The Issue Whether or not Respondent, Sunnyboy Produce Co., Inc., is indebted to Petitioner for agricultural produce purchased.
Findings Of Fact Petitioner, Calvin Addison, d/b/a/ Calvin Addison & Sons, is an agricultural producer primarily engaged in the production of watermelons. Petitioner has been so engaged in excess of thirty (30) years. Respondent, Sunnyboy Produce Co., Inc. (herein Sunnyboy or Respondent Sunnyboy) is an agricultural dealer in Florida where it is engaged in the business of purchasing, receiving or soliciting from producers, watermelons for resale. Respondent Sunnyboy has been so engaged in excess of twenty years. During times material, Respondent Safeco Insurance Company of America issued a surety bond to Respondent Sunnyboy. Ricky Killman, Respondent's field manager purchased melons from Petitioner during May of 1992. The agreement to purchase melons between Petitioner and Respondent Sunnyboy was that the field buyer, Ricky Killman, would observe the melons in the field and an agreed upon price was reached in the field. Payment was to be made by Respondent to Petitioner within three days after they were sold which was usually at about the same time when Respondent Sunnyboy's trucks delivered the produce to Respondent's distribution centers in the Philadelphia, Pennsylvania area. In the normal case, Petitioner was paid on the basis of a manifest which denoted the agreed price. Of the first several loads to Respondent Sunnyboy, Petitioner was paid in full for the loads as invoiced. Later during the season, Sunnyboy started complaining about "trouble loads" and attempted to renegotiate the deal with Petitioner. Petitioner did not agree to modify his original agreement with Respondent Sunnyboy. However, Petitioner consigned to Respondent Sunnyboy two (2) loads of "pee wee" melons which were consigned on an "open price" basis. This fact is corroborated by Respondent's field buyer, Ricky Killman. Between May 18 and June 17, 1992, Petitioner received checks totalling $162,488.28 from Sunnyboy for melons sold during May 1992. Subsequent thereto, Respondent Sunnyboy attempted to pay Petitioner a partial payment of $8,100.55 and designated on its check "payment for final settlement of the 1992 south Florida watermelon deal." Petitioner objected to the partial payment although he subsequently cashed the $8,100.55 check designated as the final settlement on or about November 18, 1992 based on advice Petitioner received from a United States Department of Agricultural representative who initially reviewed Petitioner's complaint and who also advised that the instant claim would not be compromised if the check was cashed. At this time, Petitioner claims, based on this amended complaint, $20,529.01 based on the loads of watermelon sent to Respondent Sunnyboy between the dates of May 14 through May 29, 1992. 1/ Based on the parties agreement, Petitioner is entitled to be compensated by Respondent Sunnyboy or its surety for the amounts represented on the invoice of $20,529.01, as reflected by the amended complaint, minus the amounts claimed for the two loads of "pee wees" which were consigned. The net amount due to Petitioner is $13,623.93.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it RECOMMENDED that: The Department of Agricultural and Consumer Services issue a Final Order requiring that Respondent Sunnyboy pay Petitioner the amount of $20,529.01 less the total amount of $6,905.08 for two loads of "pee wee" melons which were consigned within 30 days of this final order. Additionally, in the event that Respondent Sunnyboy fails to timely remit to Petitioner the above-referred sum, that the Department collect said amount ($,13,623.93) from Respondent Safeco Insurance Co. of America, as surety for Respondent Sunnyboy and that that amount be timely remitted to Petitioner by the Department. DONE AND ENTERED this 28th day of May, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 28th day of May, 1993.
Findings Of Fact The Petitioners and the Respondent had a business relationship by which the Respondent received cucumbers from the Petitioners for the fall 1980 harvest season. Cucumbers on some occasions are sold on a "cash basis," which means that a buyer purchases the cucumbers for a set price, either at the field or upon arrival at the packing house. On other occasions cucumbers are sold on a "handling basis" or "brokerage basis." Under this latter arrangement the "buyer" takes delivery of the load of cucumbers from the grower, the farmer; sells them at the best obtainable market price, and a portion of the sale price goes to the grower or farmer and a portion is retained by the "handler." The Petitioners grow cucumbers in Hardee County and are, therefore, producers of agricultural products in the State of Florida. The Respondent, Southern Cucumber Co., Inc., is a dealer in agricultural products engaged in that business in the State of Florida. The Petitioners began clearing land for the purpose of putting in a cucumber crop in the summer of 1980. During the course of their land clearing and planting of the crop, they obtained certain monetary advances from the Respondent with the oral agreement that they would deliver the produced cucumbers to the Respondent's packinghouse upon the crop's maturity and harvesting. When the crop became ready for harvesting they also got, in addition to fertilizer advances and other cost advances, advances to cover the costs of labor for picking the cucumbers. In approximately October, 1980, the Petitioners began harvesting and delivering cucumbers to the Respondent's packinghouse. By oral agreement the Petitioners and the Respondent agreed that the Respondent would "pack-out" their cucumbers for approximately two dollars to two dollars and twenty-five cents per bushel, which charge covered processing the cucumbers through the machine where they were washed and waxed, packing them and preparing them for shipment. When the cucumbers were delivered by the Petitioners to the Respondent's loading dock, the Petitioners were issued a slip showing the quantity delivered by the Respondent. No money changed hands at this time. The Respondent did not pay for cucumbers upon their delivery to his packinghouse. The Petitioners rather had to wait until the cucumbers were shipped and sold to the ultimate purchaser before they were told of the price received for them and sometimes received no money for the crop until that purchaser had remitted payment for the cucumbers to the Respondent whereupon the Respondent would pay the Petitioners for the cucumbers he had received and sold on their account. The Respondent would deduct from the proceeds of the sale of the cucumbers the amounts representing the costs the Respondent advanced for fertilizer, fuel and picking, and any other items for which the Petitioners owed him. Typically, thirty days or more elapsed before the Petitioners were issued "pack-out slips" for a given lot of their cucumbers which they had delivered to the Respondent. The "pack-out slip" indicated what grade and quantity of cucumbers the Respondent was able to prepare for shipment and sale, out of the cucumbers delivered to him by the Petitioners, as well as price. The Petitioners' oral agreement was negotiated between themselves and Mr. Jack Eason, who was manager or otherwise in charge of the Respondent's packinghouse and shipment business at the time. As acknowledged by witness Connor for the Respondent, a "handler" is one who accepts produce, packs it, sells it, sends it to the ultimate purchaser, gets his remittance back, subtracts his profit from that, and returns the rest to the growers. This is consistent with the Petitioners' arrangement with the Respondent. The Petitioners delivered their cucumbers to the Respondent, had them processed, packed, shipped and sold and received no money for them, typically, until the Respondent received his remittance from the ultimate purchaser where the products were shipped. The Respondent then subtracted the amount of costs advances to the Petitioners, his own profit and then remitted the net over to the Petitioners. The Petitioners were liable for any loss on the sale of the crop. That is the nub of their complaint. They believe that the market price assured to them was less than the true market price on the day their products were sold. On several occasions when the Petitioners sought money for their crop after delivery of it to the Respondent and the ultimate purchaser and discussed the price with the Respondent, the Respondent in stating a price which the cucumbers would bring or had brought, discussed the fact that there was "room for adjustments" or that "adjustments" would be made. A "handler arrangement" (as Respondent's own witness Alvarez established) is one characteristically involving "adjustments" to be made to the portion of the sale-price due the grower because of any variances in quality of the product when delivered to the ultimate purchaser. This his in addition to charges to the grower for processing, packing, and selling the product (and in this case, growing and harvesting costs advances) , all of which charges to the growers, mostly incurred after delivery to the Respondent, are characteristic of a "handler" or agency arrangement. Witness Parker for the Respondent is a packing-house owner and cash buyer of produce in Wauchula. In his cash-buying operation he never makes growers wait for their money, but will borrow money at seventeen to eighteen percent interest if necessary to pay them either on the day or one to two days after produce is delivered to him. The Respondent established that Wauchula is traditionally a "cash market," but that was not the situation with the Petitioners' and Respondent's business arrangement. The Respondent was functioning as the Petitioners' "handler" or agent in the situation at bar. The Petitioners have not filed a complaint for a specified amount of money they feel is due and owing them for the crop, but rather ask for an accounting so that pecuniary question can be determined. In that regard the surety on the bond required of the Respondent as a dealer in agricultural commodities, is Continental Insurance Company, specifically bond number BND218 26 21.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses and arguments of the parties; it is, therefore, RECOMMENDED: That a final order be entered requiring the Southern Cucumber Co., Inc., to furnish to the Petitioners an accounting of all quantities of cucumbers received by them for the Petitioners; the parties to whom those cucumbers were ultimately sold; the sales price obtained; the prevailing market price for cucumbers with that quality and grade on the date the sales were effected; all adjustments to the gross sales price along with an explanation of the same; an itemized showing of all marketing costs, if any, deducted by the Respondents from that gross sales price; together with all production and harvesting costs deducted by the Respondent representing money advanced to the Petitioners for the growing and harvesting of the crop along with the net amount due the Petitioners. This accounting should be furnished the Petitioners within thirty (30) days of the final order herein. DONE AND ENTERED this 19th day of March, 1982, in Tallahassee, Florida. P. MICHAEL RUFF 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 19th day of March, 1982.
Findings Of Fact Wayne and Suzanne Stewart, doing business as Circle S Farms, grow potatoes in East Palatka, Florida. On approximately March 1, 1991, Stewart entered into two contracts with J.P. Mach, Inc., for the sale of potatoes. The terms of the contracts related to potatoes to be shipped between April 28 and May 31, 1991. Stewart agreed to sell 30,000 CWT of Atlantic potatoes guaranteed to chip for $5.75 per CWT and to sell 10,000 CWT of Sebago potatoes 1 and 7/8 inches in diameter for $6.00 per CWT. Both contracts provided as follows: If through any act of God, labor disturbance, war or any other circumstances beyond the control of Seller or Buyer, the Seller or Buyer are prevented from full or partial performance of the terms of this agreement, it is agreed that such failure to perform shall be excused and shall not form the basis for any claim of damage or breach. As part of the overall arrangement between these parties, Mach provided seed potatoes to Stewart and Stewart was required to reimburse Mach for those seed potatoes. In early April, 1991, the financial institutions which had loans to Circle S Farms wanted to see signed contracts between Circle S and licensed and bonded dealers. Stewart found out that J.P. Mach, Inc., and J.P. Mach Agri- Marketing, Inc., were not licensed and bonded in Florida. When Stewart brought this up to Mach, Mach demanded payment for the seed potatoes in order to pay the bond. Stewart was unable to pay for the seed potatoes at that time, but he did eventually pay for some of the seed potatoes. While there was conflicting testimony about the amount of the seed potato bill which remains unpaid, the greater weight of the competent, substantial evidence establishes that Stewart owes Mach $31,943.13 for the seed potatoes. Mach finally was licensed and bonded in Florida on April 25, 1991, as J.P. Mach Agri-Marketing, Inc. Pursuant to a separate verbal agreement, Stewart sold potatoes to Mach between April 22 and 27, 1991, at the established market prices of $19.50 CWT for LaChippers and for Atlantics. Mach never paid Stewart for the following deliveries: (1 load of LaChippers and 3 loads of Atlantics, respectively) 4/23 45,540 lbs @$19.50 $8.880.30 4/26 47,420 lbs @$19.50 $9,246.90 4/27 44,340 lbs @$19.50 $8.646.30 4/27 43,880 lbs @$19.50 $8,556.60 TOTAL $35,330.10 On April 23, 1991, a devastating tornado, which brought high winds, rain and hail, struck East Palatka and inflicted major damage to the potato crop on Circle S Farms. The damage to the potato crop at Circle S included the complete destruction of the vines, the erosion of the soil from around the roots, the exposure of the potatoes, and the pitting, cracking and splitting of the potatoes. Stewart immediately harvested the potatoes that could be shipped and covered the roots and potatoes in the field. He did what could be done to save the vines and allow them to regrow. The potatoes shipped to Mach between April 23 and 28, 1991, were from these salvaged potatoes. Between April 23 and 30, 1991, Stewart and Mach renegotiated the contracts based on the severe damage to the potato crop. Finally, on April 30, 1991, they entered into a verbal modification of the contract for the Atlantic potatoes that involved shipments that had been shipped on April 28-30, 1991, at $19.00 CWT and 8 shipments of Atlantics at $12.00 CWT, with shipment of late potatoes and those that recovered from the damage in June, 1991, at the contract rate of $5.75 CWT. The contract for Sebagoes was not renegotiated because the Sebagoes had vascular rings and could not be salvaged for the making of potato chips. That contract became void based on the destruction of the Sebago crop by the storm. Mach was offered Sebagoes, but turned them down because they were not chipping quality. Stewart shipped the Atlantics at $12.00 CWT except that he did not have enough potatoes to completely fill the eighth truck. After the time that the contract for Atlantics was renegotiated, Stewart sold no Atlantic potatoes to any other dealer and he shipped to Mach all of the Atlantic potatoes he had. He fulfilled the renegotiated verbal contract to the extent possible in light of the act of God which had occurred. The following shipments of Atlantics were made pursuant to the renegotiated verbal contract: 4/30 47,580 lbs @19.00 CWT $9,040.20 4/30 44,360 lbs @19.00 CWT $8,428.40 4/30 46,400 lbs @19.00 CWT $8,816.00 4/30 43,340 lbs @19.00 CWT $8,234.60 4/30 46,060 lbs @19.00 CWT $8,751.40 4/30 47,740 lbs @12.00 CWT $5,728.80 5/1 45,000 lbs @12.00 CWT $5,400.00 5/1 48,280 lbs @12.00 CWT $5,793.60 5/1 45,670 lbs @12.00 CWT $5,480.40 5/2 48,780 lbs @12.00 CWT $5,853.60 5/6 49,080 lbs @12.00 CWT $5,889.60 5/6 40,780 lbs @12.00 CWT $4,893.60 TOTAL $82,310.20 Mach never paid for these potatoes. For the remainder of May, 1991, Stewart had only LaChipper potatoes available. He had no contract with Mach for LaChippers, so Stewart sold the LaChipper potatoes to another dealer. On June 2 and 3, 1991, Stewart shipped five loads of Atlantics to that same dealer. Stewart shipped his last three loads of potatoes, on June 4 and 5, 1991, to that same dealer, but none were Atlantics. Mach sent no trucks to Circle S Farms for loading after May 6, 1991. Stewart made calls to Mach regarding the late potatoes he had promised, but Mach did not return the calls. At no time during this period did Mach send a truck to Circle S Farms which was refused potatoes. By the third week of June, Stewart's crop had recovered and Circle S Farms was again producing for the market. Stewart offered these late potatoes to Mach, but Mach had already left Florida. Stewart sent a FAX to Mach in Wisconsin which stated "I thought you wanted my late potatoes?" Mach never replied. Stewart also sent an invoice for the potatoes which Mach had received, but for which he had never paid. Because Stewart believed that the renegotiated verbal contract with Mach promised Mach the late crop of Atlantic potatoes, Stewart left a forty acre field of late Atlantic potatoes in the field rather than harvest them and sell them to someone else. He believed that he needed to do so based on his discussion with Mach about his unpaid bill, during which Mach advised that he thought Stewart had breached his contracts. Mach made many allegations in defense of his failure to pay for these potatoes, however the credible evidence at hearing failed to support his claims that Stewart failed to fulfill his obligations under the contracts, original and renegotiated, that Stewart fraudulently breached the contracts, that Stewart intended to breach the contracts all along and used the tornado as an excuse, that the renegotiated contract required delivery of all varieties of potatoes to be applied to the contract or else the price of the delivered loads would revert back to the original contract price, or that Stewart owed to Mach any amount except for $31,943.13 for the seed potatoes. Mach made many outrageous allegations against Stewart, but did not present any credible evidence to support them. Mach failed to pay for $117,640.30 worth of potatoes which were delivered to him by Circle S Farms. Circle S Farms owes Mach $31,943.13 for seed potatoes. Therefore it is found that Mach owes Stewart and Circle S Farms $85,697.17.
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 and therein: Determine that J.P. Mach Agri-Marketing, Inc., is indebted to Wayne Stewart d/b/a Circle S Farms in the amount of $85,697.17. Order J.P. Mach Agri-Marketing, Inc., to pay the indebtedness to Wayne Stewart d/b/a Circle S. Farms within fifteen days after the entry of the Final Order. Order the payment of the bond of J.P. Mach Agri-Marketing, Inc., in the amount of $50,000 to Wayne Stewart d/b/a Circle S Farms if Mach fails to pay said indebtedness within the fifteen days allotted for said payment. DONE and ENTERED this 11th day of January, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 11th day of January, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3327A The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Wayne Stewart d/b/a Circle S Farms Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1); 4(7); 6(7); 8 & 9(10);10(14); 11(18); and 12(15 & 16). Proposed findings of fact 5 and 7 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, J.P. Mach Agri-Marketing, Inc. 1. The proposed findings of fact offered by Mach are contained in such long and rambling paragraphs that making of specific rulings is extremely difficult. Additionally, Mach has intermixed proposed findings of fact, summaries of testimony and argument so extensively that the actual proposed findings of fact cannot be separated. However, the proposed findings of fact are subordinate to the facts actually found in this Recommended Order, except for those proposed findings of fact which relate to the allegations discussed in Finding of Fact 17, which are rejected as being unsupported by the credible, competent and substantial evidence. COPIES FURNISHED: J. P. Mach J. P. Mach Agri-Marketing, Inc. Post Office Box 7 Plover, WI 54467 Wayne Stewart Circle S Farms Route 1, Box 60 East Palatka, FL 32131 Joyce D. Mahr, Asst. Manager First Performance Bank Post Office Box 306 Hastings, FL 32145 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue Whether Respondent owes payment to Petitioner in the amount of $60,748.78 for watermelons sold by Petitioner to Respondent.
Findings Of Fact Between May 18 and June 5, 1990, Petitioner James G. Young sold a total of 40 truckloads of watermelons to Respondent Maddox Brothers Produce, Inc. Petitioner was to have received a price of five cents per pound through May 26, 1990 and four cents per pound through the remainder of the shipping season. Respondent has failed to pay $60,748.78 of the amount owed to Petitioner for such produce. At no time did Petitioner received any complaint that the watermelons were unsatisfactory. Respondent is a licensed agricultural dealer engaged in the business of brokering agricultural products, Florida license #0030. Respondent is subject to regulation by the Department. Respondent has posted a Fireman's Fund Insurance Company surety bond #11141308327 in the amount of $50,000 with the Department. Respondent did not appear at the hearing. No evidence was presented to contradict the testimony of the Petitioner.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that The Florida Department of Agriculture and Consumer Services enter a Final Order requiring Maddox Brothers Produce, Inc., to pay to Petitioner the sum of $60,748.78. DONE and RECOMMENDED this 26th day of April, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of April, 1991. COPIES FURNISHED: The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 James G. Young Route 3 Box 272-A Wildwood, Florida 34758 Patricia M. Harper, President Maddox Brothers Produce, Inc. 2124 Forest Avenue Knoxville, Tennessee 37916 Fireman's Fund Insurance Company Surety Claims Center Post Office Box 193136 San Francisco, Florida 94119-3136
The Issue Whether or not Petitioner (complainant) is entitled to recover $10,134.72 or any part thereof against Respondents dealer and surety company.
Findings Of Fact This cause is governed by the four corners of the November 2, 1993 complaint. It involves only two loads out of twenty loads of potatoes. Petitioners are growers of potatoes and qualify as "producers" under Section 604.15(5) F.S. Respondent A.F. Business Brokerage is a broker-shipper of potatoes and qualifies as a "dealer" under Section 604.15(1) F.S. A.F. Business Brokerage, Inc. is a corporation engaged in the business of brokering (purchasing and re-selling) potatoes and operates under one or more of the following names: A.F. Business Brokerage, Inc., Washburn Corp., and/or Ben Albert Farms. The contract at issue herein listed the name of the broker as "Albert Farms d/b/a Washburn Corporation." Payments made by the Respondent broker to Petitioner for potatoes received under the terms of the contract were in the form of checks drawn on the account of A.F. Business Brokerage, Inc. For purposes of this litigation, "Albert Farms d/b/a Washburn Corporation," and "A.F. Business Brokerage, Inc." will be considered as describing the same party. Although Titan Indemnity Company received notice of the filing of Petitioner's Complaint and failed to request a formal hearing pursuant to Section 120.57(1) F.S., no evidence or admission was presented at formal hearing which would permit a finding that Titan Indemnity Company was surety for Respondent A.F. Business Brokerage at all times material. That is not to say that Titan Indemnity is found not to be the surety for Respondent A.F. Business Brokerage. The foregoing finding only means that this case in the administrative forum cannot resolve the issue of indemnity as between Respondents because insufficient evidence on that issue has been presented, and it may be necessary for that issue to be litigated in Circuit Court pursuant to the surety contract/bond, if any. On or about December 28, 1992, Petitioner and Respondent broker confirmed in writing the terms of a telephoned agreement, whereby Petitioner agreed to sell and the broker agreed to purchase twenty truckloads of potatoes. The agreement/contract, prepared by Respondent broker was titled "Standard Confirmation of Sale". It specified in pertinent parts: "Unless the seller or buyer makes immediate objection upon receipt of his copy of this Standard Confirmation of Sale, showing that contract was made contrary to authority given the Broker, he shall be conclusively presumed to agree that the terms of sale as set forth herein are fully and correctly stated. Sale made (F.O.B. or Delivered): F.O.B. Special Agreement, if any: Potatoes shipped are for potato chipping and must cook on arrival to be subject to this agreement. This confirmation is issued and accepted in agreement with, and subject to the rules and regulations and definitions of terms as recognized and approved by the U.S. Secretary of Agriculture under the Perishable Agriculture Commodities Act. *4 Truckloads chipping potatoes, April $7.75 FOB 16 Truckloads chipping potatoes, May, June $7.00 FOB *Loads not shipped by seller in April apply to May, June portions of agreement." (Petitioner's Exhibit 1) Under Section 672.319 F.S., The Uniform Commercial Code, the abbreviation "F.O.B." means "free on board" and is interpreted differently, dependent upon what words follow the abbreviation. Regardless of what words follow the abbreviation, the term "F.O.B." places shipping responsibility and shipping costs upon a "seller" as opposed to the one accepting delivery, the ultimate buyer. Testimony and arguments by the parties at formal hearing and in their respective proposals suggest that if "F.O.B." had been used by itself, in place of the word "delivered," and without more, the contract would have signified that sale herein occurred at the time of pickup in the field by the broker/shipper, and that title to the produce would have transferred from the producer to the broker/shipper at that point in time as opposed to title transferring at the time the broker/shipper delivered the produce to its ultimate destination. However, here, the Respondent broker elected the term "F.O.B." and rejected the term "Delivered," and also added the requirement that the potatoes cook to chips at their destination. Petitioner made potatoes available for pick up by the broker at Petitioner's fields beginning in May, 1993 in accord with the contract and the price specified therein. Without incident, the broker picked up and accepted the first eighteen loads of potatoes which it had agreed to purchase. All arrangements for shipment of the potatoes at issue were controlled and paid for by the Respondent broker. These arrangements made and controlled by the Respondent broker included the method of transportation, the exact date when the potatoes would be picked-up from Petitioner's fields, the place to which the potatoes ultimately would be transported, and the time during which the potatoes would remain "in transit". This unilateral control by the broker suggests that the parties were treating the potatoes as if title thereto had passed to Respondent broker when it picked them up in Petitioner's field and clearly shows that the broker had control over what condition the potatoes were in when they reached the retailer at their ultimate destination. As of the time Petitioner began to honor the contract by making potatoes available for pick up by the broker, Petitioner could have sold potatoes on the "open market" for $25.00 per hundred-weight instead of the $7.00 per hundred-weight called for under the terms of the contract. Nonetheless, Petitioner honored its contract with Respondent broker by making potatoes available to the Respondent broker and by reserving a sufficient amount of Petitioner's crop so as to fulfill the entire contract with Respondent broker. As of the time the Respondent broker made arrangements for pick up of the last two loads of potatoes, potatoes on the open market were selling for $1.75 per hundred-weight, meaning that the broker was paying Petitioner more for potatoes under the terms of their contract than the broker would have had to pay to purchase similar potatoes on the "open market". Respondent broker contacted Petitioner immediately prior to June 17, 1993 and asked that Petitioner cancel the contract between them because of the reduced price potatoes were yielding on the open market. Petitioner rejected the proposal. This strongly suggests that the Respondent broker felt bound by the contract to pay Petitioner at the rate agreed under the contract regardless of what rate the broker sold the potatoes for upon delivery and also suggests that the parties were treating the potatoes as if title to the potatoes passed to the Respondent broker when the broker picked up the potatoes in Petitioner's field. The date selected by the Respondent broker for pick up of the last two loads of potatoes was unusual. The broker picked up the last two loads of potatoes on Thursday, June 17, 1993. However, the Respondent broker's standard practice was not to pick up potatoes in St. Johns County, Florida on Thursdays because of the increased risk that potatoes loaded in the fields on Thursdays would reach the ultimate retail destination assigned by this particular broker at a time when processing plants in that locale would be closed for the weekend, thereby increasing the time the loaded potatoes would remain enclosed in the transport truck and accordingly increasing the risk of spoilage. The method of transport selected by the Respondent broker for the potatoes loaded June 17, 1993 was also unusual and destined to increase the risk of spoilage. On that occasion, the broker sent "pigs" a/k/a "piggy-back rail cars" rather than conventional trucks or refrigerated trucks. On June 17, 1993, Petitioner also loaded two trucks for H.C. Schmieding Produce, a broker not involved in this litigation. Petitioner's potatoes loaded upon Schmieding's trucks and the potatoes loaded on Respondent broker's trucks came from the same fields and "lot" of potatoes. One of Schmieding's trucks was loaded before Respondent broker's trucks, and one of Schmieding's trucks was loaded after Respondent broker's trucks. The potatoes purchased and loaded by Schmieding on June 17, 1993 were received in good condition in Illinois and Tennessee, respectively, and Petitioner received full payment for them. Respondent broker's loads were ultimately refused in Massachusetts. June 21-23, 1993 were all weekdays, and presumably "work days." The best date that can be reconstructed for the date that the potatoes in question were dumped by the Respondent broker is June 22 or 23, 1993, so their "arrival" in Massachusetts must have preceded dumping. By undated letter postmarked June 28, 1994, the Respondent broker notified Petitioner of the rejection of the two loads of potatoes picked up by the Respondent broker from Petitioner on June 17, 1993. The letter also informed Petitioner of the broker's intent to assess charges for inspection and dumping of the potatoes and of the broker's intention not to pay Petitioner for the potatoes. This letter was the first notice received by Petitioner advising of the rejection of the two loads of potatoes in question, 1/ and contained a copy of a U. S. Department of Agriculture Inspection Report dated June 22, 1993 showing 60-100 percent soft rot. 2/ Petitioner's principal had left his home and place of business on June 24, 1993, a date clearly 24 to 48 hours after dumping had already occurred and probably much longer after arrival of the potatoes in Massachusetts. Petitioner did not learn of the Respondent broker's June 28, 1993 letter or the Inspection until July 4, 1993. By July 4, 1993 Petitioner had terminated all harvest operations and was not able to tender two replacement loads of potatoes to the broker. As of the time that Petitioner received the June 28, 1994 notice that the two loads in question were being rejected, the Respondent broker had already disposed of the potatoes. Consequently, Petitioner had no opportunity to avail itself of any alternative or other option regarding disposition of the potatoes. Prompt notification of the broker's rejection of the two loads of potatoes might have allowed Petitioner to negate its losses by marketing the potatoes at a reduced price to other processing plants in Massachusetts or to tender two replacement loads of potatoes to the Respondent broker. After all deductions and calculations, the rejected two loads of potatoes resulted in damages of $10,135.47 to Petitioner producer.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Agriculture enter a final order that: Awards Petitioners $10,134.42 and binds A.F. Business Brokerage Inc. d/b/a Albert Farms d/b/a Washburn Corporation to pay the full amount to Petitioner. Sets out any administrative recourse Petitioner or Respondent broker may have against Titan Indeminity Co. RECOMMENDED this 19th day of July, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 19th day of July, 1994.
Findings Of Fact On November 18, 1976, Van Buren County Fruit Exchange of Florida, Inc. (Respondent) received an order from the Great A & P Tea Company for 1000 cartons of #1 cucumbers for shipment to Chicago. Respondent, who did not have the cucumbers on hand, called other growers and located 508 cartons at Six L's Packing Company, Inc. at Naples, Florida which were invoiced to Van Buren on November 20, 1976, (Exhibit 1) at the price of $1,778. Prior to these cucumbers being delivered to Respondent Six L's had the cucumbers inspected by the Florida Department of Agriculture (Exhibit 2). The inspection report showed the 508 cartons to be within tolerance and there was no decay. Notes of the inspections were available at the hearing and showed the cucumbers to be well within the 10 percent tolerance allowed. The inspection report further stated "Meets Canadian Import Requirements." Only cucumbers destined for Canada require inspection. It is very rare to have inspections made on cucumbers not so destined. The 508 cartons of cucumbers picked up from Six L's at Naples on November 20, 1976, were in cartons with Six L's Packing Company printed on the cartons. The only cucumbers in Six L's Packing house on November 20, 1976, were those invoiced to Van Buren. At the time the inspection was made the truck with which they could be picked up had not arrived and the inspection report noted that "Applicant's agent states stock to be loaded on trailer License No. 10L-1131 Fla." The number of the trailer was added when the trailer arrived and the license number became known. Although there was some testimony to the contrary, this procedure of completing the inspection by inserting the license number of the trailer when it is not present with the inspector, after the inspector leaves is common practice. Upon leaving Six L's Packing house the refrigerated trailer proceeded to Wauchula where two additional shipments were added to the trailer. 111 cartons were obtained from Vegetable Pack and 137 cartons from MoBo Enterprises, Inc. The former were labeled "Veg-Pac, Inc., Wauchula, Fla." and the latter "MoBo Enterprises, Inc., Wauchula, Fla." On all 756 cartons ultimately shipped to A & P in Chicago was also printed "Selected Cucumbers, 24, Produce of USA." The 756 cartons of cucumbers arrived in Chicago on the morning of November 23, 1976, and were rejected by A & P as not being in grade. An inspection of the entire load was conducted at 2:35 p.m., November 23, 1976, by Inspector Edwards (Exhibit 4). This inspection report stated "Grade defects range in most samples from 4 percent to 38 percent, in some none, average 20 percent, consisting of cuts, scars, misshapen, old insect damage, and mosaic." Condition was "generally fresh and firm. Average less than 1 percent decay." Upon receipt of the results of the initial inspection Van Buren, knowing that the cucumbers came from three producers, requested the cucumbers be separated by label and reinspected. At 9:00 a.m. on November 24, 1976, Inspector Edwards inspected 508 cartons of cucumbers remaining in trailer (Exhibit 3). These cartons were labeled "MoBo Enterprises, Inc., Wauchula, Fla." or "Six L's Packing Company, Hollywood, Fla." With each also printed "Selected cucumbers, 24, Produce of USA." Grade defects again reported to "range in most samples from 13 percent to 38 percent, in some none, average 19 percent consisting of cuts, scars, misshapen, old insect damage, and mosaic." Condition reported was "generally fresh and firm. Average less than 1 percent decay." When Van Buren notified the sellers of the inspection reports MoBo and Veg-Pac accepted the information and made arrangements to have their cucumbers disposed of. Six L's, on the other hand, insisted that the cucumbers from its packing house were in grade as shown by the inspection report on date of shipment and refused to accept any responsibility for the rejected cucumbers. On November 24, 1976, Van Buren turned the 508 cartons of cucumbers over to general commission merchants, Gridley, Maxon & Co., for disposal. Apparently, these were the cucumbers remaining on the truck after MoBo's and Veg-Pac's cucumbers had been removed. However Exhibit 3, as noted above, shows these 508 cartons to be printed "MoBo Enterprises" or "Six L's Packing Company". A few of these 508 cartons were sold at the market price of $4.50-- $5.00 per carton with the majority of prices ranging downward to 25 per carton and the remaining 116 cartons being dumped on December 13, 1976, (Exhibit 5). U.S.D.A. Dumping Certificate No. 32884, dated December 18, 1976,(Exhibit 6) shows 116 cartons of cucumbers identified as "24 Selected Cucumbers, Six L's Packing Company, Hollywood, Fla., Produce of USA" were inspected that date and their condition was found to be "generally decayed" and with no commercial value. The net received from Gridley, Maxon & Co. for the 508 cartons after their commission was deducted was $6.47. To date the carrier has not been paid and claims $355.60 shipping charges. However this claim is not a part of these proceedings and no evidence was received regarding liability for this debt. Transportation or refrigeration difficulties with this shipment did not occur and could not contribute to the cucumbers being rejected. Furthermore, the results of the inspections conducted in Naples and Chicago cannot be reconciled if the same cartons were inspected at both places. The grade defects of scars, mosaic, old insect damage and misshape could not occur during transit from Naples to Chicago. No witness could offer a reasonable hypothesis upon which the inspection reports can be reconciled or explained.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1985) At all times pertinent to this consolidated proceeding, Compton was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1985), issued licensed no. 502 by the Department, and bonded by Respondent St. Paul Fire and Marine Insurance Company (St. Paul) in the sum of $50,000.00, Bond No. 400 EK 1860, with inception date of May 13, 1984 and expiration date of May 12, 1985; and in the sum of $50,000.00, Bond No. 400 HA 4339, with inception date of May 13, 1985 and expiration date of May 12, 1986. At all times pertinent to this proceeding, St. Paul was authorized to do business in the State of Florida. The complaints filed by Petitioner were timely filed in accordance with Section 604.21(1), Florida Statutes (1985) On January 7, 1985 Compton and Petitioner entered into a written contract wherein Petitioner was to deliver and Compton was to purchase 20,000 hundredweight (cwt) or 2,000,000 pounds of chipping quality potatoes, unwashed, in bulk at $5.25 per cwt F.O.B. loaded on Compton's truck at Hastings, Florida, during the 1985 potato selling season, with payment due thirty (30) days after billing and any account unpaid after thirty (30) days from the date of filing to be charged one and one-half (1 1/2) per cent per month or eighteen per cent per annum on the unpaid principal balance. Although Jim Boss (Boss), Compton's agent, located in Hastings, Florida, whose responsibility it was to arrange for trucks to haul the potatoes and notify Petitioner as to when and how the potatoes were to be loaded, was not present at all times during the loading, he had general overall authority to inspect and reject any load not in good condition and meeting the requirement of a chipping potato. From May 1, 1985 through May 7, 1985, Petitioner loaded and invoiced thirteen (13) loads of potatoes for Compton with a total of 6,105.6 cwt at $5.25/cwt for a total amount of $32,054.40 for the thirteen (13) loads. None of these potatoes have been paid for by Compton and the interest earned up until July 1, 1986 amounts to $6,709.39 for a total amount owed of $38,763.79 by Compton on these thirteen (13) loads of potatoes. These thirteen (13) loads of potatoes were sold and delivered during the time Bond No. 499 EK 1860 was in effect. From May 21, 1985 through June 13, 1985 Petitioner loaded and invoiced thirty-four (34) loads of potatoes, including a partial load on June 12, 1986, with a total of 16,391.4 cwt of which 13,894.4 cwt were invoiced at $5.25 per cwt, the contract price, and 2,497.0 cwt invoiced at $5.50 per cwt for a total amount of $86,679.10. None of these potatoes have been paid for by Compton and interest earned up until July 3, 1986 amounts to $16,661.21 for a total amount of $103,340.31 owed by Compton on these thirty-four (34) loads of potatoes. These thirty four (34) loads of potatoes were sold and delivered during the time that Bond No. 400 AA 4339 was in effect. Jim Boss did not reject any of the forty-seven (47) loads of potatoes loaded and sold to Compton by Petitioner from May 1, 1985 through June 13, 1985. The testimony of John W. Stone that the forty- seven (47) loads of potatoes were in good condition when loaded and met the requirements of a quality chipping potato and that Compton did not advise him of any problems with the condition or quality of the potatoes when received, until after the complaint had been filed, was credible. Petitioner did not receive any inspection reports or other documentary evidence from Compton or anyone else showing that the condition or the quality of the potatoes was less than that contracted for by Compton, i.e., chipping quality potatoes in good condition.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Compton be ordered to pay to the Petitioner in Case No. 86- 1073A the sum of $38,763.79 and in the Case No. 86-01188A the sum of $103,340.31. It is further RECOMMENDED that if Compton fails to timely pay the Petitioner as ordered, then St. Paul be ordered to pay the Department as required by Section 604.21, Florida Statutes (1985) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1985). Respectfully submitted and entered this 11th day of July, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of July, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Mr. Joe W. Kight, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 John W. Stone, President John W. Stone, Inc. Post Office Box 74 Hastings, Florida 32045 Sam Compton Produce Company, Inc. 2208 Forest Avenue, Northwest Knoxville, TN 39716 St. Paul Fire and Marine Insurance Company 385 Washington Street St. Paul, MN 55102
The Issue Whether Respondents are indebted to Petitioner for agricultural products and, if so, the amount of the indebtedness.
Findings Of Fact Petitioner delivered to Respondent, Fresh Pick Farms, Inc., (Fresh Pick) a total of 932 bushels of green beans on November 21 and 22, 1992. These beans were delivered and received with the agreement that Fresh Pick would attempt to sell the beans on a consignment basis in the wholesale market. At the times pertinent to this proceeding, communication in South Florida was limited because of the aftermath of Hurricane Andrew. Telephone lines were down, packing houses and storage facilities had been destroyed, and many businesses were not operating. The packer that Petitioner customarily used was out of business. Fresh Pick was operating out of temporary facilities. Lewis Walker, the president of Fresh Pick, had inspected Petitioner's beans on November 18, 1992. Mr. Walker advised Petitioner to have his beans harvested no later than November 20, 1992. This advice was based on the condition of the beans, on the fact that there was a great deal of rain in the area, and the fact that markets slow down and prices drop as Thanksgiving approaches. The beans delivered to Fresh Pick on November 21 and 22, 1992, were damaged due to the wet weather. These beans were of such poor quality that they could not be sold given the marketing conditions. Fresh Pick made every reasonable effort to find a market for Petitioner's beans without success. After it became apparent to Fresh Pick that it would be unable to sell Petitioner's beans, employees of Fresh Pick made efforts to locate Petitioner, explain to him why the beans could not be sold, and ask him for instructions. Petitioner could not be located despite good faith efforts by Fresh Pick employees to do so. Rather than dump the unsold beans, Fresh Pick gave the beans to a charity referred to as Food Share. The disposition of the beans was consistent with industry practices in South Florida.
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 in this case dismissing the Petitioner's complaint and denying the relief requested by the Petitioner. DONE AND ENTERED this 28th day of December, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 28th day of December, 1993. COPIES FURNISHED: Mr. Harvey Johnson 538 Northwest 13th Street Florida City, Florida 33304 J. James Donnellan, III, Esquire 1900 Brickell Avenue Miami, Florida 33129 Legal Department Florida Farm Bureau Mutual Insurance Company 5700 Southwest 34th Street Gainesville, Florida 32608 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issue is whether Respondent owes Petitioner money for cucumbers that Petitioner delivered to Respondent.
Findings Of Fact Petitioner farms vegetables. He has previously grown squash and strawberries in Florida and sugar cane, beans, bananas, yucca, and rice in his native Cuba. Prior to the crop in question in this case, he had not previously grown cucumbers. Respondent is a licensed agricultural commodities handler. Its policy is to use best efforts in the sale of farmers' produce, but not to guarantee any particular results. About one week before the first delivery, Petitioner and Josephine Garcia drove by Respondent's business offices and decided that they should try to sell Respondent some of the cucumbers that Petitioner had been growing. Ms. Garcia, representing Petitioner, visited Respondent's offices and spoke with Don Hinton, the president and owner of Respondent. She asked Mr. Hinton if Respondent would like to buy Petitioner's cucumbers. Mr. Hinton replied that Respondent did not buy vegetables, but would sell what he could for a ten percent commission. Mr. Hinton was concerned about the quality of the cucumbers because the weather had been hot and it was late in the season for pickles. He warned Ms. Garcia that the quality had to be good and Petitioner had to grade the cucumbers properly as to size. On June 7, 1999, Petitioner delivered 46 boxes of cucumbers to Respondent. The next day, Petitioner delivered 61 boxes of cucumbers to Respondent. On June 10, Petitioner delivered a final 18 boxes of cucumbers to Respondent. There was little, if any, communication between Petitioner, who delivered the cucumbers, and the employee of Respondent, who accepted the delivery. Petitioner speaks only a little English, and Respondent's employee spoke no Spanish. Mr. Hinton examined the cucumbers after they were delivered. He found that the cucumbers were misgraded and bore an undesirable light green color. In general, they were showing the effects of heat and were not of good quality. Mr. Hinton thus combined the first two shipments into a single shipment and tried to sell the cucumbers to a buyer in New York. The New York buyer generally rejected the substandard cucumbers. Respondent was able to obtain only $237 for the 107 boxes sent to New York. The shipping bill was $278.20. Respondent calculated its commission on the gross sales price less freight. After finding the third delivery to be of the same quality as the first two, Mr. Hinton decided to combine them with a shipment under preparation at his brother's nearby farm. Mr. Hinton received $43 for these 18 boxes, and his brother's farm paid the freight. Mr. Hinton would have contacted Petitioner, but he had no way of doing so. Petitioner did not provide him with an address or telephone number. Petitioner instead sent a representative to stop by Respondent's office to obtain payment. In this way, Petitioner eventually discovered that his cucumbers had grossed only $280. To resolve the dispute, Respondent offered Petitioner $250, which Petitioner declined. However, at the conclusion of the hearing, Mr. Hinton renewed the offer, and Petitioner accepted the offer. The only conditions attached to the offer and acceptance were that Petitioner was not waiving or releasing its claim to additional amounts and, if the order required Respondent to pay an additional amount, Respondent would receive a credit in the amount of this payment.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring Respondent to pay Petitioner the sum of $252; provided, however, Respondent shall be credited with the prior payment of $250. (This assumes that Petitioner has not again declined to accept or declined to cash the $250 check. If so, then the total payment should be $252.) DONE AND ENTERED this 27th day of December, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 December, 1999. COPIES FURNISHED: Raymundo Garcia Josephine Garcia Qualified Representatives 1101 Wheeler Road Seffner, Florida 33584 Donald Hinton, President Horizon Produce Sales Post Office Box 70 Sydney, Florida 33587 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Gulf Insurance Company Legal Department Post Office Box 1771 Dallas, Texas 75221-1771
The Issue Whether the corporate names Six-Bits Food Stores, Inc., Six Bits Food Service, Inc., and Six Bits Deli International, Inc., are deceptively similar. Whether the Department of State may withdraw approval for the use of names found deceptively similar to a name previously approved.
Findings Of Fact On February 3, 1977, Six-Bits Food Stores, Inc., was incorporated. On November 25, 1980, Six Bits Food Service, Inc., was incorporated. On December 2, 1980, Six Bits Deli International, Inc., was incorporated. Joseph Sugarman was the primary incorporator of each corporation. On or about October 16, 1980, Six-Bits Food Stores, Inc., was sold to Christopher S. Wyatt and Cheryl Ann Wyatt pursuant to a written agreement (Petitioner's Exhibit 1). It was a stock purchase sale, and there was no reference in the agreement to good will or future competition by Sugarman. Sugarman stated at the hearing that at the time of the sale to the Wyatts his attorney, noting that the Wyatts were representing themselves, suggested that the Wyatts should be represented by counsel. Subsequent to the sale the seller, Joseph Sugarman, established a sandwich shop under the corporate name Six Bits Food Service, Inc., approximately one and a half miles from the Petitioner sandwich shop. He then opened a second sandwich shop under the corporate name Six Bits Deli International, Inc., 7 to 10 miles from the Petitioner sandwich shop. An examination of Petitioner's Exhibits 2, 3, and 4 shows that with little variation the three sandwich shops have the same type of fast food service. There was no dispute at the hearing that each shop catered to the same type of customer. A sign was located at Respondent's sandwich shop, Six Bits Food Service, Inc., with the wording, "Now selling our famous Six Bits cold cut hoagies." Customers at Petitioner Six-Bits Food Stores, Inc., sandwich shop have compared it with the Respondent's sandwich shop, Six Bits Food Service, Inc., thinking they are under the same ownership. Deliverymen often deliver merchandise to the wrong shop, and calls are received at both Respondent's sandwich shops intended for Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered finding that the corporate names Six Bits Food Service, Inc., and Six Bits Deli International, Inc., are deceptively similar to the previously registered corporate name Six-Bits Food Stores, Inc., and that approval for the use of those names be withdrawn. DONE AND ENTERED this 23rd day of September 1981 in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September 1981. COPIES FURNISHED: Joseph Mannino, Esquire Suite 480, Landmark Bank Building 4901 North Federal Highway Fort Lauderdale, Florida 33308 Stephen Nall, Esquire Office of the General Counsel Department of State The Capitol Tallahassee, Florida 32301 Joseph Sugarman, President Six Bits Food Service, Inc., and Six Bits Deli International, Inc. 4251 NE 16th Avenue Oakland Park, Florida 33334
