Findings Of Fact Patricia B. Wright was the selling agent in a real estate transaction involving the purchase of a mobile home by Denver Brannen from Richard and Josephine Young in Panama City, Florida. At the closing, the purchaser paid $433 in cash to Respondent, who handled the closing. This was in addition to the $920 deposit made by purchaser when the contract was executed. At the closing funds owed to the sellers were disbursed by Respondent. These funds included a check on the Whaley Real Estate, Inc. escrow account for $920 and $212.66 in cash received from buyer at closing. The balance of the cash received from the buyer in the amount of $217.34 was retained by Respondent. A deposit slip for Whaley's escrow account purporting to deposit the cash received at closing and not disbursed to seller was prepared by Respondent, but the money was never deposited in the escrow account. Shortly after the closing Respondent left town reportedly with the purchaser. When the file of this transaction could not be located and the real estate office became aware that various documents were missing and had not been recorded, at tempts to locate Respondent were mane. Telephone contact was made with her in the St. Petersburg area. When asked about the cash received at closing, Respondent admitted she had taken it. The purchaser with whom Respondent had departed telegraphed $218 to Whaley Real Estate, Inc. Respondent's last employer registered with FREC is Trevor & Young, Inc., 1910 Drew Street, Clearwater, Florida. A copy of the Notice of Hearing sent to that address by certified mail was returned not delivered with the receipt stating addressee had moved and left no forwarding address.
The Issue The issue in this case is whether Respondent owes Petitioner money for watermelons and, if so, how much.
Findings Of Fact Petitioner and Respondent M. Pagano & Son's, Inc. (Respondent) have done business for 20 years. Petitioner grows watermelons, and Respondent buys watermelons for resale. Petitioner's employees have always done business with Respondent by telephone with Morris Pagano. Following a telephone call between Mr. Pagano and Buddy Session, who is Petitioner's salesman, Petitioner sold Respondent a load of watermelons at 14) per pound on May 9, 1995. The weight of the watermelons was 43,560 pounds. On May 10, 1995, Petitioner sold Respondent two loads of watermelons at a preagreed price of 14) per pound. The weight of the first load was 40,080 pounds, and the weight of the second load was 44,940 pounds. On May 13, 1995, Petitioner sold Respondent two loads of watermelons at a preagreed price of 8) per pound. The weight of the first load was 47,660 pounds, and the weight of the second load was 47,740 pounds. On May 14, 1995, Petitioner sold Respondent a load of watermelons at a preagreed price of 8) per pound. The weight of the load was 45,920 pounds. On May 15, 1995, Petitioner sold Respondent a load of watermelons at a preagreed price of 8) per pound. The weight of the load was 43,420 pounds. The total due for the seven truckloads of watermelons was $32,780.40. After a few days, Mr. Session telephoned Mr. Pagano and asked for payment. As in all other telephone calls that he initiated, Mr. Session called Mr. Pagano at Respondent's telephone number. At no time did Mr. Pagano or anyone else inform Mr. Session or anyone else employed by Petitioner that the sale was not to Respondent. Following the telephone call, Mr. Pagano sent his field representative to Petitioner's office to settle the account. The field representative was the same person who normally represented Respondent. The market for watermelons had deteriorated since the beginning of May. Respondent's field representative tried to negotiate the price down on this basis, but he did not mention anything about a change in the identity of the buyer. Mr. Session refused to reduce the price, noting that they did not have any complaints about the quality of the watermelons. The field representative then gave Mr. Session a check dated May 22, 1995, drawn on Morris Pagano, Inc., in the amount of $22,214, which Mr. Session accepted as part payment of the amount due. On June 7, 1995, Carlie Nolan Mancil, as president of Petitioner, sent a certified letter, return receipt requested, to Mr. Pagano at Respondent, advising of the unpaid balance of $10,566.40 and warning that he would file a complaint with the Department of Agriculture, if payment were not made within 10 days. Respondent never responded to the letter.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent M. Pagano & Son's, Inc. owes Petitioner the sum of $10,566.40. ENTERED on October 19, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on October 19, 1995. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Buddy Session Nolan Farms, Inc. 3401 Sand Road Cape Coral, FL 33909 M. Pagano & Son's, Inc. 59 Brooklyn Terminal Market Brooklyn, NY 11236
The Issue Whether Respondents (“Dobson’s” and “Western Surety”) should be required to pay an outstanding amount owed to Petitioner, Doug Lancaster Farms, Inc. (“Lancaster Farms”).
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: Oden Hardy was the general contractor for a project in Apopka, Florida, known as the Space Box project. Dobson’s, a subcontractor on the Space Box project, contracted to purchase 269 trees (including Live Oaks, Crape Myrtles, Elms, and Magnolias) for $53,245.00 from Lancaster Farms. Dobson’s supplied Lancaster Farms with all the information needed to file a “notice to owner” as authorized by section 713.06, Florida Statutes. A truck from Dobson’s picked up the trees and transported them to the site of the Space Box project. Upon arriving with the trees, Dobson’s discovered that there was no means by which the trees could be watered at the site. Rather than attempting to jury rig some manner of watering system as requested by Oden Hardy, Dobson’s transported the trees to its place of business, and the trees remain there. The parties have stipulated that Dobson’s has paid all of the invoices except for Invoice No. 5810, totaling $12,580.00. There is no dispute that the trees at issue are “agricultural products” within the meaning of section 604.15(1). There is also no dispute that Dobson’s is a “dealer in agricultural products” within the meaning of section 604.15(2).
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 approving the claim of Doug Lancaster Farms, Inc., against Dobson’s Woods and Water, Inc., in the amount of $12,630.00. DONE AND ENTERED this 20th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 20th day of November, 2020. COPIES FURNISHED: Larry K. Dobson Dobson's Woods and Water, Inc. 851 Maguire Road Ocoee, Florida 34761-2915 Kelly Lancaster Doug Lancaster Farms, Inc. 3364 East County Road 48 Center Hill, Florida 33514 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Kristopher Vanderlaan, Esquire Vanderlaan & Vanderlaan, P.A. 507 Northeast 8th Avenue Ocala, Florida 34470 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
The Issue Whether Petitioner's application for a pari-mutuel occupational license as a harness driver should be granted or denied.
Findings Of Fact Respondent is the state agency which is charged with the administration and regulation of the pari-mutuel wagering industry in the State of Florida. On October 29, 1992, Petitioner applied to Respondent for a pari-mutuel occupational license as a harness driver. On January 22, 1993, Respondent denied Petitioner's application. /1 Respondent relies on the provisions of Section 550.10(5), Florida Statutes, which provides, in pertinent part, as follows: (5) The division may deny, revoke, or suspend any occupational license when the applicant therefor or holder thereof shall accumulate unpaid obligations or default in obligations, or issue drafts or checks that are dishonored or for which payment is refused without reasonable cause, when such unpaid obligations, defaults, or dishonored or refused drafts or checks directly relate to the sport of jai-alai or racing being conducted at a pari-mutuel facility within this state. Millpond Equine Clinic, a veterinary clinic, has two outstanding accounts that were opened by Petitioner. One of those two accounts was opened in Petitioner's individual name. For ease of reference, this account will be referred to as the first Millpond account. There has been no payment on that account since October 8, 1991, and there was, at the time of the formal hearing, an outstanding balance in that account in the amount of $104.00. The first Millpond account was for services directly related to the sport of racing being conducted at a pari-mutuel facility within the State of Florida. The second Millpond account opened by Petitioner was opened in the name of Miracle Shoe in care of Petitioner. There was no evidence that Miracle Shoe was a corporation at any time this account was opened. For ease of reference, this account will be referred to as the second Millpond account. This account shows an outstanding balance in the amount of $300.00. There has been no payment on the second account since May 20, 1988. The second Millpond account was for services directly related to the sport of racing being conducted at a pari-mutuel facility within the State of Florida. Miracle Shoe is a plastic horseshoe that Petitioner has attempted to develop for a number of years. Petitioner hopes to market this product to owners and trainers of horses, including race horses, in Florida and elsewhere. Petitioner formed a series of companies ostensibly for the purpose of developing and marketing Miracle Shoe. Three of the corporations formed by Petitioner were Equine Concepts, Inc., Equine Technology, Inc., and Equine Innovations, Inc. At the time of the formal hearing, two of the three corporations, Equine Concepts, Inc. and Equine Innovations, Inc. had no assets and had been dissolved as corporations by the State of Florida. Investors were attracted to these corporations through newspaper advertisements. Investors typically paid $10,000 for a 10 percent share of the corporate stock and were made officers or directors of the corporation. Petitioner thereafter treated corporate funds from the investors as his own and paid his personal expenses from these corporate funds. On at least one occasion, Petitioner formed a new corporation, which he referred to as a "clean" corporation to attract new investors. Petitioner wrote worthless bank checks on his various corporate accounts and accumulated unpaid bills in the name of these corporations. /2 Petitioner and several of the investors in Petitioner's companies attended horse shows in Germany and Kentucky to promote the Miracle Shoe. Part of the marketing strategy was for Petitioner to try to make a favorable impression on the owners and trainers of race horses. One of the reasons Petitioner sought licensure as a harness driver in the State of Florida was to gain access to pari-mutuel grounds to facilitate the marketing of the Miracle Shoe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a harness driver. DONE AND ORDERED this 26th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26 day of July, 1993.
The Issue In this case, Petitioner (Fennell) seeks to recover money from Respondent, Mo-Bo Enterprises, Inc. (Mo-Bo), for small, super select and select cucumbers, which Fennell delivered in September 1993 to Mo-Bo, a Florida dealer in agricultural products, for sale F.O.B.
Findings Of Fact In late September 1993, Fennell harvested cucumbers that he had grown in Florida. He arranged for their sale through Mo-Bo, a Florida dealer in agricultural products. The business deal between Fennell and Mo-Bo called for Fennell to deliver super select, select and small cucumbers only. Under the agreement between Fennell and Mo-Bo, Fennell transported the cucumbers to the Mo-Bo packing house at Santa Fe, Florida, where Mo-Bo graded them for shipment to buyers. As per the agreement between these parties, payment for the cucumbers was to be made by Mo-Bo customers F.O.B. In keeping with their agreement, Fennell was to receive the balance of the F.O.B. price, minus Mo-Bo charges of 50 cents per bushel as the selling fee, and $3.00 per bushel as the packing fee, together with any cash advances made from Mo-Bo to Fennell. Consistent with the agreement, Mo-Bo collected $3.50 per bushel for selling and packing the Fennell cucumbers with the exception of certain shipments which will be described. Mo-Bo advanced Fennell $400.00 on September 27, 1993 by check no. 00654 and accounted for that advance on October 13, 1993. Mo-Bo debited Fennell $400.00 on November 3, 1993 and an additional $400.00 on November 8, 1993 for claimed cash advances under the same check number and date which related to the original $400.00 cash advance. Fennell did not receive the additional $800.00 as cash advances. In effect, Mo-Bo reported the single $400.00 cash advance three different times. As reflected on Mo-Bo's invoice number 28558, Mo-Bo charged Fennell freight costs of $2.10 per bushel for 278 bushels of super select cucumbers which Fennell delivered to Mo-Bo for sale. This charge was not authorized by the agreement between Fennell and Mo-Bo. The unauthorized charge totalled $583.80. As reflected in the Mo-Bo September 23, 1993 statement of receipt and disposition in the Fennell account and supported by Mo-Bo invoice number 28541, $450.00 (for 225 bushels) was paid F.O.B. for Fennell's super select cucumbers and Fennell was credited with $675.00 as the amount owed to Fennell. For that transaction, Mo-Bo lost $225.00. In that same September 23, 1993 statement of receipt and disposition, Mo-Bo credited Fennell with an additional $672.00 (for 224 bushels) for super select cucumbers which Fennell delivered to Mo-Bo for sale. Mo-Bo claims that it lost $672.00 because it received no payment for those 224 bushels of super select cucumbers. Unlike the transaction in the preceding paragraph, Mo-Bo did not support this claim by providing the underlying invoice number 28543 to show the claimed $672.00 loss. On the other hand, Fennell has not proven that $672.00 is not an appropriate amount to assign as credit for the sale of that quantity of super select cucumbers. On September 23, 1993, in addition to the super select cucumbers, the account reports receipt and disposition of select and small cucumbers. Accepting that $450.00 was the true value F.O.B. of the 225 bushels and $672.00 for the 224 bushels of super select cucumbers, Mo-Bo lost another $108.50 from its $3.50 overall charges per bushel for selling and packing in the September 23, 1993 transaction in addition to the $225.00 it lost as a credit to Fennell described in Paragraph nine (9). Otherwise, Fennell and Mo-Bo have performed their responsibilities under the terms of their agreement related to the cucumbers harvested, packed, delivered and sold F.O.B. in September 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered awarding Petitioner, James Fennell, the amount of $1,050.30 in additional payment to be paid by Respondent(s), Mo-Bo Enterprises, Inc. and/or Lawyers Surety Corporation. DONE AND ENTERED this 31st day of August, 1994, in Tallahassee, Florida. CHARLES C. ADAMS, 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 31st day of August, 1994. COPIES FURNISHED: Donald K. Rudser, Esquire Post Office Drawer 1011 104 Central Avenue Jasper, FL 32052-0948 Lori Uhl Suite 200 2700 West Atlantic Boulevard Pompano Beach, FL 33069 James Fennell Post Office Box 154 McAlpin, FL 32062 Mo-Bo Enterprises, Inc. Post Office Box 1899 Pompano Beach, FL 33061 Lawyers Surety Corporation Suite 1085 1025 S. Semoran Winter Park, FL 32792 G. W. Croft 1815 West Howard Street Live Oak, FL 32060 Brenda Hyatt, Chief Department of Agriculture Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Bob Crawford, Commissioner Department of Agriculturec The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue Whether Respondents Veg Service, Inc., and Western Surety Company are justly indebted to Dixie Growers, Inc., for Florida- grown agricultural products which Dixie Growers, as the agent for the producers of the products; sold to Veg Service?
Findings Of Fact The Parties Dixie Growers, located in Plant City, Florida, is a producer, packer, and seller of Florida-grown agricultural products. It also acts as a sales agent for growers of Florida agricultural products, and in that capacity is a producer of agricultural products. Ms. Linda T. Lawton is the Vice President/Secretary for Dixie Growers, Inc. Mr. George Locklear is a salesman for the company. It is the practice of Dixie Growers, Inc., to pay the growers who provide it with agricultural products to be sold on the open market within 10 to 14 days of shipment unless the broker or purchaser to whom the products are sold notifies Dixie of a problem. This practice was made known to Veg Service before the incidents which led to these proceedings. Whenever Dixie receives notice of a problem with the shipment prior to payment of the grower, Dixie places a "trouble" memorandum on the top of the file. In such a case, Dixie does not usually pay the grower until the problem has been resolved with the broker and then only in an amount that does not exceed what Dixie receives from the broker or purchaser. Veg Services, Inc., is a negotiating broker of Florida agricultural products, some of which it has purchased from Dixie Growers. In this capacity Veg Services is a dealer in agricultural products. The company is located in Pompano Beach, Florida. Western Surety Company is the issuer of bonds to Veg Services, Inc., in amounts sufficient to cover the disputes involved in this proceeding. Case No. 96-3995A On June 1, 1996, Dixie Growers sold 260 boxes, (1 and 1/9th bushels each), of fancy eggplant to Veg Services. The price was $8.00 per box for a price of $2,080 for the entire shipment. On June 5, 1996, the U. S. Department of Agriculture, at a cost of $278, conducted an inspection of the 260 boxes of eggplant in Providence, Rhode Island at the premises of Tourtellot and Company, Inc. Under the section marked "Grade" in the inspection certificate, the eggplant was found to fail "to grade U.S. No. 1." On the same day as the inspection, Dixie Growers received by fax a copy of the inspection, Inspection Certificate K-195345-4. In accord with its customary practice, Dixie Growers placed a "trouble" memorandum in its file so that it would not pay the grower of the eggplant until the trouble was resolved. On June 17, 1996, Dixie Growers received a fax of the invoice from Veg Services marked, "OK." Interpreting the "OK," to mean that payment would be in full, George Locklear called Veg Service to double-check. He talked with Martin Shield and Marcie, a member of the office staff. First Marcie and then Mr. Shield stated that the invoice would be paid in full. Before the growers were paid on the strength of the representations of the two Veg Service employees made June 17, however, Deborah Lawton, Dixie's bookkeeper asked Mr. Locklear to inquire as to whether the cost of the inspection ($278,) would be deducted from the payment. Marcie told Mr. Locklear that payment would be in full with nothing deducted for the inspection. With the understanding that payment would be made in full with nothing deducted for the cost of the inspection, Dixie Growers paid the growers of the eggplant in full. On July 1, 1996, after payment had been made by Dixie Growers to the growers of the eggplant, it received a fax from Veg Services that it would be paid only $1.60 per box instead of the full $8.00 per box. When Mr. Locklear called to inquire about the fax, Marcie told him that Veg Services had made a mistake when it said that payment would be in full. Dixie Growers received payment in the amount of $416.00 leaving $1,664.00 still due. Case No. 96-3996A On April 27, 1996, Dixie Growers sold 65 boxes of medium squash, 200 boxes of select cucumber and 60 boxes of cabbages to Veg Service. No trouble with the produce was ever reported by Veg Service to Dixie Growers. Nor was there ever made a federal inspection of the produce. The total bill for the sale was $2610.00. On May 9, 1996, another sale was made by Dixie Growers to Veg Service: 154 boxes of medium zucchini, 72 boxes of small squash, 72 boxes of medium squash, 50 boxes of choice cucanelle and 120 boxes of large cucumbers. No trouble with any of the produce was ever reported by Veg Service to Dixie Growers. Nor was there a federal inspection conducted. The bill for the sale was $4,360.00. On June 12, 1996, payment was received for the April 27 sale in the amount of $1,280 leaving a balance of $1,330. The same day payment was received for the May 9 sale in the amount of $2,259.50 leaving a balance due of $2,100.50. Invoices showing the balances due for the two sales were mailed by certified mail to Veg Service. Following phone calls by Dixie Growers, at the request of Veg Service staff, the invoices were later faxed twice to Veg Service. The two balances, totalling $3,430.50, had not been paid as of final hearing. Had any trouble with either sale been communicated to Dixie Growers prior to the payment it made to the growers of the produce, then Dixie Growers would not have paid the growers until the problem was resolved. Since Veg Service did not communicate any problem with either sale in any way, Dixie Growers paid the growers. Case No. 4727A On June 6, 1996, Dixie Growers sold Veg Service 500 boxes of fancy eggplant, 200 boxes of choice eggplant, 600 boxes of large bell peppers, 200 boxes of extra large bell peppers and 50 boxes of long hot peppers. The invoice for the sale shows $14,200 due for the produce and a charge of $23.50 listed for "Temp.Recrd," for a total invoiced amount of $14,223.50. On July 17, 1996, Dixie Growers received a check from Veg Services for $10,262.50 for the June 6 sale leaving a balance of $3,961.00. When George Locklear of Dixie Growers inquired of Veg Service as to why the invoiced amount had not been fully paid, he was told that a federal inspection had shown that the peppers were smaller than as represented by Dixie Growers. This was the first time that Dixie Growers had received any notice from Veg Service that there was any trouble with the June 6 sale. The inspection was faxed to Dixie Growers on July 31, 1996, long after Dixie Growers had paid the growers of the produce. The fee for the inspection by the U.S. Department of Agriculture was $111.00. That fee had been deducted by Veg Service when it paid the invoice amount so that the amount claimed due by Dixie Growers in this case ($3,961) is the sum of the inspection fee ($111) and a balance not paid on the produce sold, ($3,850).
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Agriculture and Consumer Services enter a final order adjudicating Veg Service, Inc., to be indebted to Dixie Growers, Inc., in the amount of $9,055.50. DONE AND ENTERED this 31st day of December, 1996, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1996. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0350 Richard Tritschler General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Charles E. Lawton, President Dixie Growers, Inc. Post Office Box 1686 Plant City, Florida 33564-1686 Herbert Shield, President Veg Service, Inc. 150 SW 12th Avenue, Suite 370 Pompano Beach, Florida 33069 Western Surety Company Legal Department 101 South Phillips Avenue Sioux Falls, South Dakota 57102
Findings Of Fact The Petitioner, Thomas J. Chastain, is an agricultural producer and packer in Arcadia, Florida. The Respondent, C. J. Prettyman, Jr., Inc., is a agricultural broker doing business in Exmore, Virginia. Pursuant to an oral agreement, the Respondent has acted as a broker for agricultural products shipped to him by the Petitioner. (Testimony of C. J. Prettyman, Jr.). The complaint filed against the Respondent alleged a failure to properly package and account for five shipments of cucumbers and/or peppers shipped to the Respondent between November 7, 1978 and December 15, 1978. The first disputed shipment occurred November 7, 1978, and involved the sale of 750 cartons of cucumbers in the amount of $1,250.00 on invoice number 2775. (Respondent Exhibit 1A). These cucumbers were subsequently sold to Whamco, Inc., and shipped to Minneapolis, Minnesota. (Respondent Exhibit 1B). On November 11, 1978, the cucumbers were inspected by the United States Department of Agriculture in Minneapolis and found to require repacking due to decay which caused a $560.55 deduction from the amount paid Respondent by Whamco and a corresponding deduction in the amount due the Petitioner. (Respondent Exhibit 1C). The amount due the Petitioner from the sale of the cucumbers on invoice number 2775 is $689.45. On November 15, 1978, 205 assorted cucumbers were sold by the Petitioner to Wick and Brothers, Inc., a wholesale fruit and produce merchant. (Respondent Exhibit 4). Included in the shipment of cucumbers to Wick were cucumbers belonging to other growers. Wick paid the Petitioner for 300 boxes of cucumbers on November 30, 1978. (Respondent Exhibit 3). The Petitioner, therefore, received payment for 95 boxes of cucumbers owned by another grower for whom the Respondent acted as broker. In order to recoup the monies due the other grower, the Respondent deducted $308.75 from the amount due the Petitioner. (Testimony of Respondent). Similarly, Wick purchased 450 boxes of "super cukes" from Petitioner on November 20, 1978. (Respondent Exhibit 6). Wick, however, paid the Petitioner for 700 boxes of cucumbers on December 7, 1978. (Respondent Exhibit 5). Petitioner was thus paid for 250 boxes of cucumbers which were the property of Respondent or another grower. Again to recoup the monies due another grower, the Respondent deducted $562.50 from the amount due the Petitioner. (Testimony of Respondent). Respondent invoiced 600 packages of large peppers on December 15, 1979, at a price per unit of $8.00. (Respondent Exhibit 2B). On the same day, the Petitioner sent the Respondent a statement invoicing 600 large peppers at $9.00. (Respondent Exhibit 2). The 600 peppers were sold by the Respondent to Weiss Market for $8.00. (Testimony of Respondent). The $8.00 sale price was based on the prevailing market rate. (Testimony of Respondent). Invoice number 2911 was not disputed by the parties at the final hearing.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter an Order finding that the Petitioner is due the amount of $982.09 from the sale of these agricultural products by the Respondent. DONE and ORDERED this 13th day of March, 1980, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Earl Peterson, Chief Bureau of License and Bond Division of Marketing Room 418, Mayo Building Tallahassee, Florida 32301 Mr. Thomas J. Chastain Star Route "A", Box 110 Punta Gorda, Florida 33950 C. J. Prettyman, III Vice President C. J. Prettyman, Jr., Inc. Broad Street Exmore, Virginia 23350 The Travelers Indemnity Company One Tower Square Hartford, Connecticut
The Issue The issues under consideration result from the attempt by The Beaches Leader, Inc., (Petitioner) to gain refund of sales tax paid to the State of Florida. That refund is sought from the State of Florida, Office of the Comptroller (Respondent). The theory of the pursuit of the tax claim is set forth in Section 212.08(6), Florida Statutes, in which there is provided an exemption from sales tax associated with the sale of newspapers. In this connection, the question is raised, whether Petitioner is a newspaper within the meaning of Rule 12A-1.08, Florida Administrative Code, in effect at the time that the refund was requested.
Findings Of Fact Petitioner, by this action, seeks a refund from Respondent for the payment of sales tax related to the cost of printing of the publication known as The Mirror. As publisher, Petitioner sought the refund in keeping with Section 215.26, Florida Statutes. The request dates from August 16, 1985. This application for refund is premised upon the Petitioner's belief that it is entitled to refund in that The Mirror is a newspaper within the meaning of Rule 12A-1.08(3), Florida Administrative Code, and as such is exempt from taxation associated with the cost of printing the publication. The statement of law dealing with exemptions from sales tax pertaining to newspapers is set forth in Section 212.08(6), Florida Statutes. Petitioner finds solace in the decision of Campus Communications vs. Dept. of Revenue, 473 So.2d 1290 (Fla. 1985). Petitioner believes the finding in that case in which the Florida Supreme Court upheld the claims of the publication, The Independent Florida Alligator, because it was a newspaper by definition found in the aforementioned rule and entitled to be exempt from sales tax requirements, applies to Petitioner's circumstance. The amount of refund claimed is $6,577.10. Having considered the request for refund, and being mindful of the case of Campus Communications, supra, Respondent denied the refund request upon the expressed belief that The Mirror is not a newspaper within the meaning of Rule 12A-1.08(3), Florida Administrative Code. This statement of denial dates from March 20, 1986. Petitioner made timely application for the tax refund ire question and has sought timely review of the Respondent's intent to deny that refund request. The Mirror is a civilian enterprise publication for the special interests of personnel of the United States Naval Station at Mayport, Florida. However, it does solicit and contain some news items of general interest to the community. The testimony of the witnesses and the documentary evidence, including the issues of The Mirror which were admitted into evidence, establish that The Mirror is published under a contract between Petitioner and the United States Navy. It is distributed free of charge to naval personnel at the Mayport Naval Station, Jacksonville, Florida. In addition to distribution throughout the Mayport Naval Station, it is available and is distributed to civilian employees of the United States Navy both on and off the naval base, and also to military dependents and visitors both on and off the Mayport Naval Station base. The Mirror is delivered to 1,200 off-base residences and distributed at the offices of the Beaches Leader, a newspaper sold to the general public. There, residents of the Duval County, Florida, beaches communities obtain copies of The Mirror. Finally, copies are mailed weekly to paid subscribers in Florida and five other states. The affected community served by and which is the principal audience for The Mirror is the United States Naval Station at Mayport and the surrounding beaches area. This community is composed of naval personnel, their dependents and civilian naval employees. There are other persons who have no direct connection to the Navy but who, as beaches communities residents, are affected by the naval presence in the beaches area and in the Jacksonville metropolitan area as a whole and who use The Mirror as a means of information and dissemination of information. Mr. Paul Henkemeyer, a civilian employee of the United States Navy who is responsible for maintaining and disseminating information concerning the economic and other impacts of the naval installations in the Jacksonville area, testified in the course of the hearing. He pointed out that the Navy has a very substantial economic and social impact upon the residents of metropolitan Jacksonville, Florida. The Navy employs over 37,000 military personnel in the Jacksonville area in addition to over 10,000 civilian employees. Its payroll in the Jacksonville area approaches $1.7 billion. The Navy and its related economic activity account for in excess of 10 per cent of the Jacksonville area economy. The witnesses Mr. Henkemeyer; Mr. Townsend Hawkes, a beaches area real estate broker; Mr. Simon A. Smith, Jr., former Chief Executive of the North Florida Council of the Boy Scouts of America; and Ms. Marion Perry, supervisor of services of the United Way, testified that The Mirror is considered by them to be a "newspaper" of general circulation and interest to the public in the Jacksonville beaches communities. They demonstrated that The Mirror disseminates information about local events, including the Boy Scouts, United Way, and other charitable interests, and religious news. This pertains to the beaches communities and is a routine activity within The Mirror. More specifically, Mr. Hawkes said that he regularly reads The Mirror to follow his interests and involvement with the Sea Cadets, a group of boys and girls from the community interested in sailing and nautical activities. He also promotes the activities of the Kiwanis Club related to a swim marathon sponsored by that club in the publication. He reads the publication in furtherance of his business as a real estate broker to determine current happenings in the beaches communities associated with the Navy as it affects his business interests. He is involved with paid advertisements in The Mirror. He noted several issues which are peculiarly beaches topics about the Navy. He referred to certain road development and transportation matters found in The Mirror. Mr. Smith indicated that he considers The Mirror to be a "newspaper" of general circulation to the beaches communities, because it provides extensive coverage of Boy Scout activities and is viewed by the Boy Scouts of America and other charitable and community institutions as a source of dissemination of news and press releases concerning their present and future activities. Ms. Perry, in her role with the United Way in which her unit serves several north Florida counties including Duval County, testified that The Mirror is considered by her and the United Way to be a "newspaper" of general circulation and public interest for the beaches communities. She indicated that it is included in the mailing lists for press releases by the Florida Press Association and the United Way. She testified that The Mirror is listed as a "newspaper" in the Media Guide prepared by her. She notes that The Mirror includes features and opinions to the editor pages. She explained that The Mirror regularly disseminates information about the activities and fund raising efforts of the United Way throughout Jacksonville and the beaches communities. Generally speaking, Mr. Hawkes, Mr. Smith and Ms. Perry testified that The Mirror is included among the list of newspapers to which information, including press releases is regularly and routinely distributed by the organizations with which they are now or have been affiliated. In summary, those individuals and their community organizations consider The Mirror to be a "newspaper" of general circulation which contains matters of current public interest to the general public, and of current events and news of interest to the general public. The testimony of Mr. Tom Wood, the chief executive officer of The Beaches Leader, Inc., which owns and publishes The Mirror, provided further insight into the operations and function of The Mirror. The publication has a designated employee who serves as editor and news reporter of The Mirror. This employee works on the base at the United States Naval Station Mayport where he collects news items from all sources, including not only those provided by the United States Navy, but also sources from the community at large and throughout Florida in the form of press releases. Mr. Wood's testimony was that The Mirror is a publication whose purpose and function is to disseminate the news. His testimony also established that it is not a "shopper" type of publication, and it is not given over principally to advertisements or personal classified advertisements. The Mirror contains a percentage of advertising which is less than the national average and regularly carries news items of general interest to the public and the beaches communities in particular. Mr. Wood conceded that the publication is decidedly directed to the special interests of the United States Naval Station Mayport, but he pointed out current events and news of current interest to the general public are found in the publication. Wood identified the fact that the Navy informs the publisher where it wishes to have its news items placed and indicates to the publisher which of those items must be placed in a given issue. Beyond this arrangement, the publisher may choose what it wishes to include in an issue based upon remaining available space. In this realm, the number of pages in each issue of the publication, as well as the advertising ratio, is controlled by contract between Petitioner and the Navy. In picking examples of issues of The Mirror presented at hearing, issues were selected which are particularly demonstrative of a broader base of news stories than would relate to the Navy. Wood describes Petitioner's contract with the Navy as allowing the Navy to take back articles that were initially provided for placement in The Mirror. Per the contract, no editorial cartoons can be used. The Navy may request to see the galley or paste-up of an issue of the publication but has yet to do so. As stated, The Mirror is published for the special interest of personnel of the U.S. Naval Air Station, Mayport, Florida. To this end, Mr. Wood explained that, "we do not expect to have readers, substantial number of readers who don't have some connection, interest in the Naval Air Station at Mayport." The Mirror does not contain any news stories gathered from either Associated Press (AP) or United Press International (UPI) wire service material. Mr. Wood indicated that The Mirror does not routinely cover news of the day; however, given that this is not a daily publication, this arrangement is not unexpected. A review of the issues of The Mirror admitted into evidence offered by both the Petitioner and the Respondent, reveals the nature of news of general interest to the public, including weekly religious and recreational columns and feature stories. The issues submitted include news reports about hurricane preparation, athletic events, Halloween safety programs, youth recreational league registration information, matters concerning important historical dates, information concerning the need for volunteers and other assistance in charitable works in the beaches communities, news concerning the public schools, news of Fire Prevention Week, news concerning Native American Week, as well as information pertaining to drug abuse and automobile safety, a recipe column, television information, as well as matters of national interest, including news concerning the disaster of the space shuttle Challenger, together with the efforts of the Navy associated with its recovery. The basic structure of the publication may be seen in Petitioner's Exhibits 1-12 and 17-19 and Respondent's Exhibits 1 and 2 admitted in evidence. Here are some subjects covered in those editions: The Mirror for the week of January 25, 1985, included religious columns, information on preventive dentistry and actions to be taken as precautions to colder weather, a story on African famine relief, reminders concerning taxes and matters pertaining to personal income tax, as well as an extensive classified section concerning both real property and personal property, in addition to the activities of the Boy Scouts in the beaches area. The Mirror issue of February 15, 1985, included feature story on the observation of Black History Month, as well as columns on recreation and religion. The issue of June 14, 1985, included articles on the restoration of the Statue of Liberty and a feature on Father's Day, in addition to the information on recreational activities and religious events. The Mirror issue of June 21, 1985, included coverage of religious activities. The Mirror issue dated June 28, 1985, included special features on the Fourth of July, a recreational feature on cave diving and safety measures, in addition to information on recreational and family activities and a feature on safety precautions concerning fireworks and their use. The September 6, 1985, issues of The Mirror contained features on square dancing, marriage counseling, carnival con-men and the surrender of the Japanese at the conclusion of World War II. The September 27, 1985, issue of The Mirror included a special feature on Native American Week, the dangers of cocaine, automobile safety and recreational and religious activities sections. The November 29, 1985, issue of The Mirror had a feature on toys for tots collections and year-end tax information, as well as the regular features on recreational, charitable and religious activities. The issues of The Mirror admitted in evidence for the dates January 31, 1986, and February 7, 1986, focused upon the disaster of the space shuttle Challenger and the extensive search efforts by the United States Navy and other vessels to locate the wreckage and to assist in determining the cause of the explosion. Extensive coverage of the shuttle disaster and NASA news was contained in those issues of The Mirror as well as in civilian newspapers which were introduced in evidence. The Mirror issue of February 21, 1986, contained a feature on Black Americans. The issue of August 8, 1986, focused upon the change in command of the United States Navy aircraft carrier Saratoga, which news was also the feature story of the local Jacksonville newspapers, The Florida Times Union and Jacksonville Journal, on that day. The issues of The Mirror regularly contain feature stories concerning the United States Navy and matters related to the Naval Station Mayport. The testimony of the witnesses makes it evident that naval happenings, especially as they relate to the activities and events at the Naval Station Mayport and other naval bases in Jacksonville, are news in metropolitan Jacksonville, Florida. Two issues of The Independent Florida Alligator, Petitioner's Joint exhibits 2 and 3, were admitted. A comparison of The Mirror and The Independent Florida Alligator shows in what ways they are similar and dissimilar. Both publications are publications of special interest to a particular community--the University of Florida in the case of The Independent Florida Alligator, and the United States Naval Station Mayport in the case of The Mirror. However, The Independent Florida Alligator has a much broader base in its reporting of news beyond its principal community and offers more extensive editorial comment. In addition, it serves the function of training student journalists in the newspaper business as the court in Campus Communications, supra, referenced in its favorable response to the claim for tax exempt status. No such role is played by The Mirror. The Independent Florida Alligator has a format that is more akin to a general circulation newspaper, whereas The Mirror is in many respects more of a news bulletin. The articles related to the Navy may preempt other news information and the reporting of other news events beyond the Navy's activities is secondary. The Navy exerts influence on the basic design and focus of The Mirror through the contract with its publisher. By contrast, the The Independent Florida Alligator has a wide-ranging set of topics in which there does not appear to be any outside entity predetermining space requirements or which has a say in what news is pursued by the student newspaper.
Findings Of Fact On November 18, 1976, Van Buren County Fruit Exchange of Florida, Inc. (Respondent) received an order from the Great A & P Tea Company for 1000 cartons of #1 cucumbers for shipment to Chicago. Respondent, who did not have the cucumbers on hand, called other growers and located 508 cartons at Six L's Packing Company, Inc. at Naples, Florida which were invoiced to Van Buren on November 20, 1976, (Exhibit 1) at the price of $1,778. Prior to these cucumbers being delivered to Respondent Six L's had the cucumbers inspected by the Florida Department of Agriculture (Exhibit 2). The inspection report showed the 508 cartons to be within tolerance and there was no decay. Notes of the inspections were available at the hearing and showed the cucumbers to be well within the 10 percent tolerance allowed. The inspection report further stated "Meets Canadian Import Requirements." Only cucumbers destined for Canada require inspection. It is very rare to have inspections made on cucumbers not so destined. The 508 cartons of cucumbers picked up from Six L's at Naples on November 20, 1976, were in cartons with Six L's Packing Company printed on the cartons. The only cucumbers in Six L's Packing house on November 20, 1976, were those invoiced to Van Buren. At the time the inspection was made the truck with which they could be picked up had not arrived and the inspection report noted that "Applicant's agent states stock to be loaded on trailer License No. 10L-1131 Fla." The number of the trailer was added when the trailer arrived and the license number became known. Although there was some testimony to the contrary, this procedure of completing the inspection by inserting the license number of the trailer when it is not present with the inspector, after the inspector leaves is common practice. Upon leaving Six L's Packing house the refrigerated trailer proceeded to Wauchula where two additional shipments were added to the trailer. 111 cartons were obtained from Vegetable Pack and 137 cartons from MoBo Enterprises, Inc. The former were labeled "Veg-Pac, Inc., Wauchula, Fla." and the latter "MoBo Enterprises, Inc., Wauchula, Fla." On all 756 cartons ultimately shipped to A & P in Chicago was also printed "Selected Cucumbers, 24, Produce of USA." The 756 cartons of cucumbers arrived in Chicago on the morning of November 23, 1976, and were rejected by A & P as not being in grade. An inspection of the entire load was conducted at 2:35 p.m., November 23, 1976, by Inspector Edwards (Exhibit 4). This inspection report stated "Grade defects range in most samples from 4 percent to 38 percent, in some none, average 20 percent, consisting of cuts, scars, misshapen, old insect damage, and mosaic." Condition was "generally fresh and firm. Average less than 1 percent decay." Upon receipt of the results of the initial inspection Van Buren, knowing that the cucumbers came from three producers, requested the cucumbers be separated by label and reinspected. At 9:00 a.m. on November 24, 1976, Inspector Edwards inspected 508 cartons of cucumbers remaining in trailer (Exhibit 3). These cartons were labeled "MoBo Enterprises, Inc., Wauchula, Fla." or "Six L's Packing Company, Hollywood, Fla." With each also printed "Selected cucumbers, 24, Produce of USA." Grade defects again reported to "range in most samples from 13 percent to 38 percent, in some none, average 19 percent consisting of cuts, scars, misshapen, old insect damage, and mosaic." Condition reported was "generally fresh and firm. Average less than 1 percent decay." When Van Buren notified the sellers of the inspection reports MoBo and Veg-Pac accepted the information and made arrangements to have their cucumbers disposed of. Six L's, on the other hand, insisted that the cucumbers from its packing house were in grade as shown by the inspection report on date of shipment and refused to accept any responsibility for the rejected cucumbers. On November 24, 1976, Van Buren turned the 508 cartons of cucumbers over to general commission merchants, Gridley, Maxon & Co., for disposal. Apparently, these were the cucumbers remaining on the truck after MoBo's and Veg-Pac's cucumbers had been removed. However Exhibit 3, as noted above, shows these 508 cartons to be printed "MoBo Enterprises" or "Six L's Packing Company". A few of these 508 cartons were sold at the market price of $4.50-- $5.00 per carton with the majority of prices ranging downward to 25 per carton and the remaining 116 cartons being dumped on December 13, 1976, (Exhibit 5). U.S.D.A. Dumping Certificate No. 32884, dated December 18, 1976,(Exhibit 6) shows 116 cartons of cucumbers identified as "24 Selected Cucumbers, Six L's Packing Company, Hollywood, Fla., Produce of USA" were inspected that date and their condition was found to be "generally decayed" and with no commercial value. The net received from Gridley, Maxon & Co. for the 508 cartons after their commission was deducted was $6.47. To date the carrier has not been paid and claims $355.60 shipping charges. However this claim is not a part of these proceedings and no evidence was received regarding liability for this debt. Transportation or refrigeration difficulties with this shipment did not occur and could not contribute to the cucumbers being rejected. Furthermore, the results of the inspections conducted in Naples and Chicago cannot be reconciled if the same cartons were inspected at both places. The grade defects of scars, mosaic, old insect damage and misshape could not occur during transit from Naples to Chicago. No witness could offer a reasonable hypothesis upon which the inspection reports can be reconciled or explained.
