ 584.20 Total $9,176.80 The above shipments are represented by invoice numbers 07987, 07991, 07772, 07773, 07785, 07896, and 07802, respectively. Petitioner has billed Sanford for the amount of $9,176.80, which Sanford has failed to pay. The cabbage, squash, and zucchini shipped to Sanford between April 1, 1997, and April 25, 1997, by Petitioner was of the quality purchased by Sanford and was in good condition when shipped.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding that Sanford Produce Exchange, Incorporated, owes Fresh Pride Sales, Incorporated, the sum of $9,176.80. DONE AND ENTERED this 14th day of January, 1998, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1998. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza 10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32299-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0810 Troy Cobb Qualified Representative Fresh Pride Sales, Incorporated Post Office Box 577 Wauchula, Florida 33873 Anthony L. Thomas, President Sanford Produce Exchange, Incorporated 6060 Hensel Road Port Orange, Florida 32119 F. J. Manuel, Jr., Esquire Sears and Manuel, P.A. 511 North Ferncreek Avenue Orlando, Florida 32803
Findings Of Fact Petitioner, Deerfield Groves Company (Deerfield), is a licensed citrus fruit dealer under Chapter 601, Florida Statutes, and Chapter 20-34, Florida Administrative Code. As a licensee, Deerfield is subject to administrative and criminal prosecution for violation of the statutes and rules governing licensed citrus fruit dealers and was under administrative prosecution for alleged violations of Section 601.33, Florida Statutes, and Rule 20-34.11, Florida Administrative Code, at the time of the final hearing. Deerfield has legal standing as a party petitioner in this case. Respondent, Department Of Citrus (DOC), promulgated Rule 20-34.11, Florida Administrative Code, under the authority of Section 601.10, Florida Statutes. Rule 20-34.11 is designed to implement Section 601.33, Florida Statutes. Respondent, Department Of Agriculture And Consumer Services, (DACS), is the agency charged with the duty to enforce Section 601.33, Florida Statutes, and Rule 20- 34.11, Florida Administrative Code. Personnel of DACS' Division Of Fruit And Vegetable Inspection also are responsible for testing fresh citrus for maturity under Chapter 20-34, Florida Administrative Code. Licensees such as Deerfield furnish a testing room for DACS inspectors to perform maturity tests and certify fresh citrus, as required for marketing fresh fruit. DACS leases an extractor, used for squeezing juice from fruit samples, and subleases the extractor to the licensee. Under the sublease, the extractor is kept in the testing room for use by DACS inspectors and, when not being used by DACS inspectors, for use by the licensee in performing its own tests. Typically, the licensee furnishes the testing room with a table for two and a chair or two. When DACS inspectors perform maturity tests at the beginning of the early harvest, they bring most of the things they need for testing. The licensee provides the bins in which the fruit samples are carried into the testing room. The inspectors bring either a DACS slicing knife or their own. The licensee provides buckets it owns for use by the inspector during the test to collect juice extracted from fruit samples. The DACS inspectors also bring: a sizer to measure the fruit samples; a 2000 c.c. graduated cylinder to measure juice quantities; a 500 c.c. graduated cylinder to hold juice being tested for solids content and for temperature; aluminum pans to hold the graduated cylinders; a combination hydrometer for measuring juice solids content and temperature; a 25 m.1. pipet for transferring a measured amount of juice into a flask; the flask; a bottle of phenothaline with eyedropper top used for adding measured amounts of phenothaline to the flask of measured juice; a bottle of alkaline solution; and a burette for adding a measured amount of the alkaline solution to the flask of measured juice. During the harvest season, DACS leaves its equipment, instruments and solutions referred to in the preceding paragraph in the testing room. They are kept separate from the licensee's property and are not supposed to be used by the licensee. However, DACS allows the licensee to use its own bins and buckets and the extractor to conduct its own tests in the testing room when DACS inspectors are not using it. 1/ Some DACS inspectors request or allow licensees to assist during testing or to handle the fruit samples. 2/ Some allow licensees to attempt to influence the inspector's judgment by questioning the validity of the test or the accuracy of the inspector's observations or by comparing the inspector's results with the results of its own tests. Sometimes, this results in correction of an error the inspector otherwise would have made. It was not proved, however that there is an agency policy of requesting or allowing licensees to conduct themselves in those ways during testing. DACS has a policy to allow only one licensee representative in the testing room with the DACS inspector during testing. Violation of this policy is viewed as a violation of Section 601.33, Florida Statutes (1983). However, not all DACS inspectors strictly enforce this policy. Some allow more than one licensee representative in the testing room.
The Issue Whether Respondent, IMG Citrus, Inc. (Respondent), owes Petitioner, Vero Beach Land Company, LLC, (Petitioner) the sum of $63,318.50 for citrus that was purchased but not harvested.
Findings Of Fact At all times material to the instant case, Petitioner and Respondent were involved in the growing and marketing of citrus fruit in the State of Florida. For purposes of this Order, Petitioner is also described as "the seller"; Respondent is described as "the buyer." On October 26, 2007, Respondent agreed to purchase fruit from Petitioner. The terms of their agreement were reduced to writing. The “Fresh Fruit Purchase Agreement” provided that Respondent would purchase from Petitioner all of the citrus fruits of the varieties of merchantable quality as delineated in the contract. More specifically, Respondent was entitled to purchase the following described citrus from Petitioner: Block Name Variety Est Field Boxes Price Unit of Measure Rise Movement Date Pepper Grove Red Grapefruit 16,000 $4.50 Floor FB ½ Rise to Grower March 15th, 2008 Pepper Grove White Grapefruit 20,000 $2.00 Floor FB All Rise to March 15th, Grower 2008 Pepper Grove Navels 2,500 $5.00 Floor FB All Rise to Grower January 1, 2008 The contract recognized that “only that fruit produced as the result of normal seasonal bloom” and not late maturing or out of season bloom would be included. Additionally, all of the fruit was to be for fresh shipment. Citrus intended for the fresh market must be visually appealing as well as having other attributes associated with the fresh fruit market. Discolorations or damage to the fruit makes it unsuitable for the fresh fruit market. In anticipation of the crop the buyer expected to harvest, Respondent advanced to Petitioner the sum of $34,500.00. Additional payments were to be made to Petitioner as described in paragraph 2 of the contract. Critical to this matter, however, were the terms of the contract set forth in paragraph 3. That paragraph provided: Merchantability of Fruit: Seller represents to Buyer that all fruit sold under this Agreement shall be sound and merchantable, in conformance with industry standards, and fit for their intended purpose of fresh packing and marketing. Grower shall keep said fruit sprayed sufficiently to keep the fruit bright and free from rust mite, disease and insect damage and shall not fertilize or cultivate the grove upon which the fruit is grown, during the term of this Agreement, in anyway that will deteriorate the quality of the fruit. In the event such fruit is rendered not merchantable by virtue of damage from cultivation, fertilization, re-greening, cold, hail, fire, windstorm, or other hazard, the Buyer shall have the right to terminate this Agreement and the Seller shall refund to the Buyer the advance payment this day made, or that portion thereof not applied in the payment for fruit picked prior to termination. The buyer shall have four weeks from the occurrence of such cold, hail, fire, windstorm or other hazard within which to notify Seller that the fruit has been rendered non merchantable and of the termination of this agreement. Seller shall reimburse the Buyer for all deposits and advances made on unpicked fruit within thirty (30) days of notification by Buyer. Paragraph 6 of the parties’ Fresh Fruit Purchase Agreement provided: Default: Should the Buyer, without lawful excuse, fail or refuse to pick and remove the fruit subject to this Agreement within the time specified or any extension thereof, the Seller hereby accepts and agrees to retain the deposit this day made less portion thereof applied and deducted as aforesaid, as his liquidated damages for such failure without any other claim for damage against the Buyer. In the event of any sale or attempted sale of the crop to a third party or other unexcused failure to deliver, Buyer shall be entitled to avail itself of all available legal and equitable remedied [sic] including injunctive relief. If either party fails to materially comply with the provisions of the agreement, the other party must give written notice of non- compliance, stating the nature of the violation or non-compliance and giving the other party thirty (30) days to bring themselves into compliance. If a disagreement exists regarding the interpretation of this Agreement, the parties agree to discuss the issues and negotiate in good faith to resolve the dispute. No waiver of any breach, right or remedy, shall constitute a continuing waiver, nor shall it be construed as a waiver of any other breach, right or remedy. Paragraph 7 of the contract provided, in pertinent part, that the agreement could be “supplemented or modified only by written agreement between the parties.” The parties did not provide any written supplements or modifications to their agreement. Petitioner wanted to have his fruit removed in a timely manner as he did not want the fruit left to potentially interfere with the next year's crop. It was Petitioner's desire to have the fruit picked as early and as quickly as possible. Nevertheless, the contract provided for a pick or "movement date." With regard to the navel oranges, the movement date was January 1, 2008. The movement date for the grapefruit was March 15, 2008. Presumably, these dates were negotiated and agreed to by the parties. Had Petitioner wanted earlier movement dates, that was within a contractual option available at the time of contract negotiations. The "Pepper Grove" that is described in the parties' agreement is a 120 acre grove sectioned into four blocks. The white grapefruit are located on two interior blocks with the red grapefruit on the two outer blocks. The navels were located on a portion of one of the outer blocks adjacent to the roadway. All of the blocks border 122nd Avenue. Presumably, as the four blocks adjoin one another it would be fairly easy to move from one block to the next to complete picking the crop. The contract specified that Respondent would purchase 2,500 boxes of navels. Respondent picked 2,928 boxes of navels from Petitioner's grove. This fruit was harvested between December 6, 2007 and January 10, 2008. Respondent did not meet the "movement date" specified in the contract and Petitioner apparently did not complain, in writing, regarding this technical violation. Moreover, the buyer did not allege that the navels were not acceptable quality or merchantable. This fruit was in the same block as the grapefruit. The contract price for the navels was $5.00 with 100 percent of the rise to go to the seller. On or about December 19, 2007, Petitioner inquired as to whether Respondent wanted to be released from the contract. This request was not reduced to writing and Respondent did not accept the verbal offer. On or about December 22, 2007, Respondent started harvesting the Pepper Grove grapefruit. In total Respondent harvested 4,266 boxes of the white grapefruit. Respondent harvested 5,400 boxes of red grapefruit from the Pepper Grove. In total, Petitioner's Pepper Grove produced 13,077 boxes (out of the contract volume of 16,000) of red grapefruit. In total, Petitioner's Pepper Grove produced 19,289 boxes (out of the contract volume of 20,000) of white grapefruit. Based upon the volumes produced by the Pepper Grove and the contract prices with the rise going to Petitioner for the navels, Respondent owed Petitioner $25,034.40 for the navels harvested, $24,300 for the red grapefruit, and $8,532.00 for the white grapefruit. These amounts total $57,866.40. As of the date of the hearing, Respondent had paid Petitioner $59,126.48. Of the unpicked fruit left on the trees by Respondent, Petitioner was able to market 15,023 boxes of white grapefruit that went to the cannery and yielded $7,965.46. The red grapefruit that went to the cannery yielded $4,162.21. Red grapefruit that was harvested by Minton yielded 1,056 boxes, but only $168.96. Thus, Petitioner recovered only $12,296.63 for the 22,700 boxes of fruit that Respondent left on the Pepper Grove. Respondent maintained that it did not pick Petitioner's fruit because it was damaged by rust mite. If true, Respondent claimed that the fruit would not meet fresh fruit standards. Although Petitioner acknowledged that some of the fruit did have damage, Mr. Hornbuckle maintained that he offered fruit from another grove to make-up the difference in volume. None of the conversations that allegedly occurred regarding the rust mite issue were reduced to writing at the time. Petitioner maintains he had more than sufficient fruit to meet the amounts due under the parties' agreement. On March 6, 2008, Respondent issued a letter to Petitioner that provided, in part: We are very sorry however we are unable to continue to harvest the grapefruit from your groves due to the lack of merchantability of the fruit for the fresh market. Due to the disease and insect damage present on the fruit, the return on the fruit is unable to cover harvesting and packing charges for the fresh channel. On March 11, 2008, Petitioner wrote back to Respondent and stated, in part: Please be advised that refusal to harvest any additional fruit constitutes a breach of the contract, which requires IMG Citrus to harvest all of the red and white grapefruit no later than March 15, 2008. All of the navel fruit was to have been harvested by January 1, 2008. Contrary to your letter, the fruit is merchantable, and does not have disease or insect damage which unreasonably reduces the merchantability of the crop. At the time of the allegations of rust mite or other damage, Petitioner took pictures of his crop to demonstrate that it appeared to be healthy fruit. Respondent did not have pictures to demonstrate its claim that the fruit was not merchantable. Moreover, Respondent did not formally document that the fruit was unacceptable until March 6, 2008. Under the terms of the contract, the harvesting of the grapefruit was to be completed March 15, 2008. Respondent's claim that it purchased fruit from Duda Products, Inc. (Duda) to demonstrate the market price for grapefruit is not persuasive. The contract with Duda named a variety of "Ruby Reds." There is no evidence that the "Ruby Red" variety is comparable to the whites and reds depicted on Petitioner's contract. Respondent claims that the packout percentage for Petitioner's fruit did not support the harvesting of the crop. That is to say, that the percentage of fruit meeting a fresh fruit quality did not justify the harvesting and packing expense associated with Petitioner's fruit. If the fruit were not marketable in the fresh market, the fruit had no value to Respondent. The parties' agreement did not, however, specify what would be an acceptable packout percentage to support a notion that the fruit was merchantable. Taken to extreme, Respondent could claim any percentage short of 100 percent demonstrated fruit that was not merchantable. No evidence of an industry standard for an acceptable packout percentage was presented.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order approving Petitioner's complaint against Respondent in the amount of $51,021.87. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2009. COPIES FURNISHED: Robert B. Collins Westchester Fire Insurance Company 436 Walnut Street, Routing WA10A Philadelphia, Pennsylvania 19106 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Melanie Sallin Ressler, COO IMG Citrus, Inc. 2600 45th Street Vero Beach, Florida 32967 Michel Sallin IMG Citrus, Inc. 7836 Cherry Lake Road Groveland, Florida 34736 Larmarcus E. Hornbuckle Rebecca Hornbuckle Vero Beach Land Company, LLC 6160 1st Street Southwest Vero Beach, Florida 32968 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issues in this case are whether Respondent, a licensed citrus fruit dealer, violated the Florida Citrus Code by failing to pay Petitioner the full purchase price for grapefruit that the dealer had harvested from Petitioner's grove and sold in the ordinary course of business to its (the dealer's) customers; and, if so, the amount of the indebtedness owed by the dealer.
Findings Of Fact Petitioner Frontier Fresh of Indian River, LLC ("Seller"), is in the business of growing citrus fruit and hence is a "producer" as that term is defined in the Florida Citrus Code. § 601.03(33), Fla. Stat. Respondent United Indian River Packers, LLC ("Buyer"), is a "citrus fruit dealer" operating within the regulatory jurisdiction of the Department of Agriculture and Consumer Services (the "Department"). See § 601.03(8), Fla. Stat. On September 6, 2013, Seller and Buyer entered into a Production Contract Agreement (the "Contract") under which Buyer agreed to purchase and harvest red and flame grapefruit (both generally called "colored grapefruit") then growing in Seller's "Emerald Grove" in St. Lucie County. Buyer promised to pay Seller $7.75 per box plus "rise" for all colored grapefruit harvested from the Emerald Grove during the 2013/2014 season. ("Rise" is an additional payment due Seller if Buyer's net revenue from marketing the fruit exceeds the Contract price or "floor payment.") The Contract gave Buyer and its "agents, employees and vehicles" the right to "enter upon SELLER'S premises . . . from time to time for the purpose of inspecting, testing and picking fruit, and for the purpose of removing said fruit." Buyer was obligated to make scheduled payments to Seller totaling $250,000 between September and December 2013, with the balance of the floor payment "to be made within 45 days from week of harvest." The deadline for making the final rise payment was June 30, 2014. The Contract described the Seller's duties as follows: SELLER agrees to maintain the crop merchantable and free from Citrus Canker, Mediterranean fruit fly, Caribbean fruit fly, and any and all impairments which would alter the ability to market the crop. It is further agreed that in the event of such happening BUYER has the option to renegotiate with SELLER within 10 days of such find, or terminate contract and receive any monies that may be remaining from deposit. It is understood and agreed that the word "merchantable" as herein used, shall mean fruit that has not become damaged by cold, hail, fire, windstorm, insects, drought, disease or any other hazards to the extent it cannot meet all applicable requirements of the laws of the State of Florida and the Federal Government, including without limitation those relating to pesticides, and the regulations of the Florida Department of Citrus relating to grade and quality. With regard to default, the Contract provided: It is further agreed that in case of default by either the BUYER or SELLER the opposite party may, at his option, take legal action to enforce this contract or may enter into negotiations to carry out the terms and provisions thereof, in which event the party found to be in default shall pay reasonable costs in connection with either negotiation or litigation, such cost to include a reasonable attorney's fee to party prevailing in such controversy. The Contract acknowledged the existence of a "Citrus Fruit Dealers Bond" posted with the Department but cautioned that the bond "is not insurance against total 1iabilities that may be incurred if a citrus fruit dealer should default" and "does not necessarily insure full payment of claims for any nonperformance under this contract." Buyer began picking colored grapefruit from the Emerald Grove on October 17, 2013, and initially things went well. For the first month, Buyer achieved encouraging packout percentages of between 60% and 90%. (The packout percentage expresses the ratio of fruit deemed acceptable for the fresh market to the total fruit in the run. A higher packout percentage means fewer "eliminations" for the juice processing plant and thus a more valuable run.) On November 13, 2013, however, the packout rate plunged to around 38%. Although there were some good runs after that date, for the rest of the season the packout percentages of grapefruit picked from the Emerald Grove mostly remained mired in the 30% to 50% range, which is considered undesirably low. Everyone agrees that the 2013/2014 grapefruit crop in the Emerald Grove was disappointing. Representatives of Buyer and Seller met at the Emerald Grove in mid-November to discuss the reduced packout percentages. Mild disagreement about the exact reason or reasons for the drop-off in quality arose, but some combination of damage by rust mites and a citrus disease known as greasy spot is the likeliest culprit.1/ The problems were not unique to Emerald Grove, as the 2013/2014 citrus season was generally poor in the state of Florida. Seller's grapefruit crop was consistent with the statewide crop for that year. Despite the low packout percentages, and being fully aware of the crop's condition, Buyer continued to harvest colored grapefruit from the Emerald Grove, which it packed and exported for sale to its customers in Europe, Japan, and Southeast Asia. After picking fruit on February 3, 2014, however, Buyer repudiated the Contract and left the colored grapefruit remaining in the Emerald Grove to Seller. As a result, Seller sold the rest of the crop to another purchaser.2/ At no time did Buyer notify Seller that it was rejecting any of the grapefruit which Buyer had picked and removed from the Emerald Grove pursuant to the Contract. For months after Buyer stopped performing under the Contract, Seller endeavored to collect the amounts due for all the fruit that Buyer had harvested. By mid-April, however, Buyer still owed several hundred thousand dollars. At a meeting between the parties on April 22, 2014, Buyer proposed that Seller discount the purchase price given the disappointing nature of the crop, which Buyer claimed had caused it to lose some $200,000 in all. Buyer requested that Seller forgive around $100,000 of the debt owed to Buyer, so that Seller, in effect, would absorb half of Seller's losses. Buyer expected that Seller would agree to the proposed reduction in price and maintains that the parties did, in fact, come to a meeting of the minds in this regard, but the greater weight of the evidence shows otherwise. Seller politely but firmly——and unequivocally——rejected Buyer's proposal, although Seller agreed to accept installment payments under a schedule that would extinguish the full debt by August 31, 2014. This response disappointed Buyer, but Buyer continued to make payments to Seller on the agreed upon payment schedule. By email dated June 4, 2014, Buyer's accountant asked Seller if Seller agreed that the final balance due to Seller was $108,670.50. Seller agreed that this was the amount owing. After that, Buyer tried again to persuade Seller to lower the price, but Seller refused. Buyer made no further payments. At no time did Buyer notify Seller that it was revoking its acceptance of any of the fruit harvested from the Emerald Grove during the 2013/2014 season. Having taken physical possession of the fruit, Buyer never attempted to return the goods or demanded that Seller retrieve the fruit. Rather, exercising ownership of the goods, Buyer sold all the colored grapefruit obtained under the Contract to its customers for its own account. On October 14, 2014, Seller brought suit against Buyer in the Circuit Court of the Nineteenth Judicial Circuit, in and for Indian River County, Florida, initiating Case Number 31-2014-CA-001046. Buyer filed a counterclaim against Seller for breach of contract. On February 4, 2015, Seller filed a Notice of Voluntary Dismissal of its judicial complaint, opting to take advantage of available administrative remedies instead, which it is pursuing in this proceeding. As of the final hearing, Buyer's counterclaim remained pending in the circuit court.
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 awarding Frontier Fresh of Indian River, LLC, the sum of $108,670.50, together with pre-award interest at the statutory rate from June 4, 2014, to the date of the final order, and establishing a reasonable time within which said indebtedness shall be paid by United Indian River Packers, LLC. DONE AND ENTERED this 27th day of August, 2015, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 27th day of August, 2015.
