The Issue Whether Respondent is indebted to Petitioners for agricultural products and, if so, in what amount?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties Petitioners are producers and sellers of tomatoes. They own and operate Sunfresh Farms in Florida City, Florida. Respondent is a dealer in agricultural products. The Controversy The instant case involves two separate transactions involving the sale of tomatoes pursuant to verbal agreements between Petitioners (as the sellers) and Respondent (as the buyer). Both transactions occurred in January of 1995. The First Transaction (Petitioners' Invoice Number 5270) Under the terms of the first of these two verbal agreements (First Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 96 boxes of cherry tomatoes for $12.65 a box (which was the market price at the time). In accordance with the terms of the First Agreement, Petitioners delivered 96 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 23, 1995. Respondent accepted the delivery. Respondent sold these 96 boxes of cherry tomatoes to a local produce house, which subsequently sold the tomatoes to another local produce house. The tomatoes were eventually sold to a company in Grand Rapids, Michigan. On January 28, 1995, five days after Petitioners had delivered the 96 boxes of cherry tomatoes to Respondent, the tomatoes were inspected in Grand Rapids, Michigan. According to the inspection certificate, the inspection revealed: "Decay (3 to 28 percent)(mostly early, some advanced stages);" "Checksum;" and "Average approximately 85 percent light red to red." Petitioners have yet to be paid any of $1,214.40 Respondent owes them (under the terms of the First Agreement) for the 96 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the agreement. The Second Transaction (Petitioners' Invoice Number 5299) Under the terms of the second verbal agreement at issue in the instant case (Second Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 132 boxes of ("no grade") cherry tomatoes for $12.65 a box. In accordance with the terms of the Second Agreement, Petitioners delivered 132 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 27, 1995. Respondent accepted the delivery. Respondent sold 84 of these 132 boxes of cherry tomatoes to a Florida produce house, which subsequently sold the tomatoes to a company in Houston, Texas. These 84 boxes of cherry tomatoes were inspected in Houston, Texas, on January 31, 1995, four days after Petitioners had delivered them to Respondent. The defects found during the inspection were noted on the inspection certificate. Petitioners have yet to be paid in full for the 132 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the Second Agreement. Respondent tendered payment (in the form of a check) in the amount of $811.20, but Petitioners refused to accept such payment because it did not represent the full amount ($1,669.80) Respondent owed them (under the terms of the Second Agreement) for these cherry tomatoes. (Although they have not endorsed or cashed the check, Petitioners are still holding it in their possession.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that Respondent is indebted to Petitioners in the amount of $2,884.20, (2) directing Respondent to make payment to Petitioners in the amount of $2,884.20 within 15 days following the issuance of the order, (3) indicating that the $811.20 check that was previously tendered to Petitioners by Respondent (and is still in Petitioners' possession) will be considered partial payment of this $2,884.20 indebtedness, if Respondent advises Petitioners, in writing, that it desires the check to be used for such purpose and if it provides Petitioners written assurance that the check is still a valid negotiable instrument; and (4) announcing that if payment in full of this $2,884.20 indebtedness is not timely made, the Department will seek recovery from the Farm Bureau, Respondent's surety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February, 1996. 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 2nd day of February, 1996.
The Issue Should the Department of Insurance (now known as the Department of Financial Services, Office of Insurance Regulation) (Department) approve three insurance endorsement forms that State Farm Florida Insurance Company (State Farm) filed on November 15, 2001?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: State Farm is a domestic insurance company that the Department has licensed to transact property and casualty insurance in the State of Florida. The Department is the state agency charged with the duty to regulate insurers doing business in the State of Florida. State Farm offers five types of homeowners' policies that have been approved for use in Florida, an FP-7921 (HO1), FP-7923 (HO3), FP-7924 (HO4), FP-7925 ( HO5-Extra), and FP-2926 (HO6). The HO1 is a "named perils" policy and provides coverage only for those perils specifically named in the policy. This policy is not offered in other states, and in Florida accounts for less than one percent of all of all policies in force. The HO3, HO5, and HO6 policies are known as "open perils" policies providing coverage for all risks unless specifically excluded by the policy. Although similar to HO3, the HO5 policy provides somewhat broader coverage with respect to settlement provisions. The HO6 policy is specifically geared toward condominium owners and the HO4 policy is the policy form that applies to renters. Of all the policies offered in Florida, the HO3 is the most widely used policy form and will be quoted from and used as the exemplar in this Recommended Order. The HO3 policy contains introductory provisions entitled "Declarations" and "Definitions," and is then divided into two coverage sections, Sections I and II. Section I refers to property coverage and with Section II referring to liability coverage. Section I is divided into a number of subcategories including the following: Coverage A (Dwelling), Coverage B (Personal Property), Section C (Loss of Use), Additional Coverage, Losses Insured, Losses Not Insured, and Conditions. Following the Section II provisions there are additional sections entitled "Section I and II-Conditions" and a section entitled "Optional Provisions." The HO3 policy provides coverage under Coverage A (Dwelling) for all risks of loss unless it is a "loss not insured." As stated in the policy: "We insure for accidental direct physical loss to the property described in Coverage A, except as provided in SECTION I - LOSSES NOT INSURED." (Emphasis in the original.) However, coverage for personal property (Coverage B) does not provide such "open perils" coverage. Rather, it provides coverage only for 16 named perils, contains a number of limitations on personal property that it does cover, and reflects a number of personal property items that it does not cover. All of State Farm's homeowners' policies currently provide some limited coverage relating to mold. Although the policies exclude mold as a covered peril, they provide some limited coverage for mold-related losses resulting from covered perils, such as a covered water loss that causes mold-related damage. Historically, there have been exclusions in property insurance for ordinance of law, earth movement, flood, war, the neglect of the insured, and nuclear hazard. Mold that resulted from a covered peril has historically not been excluded. On November 15, 2001, State Farm filed three proposed endorsement forms (Fungus (Including Mold) Exclusion Endorsement): (1) FE-5397 for use with HO1 policies; (2) FE- 5398, for use with HO3, HO5, and HO6 policies; and (3) FE-5399 for use with HO4 policies. The homeowners' policies, which the endorsements were to apply, had been previously approved by, and were on file with the Department, in accordance with Section 627.410, Florida Statutes. The goal of the endorsements was to eliminate mold coverage from State Farm's existing homeowners policies in Florida. State Farm's current rates do not include the cost of providing the mold coverage that the endorsements seek to exclude. However, there is insufficient evidence to establish facts to show that State Farm would need to substantially raise its rates to include those costs. Before filing the mold-exclusion endorsements, State Farm entered into discussions with the Department about giving policyholders the choice of buying back some of the to-be- excluded mold coverage through buy-back endorsements (buy- backs). State Farm filed its buy-backs in June 2002, after failing to work out a solution with the Department that would have allowed for their approval. Although the Department disapproved the buy-backs in December 2002, State Farm has committed itself to provide policyholders with the optional buy-backs, if the exclusions are approved. If the exclusion endorsements are approved along with the buy-back provisions, any cost increase would be restricted to those policyholders who choose to purchase mold coverage through a buy-back. State Farm's filings of mold-exclusion endorsements are consistent with a nationwide effort by State Farm Fire & Casualty Insurance Company, an affiliate of State Farm to eliminate mold coverage in homeowners policies. In Florida, State Farm's endorsements accomplish the complete elimination of mold coverage chiefly through the addition of a new exclusion for fungus, including mold, within "SECTION I - LOSSES NOT INSURED." (Emphasis in the original.) The endorsements, when coupled with the underlying policy, state in relevant part as follows: 2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as result of any combination of these: * * * g. Fungus. (Emphasis in the original.) (The text of the endorsement is underlined.) The endorsements delete all references to the term mold found in SECTION 1 - LOSSES INSURED. (Emphasis in the original.) The endorsements define fungus as follows: "fungus" means any type or form of fungus, including mold, mildew, mycotoxins, spores, scents or byproducts produced or released by fungi. (Emphasis furnished.) This total exclusion of mold coverage, using language clearly encompassing all manner of causation and occurrence, replaces the mold exclusions in the existing policies that do not use such broad language. The difference between the post- and pre-endorsement policies can be seen from comparing the above-quoted endorsement as incorporated into HO3 policy on the one hand, with the mold exclusions as they currently exist in the HO3 policy on the other hand. While the endorsements totally exclude coverage for fungus (mold), and deny payment for mold damage historically provided to insureds, the endorsements are not ambiguous, notwithstanding the testimony offered by the Department to the contrary, which lacks credibility. The endorsements do not add coverage. Instead, the endorsements eliminate coverage for mold that currently exists. However, this fact alone does not render the endorsements inconsistent, misleading, or deceptive when the endorsements are read in their entirety along with the remaining provisions of the policies. State Farm's endorsements were initially deemed approved pursuant to Section 627.410, Florida Statutes, which provides that an endorsement filed with the Department is deemed approved if it is not approved or disapproved within 30 days, or 45 days if there has been an extension, of its filing.. By letter dated June 28, 2002, the Department withdrew its deemed approval of the three endorsements and notified State Farm of its basis for disapproval. The Department's original disapproval letter cites three bases for disapproval. The Department asserts that State Farm's endorsements: (1) contain ambiguities in violation of Section 627.411(1)(b), Florida Statutes; (2) deceptively affect the risk purported to be assumed in the general coverage of the contract, also in violation of Section 627.411(1)(b), Florida Statutes; and (3) deny policyholders the right to obtain "comprehensive coverage" as that term is used in Section 626.9641(1)(b), Florida Statutes, which is part of the policyholders' bill of rights. On December 4, 2002, the Department moved for leave to amend its original disapproval letter. The motion was granted. The Department's amended disapproval letter, which the Department back-dated to June 28, 2002, reiterates the previously alleged bases for disapproval and cites two additional bases for disapproval: (1) the alleged violation of Section 626.9641(1)(b), Florida Statutes, itself constitutes a violation of Section 627.411(1)(a), Florida Statutes; and (2) the endorsements, because they exclude coverage that "through custom and usage has become a standard or uniform provision" in Florida, violate Section 627.412(2), Florida Statutes. There is insufficient evidence to establish facts to show that the provision for mold coverage has, through custom and usage, become a standard or uniform provision. Likewise, there is insufficient evidence to establish facts to show that there is a "natural association between mold and water." In the fall of 2001, the Department began receiving a large influx of filings seeking to exclude or severely limit coverage for mold. Including State Farm's filing, the Department received between 400 and 450 filings representing between 200 and 250 insurers primarily between October 1, 2001, through the end of 2002. In the face of the inordinate number of filings, the Department sought input from all sectors of the public. The Department met with insurers and other interested persons and held four public forums around the state to determine the impact the filings would have on insurance contracts, the industry, and the market place. In the mean time, the Department routinely sought waivers from the insurers of the statutory review period set forth in Section 627.410(2), Florida Statutes, and additionally requested that insurers withdraw their filings. Insurers were advised by the Department that failure to waive the statutory review period or to withdraw their filings would result in the filing being disapproved. The Department initially approved the endorsements to limit or exclude mold coverage of three insurers: USAA, Maryland Casualty, and American Strategic. However, the Department withdrew its approval for each of these companies in letters dated September 18, 2002. The Department asserts that it does not have a policy to disapprove filings simply because they discuss mold or seek to limit or exclude coverage for claims involving mold damage. The Department admits that it is required to examine all filings based upon the statutory scheme. However, the Department has not approved a single one of the over 450 filings, regardless of the language or structure of the endorsements. The simple fact is that the Department had a policy from the fall of 2001 through December 16, 2002, imposing a moratorium on the exclusion or limitation of mold coverage. The Department altered that policy on December 17, 2002, when it entered into a settlement with Florida Farm Bureau General Insurance Company (Farm Bureau), wherein Farm Bureau's endorsement was approved allowing a reduction in mold coverage from policy limits to a sub-limit of $10,000.00 per occurrence, $20,000.00 annual aggregate. The Department's previous position that policies offered to Florida's consumers should not be significantly reduced was abandoned at that time. There was insufficient evidence to establish facts to show that the $10,000.00 coverage was a reasonable amount of coverage for the vast majority of claims for mold damage. The endorsements seek to limit or exclude coverage for mold that has existed for decades. There is scant Florida experience to support the need for limitations or exclusions on mold coverage. Even so, the Department cannot disapprove endorsement forms without authority to do so. There is no statutory authority mandating mold coverage to the extent of policy limits or otherwise in order for policyholders to have comprehensive coverage. Beginning September 15, 2001, the Department did not approve a single mold endorsement seeking to exclude or limit coverage for mold as a resulting loss from a covered peril until December 17, 2002, when it approved a filing by Farm Bureau as a part of a settlement of an administrative proceeding in which the parties were awaiting ruling after a final hearing.
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is RECOMMENDED that the Department enter a final order approving the endorsements filed with the Department by State Farm on November 15, 2001. DONE AND ENTERED this 5th day of June, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2003. COPIES FURNISHED: S. Marc Herskovitz, Esquire Division of Legal Services Department of Financial Services Office of Insurance Regulation 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Anthony B. Miller, Esquire Division of Legal Services Department of Financial Services Office of Insurance Regulation 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 C. Ryan Reetz, Esquire Jim Toplin, Esquire Amie Riggle, Esquire Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 Vincent J. Rio, III, Esquire State Farm Florida Insurance Company 315 South Calhoun Street, Suite 344 Tallahassee, Florida 32301 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact C & W Sales, Inc., was licensed as a dealer in agricultural products under license No. 1367 and was so licensed at all times here relevant. At the time of the incorporation of C & W Sales, Inc., Henry T. Watson was listed as an officer (President) and director of the company. The company was run by Philip A. Roberts, the brother-in-law of Watson. Roberts applied on behalf of C & W Sales, Inc., to FFB for an agriculture bond in the amount of $20,000 for the period 5/19/79 until 5/19/80 (Exhibit 1) . As a condition for issuing this bond FFB required and obtained a general agreement of indemnity from Roberts and Watson and their wives (Exhibit 2) which was executed on 2 May 1979. In addition to agreeing to save Florida Farm Bureau harmless from all claims arising out of the bond paragraph 14 provided: That this indemnity is continuing and will apply to any and all bonds, as provided in the opening paragraph of this Agreement which the Company may have executed or procured the execution of from time to time, and over an indefinite period of years; however, any Indemnitor may by written notice to the Company at its Home Office, Gainesville, Florida disavow his liability as to bond(s) which may be executed by the Company subsequent to fifteen days after receipt by the Company of such notice. Agriculture bond (Exhibit 4) was issued on 5/19/79 for one year and upon expiration on 5/19/80 the bond was renewed for an additional period of one year (Exhibit 5). Subsequent to the expiration of the 1979-80 bond (Exhibit 4) and reissuance of the 1980-81 bond (Exhibit 5) but within the prescribed time for submitting a claim against the agriculture dealer and his bond, John T. Brantley, Jr., filed a claim against C & W Sales in the amount of $8,317.05 for payment owed on a transaction which occurred during the 1979-80 period. When C & W Sales failed to pay or respond to the Commissioner of Agriculture's demands for payment, claim was made on the 1979-80 bond and FFB remitted to the Commissioner of Agriculture a check for the Brantley claim (Exhibit 6). Around February 1980 Watson became disenchanted with Roberts' running of C & W Sales, Inc. and wanted out. He told Roberts to get someone to buy his (Watson) stock and to get his name out of the company. Roberts said he would. Watson never advised FFB that he would no longer be an indemnitor under the bond. During the period covered by the bond year beginning 5/19/80 claims against C & W Sales, Inc., were submitted to the Commissioner of Agriculture by Henry L. Watson in the amount of $32,326.50; Hugh D. Martin in the amount of $1,932.80; Jesse J. Wilson in the amount of $1,490.00; John T. Brantley, Jr., in the amount of $15,024.40; and Philip Dean and Willie Bass in the amount of $4,919.13, for a total of $55,692.83. The Commissioner of Agriculture notified C & W Sales of these claims and advised them of the opportunity to contest the validity of the claims. No response was received from C & W Sales and Roberts appears to have departed the area to parts unknown. An order demanding payment was submitted to C & W Sales and when payment of these claims was not made, FFB, as surety on the bond, was notified by the department of its surety on the bond, was notified by the department of its obligation under the bond and a demand for payment of $20,000 to the department was made. There is no dispute regarding the accuracy or validly of the claims against C & W Sales contained in Finding 7 above. Nor does FFB contest its liability under the agriculture bond it issued for the 1980-81 bond year. However, FFB claimed an equitable setoff for the percentage of the $20,000 that would go to Watson. This setoff is claimed by virtue of Watson's indemnity agreement. By the stipulation the parties have agreed that the FFB is entitled to the pro rata share of the $20,000 to Watson.
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 proceedings 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 proceedings Respondent Pent was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1985), issued license no. 3531 by the Department, and bonded by Respondent Transamerica Insurance Company (Transamerica) in the sum of $4,750.00 - Bond No. 51 823 994. At all times pertinent to this proceedings Respondent Transamerica 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 (1985). On January 11, 1985 Respondent Pent purchased 1900 photinia fraserii plants to be delivered at a later date for a total price of $8,977.50 with a down payment of $2,185.31 leaving a balance of $6,792.19. Sixteen hundred (1600) and three hundred (300) photinia fraserii plants were delivered on March 21 and 28, 1986, respectively. On July 7; 1985 Respondent made a partial payment to Petitioner of $1,292.19 of which Petitioner credited Respondent Pent with $981.94 against the purchase of the plants and $310.25 was applied to past due service charges, leaving a balance of $5,610.25 owing for plants which was reduced to $5,310.25 by a partial payment of $500.00 on August 9, 1985. No further payments have been made by Respondent Pent. Respondent has not denied receiving the plants nor did he complain about their quality or condition upon delivery. Respondent Pent owes a balance of $5,310.25 to Petitioner.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Pent be ordered to pay to the Petitioner the sum of $5,310.25. It is further RECOMMENDED that if Respondent Pent fails to timely pay the Petitioner as ordered, then Respondent Transamerica 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 23rd day of May, 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 23rd day of May, 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 Transamerica Insurance Company 1150 S. Olive Street Los Angeles, CA 90015 Mr. Paul Pent Paul Pent Landscape Company 1660 Emerson Street Jacksonville, Florida 32207 William D. Reese Greenbriar Nurseries, Inc. 2025 N.E. 70th Street Ocala, Florida 32670
Findings Of Fact Based upon all of the evidence, including the stipulation of the parties, the following findings of fact are determined: Petitioner, Charles W. Ward, Jr., is a co-owner, with other members of his family, of a cattle ranch in south Hendry County known as Ward Farms. Respondent, Maddox Brothers Produce, Inc., is a licensed agriculture dealer engaged in the business of brokering agriculture products in the State of Florida. As an agriculture dealer, respondent is subject to the regulatory jurisdiction of the Department of Agriculture and Consumer Services (Department). One such requirement of the Department is that all dealers post a surety bond with the Department's Division of Licensing and Bond. To this end, respondent has posted a $50,000 surety bond with Fireman's Fund Insurance Company as the surety. In addition to raising livestock, petitioner also grows watermelons on his property. Pursuant to an agreement by the parties, between April 16 and May 15, 1990, respondent harvested and then transported petitioner's watermelons to other destinations outside the state. The parties have stipulated that respondent still owes petitioner $53,980.92 as payment for the watermelons. Respondent has agreed to pay petitioner the above sum of money on or before February 15, 1991, or within fifteen days after the agency's order becomes final, whichever is later. Otherwise, payment shall be made from respondent's bond posted by the surety, Fireman's Fund Insurance Company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent, a licensed agriculture dealer, is indebted to petitioner in the amount of $53,980.92, and that such debt be satisfied in accordance with the time limitations set forth in this recommended order. Otherwise, Fireman's Fund Insurance Company shall be obligated to pay over to the Department the full amount of the bond, or $50,000. DONE and ENTERED this 24th day of January, 1991, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 24th day of January, 1991. COPIES FURNISHED: Charles W. Ward, Jr. Star Route, Box 72 LaBelle, Florida 33440 Patricia Maddox Harper 4253 Kingston Pike Knoxville, Tennessee 37919 Barbara J. Kennedy, Esquire Fireman's Fund Insurance Company Post Office Box 193136 San Francisco, California 94119-3136 Bob Crawford Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire General Counsel Department of Agriculture 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Chief Bureau of Licensing & Bond 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether Homestead Pole Bean Cooperative, Inc., is owed $10,475.35 for agricultural products ordered by and delivered to Mo-Bo Enterprises, Inc.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Homestead is an agent for producers of Florida-grown agricultural products. Mo-Bo is a dealer in such products in the normal course of its business and is bonded by Armor. During the period from December 2, 1994, until January 9, 1995, Mo-Bo ordered green beans and squash from Homestead. In accordance with the longstanding practice of Homestead when doing business with Mo-Bo, the orders were accepted by telephone and the items were loaded onto trucks sent by Mo-Bo to Homestead's warehouse. Homestead sent the following invoices to Mo-Bo for agricultural products order by and delivered to Mo-Bo: December 6, 1994 Invoice Number 75636 $2,590.00 December 15, 1994 Invoice Number 75895 5,253.85 December 21, 1994 Invoice Number 75994 200.00 January 2, 1995 Invoice Number 76161 576.00 January 5, 1995 Invoice Number 76232 (109.00) January 12, 1995 Invoice Number 76348 1,332.00 January 12, 1995 Invoice Number 76349 632.50 TOTAL $10,475.35 The invoice amounts were adjusted by Homestead to account for credits given for products which were unsatisfactory, and payment was due twenty days from the date of each invoice. Despite repeated demands, Mo-Bo has not paid any of the amounts reflected in these invoices. As of September 6, 1995, the date of the formal hearing, $10,475.35 remained due and owing to Homestead.
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 ordering Mo-Bo Enterprises, Inc., to pay $10,475.35 to Homestead Pole Bean Cooperative, Inc., and, if Mo-Bo Enterprises, Inc., does not pay this amount, ordering Armor Insurance Company to pay this amount, up to its maximum liability under its bond. DONE AND ENTERED this 10th day of October 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1995. COPIES FURNISHED: Charles W. Nelson, Jr., Comptroller Homestead Pole Bean Cooperative, Inc. 26000 South Dixie Highway Post Office Box 2248 Naranja, Florida 33032 Charles D. Barnard, Esquire 200 Southeast 6th Street Suite 205 Fort Lauderdale, Florida 33301 Mark J. Albrechta, Esquire Armor Insurance Company Legal Department Post Office Box 15250 Tampa, Florida 33684-5250 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issue is whether Respondent Southern Hay Sales Inc., (Southern Hay) and its surety, Respondent Old Republic Surety Company (Old Republic), are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner produces hay on a farm owned by Petitioner near Jasper, Florida. Respondent Southern Hay is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. Hay is a natural product of a farm and, therefore, an agricultural product as defined in Section 604.15(3), Florida Statutes. Old Republic is Southern Hay's surety. Both Petitioner and Southern Hay have participated in a business arrangement since at least 1997, whereby Petitioner grew and sold to Southern Hay varying quantities of hay. Petitioner would cut, process, and then store the hay in trailers provided by Southern Hay. Petitioner would deem Southern Hay to be indebted for a load of hay when a trailer of hay was hauled away by Southern Hay personnel. On January 16, 2002, Petitioner received a signed check from Southern Hay. While there is a dispute as to who filled out the check, resolution of that question is not relevant for purposes of this matter. Suffice it to say that Southern Hay's check number 1183 was written in the amount of $2,596.45 and dated January 16, 2002. Delivery of the check to Petitioner satisfied all outstanding invoices for payment where hay had been picked up, with the exception of Petitioner's invoice number 302 documenting an obligation to Petitioner from Southern Hay in the amount of $1,241.95 for hay. Southern Hay's representative maintained at final hearing that an additional check was issued on February 15, 2002, which included payment for invoice number 302. No cancelled check was presented to corroborate the testimony of Southern Hay's representative and such omission, coupled with the general demeanor of the representative, prevents the testimony of the representative, Andrew Snider, from being credited in this regard. Southern Hay and its surety, Old Republic, currently owes Petitioner for an unpaid invoice in the amount of $1,241.95.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Department of Agriculture and Consumer Services enter a final order requiring Respondent Southern Hay Sales, Inc., or its surety, Respondent Old Republic Surety Company, to pay Petitioner for an unpaid invoice in the amount of $1,241.95. DONE AND ENTERED this 6th day of November, 2002, in Tallahassee, Leon County, Florida. _ DON W. DAVIS 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 6th day of November, 2002. COPIES FURNISHED: Brenda D. Hyatt, Bureau Chief Department of Agriculture 541 East Tennessee Street India Building Tallahassee, Florida 32308 Richard D. Tritschler, General Counsel Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Michael A. Jankowski Old Republic Surety Company Post Office Box 1635 Milwaukee, Wisconsin 53201 Sam Jones Jones Farm 6799 SR 6 West Jasper, Florida 32052 Stephen C. Bullock, Esquire 116 Northwest Columbia Avenue Lake City, Florida 32055
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 Gopherbroke was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4528 by the Department, and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $25,000. At all times pertinent to this proceeding, Respondent Hartford 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). Prior to April 1, 1985, Petitioner and Robert Neill, President of Gopherbroke, verbally agreed for Respondent Gopherbroke to act as agent in the sale of certain zucchini squash produced by Petitioner in 1985 on a net return basis, i.e. Petitioner to receive the gross sale price of the squash minus a handling fee of $0.50 per carton and a sales commission of 1/ 6.5 per cent of the gross sales price. Between April 1, 1985 and April 12, 1985 Petitioner through Tommy York delivered to Respondent Gopherbroke 84, 107 and 19 cartons of small, medium and large zucchini squash respectively for a total of 210 cartons represented by receipt tickets numbers 276-282 issued by Respondent Gopherbroke. Petitioner and Tommy York (York) had an agreement whereby York would harvest, clean, grade, package and deliver the zucchini squash produced by Petitioner to Respondent Gopherbroke for a percentage of the net proceeds derived from the sale of the squash. Respondent Gopherbroke was not a party to the agreement between Petitioner and York and was not authorized to withhold any money derived from the sale of Petitioner's squash to be paid to York under York's agreement with Petitioner. The net return on the 210 cartons of zucchini squash referred to in paragraph 6 above was $698.17 of which Petitioner has received only $349.09, the balance of $349.08 was paid to York by Respondent Gopherbroke. After April 12, 1985 York was no longer involved in the harvesting of Petitioner's squash due to a disagreement between York and Petitioner. On April 15 and 17, 1985 Petitioner delivered 30, 62 and 3 cartons of small, medium and large zucchini squash, respectively to Respondent Gopherbroke. The net return on the 95 cartons of zucchini squash referred to in paragraph 10 above was $127.35 which has been paid to Petitioner in two separate checks. However, Petitioner was not paid for 5 cartons of medium zucchini squash that Respondent Gopherbroke shows on its exhibit 2 (4/19 - 8731) as being dumped and on 21 cartons of medium zucchini squash Respondent Gopherbroke shows on its exhibit 2 (4/17 - 87298) as open but later shows a gross sale of $47.25 with charges of $10.50 for handling and $3.07 commission and an adjustment of $43.29 for a minus net proceeds to Petitioner of $9.61. The evidence is clear that the zucchini squash delivered to Respondent Gopherbroke by Petitioner on April 15 and 17, 1985 were harvested, cleaned, graded and packaged by Petitioner and his family and were of good quality when delivered. Respondent Gopherbroke presented no testimony or documentary evidence to support the dumping of the 5 cartons of squash or any justification for the adjustment on the 21 cartons of squash. On at least one occasion, Petitioner advised Respondent Gopherbroke that it was not authorized to pay York any of moneys owed to Petitioner by Respondent Gopherbroke for zucchini squash delivered by York. The price of medium zucchini squash during the period that the 5 cartons were dumped was $2.00 per carton for a gross amount of $10.00 minus the handling fee of $2.50 for a net return of $7.50. A sales commission of $0.65 had been deducted in Respondent Gopherbroke's earlier calculation. Petitioner was not furnished an account of sales within 48 hours after Respondent Gopherbroke sold the squash and the earliest payment for the squash was made 9 days after Respondent Gopherbroke had collected for Petitioner's squash.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Gopherbroke be ordered to pay to the Petitioner the sum of $399.87. It is further RECOMMENDED that if Respondent Gopherbroke fails to timely pay the Petitioner as ordered, then Respondent Hartford 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 8th 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 day of April, 1986.
The Issue The issues presented in this action concern the Petitioner's failure to renew the Respondent's Florida Farm Labor Contractor Certificate of Registration for the year 1981. The refusal to renew the certificate is premised upon the alleged failure on the part of the Respondent to furnish Felix Munoz and others with an itemized statement of deductions made from their payments for rent, and loans owed to the Petitioner, and by doing so purportedly acting contrary to Subsection 450.33(7), Florida Statutes. In addition, it is alleged, as a ground for refusal to renew the certificate, that Raul Saldivar, Jr., failed to distribute when due all monies or other items of value entrusted him by third persons for such purpose in violation of Subsection 450.33(2), Florida Statutes, and Rule 385-4.08(8)(a), Florida Administrative Code, by receiving payroll checks payable to Arnulfo Ramirez, Esteban Guerraro, Carmen Cruz, Juan Cruz, Santos Martinez, and Leonel Flores; further, that Respondent took the payroll checks in the absence of the farm workers, endorsed and deposited the checks to his bank account. FINDINGS OF FACT 1/ In the years 1979 and 1980, the Respondent had been granted a Florida Farm Labor Contractor Certificate of Registration from the State Department of Labor and Employment Security in keeping with the terms and conditions of Chapter 450, Florida Statutes. When Saldivar applied for the renewal of his Florida Farm Labor Contractor Certificate of Registration for 1981, he was refused renewal for the reasons set forth in the issues statement of this Recommended Order. The Respondent has, in all other respects, complied with the necessary conditions for his relicensure. Beginning in August, 1979, and continuing into 1980, the Respondent was a member of a partnership known as R & S Sons. Particularly in the year 1980, Saldivar, as a member of the partnership, was involved in providing farm labor employees to various tomato growers (Corkscrew Growers, Greener's Farm, C & G Farms, Johnson's Farm, Harvey Brothers, and R & S Sons, which was the partnership farm.) There was no written contract between the growers and Saldivar. Each grower would pay Saldivar for transporting the farm laborers to the growers' farms, and in addition, pay Saldivar for running a labor camp, that is, the place at which the farm laborers resided when they were not employed picking tomatoes. This latter item was the payment for rent for the laborers. The Respondent was also paid by the growers for the units of tomatoes picked by the laborers on an increment payment basis known as a "bin." The Respondent maintained a list of farm laborers through the device of a time card for each employee that worked for a week or mere for one of the growers. Those farm employees had Social Security cards and the growers furnished Workers' Compensation Insurance coverage for the benefit of the farm laborers. There were approximately 200 farm laborers in the category being provided by the Respondent's organization. The drivers of the tomato hauling trucks worked for the growers but the trucks belonged to the Saldivar organization and the picking buckets were also provided by this latter group. The farm laborers were paid by checks issued by the various growers. They were made up from time records maintained by the Respondent's organization. The check had attached to it a stub indicating the amount of pay, and the amount of Social Security deductions and the stub was available to be maintained by the employee. The information placed on the time records was gained from field supervisors who were employees of the growers. (Although the growers had field supervisors immediately in charge of the farm laborers, Saldivar was the overall coordinator for the activities of these laborers.) No withholding amount was taken out of the checks of the laborers other than Social Security. The payroll records of the Respondent would indicate the net earnings and gross amount paid to each farm laborer. Payment to the farm laborers was made at the farm labor camp managed by the Respondent. The process for disbursing the checks was to call the laborer by name and Saldivar would hand the check to the laborer. One of the farm laborers who lived at the Saldivar camp and picked tomatoes for a grower in the area was Felix Munoz. Munoz arrived at the Saldivar camp in August, 1979. Saldivar, at that point, loaned Munoz money to pay for Munoz's transportation to Florida. There was no repayment of the travel loan for a period of time for reason of unavailability of work for Munoz. In late September, Munoz began to repay the loan, and the method of repayment was at the time wherein the Respondent disbursed the payroll check from the grower to Munoz. Munoz would in turn endorse the check over to the Respondent and receive cash in the face amount of the check, and then give the Respondent some of that cash as repayment for the loan. Munoz was not provided a statement of the amount repaid on the loan. Respondent did have the amount written on a piece of paper over which he had control. The same loan arrangements for transportation that were involved with the laborer Munoz occurred with other farm laborers living in the Saldivar camp, and the same method was utilized for handling the manner of repayment of the indebtedness, and for recording the matters of the indebtedness. Munoz and other farm laborers also paid the Respondent rent for living at the Respondent's farm labor camp and the rent was paid from the proceeds of the checks for their efforts as tomato pickers. Munoz and others were not given statements of the amount they had paid to Saldivar for rent. Arnulfo Ramirez, Esteban Guerrero, Carnen Cruz, Juan Cruz, Santos Martinez and Leonel Flores were farm laborers who arrived at the Saldivar camp in December, 1979. These individuals, as with others spoken to above, were loaned money to pay for their transportation costs to Florida. The Respondent loaned them the money, and they in turn, agreed to repay the transportation loan from salaries earned and by the method identified before. These individuals had left the area of the State when the growers issued their last paycheck. Therefore, Respondent picked up the paychecks from the growers, and acting on the advice of counsel, endorsed the farm laborers' names to the checks and deposited them in the Respondent's account and the proceeds were used as credit against the transportation loans owed by these individuals.
The Issue Whether the Department may revoke and/or refuse to renew Mr. Moore's Certificate?
Findings Of Fact During 1982, 1983, 1984, part of 1985 and 1986, Mr. Moore acted as a farm labor contractor as those terms are defined in Section 450.28(1), Florida Statutes, and Rule 38B-4.02, Florida Administrative Code. Mr. Moore also acted as a crew leader as defined in Section 443.036(12), Florida Statutes, with a crew of approximately 16 to 20 farm workers. During 1982 through 1986 Mr. Moore failed to file quarterly unemployment compensation tax reports with the Department. When questioned by the Department about why he was not filing quarterly reports Mr. Moore would begin filing them. He would not continue filing them, however, and he paid no taxes due with the reports he filed. During 1982 through 1986 Mr. Moore failed to pay unemployment compensation taxes which totalled $6,831.27, including penalties, interest and filing fees, as of February 1, 1988. This amount will increase every month after January, 1988, that the debt is not paid because of the accrual of interest. By letter dated August 18, 1987, the Department gave Mr. Moore notice that it intended to revoke his Certificate. By letter dated December 16, 1987, the Department gave Mr. Moore notice that it intended to refuse to renew the Certificate. The Department gave Mr. Moore an opportunity to explain why he should be allowed to retain his Certificate. The Department also attempted to work with Mr. Moore to give him an opportunity to pay the delinquent taxes. At least two representatives of the Department have discussed the payment of delinquent taxes with Mr. Moore in the past. Mr. Moore would agree to make payments to the Department as a result of these discussions. For a while Mr. Moore would make payments. Within a short period of time after beginning payments, Mr. Moore would stop.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order revoking and refusing to renew Mr. Moore's Certificate. DONE and ENTERED this 22nd day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1988. COPIES FURNISHED: MOSES E. WILLIAMS, ESQUIRE STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY MONTGOMERY BUILDING, ROOM 117 2562 EXECUTIVE CENTER CIRCLE TALLAHASSEE, FLORIDA 32399-0658 ROBERT L. MOORE P. O. BOX 61 HASTINGS, FLORIDA 32045 ROD WILLIS, BUREAU CHIEF BUREAU OF AGRICULTURAL PROGRAMS P. O. BOX 1698 TALLAHASSEE, FLORIDA 32302-1698 HUGO MENENDEZ, SECRETARY 206 BERKELEY BUILDING 2590 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152 KENNETH HART GENERAL COUNSEL 131 MONTGOMERY BUILDING 2562 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152
