The Issue The issue in this case is whether Petitioner, H.P. Sod, Inc., is entitled to payment from an Agricultural Bond issued to Respondent, PLS Landscape Services, Inc., and, if so, the amount owed to Petitioner.
Findings Of Fact Petitioner is a licensed producer of an agricultural product, i.e., sod. Petitioner is a duly incorporated for-profit corporation in the State of Florida and is in good standing. Horacio Pereira is the putative owner of the company, referring to himself at final hearing as “the boss, the guy who tells people what to do.” Respondent is a duly incorporated Florida corporation. Its business address is 6132 Snook Court, Port St. Lucie, Florida. The only officer or director of the corporation is George J. Kijewski. Respondent is a landscaping business. From the period July 23, 2012, through October 16, 2012, Respondent purchased quantities of Bahia sod from Petitioner on numerous occasions. The dates of purchase, quantity of sod purchased, and ticket numbers for each purchase are as follows: 23 – Ticket 36930 – 10 pallets 23 - Ticket 36983 – 16 pallets 30 – Ticket 37185 – 10 pallets 1 – Ticket 36818 – 16 pallets 1 – Ticket 37276 – 16 pallets 1 – Ticket 37283 – 16 pallets 6 – Ticket 36872 – 16 pallets 8 – Ticket 37319 – 16 pallets July July July August August August August August August 10 – Ticket 37339 – 16 pallets September 4 – Ticket 37727 – 16 pallets October 15 – Ticket 38712 – 16 pallets October 16 – Ticket 38720 – 16 pallets Petitioner issued the following invoices to Respondent concerning the aforementioned purchases of Bahia sod: Invoice 6615 – July 26 – Tickets 36930, 36983 $620.20 Invoice 6640 – August 2 – Tickets 36818, 37185, 37276, 37283 - $1,420.96 Invoice 6671 – August 16 – Tickets 36872, 37319, 37339 - $1,104.24 Invoice 6735 – September 6 – Ticket 37727 - $445.12 Invoice 6875 – October 18 – Tickets 38712, 38720 - $890.24 TOTAL - $4,481.11 Respondent did not remit payments on any of the aforementioned invoices. Respondent contends that some of the sod which it purchased from Petitioner was of inferior quality or was in less quantity than ordered. Specifically, Respondent said some of the sod was wet and fell apart when being installed. He also said the wet sod resulted in some pallets containing 370 to 390 square feet of sod rather than the 400 feet that is standard on a pallet. Respondent’s testimony was general in nature, not specific to any particular shipment, and flies in the face of his on-going purchases of sod from Petitioner. Further, there was no credible evidence presented at final hearing that Respondent ever complained to Petitioner about the quality or quantity of the sod. Had he done so, Petitioner said it would have corrected the problem. Respondent did reportedly tell one of his drivers, Mr. Calloway, on occasion that the sod was wet or otherwise not up to par. However, that complaint was never provided to Petitioner so that action could be taken. Respondent acquired a bond in the sum of $5,000.00 through TD Bank, N.A. (also referred to in this matter as United States Corporation Company, as Surety). The bank was not represented at the final hearing held in this matter. No defense was raised by the bank concerning Petitioner’s attempt to attach the bond. Petitioner paid a fee of $50.00 to the Department of Agriculture to bring this action. Petitioner hired an attorney to represent its interest in this matter. The attorney charged $175.00 per hour and, as of the date of the final hearing, had billed approximately five hours of time or $875.00 in fees. Subsequent to the final hearing, the attorney submitted a post-hearing proposed order on behalf of Petitioner. The attorney expended $180.00 in costs for service of a subpoena and witness fees. The total sum demanded by Petitioner in its action against Respondent is $5,586.11. Respondent’s PRO filed in this matter asserts a number of “facts” which were not established by competent testimony at the final hearing. Those facts were not considered in the preparation of this Recommended Order.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is hereby RECOMMENDED that a Final Order be entered by the Department of Agriculture and Consumer Services as follows: Respondent shall pay to Petitioner, within 15 days of the entry of the Final Order, the sum of $5,586.11; or If Respondent fails to timely make the aforementioned payment, the Department shall call upon TD Bank, N.A., to pay over to the Department the full amount of Respondent’s bond; and The Department shall then turn the entire proceeds of the bond over to Petitioner. DONE AND ENTERED this 8th day of March, 2013, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2013.
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, (1983). At all times pertinent to this proceeding, Respondent Rentz was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4103 by the Department, and bonded by Respondent Nationwide in the sum of $14,000 - Bond No. LP 505 761 0004. At all times pertinent to this proceeding, Respondent Nationwide was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). Petitioner harvested, loaded and shipped sixteen (16) loads of watermelons to various receivers on instruction from Respondent Rentz during the 1985 watermelon season but only four (4) loads were in dispute on the date of the hearing with a claim of $3,807.98. 1/ Petitioner in previous watermelon seasons loaded and shipped watermelons for Respondent Rentz and on all occasions, including the 1985 season, had been paid for the watermelons either in cash by Respondent Rentz or by check drawn on Respondent Rentz's account. The invoicing of all loads of watermelons shipped by Petitioner for Respondent Rentz was done by Respondent Rentz and payments made by the various receivers were made to Respondent Rentz. Petitioner's understanding that Respondent Rentz was acting as a buyer and not a broker was credible and supported by Respondent Rentz's actions subsequent to the watermelons being loaded and shipped. 2/ Although Respondent Rentz contended that he was acting as a broker, the more credible evidence shows that Respondent Rentz was acting as a buyer and that risk of loss passed to him upon shipment, with all remedies and rights for Petitioner's breach reserved to him. For purposes of Sections 604.15-604.30, Florida Statutes, the Department's policy is to consider a person a broker, requiring only a minimum bond ($13,000.00) for licensure, when that person does not take title to the product and whose function is to bring buyer and seller together and assist them in negotiating the terms of the contract for sale but not to invoice or collect from the buyer.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Rentz be ordered to pay to the Petitioner the sum of $3,807.98. It is further RECOMMENDED that if Respondent Rentz fails to timely pay the Petitioner as ordered, then Respondent Nationwide be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 15th day of April, 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 15th day of April, 1986.
The Issue The issue is whether Smallwood Design Group/Smallwood Landscape, Inc. (Respondent), and its surety, Hartford Fire Insurance Company, owe funds to American Farms, LLC, (Petitioner) for the sale of agricultural products.
Findings Of Fact At all times material to this case, the Petitioner was a licensed agricultural producer in the State of Florida. At all times material to this case, the Respondent was a licensed agricultural dealer in the State of Florida. From May 30 through October 27, 2006, the Respondent purchased agricultural products, specifically foliage plants, from the Petitioner. All charges for the plants sold by the Petitioner to the Respondent were billed on invoices that were sent to the Respondent by the Petitioner. The quantities and prices of the delivered plants were clearly identified on the invoices. The Respondent has failed to pay invoices totaling $11,777.18 that were sent by the Petitioner to the Respondent. There is no evidence that any of the charges were disputed by the Respondent at the time the sales were invoiced. There is no evidence that any of the plants sold by the Petitioner to the Respondent were unsatisfactory in terms of price or quality. As required by law, the Respondent had in place an Agricultural Products Dealer Bond dated December 9, 2005. The bond was executed by Joann Smallwood as "principal" for the Respondent. The bond was effective for one year and included the time period relevant to this proceeding. In correspondence filed during the course of this proceeding, the Respondent asserted that Joann Smallwood sold the business to another owner during the time relevant to this proceeding. The evidence established that at all times material to this case, Joann Smallwood acted as the owner/manager of the business. The plants sold by the Petitioner to the Respondent were picked up by trucks with Smallwood logos and signage. There was no evidence that the Petitioner was ever advised during the time the Respondent was purchasing plants from the Petitioner that Joann Smallwood had sold the business or that the Respondent would not be liable for payment of products purchased from the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order directing that the Respondent pay the total of $11,777.18 to the Petitioner (plus the filing fee paid by the Petitioner to the DACS) and establishing such other procedures as are necessary to provide for satisfaction of the debt. DONE AND ENTERED this 3rd day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2007.
The Issue The issue in this case is whether Respondents have violated provisions of Section 627.837, Florida Statutes, through payment of alleged monetary inducements to insurance agents for the purpose of securing contracts which finance insurance premiums.
Findings Of Fact Petitioner is the Department of Insurance and Treasurer (Department). Respondents are Puritan Budget Plan, Inc., and Gibraltar Budget Plan, Inc., (Respondents). Findings contained in paragraphs 3- 23, were stipulated to by the parties. Stipulated Facts Common shares in Respondents' corporations were sold to insurance agent/shareholders for between $500.00 and $2,500.00 per share, depending on date purchased. Presently, and for the purposes of this litigation, marketing and/or administrative fees paid by Respondents to agent/shareholders range from $1.00 to $13.00 per contract produced, depending on the number of payments made, and the amount of the down payment. Each per contract marketing and/or administrative fee paid by Respondents to agent/shareholders is completely unrelated to the number of contracts produced by that agent/shareholder, and is based upon the characteristics of each contract, pursuant to the terms of the shareholder purchase agreement. Perry & Co., pursuant to a written agreement, manages the day to day activities of Respondents, including solicitation of new shareholder/agents. Alex Campos is currently President of Perry & Co. Perry & Co., Dick Perry or Alex Campos have no equity ownership, either direct or indirect, in Respondents corporations. No shareholder of Perry & Co. is also a shareholder in either Respondent, and no shareholder of the Respondents is a shareholder in Perry & Co. No officer or director of Perry & Co. is an officer or director of either Respondent, and no officer or director of either Respondent is an officer or director of Perry & Co. The individual management agreements between Perry & Co. and Respondents are terminable with proper notice by either party. Respondent Puritan Budget Plan, Inc., was originally licensed by the Department as a premium finance company in 1984, pursuant to the provisions of Chapter 627, Part XV, Florida Statutes. Puritans' principle office is located at 2635 Century Parkway, Suite 1000, Atlanta, Georgia 30345. Respondent Gibraltar Budget Plan, Inc., was originally licensed by the Department as a premium finance company in 1984, pursuant to the provisions of Chapter 627, Part XV, Florida Statutes. Gibraltar's principle office is located at 2635 Century Parkway, Suite 1000, Atlanta, Georgia 30345. Customers of Respondents are typically financing automobile insurance premiums. There is little if any variation among licensed premium finance companies in the State of Florida as to the interest rate charged to customers. In 1988, the Department inquired of Respondents' activities in relation to agent/shareholder compensation arrangements. After several meetings with representatives from Respondents, the Department closed the matter without taking any action. Also in 1988, the Department proposed the adoption of Rule 4-18.009, which in part would have explicitly made payment of processing fees or stock dividends a violation of Section 627.837, Florida Statutes, but later withdrew the proposed rule. Again in 1994, the Department proposed a rule which would have explicitly made payment of processing fees or stock dividends a violation of Section 627.837, Florida Statutes. After a hearing and adverse ruling by the hearing officer, the Department withdrew proposed Rule 4-196.030(8). Financial consideration paid to insurance agents in exchange for the production of premium finance contracts may result in the unnecessary financing of contracts, and the Department believes Section 627.837, Florida Statutes, was intended to make such conduct illegal. Financial consideration paid to insurance agents in exchange for the production of premium finance contracts may result in insurance agents adding or sliding unnecessary products to make the total cost of insurance more expensive and induce the financing of additional contracts, and the Department believes Section 627.837, Florida Statutes, was intended to make such conduct illegal. An "inducement" is presently defined as "an incentive which motivates an insurance purchaser to finance the premium payment or which motivates any person to lead or influence an insured into financing the insurance coverage being purchased; or any compensation or consideration presented to a person based upon specific business performance whether under written agreement or otherwise." Rule 4-196.030(4), Florida Administrative Code (July 27, 1995). This rule is currently effective but presently on appeal. There is no evidence that Respondents unnecessarily financed any premium finance contracts or engaged in any "sliding" of unnecessary products to induce the unnecessary financing of contracts. Section 627.837, Florida Statutes, does not prohibit the payment of corporate dividends based on stock ownership to shareholders who are also insurance agents. According to the Final Bill Analysis for H.B. 2471, in 1995 the Legislature amended Section 627.837, Florida Statutes, relating to rebates and inducements. This section was amended to clarify that this statute does not prohibit an insurance agent or agents from owning a premium finance company. The statute, as amended, is silent on the issue of how owner-agents may be compensated. Other Facts Approximately 80 percent of Respondents' insureds will turn to the shareholder/agent to handle premium mailing and collection. When a shareholder/agent provides these valuable services and labor to Respondents through the servicing of the premium finance contract with an insured, payment for those services and/or recoupment of the expenses involved with their provision is made, at least in part, in the form of the marketing and administrative fees paid by Respondents to the shareholder/agent. The marketing and administrative fee payment by Respondents to shareholder/agents is made from the net profit of the corporation and represents payment of ownership interest (dividends) to shareholder/agents in addition to payment for shareholder/agent services or expenses. Respondents generally finance "non-standard" private passenger automobile insurance. Such insurance generally covers younger drivers and drivers with infraction points against their license. The average non-standard premium is $500 per year. Thirty percent of non-standard insureds will cancel their insurance prior to the renewal date. Cancellation of policies and financing arrangements by non-standard insurers require the agent to return unearned commissions, about $30 generally. In contrast, payment of an insurance premium in cash guarantees an agent his/her entire commission, an average of $90 per non-standard policy. Consequently, the financial interest of most agents is best served by cash sale of auto insurance as opposed to financing the insurance. The average amount generated by 95 percent of all premium finance contracts executed in Florida would yield an agent/shareholder approximately six dollars per contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Administrative Complaints. DONE and ENTERED in Tallahassee, Florida, this 28th day of November, 1995. DON W. 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 28th day of November, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-11. Accepted to extent included within stipulated facts, otherwise rejected for lack of citation to the record. 12. First sentence is rejected as not substantially dispositive of the issues presented. Remainder rejected for lack of record citation if not included within stipulated facts. 13.-15. Rejected to extent not included within stipulation, no citation to record. Incorporated by reference. Rejected, no record citation, legal conclusion. 18.-19. Rejected, not materially dispositive. 20. Rejected, no record citation. 21.-23. Rejected, not materially dispositive. Rejected, record citation and relevancy. Rejected, weight of the evidence. Incorporated by reference. Respondent's Proposed Findings 1. Rejected, unnecessary to result. 2.-3. Accepted, not verbatim. 4. Rejected, unnecessary. 5.-7. Accepted, not verbatim. 8.-9. Rejected, unnecessary. 10. Accepted per stipulation. 11.-12. Rejected, unnecessary. 13. Accepted per stipulation. 14.-16. Accepted, not verbatim. Rejected, hearsay. Rejected, relevance. Rejected, unnecessary. 20.-22. Accepted per stipulation. 23. Rejected, unnecessary. 24.-57. Incorporated by reference. 58.-60. Rejected, unnecessary. 61.-62. Rejected, subordinate and not materially dispositive. 63.-67. Rejected as unnecessary to extent not included in stipulated facts. Accepted per stipulation. Rejected, unnecessary. Accepted per stipulation. 72.-76. Rejected, unnecessary. 77. Accepted per stipulation. 78.-79. Incorporated by reference. 80.-87. Accepted per stipulation. 88. Incorporated by reference. 89.-90. Accepted per stipulation. 91.-95. Rejected, subordinate. 96. Accepted. 97.-101. Rejected, unnecessary. 102. Incorporated by reference. COPIES FURNISHED: Alan Liefer, Esquire Division of Legal Services 612 Larson Building Tallahassee, FL 32399-0333 Steven M. Malono, Esquire Cobb, Cole & Bell 131 N. Gadsden St. Tallahassee, FL 32301 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, FL 32399-0300
The Issue Whether Respondent Five Brothers Produce Inc. is indebted to Petitioner for agricultural products and, if so, in what amount?
Findings Of Fact Petitioner grows tomatoes on its farm in Dade County. Jack Wishart is in charge of the farm's operations. Five Brothers Produce, Inc., is a dealer in agricultural products. At all times material hereto, Pete Johnson was responsible for buying and selling produce for Five Brothers. He was assisted by Robert Barbare. On Friday, January 19, 1990, Johnson met with Wishart at Petitioner's farm. During their meeting, they discussed the possibility of Five Brothers purchasing all of Petitioner's 6x7 tomatoes. They ultimately entered into a verbal agreement concerning the matter. Under the terms of the agreement, Five Brothers agreed to purchase from Petitioner, and Petitioner agreed to sell to Five Brothers, Petitioner's supply of 6x7 tomatoes, which consisted of 293 packages, for $26.00 a package. At the time, tomatoes were in scarce supply because of the damage that had been done to the South Florida tomato crop by the freeze of the prior month. As a result, the market price for U.S.#1 grade 6x7 tomatoes was $32.00 a package. Wishhart agreed to a lower price for Petitioner's 6x7 tomatoes because they were U.S.#2 grade. The 293 packages of tomatoes were delivered to Five Brothers on the following day, Saturday, January 20, 1990. Johnson had purchased the tomatoes for Five Brothers to resell to a customer in Atlanta, Georgia. Upon inspecting the tomatoes after their arrival at Five Brothers' loading dock in Florida City, Johnson determined that they did not meet the needs of this particular customer because, in Johnson's opinion, they were too ripe to be shipped out of state. Johnson thereupon telephoned Wishart to tell him that the tomatoes were not suitable for his Atlanta customer. Later that same day, January 20, 1990, pursuant to Johnson's instructions, Barbare, Five Brothers' "late night clerk," contacted Wishart and advised him that Five Brothers wanted to return the tomatoes to Petitioner. The gates of Petitioner's farm were closed, and Wishart so informed Barbare. He then asked Barbare to store the tomatoes in Five Brothers' cooler until they could be returned to Petitioner's farm. Barbare agreed to do so. Approximately a day or two later, Barbare again telephoned Wishart. He told Wishart that Five Brothers had found a customer to whom it could sell the tomatoes, which were still in Five Brothers' cooler. Wishart, in response, stated that Petitioner would lower its sale price and "take $20.00," instead of $26.00 as previously agreed, for the tomatoes. 1/ On Monday, January 22, 1990, Five Brothers consummated a deal with Leo Genecco & Sons, Inc., (Genecco) of Rochester, New York, which agreed to purchase the tomatoes from Five Brothers. 2/ The tomatoes were priced "open," that is, the price of the tomatoes was to be established after the sale. Five Brothers ultimately received $3,149.75 ($10.75 a package) for the 293 packages of 6x7 tomatoes it had sold to Genecco. It thereupon sent a check in that amount to Petitioner as payment for these tomatoes. In the transaction at issue in the instant case, Five Brothers was not acting as a broker or agent for Petitioner. It purchased the tomatoes from Petitioner. The sales price was initially $26.00 a package and was later reduced to $20.00 a package. Accordingly, for the 293 packages of tomatoes Petitioner sold Five Brothers, it should have received from Five Bothers $5,860.00, $2,710.25 more than it was paid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Agriculture and Consumer Services enter a final order (1) finding that Five Brothers is indebted to Petitioner in the amount of $2,710.25, (2) directing Five Brothers to make payment to Petitioner in the amount of $2,710.25 within 15 days following the issuance of the order, and (3) announcing that, if such payment is not timely made, the Department will seek recovery from the Florida Farm Bureau Mutual Insurance Co., Five Brother's surety. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March, 1991. STUART M. LERNER 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 18th day of March, 1991. COPIES FURNISHED: Jack Wishart Pine Islands Farms, Inc. Post Office Box 247 Goulds, Florida 33170 Pete Johnson Five Brothers Produce, Inc. Post Office Box 3592 Florida City, Florida 33034 Florida Farm Bureau Mutual Insurance Co. 5700 Southwest 34th Street Gainesville, Florida 32608 Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact On September 8, 1987, the Department of Insurance received a letter dated September 1, 1987, from Joseph F. Kinman, Jr., which stated: Another insurance agent (Daniel Bruce Caughey) from Pensacola, Florida and his incorporated agency (Caughey Insurance Agency, Inc.) are refusing to forward premium payments on to Jordan Roberts & Company, Inc. despite a final judgment for such amounts here in Hillsborough County Circuit Court. Enclosed is a copy of the Final Judgment entered August 13, 1987, as well as a copy of the Complaint. We represent Jordan Roberts & Company, as well as Poe & Associates, Inc. here in Tampa, Florida. In approximately August of 1982, Daniel Bruce Caughey and Caughey Insurance Agency, Inc. entered into a brokerage agreement with Jordan Roberts & Company, Inc. wherein Mr. Caughey and the Agency were to collect premiums on behalf of Jordan Roberts & Company, Inc. and in turn, Mr. Caughey and the Agency were to receive commissions. Mr. Caughey signed an Individual Guarantee Agreement on October 21, 1983, guaranteeing that Brokerage Agreement with Caughey Insurance Agency, Inc. Mr. Caughey and the Agency failed to forward the insurance premiums collected on behalf of Jordan Roberts & Company, Inc. despite repeated demands and inquiries. Finally, a lawsuit was filed against Mr. Caughey and the Agency in the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida, in and for Hillsborough County in December of 1986. Final judgment for Jordan Roberts & Company, Inc. against Mr. Caughey and the Agency was entered on August 13, 1987, for an amount of $6,595.94. Mr. Caughey and his Agency have unlawfully withheld monies belonging to an insurer, Jordan Roberts & Company, Inc. and, accordingly, appear to be in violation of Florida Statutes 626 et seq. Jordan Roberts & Company, Inc. has a judgment for unpaid insurance premiums against Mr. Caughey and the Agency, however, Mr. Caughey and the Agency refuse or fail to pay over to Jordan Roberts & Company, Inc. premium funds rightfully belonging to Jordan Roberts & Company, Inc. Accordingly, we would respectfully request that your office conduct an investigation of Mr. Caughey and the Caughey Insurance Agency, Inc. Enclosed with this letter were copies of the complaint and final judgment in the circuit court case, Case No. 86-21454. As found in the main administrative case, Case No. 89-2651: In Count 1, JORO's complaint [in Case No. 86-21454] alleges the existence of a brokerage agreement between JORO and Caughey Insurance Agency, Inc., entered into "[o]n or about April 27, 1982"; execution and delivery of respondent's guarantee "[o]n or about October 21, 1983"; and the agency's indebtedness "for premiums on policies underwritten by [JORO] for the sum of $20,975.36." Petitioner's Exhibit No. 3. In Count II, the complaint also alleges execution and delivery of a promissory note "[o]n or about October 21, 1983," without, however, explicitly indicating its relationship (if any) with the guarantee executed the same date. Petitioner's Exhibit No. 3. The final judgment does not specify which count(s) JORO recovered on. Petitioner's Exhibit No. 4. Attached to the complaint are copies of the promissory note, executed by "CAUGHEY INSURANCE AGENCY, INC., By: D B Caughey Vice President"; the guarantee, executed in the same way; and the brokerage agreement, executed on behalf of Caughey Insurance Agency by "William C. Caughey, President." Although the Individual Guarantee Agreement names respondent as guarantor in the opening paragraph, the corporation is shown as guarantor on the signature line. The complaint does not allege and the judgment does not recite that respondent personally failed to remit premiums but says he is responsible as an officer of the agency. Without any further investigation, as far as the record shows, the Department of Insurance filed a complaint amended on April 24, 1989, to allege, inter alia, that "[o]n or about August 19, 1982 Caughey Insurance Agency, Inc. entered into a brokerage agreement with Jordan Roberts and Company, Inc. . . . requir[ing] Caughey Insurance Agency, Inc. to remit premiums, unearned commissions and additional premiums to Jordan Roberts and Company, Inc."; and that respondent "personally guaranteed the [agency's] obligation under this agreement in" writing, but "failed to remit five thousand five dollars and forty-four cents due under th[e] agreement" for which sum Jordan Roberts and Company, Inc. obtained judgment. After a formal administrative hearing, a recommended order was entered on April 2, 1990, recommending dismissal of the administrative complaint, because "ambiguities in the court papers do not clearly and convincingly rule out the possibility that the court's judgment rests on the dishonored promissory note . . . [rather than] a breach of respondent's [here petitioner's] fiduciary responsibilities." In its final order, the Department dismissed the administrative complaint; Daniel Bruce Caughey was the prevailing party in that case. The parties have stipulated that "Daniel B. Caughey qualifies as a small business party as defined in Section 57.111(3)(d), Florida Statutes." The parties also stipulated that the "total value of the reasonable attorney's fees and costs at issue is $2,830."
The Issue The issue is whether the claims of $98,935.20 and $19,147.70, filed by Petitioner under the Agricultural Bond and License Law, are valid. §§ 604.15 - 604.34, Fla. Stat. (2008).
Findings Of Fact At all material times, Petitioner has been a producer of agricultural products located in Plant City, Florida. At all material times, American Growers has been a dealer in agricultural products. Respondent Lincoln General Insurance Company, as surety, issued a bond to American Growers, as principal. American Growers is licensed by the Department of Agriculture and Consumer Services ("DACS"). Between December 16, 2008, and February 4, 2009, Petitioner sold strawberries to American Growers, each sale being accompanied by a Passing and Bill of Lading. Petitioner sent an Invoice for each shipment, and payment was due in full following receipt of the Invoice. Partial payments have been made on some of the invoices, and as of the date of this Recommended Order, the amount that remains unpaid by American Growers to Petitioner is $117,982.90, comprising: Invoice No. Invoice Date Amount Balance Due 103894 12/16/08 $7,419.00 $1,296.00 103952 12/22/08 $18,370.80 $1,944.00 103953 12/23/08 $3,123.60 $648.00 193955 12/26/08 $8,164.80 $1,728.00 103984 12/28/08 $28,764.40 $28,764.40 104076 12/31/08 $17,236.80 $17,236.80 104077 1/5/09 $17,658.00 $17,658.00 104189 1/5/09 $1,320.90 $1,320.90 104386 1/20/09 $16,480.80 $16,480.80 104517 1/29/09 $17,449.20 $17,449.20 104496 2/4/09 $13,456.80 $13,456.80 TOTAL $117,982.90
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring Respondent, American Growers, Inc., and/or its surety, Respondent, Lincoln General Insurance Company, to pay Petitioner, Crown Harvest Produce Sales, LLC, the total amount of $117,982.90. DONE AND ENTERED this 18th day of May, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture and Consumer Services The Capital, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, Mail Station 38 Tallahassee, Florida 32399-0800 Glenn Thomason, President American Growers, Inc. 14888 Horseshoe Trace Wellington, Florida 33414 Katy Koestner Esquivel, Esquire Meuers Law Firm, P.L. 5395 Park Central Court Naples, Florida 34109 Renee Herder Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Boulevard, Suite 155 Tampa, Florida 33634 Glenn C. Thomason, Registered Agent American Growers, Inc. Post Office Box 1207 Loxahatchee, Florida 33470
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: In January, 1990, the Respondent filed an application for credit with the Petitioner. The terms and conditions of the credit application provided: "All written 'Terms and Conditions of Sale' on invoices, statements, contracts or other written agreements must be observed and performed as stated." Further, the application provided: Payment of all amounts due shall be made not later than 30 days from the billing date. Amounts in default will be subject to a SERVICE CHARGE of 1 1/2 % per month (18 % Per Annum) on the unpaid balance. Failure to make payment within terms will result in cancellation of credit. Following acceptance of that application, Respondent sought to purchase sod from Petitioner's LaBelle sod farm. Invoices issued by Petitioner to Respondent at the time of the delivery of the sod provided that the amounts owed would be payable upon receipt of invoice. Further, the printed invoice required the purchaser to make claims within 24 hours of delivery or pick up. The invoices reiterated the 18 percent service charge for past due accounts. From December, 1990, through January 17, 1991, Respondent purchased and accepted in excess of $45,000 worth of sod from the Petitioner. The invoices for those purchases are identified in this record as Petitioner's exhibit 2. From January 30, 1991 until March 4, 1991, Respondent purchased and accepted $4,664.00 worth of sod from the Petitioner. The invoices for those purchases are identified in the record as Petitioner's exhibit 3. In February, 1991, when the Petitioner became concerned about nonpayment for the amounts claimed, contact with the Respondent was made for the purpose of resolving the matter. When those efforts failed to secure payment, the Petitioner instituted action through the Department of Agriculture against the Respondent's bond. The Petitioner claimed $45,080.25 was due for the invoices prior to January 30, 1991. The Petitioner claimed $4,664.00 was owed for the invoices subsequent to January 30, 1991. Subsequent to its claims, Petitioner received payments from the Respondent in the following amounts: $5,000.00 on March 11, 1991; $5,000 on March 26, 1991; and $2,000.00 on April 30, 1991. Applying the total of those payments ($12,000) to the indebtedness on the first claim reduces that amount to $33,080.25. Prior to the claims being filed, Respondent had notified Petitioner that some sod deliveries had been unacceptable because of the quality of the sod or the amount. Respondent claimed the Petitioner had "shorted" the square footage amounts per pallet so that Respondent was being charged for a pallet that did not contain the requisite square footage of sod. On one occasion, in January, 1991, the Petitioner gave Respondent a credit in the amount of $1,173.75 for either refund on poor quality sod or a shortage. The Respondent continued to purchase sod from Petitioner until its credit was no longer accepted by Petitioner, i.e. March 4, 1991. Respondent did not, within 24 hours of receipt of sod, make a claim regarding the quality of the sod or the amount. By letter dated March 14, 1991, the Respondent, through its attorney, advised Petitioner as follows: St. Amour Sod Services, Inc., does not dispute the balance due to you as set forth in your letter and they will pay same in payments that are being determined now. For your information, the balance accrued because of the loss of several of our customers resulting from the poor quality of sod purchased from your firm. Respondent did not timely challenge the quality of the sod accepted, and did not present evidence regarding its alleged poor quality.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Agriculture and Consumer Services enter a final order finding that Respondent is indebted to Petitioner in the amounts of $33,080.25 and $4,664.00, with service charge to be computed through the date of the final order; directing Respondent to make payment of the amounts to Petitioner within 15 days following the issuance of the order; and, notifying all parties that if such payment is not timely made, the Department will seek recovery from Respondent's surety, Aetna Casualty and Surety Company. DONE and ENTERED this 13th day of March, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1992. APPENDIX TO CASE NOS. 91-6388A AND 91-6389A RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: 1. Paragraphs 1 through 4 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: Paragraph 1 is accepted. Paragraphs 2, 3, 4, 6, 7, and 8 are rejected as contrary to the weight of the credible evidence or unsupported by the record in this case. With regard to paragraph 5, that portion of the paragraph which states the amount of payments made by Respondent ($12,000) is accepted. Otherwise, rejected as stated in 2. above. COPIES FURNISHED: Barry L. Miller P.O. Box 1966 Orlando, FL 32802 Gary A. Ralph 2272 Airport Rd. South, Ste. 101 Naples, FL 33962 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel Dept. of Agriculture & Consumer Svcs. The Capitol, PL-10 Tallahassee, FL 32399-0810 Aetna Casualty & Surety Company Attn: Legal Dept. 151 Farmington Ave. Hartford, CT 06156
The Issue Whether respondents owe petitioner money on account of sales of potatoes?
Findings Of Fact In order to finance his 1991 crops, petitioner Daniel Methvin of Hastings, had to borrow money at the end of the year before. To do that, he was told, he needed to execute contracts for the sale of the potatoes he intended to grow. He had been glad to have future contracts for the 1990 season, when a glut of potatoes pushed the price below three dollars a hundredweight (cwt). Respondent J.P. Mach Agri-Marketing, Inc. (or the company of which it is a subsidiary) had honored those contracts and paid considerably more than the market price for potatoes then. On November 24, 1990, Mr. Methvin executed a contract entitled "Sales Confirmation" agreeing to sell 10,000 cwt of "REPACK REDS", Petitioner's Exhibit No. 1 ("92% US #1 INCH AND 1/2 MIN. AT LEAST 95% SKIN, Id.) to J.P. Mach, Inc. during the period April 28 to May 31, 1991, at $6.50 per cwt. Petitioner's Exhibit No. 1. Consolidating smaller, earlier agreements, Mr. Methvin executed another contract entitled "Sales Confirmation" agreeing to sell 45,000 cwt of Atlantics ("85% U.S. #1") to J.P. Mach, Inc. during the period April 28 to May 31, 1991, at $5.75 per cwt, guaranteeing the potatoes would be suitable for chips. Petitioner's Exhibit No. 2. With these contracts (or, as to the chipping potatoes, their predecessors) as collateral, Mr. Methvin raised the funds necessary to plant. Both contracts between Mr. Methvin and J.P. Mach, Inc. had "act of god clauses" excusing Mr. Methvin's nondelivery of potatoes he failed to harvest on account of, among other things, tornadoes or hail. As it happened, tornadoes and hail prevented Mr. Methvin's reaping all he had sown. Petitioner only harvested 6,300 cwt of red potatoes and approximately 43,000 cwt of Atlantic potatoes. Another result of the bad weather was extremely high market prices, at some times exceeding $20 per cwt. On April 27, 1991, J.P. Mach visited Mr. Methvin's farm and the two men discussed incentives to keep Mr. Methvin from "jumping his contract," i.e., selling his potatoes to others at the market price. In the course of their conversation, Mr. Methvin said he needed to realize $450,000 from that year's potatoes; and Mr. Mach replied, "I will help you out", and "I will keep you in business." There was general talk of incentives and bonuses. Eventually, Mr. Mach said he would pay a premium over the contract price if Mr. Methvin fulfilled the original contracts to the fullest extent possible, by delivering all the potatoes he had; and Mr. Mach began remitting premium prices, as promised. On June 1, 1991, however, Mr. Methvin advised Mr. Mach of his intention to sell what remained of his harvest, some 1100 cwt of Atlantics, on the open market. When he carried through on this, Mr. Methvin realized approximately $200,000. Even at that, he lost $40,000 that season. Meanwhile Mr. Mach and his companies were sued for $550,000 for failure to deliver potatoes; and were not paid another $172,000 for potatoes they shipped to chip plants and others to whom they had promised still more potatoes. (Mr. Methvin was not the only grower who defaulted on contracts to ship potatoes to J.P. Mach, Inc.) As of June 1, 1991, Mr. Mach, his companies or his agents had paid Mr. Methvin "about $200,000," which was more than the contract price of the potatoes Mr. Methvin had loaded. Neither Mr. Mach nor his companies paid Mr. Methvin anything after June 1, 1991. At hearing, Mr. Methvin calculated the value of the loads as to which nothing had been remitted as of June 1, 1991, as "a few hundred more than $36,000," assuming the contract price plus the premium. But Mr. Mach and his companies or employees recalculated the price of the loads he had paid for by eliminating the premium, since Mr. Methvin had not, as promised on his side, delivered all his potatoes. J.P. Mach, Inc. was duly licensed during the 1990 season. After its license lapsed, a new license was issued to J.P. Mach Agri-Marketing, Inc. on April 24, 1991. A $50,000 certificate of deposit was filed with First Performance Bank as a condition of licensure.
Recommendation It is, accordingly, RECOMMENDED: That petitioner's complaint be denied. DONE and ENTERED this 3rd day of April, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1992. COPIES FURNISHED: Daniel Methvin Route 1, Box 92 Palatka, Florida 32131 Jeffrey P. Mach, President J. P. Mach Agri-Marketing, Inc. P.O. Box 7 Plover, Wisconsin 54467 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agricutlure 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings 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 (1983). However, since the pallets were not an agricultural product produced by Petitioner and were not considered in the price of the bahia sod but were exchanged back and forth between Petitioner and his customer, including Respondent American, they are not considered to be an agricultural product in this case and are excluded from any consideration for payment under Section 604.15-604.30, Florida Statutes. The amount charged Respondent American for these pallets was $1,188.00. At all times pertinent to this proceeding, Respondent American was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 3774 by the Department, and bonded by Respondent Peerless Insurance Company (Peerless) in the sum of $15,000 - Bond No. SK-2 87 38. At all times pertinent to this proceeding, Respondent Peerless was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). During the month of January, 1985 Respondent American purchased numerous pallets of bahia grass sod from Petitioner paying $16.00 per pallet but has refused to pay for 240 pallets at $16.00 per flat for a total amount of $3,840.00 picked up by Respondent American's employees and billed by Petitioner between January 16, 1985 and January 26, 1985. Respondent American did not contest having received 204 pallets of bahia grass sod represented by invoice number. 6774- for 18 pallets on 1/16/85; 6783, 6785, and 6788 for 18 pallets each on 1/17/85; 6791, 6793, 6794, 6795, and 6800 for 16 pallets each on 1/18/85 and 6799 for 18 pallets on 1/18/85, 6831 for 18 pallets on 1/28/85; and 6834 for 16 pallets on 1/30/85 but contested invoice numbers 6835 and 6836 for 18 pallets each on 1/26/85. Gary L. Curtis stipulated at the hearing that Respondent American had received the 36 pallets of bahia grass sod represented by invoice numbers 6835 and 6836 which left only the matter of Respondent American's contention that it was owed credit for 20 pallets of bahia sod received in December, 1984 that was of poor quality and fell apart and had to be replaced because it could not be used. The evidence was insufficient to prove that any of the sod purchased by Respondent American from Petitioner fell apart or was of poor quality and as a result could not he utilized by Respondent American.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein it is RECOMMENDED that Respondent American be ordered to pay to the Petitioner the sum of $3,840.00. It is further RECOMMENDED that if Respondent American fails to timely pay the Petitioner as ordered then Respondent Peerless be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 10th day of March, 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 10th day of March, 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 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Gary L. Curtis, President American Sod Company, Inc. Post Office Box 1370 Longwood, Florida 32750 Mid Florida Sod Company 4141 Canoe Creek Road St. Cloud, Florida 32769 Peerless Insurance Company 611 Aymore Road/Suite 202 Winter Park, Florida 32789 Raymond E. Cramer Esquire Post Office Box 607 St. Cloud, Florida 32769
