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.
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 The issue in this case is whether Respondents owe Petitioner $13,512.09 for watermelons, as alleged in the Amended Complaint.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Cook Brown Farms is a melon farm in Punta Gorda, Florida. At all times pertinent to this proceeding, Cook Brown Farms was a "producer" as defined in Subsection 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Melons come within the definition of "agricultural products" as defined in Subsection 604.15(3), Florida Statutes. J.G.L. Produce is a Florida Corporation, owned by John W. Johnson, Jr., and located in Pompano Beach, Florida. At times pertinent to this proceeding, J.G.L. Produce was licensed as a "dealer in agricultural products" as defined in Subsection 604.15(1), Florida Statutes. Andrew J. Cook, a principal owner of Cook Brown Farms, and Mr. Johnson of J.G.L. Produce entered into an oral agreement regarding the sale of watermelons grown at Cook Brown Farms. The core of this case is a dispute concerning the nature of this agreement. Mr. Cook testified that, under the agreement, J.G.L. Produce would purchase the melons at the farm at their daily market price, plus 1/2 cent to cover Cook Brown Farms' cost of picking, sorting, and placing the melons in special bins and in special pallets required by the ultimate purchaser, Kroger Supermarkets. J.G.L. Produce would provide the bins and pallets and would provide the trucks to ship the melons. Mr. Johnson testified that the agreement was not for purchase but for brokerage of the melons. J.G.L. Produce would act as broker of Cook Brown Farms' watermelons, use its best efforts to sell the melons at the highest price available, and pay Cook Brown Farms the proceeds of the sale, minus expenses and a brokerage fee of one cent per pound. Mr. Johnson testified that J.G.L. Produce never took title to or purchased the melons, and that the risk of loss always remained on Cook Brown Farms. Mr. Johnson testified that he approached Mr. Cook about the melons because he had a ready buyer in another local dealer, Delk Produce, which had a longstanding arrangement to provide melons to Kroger. Mr. Johnson agreed with Mr. Cook that the arrangement included the provision of bins and pallets by J.G.L. Produce, though Mr. Johnson stated that the arrangement also called for J.G.L. Produce to retain $0.015 per pound from the amount paid to Cook Brown Farms to cover the cost of the bins and pallets. J.G.L. Produce took approximately 24 truck loads of watermelons from Cook Brown Farms. J.G.L. Produce deducted a one cent per pound brokerage fee from each load of melons it took, except for certain loads noted below, without contemporaneous objection from Cook Brown Farms. The Amended Complaint claims that J.G.L. Produce owes money to Cook Brown Farms for five of the loads taken by J.G.L. Produce. In sum, the Amended Complaint states that J.G.L. Produce owes Cook Brown Farms $19,991.74 for the five loads, less $6,479.65 already paid, for a total owing of $13,512.09. Item One of the Amended Complaint alleges that J.G.L. Produce owes $4,438.54 for a load of 38,596 pounds at a price of $0.115 per pound, sold on April 20, 2000. Item Two of the Amended Complaint alleges that J.G.L. Produce owes $4,625.30 for a load of 40,220 pounds at a price of $0.115 per pound, sold on April 21, 2000. The Amended Complaint alleges that the melons on these two loads were inspected and approved for shipment during loading by Delk Produce employee Freddie Ellis. The Amended Complaint states that Cook Brown Farms was paid in full for the loads on May 3, 2000, but that the contested amounts were deducted from subsequent settlements by J.G.L. Produce. The evidence established that the melons claimed under Item One were initially sold to Delk Produce for delivery to Kroger. On May 3, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $4,438.54, which constituted the price for 38,596 pounds of melons at $0.125 per pound, less $385.96 for the one cent per pound brokerage fee. Jay Delk, the principal of Delk Produce, testified that this load was rejected by Kroger's buyer in Virginia due to "freshness," meaning that the melons were unsuitably green. Mr. Delk stated that the melons were taken to North Carolina to ripen and eventually sold at $0.06 per pound. The final return on this load, less the brokerage fee, was $1,543.84. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $4,438.54 and the final payment of $1,543.84. The evidence established that the melons claimed under Item Two were initially sold to Delk Produce. On May 3, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $5,809.80, which constituted the price for 50,520 pounds of watermelons at $0.125 per pound, less $505.20 for the one cent per pound brokerage fee. Seminole Produce purchased 10,300 pounds of this load at $0.145 per pound, or $1,493.50. The remainder of the load was rejected by Kroger due to freshness and had to be resold at a lesser price of $0.0346 per pound, or $1,391.00. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $5,809.80 and the final payment (after deduction of the brokerage fee) of $2,576.11. The evidence established that the melons claimed under Item Three were sold to Delk Produce. On May 9, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $2,731.30, which constituted the price for 42,020 pounds of watermelons at $0.0675 per pound, less $105.05 for the brokerage fee, reduced to $0.0025 per pound. Mr. Johnson testified that he decided to forego the full brokerage fee to save money for Mr. Cook and his farm, because it was "hurting" due to the rapidly plummeting price for watermelons. Mr. Johnson discovered at this time that Delk Produce had not been retaining the agreed- upon $0.015 per pound to cover the cost of bins and pallets and decided not to lose any more money on that item. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $2,731.30 and $2,206.05, deducting $525.25 from the original payment to cover the cost of the bins and pallets. The evidence established that the melons claimed under Items Four and Five were originally shipped to Wal-Mart in Kentucky on April 29, 2000, and were rejected on the ground that the melons were not packed to specifications. The melons were trucked back to Florida at J.G.L. Produce's expense. The melons claimed under Item Four totaled 41,100 pounds. J.G.L. Produce divided the melons into four loads and sold them to four local dealers at an average price of $0.775 per pound, totaling $3,185.41. J.G.L. Produce deducted its $0.015 charge for bins and pallets, reducing the total to $2,671.51. J.G.L. Produce then deducted $1,750.00 from the total as reimbursement for the freight charge it paid to bring the melons back to Florida after their rejection by Wal-Mart. J.G.L. Produce did not include a brokerage fee. On May 26, 2000, J.G.L. Produce paid the remaining $921.51 to Cook Brown Farms as part of the final settlement. The melons claimed under Item Five totaled 45,600 pounds. J.G.L. Produce sold 2,426 pounds to Seminole Produce at $0.10 per pound, or $242.60. J.G.L. Produce sold the remaining 43,174 pounds to Belle Glade Produce at $0.065 per pound, or $2,800. From the total for Item Five, J.G.L. Produce deducted its $0.015 charge for bins and pallets and $1,950.00 for the freight charge it paid to bring the melons back to Florida after their rejection by Wal-Mart. J.G.L. Produce did not include a brokerage fee on this load of melons. On May 26, 2000, J.G.L. Produce paid the remaining $416.64 to Cook Brown Farms as part of the final settlement. The weight of the credible evidence, excluding the hearsay that was not supported by the direct testimony of Mr. Johnson, leads to the finding that there was a brokerage arrangement between the parties. J.G.L. Produce routinely deducted brokerage fees from its payments, without objection by Cook Brown Farms. This course of dealing strongly indicates a brokerage arrangement. Mr. Cook testified as to prior dealings with J.G.L. Produce, which also involved a brokerage arrangement. The evidence indicated that J.G.L. Produce fully accounted for the five loads of melons at issue, and paid Cook Brown Farms the full amounts due and owing for those loads.
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 dismissing the Amended Complaint filed by Gin Brown Matthews, d/b/a Cook Brown Farms. DONE AND ENTERED this 21st day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2001. COPIES FURNISHED: Redland Insurance Company 222 South 15th Street, Suite 600, North Omaha, Nebraska 65102 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 John W. Johnson, President Post Office Box 1123 Pompano Beach, Florida 33061 Harold M. Stevens, Esquire Post Office Drawer 1440 Fort Myers, Florida 33902 Edward L. Myrick, Jr., Esquire Beighley & Myrick, P.A. 1255 West Atlantic Boulevard Suite F-2 Pompano Beach, Florida 33069 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether Respondent, Debruyn Produce Co. owes Petitioner, Florida Farm Management Inc. the sum of $4,846.00 for watermelons shipped by Petitioner and handled by Respondent as Petitioner's agent during the period from May 30, 1989 through July 5, 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant fact are found: At all times material to this proceeding, Petitioner, Florida Farm Management, Inc. was a "producer" of agricultural products in the state of Florida as that term is defined in Section 605.15(5), Florida Statutes. At all times material to this proceeding, Respondent, Debruyn Produce Co. was a licensed "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes. Respondent was issued license number 596 by the Department, and bonded by Peerless Insurance Company (Peerless) for the sum of $47,000.00, bond number R2-27-13, with an effective date of November 13, 1988 and a termination date of November 13, 1989. At all times material to this proceeding, Debruyn was authorized to do business in the state of Florida. Around the last week of April, 1989, Petitioner and Respondent orally agreed, among other things, for Petitioner to produce certain quantities of Mickey Lee Watermelons and for Respondent to market those watermelons. This oral agreement was reduced to writing, executed by the Respondent and sent to Petitioner to execute. Petitioner, after making certain changes in the agreement and initialing those changes, executed the agreement and returned it to the Respondent. It is not clear if Respondent agreed to the change since they were not initialed by Respondent. However, the parties appeared to operate under this agreement as modified by Petitioner. Under the agreement, Respondent was to advance monies for harvesting and packing, furnish containers and labels for packing and agreed to pay certain chemical bills. Petitioner was to reimburse any monies advanced by the Respondent for (a) harvesting or packing; (b) containers and labels and; (c) chemicals, from the proceeds of the sale of watermelons. Any balance owed Petitioner for watermelons was to be paid within 30 days. Additionally, Respondent was to receive a commission of 8% of net FOB, except 30 cent maximum on sales of less than $6.25 per carton and 40 cents per carton for melons delivered on contract to National Grocers Co. The relationship of the parties was to be that of producer and sales agent. Before entering into the agreement with Respondent, Petitioner had agreed to furnish National Grocers Co. four shipments of melons totalling 8,000 cartons. Respondent agreed to service that agreement. Although Petitioner's accounts receivable ledger shows a credit of $6,007.13 for chemicals paid for by Respondent, the parties agreed that only $3,684.68 was expended by Respondent for chemicals and that Respondent should receive credit for that amount. The parties agree that Respondent advanced a total of $18,960.00 for harvesting and packing and the Respondent should be given credit for this amount. The parties agree that Respondent paid to Petitioner the sum of $12,439.32 and the Respondent should be given credit for this amount. Cartons and pads for packing the melons were shipped on two occasions and the total sum paid by Respondent for those cartons and pads was $17,225.00. The cartons were printed with the logo of Respondent on one side and the logo of Petitioner on the other side. Petitioner agrees that the number of cartons and pads used by him came to $12,463.78 and the Respondent should be given credit for that amount. All cartons and pads in the sum of $17,255.00 were delivered to Petitioner's farm. The amount in dispute for the remainder of the carton is $4,762.22. The Respondent was responsible under the agreement to furnish cartons and pads (containers). Respondent ordered the cartons and pads after determining from Petitioner the number needed. There were two orders for cartons and pads placed and delivered. There was an over supply of cartons and pads delivered to Petitioner. This over supply was the result of a miscommunication between Petitioner and Respondent as to the amount of cartons and pads needed. Petitioner agrees that all of the cartons and pads were delivered to his farm but that he was unable to protect these cartons and pads from the weather. However, Petitioner advised Respondent that the remainder of the carton and pads could be picked up at his farm. Respondent contended that he was denied access to the farm and was unable to pick up the remainder of the cartons and pads and, therefore, they were ruined by exposure to the weather. While there may have been times when Respondent attempted to retrieve the carton and Petitioner was unavailable, there is insufficient evidence to show that Respondent was intentionally denied access to Petitioner's farm to retrieve the cartons. Clearly, the ordering, purchasing and storing of the cartons and pads was a joint effort and both Petitioner and Respondent bear that responsibility. Therefore, the Petitioner is responsible for one-half of the difference between the total cost of the cartons ($17,225.00) and the amount used by Petitioner ($12,462.78) which is $2,381.11 and Respondent should be given credit for this amount. Petitioner's accounts receivable ledger shows that Petitioner shipped melons to Respondent in the amount of $54,715.63, after adjustments for complaints and commission. Respondent's accounts payable ledger shows receiving melons from Petitioner in the amount of $51,483.00, after adjustments for complaints and commission. The difference in the two ledgers in the amount of is accounted for as follows: Invoice No. 210066 - Customer paid $2.00 per carton less on 93 cartons, Petitioner agreed to the reduction. However, Petitioner's account is in error by 9 cents which reduces total amount to $54,715.54. Invoice No. 210067 - Respondent paid for more melons than Petitioner shows were shipped - $39.60. Invoice No. 210068 - difference in calculation of commission $13.32 Invoice No. 2100105 - difference due to Petitioner not agreeing to adjustment in price taken by customer. $2,886.00 Invoice No. 2100239 - difference of $108.04 due to Respondent allowing customer adjustment which Petitioner did not agree to. Invoice No. 2100267 - difference of $210.00 for same reason stated in (e) above. Petitioner should be allowed the difference due to miscalculation of commission in invoice Nos. 210068, 2100134 and 2100160 in the sum of $68.10 since Petitioner's calculation was in accordance with the agreement. There was no dispute as to the condition of melons being as contracted for upon receipt. There was insufficient evidence to establish that the melons shipped under invoice Nos. 2100105, 2100239 and 2100267 by Petitioner were not of the size and number contracted for by the customer. As to invoice Nos. 2100239 and 2100267, the adjustments were made after the fact without contacting Petitioner. As to invoice No. 2100105, the Petitioner shipped the melons to Russo Farms, Inc., Vineland, N.J., as per Respondent's order who then unloaded the melons and reloaded on Russo's truck and shipped to another buyer. It was this buyer's complaint that resulted in Russo demanding an adjustment. Respondent granted such adjustment without approval of the Petitioner. Although Respondent did contact Petitioner in regard to this complaint, Petitioner would not authorize a federal inspection, which he could have, but instead, requested that Respondent obtain an independent verification of the basis of the complaint. Instead of an independent verification of the complaint, Respondent had Russo evaluate the load as to size of melons and number of boxes. No complaint was made as to condition of the melons. Petitioner would not accept Russo's evaluation because based on the total weight of the melons shipped, as indicated by the freight invoice, Russo's evaluation could not have been correct. The only evidence presented by Respondent as to size and number of melon in regard to invoice Nos. 2100105, 2100239 and 2100267 was hearsay unsupported by any substantial competent evidence. Petitioner should be allowed the difference in invoice Nos. 2100105, 2100239 and 2100267 for a sum total of $3,204.00. No adjustment should be made for the differences in invoice No. 210067 other than the 9 cent error made by Petitioner because this amount is not used in Petitioner's calculation of the gross amount due for melons shipped. Therefore, the sum total of all melons sold and shipped is $54,715.63 - 0.09 = $54,715.54. The amount due Petitioner is calculated as follows: Sum total of melons shipped with proper adjustments $54,715.54 Subtract from that the following: Chemicals 3,684.68 Advances 18,960.00 Cost of Cartons $12,462.78 + 2,381.11 14,773.89 Payment 12,439.32 Subtotal of Deductions 49,857.89 Difference and amount owed $4,857.65
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent Debruyn Produce Company, Inc. be ordered to pay the Petitioner Florida Farm Management, Inc. the sum of $4,857.65. It is further RECOMMENDED that if Respondent Debruyn Produce Company, Inc. fails to timely pay Petitioner, Florida Farm Management, Inc. as ordered, the Respondent, Peerless Insurance Company be ordered to pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse the Petitioners in accordance with Section 604.21, Florida Statutes. DONE and ORDERED this 23rd day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner. 1. Not a finding of fact but the issue in this case. 2.-3. Adopted in findings of fact 2 and 4. Adopted in finding of fact 8. Adopted in finding of fact 4. First sentence adopted in finding of fact 7. The balance is not material but see findings of fact 16-23. Not material but see findings of fact 16-23. Rejected as not being supported by substantial competent evidence in the record but see findings of fact 9-14. Adopted but modified in findings of fact 21 and 22. 10(A), 10(C)(1), 10(E), and 10(F) adopted in finding of fact 24. 10(C)(2)(3), 10(d) rejected as not being supported by substantial competent evidence in the record. See findings of fact 5, ,7, 9 - 15. Rulings on Proposed Findings of Fact Submitted by Respondent. 1.-7. Adopted in findings of fact 2, 1, 4, 4, 4, 6, and 7 respectively as modified. Not material. This involved invoice Nos. 210066 and 210067 and adjustment were agreed to be Petitioner and is not part of this dispute. See Petitioner's accounts receivable ledger, Petitioner's Exhibit 1. Adopted in finding of fact 21 as modified. Rejected as not being supported by substantial competent evidence in the record. Not material. This involved invoice No. 2100160 and adjustments were granted by Petitioner and is not part of this dispute. See Petitioner's Exhibit 1. 12.-13.Adopted in finding of fact 21 as modified. Adopted in finding of fact 5, and 9-15 as clarified. Rejected as not supported by substantial competent evidence in the record but see findings of fact 9-15. Adopted in finding of fact 13 as clarified. Adopted in finding of fact 23 as clarified but see findings of fact 9-22.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioners, Mark K. Mast and Kirk E. Mast d/b/a Mast Farm, operate a sixty-acre potato farm on Cracker Swamp Road in or near East Palatka, Florida. The 1991 crop year was the first year in which the two brothers had operated their own farm. This activity was a part-time endeavor since the brothers worked full-time as logging contractors for Georgia Pacific Corporation. Respondent, G & G Sales Corporation, a Minnesota corporation licensed to do business in this state, is a dealer (broker) in agricultural products that purchases potatoes from growers throughout the country for resale to various potato chip companies. Its president and vice-president are Loren R. Girsbirger and George Wilkerson, respectively. As an agricultural dealer, respondent is required to obtain a license from and post a surety bond with the Department of Agriculture and Consumer Affairs (Department). In this case, the bond has been posted by respondent, St. Paul Fire & Marine Insurance Company. The amount of the bond is not of record. In order to start their farming operation, it was necessary for the Mast brothers to secure a loan from the North Florida Production Credit Association. That lending institution had a practice of requiring farmers to secure their loans with contracts for the sale of all or a portion of their crop. That is to say, the lender required a farmer to have a sales contract which equaled the amount of the loan. So that petitioners could meet this requirement, on January 29, 1991, the parties executed a contract wherein petitioners agreed to sell respondent 8,000 bags of Atlantic variety potatoes at an agreed upon price of $5.75 per bag, for a total price of $46,000. The lending institution then agreed to loan petitioners that amount of money. Although the brothers asked that respondent purchase more than 8,000 bags, respondent declined since it had only that contract amount (with chip companies) available. A copy of the contract has been received in evidence as joint exhibit The contract was drafted by respondent and it may be inferred from the evidence that it is a "standard" type of contract used by farmers and dealers in the potato business. The contract contained the following relevant conditions in paragraphs 4, 5 and 6: Buyer assumes that Seller will have sufficient amount of potatoes to cover all contracts, including open market sales. This contract does not restrict these open market sales, but Seller does protect Buyer's amount due. In the event of fire, unauthorized strikes, wars, transportation shortages, Acts of God, or events beyond the control of Seller or Buyer which prevent Seller or Buyer from performance in full or in part of the terms of this agreement, it is agreed that such failure to perform shall not be excused and shall not form the basis for any claim of damage or breach of contract. Seller agrees to seed sufficient acreage to cover the potatoes sold for delivery under this contract and other contracts to all purchasers with whom the Seller has contracted for the delivery of potatoes during the upcoming farm season. If, however, on account of shortages of crops not due to any act within the Seller's control or other causes beyond the control of the Seller, he is unable to deliver the full amount of potatoes called for in this contract, the Buyer will accept a prorated delivery with other buyers of the potatoes covered by similar contracts without any claim for damages against the Seller. Seller will grant Buyer all necessary rights to insure and verify that he is receiving his fair and just pro-rate share. Such rights to include, but not limited to, inspection of all records, books, field reports, shipments, etc. Burden of proof rests with Sellers. Finally, paragraph 11 of the contract provided in part that "the terms of this contract cannot be re-negotiated without the written consent of the Buyer and the Seller." Thus, under the terms of the contract, petitioners were obliged to "have sufficient amount of potatoes to cover all contracts". However, if an Act of God prevented the seller from "deliver(ing) the full amount of potatoes called for in (the) contract", the seller was excused from full performance and could prorate its crop. Under those circumstances, respondent was required to "accept a prorated delivery with other buyers of the potatoes covered by similar contracts." In this case, there were no other buyers of potatoes covered by similar contracts. Finally, except for changes approved in writing by both parties, the terms of the contract could not be changed. Petitioners planted their crop on February 2 and 10, 1991. At that time, the brothers hoped to harvest 16,000 bags of potatoes, or around 267 bags per acre. Although the average yield per acre for Atlantic type potatoes in the area had been between 250 and 270 bags, most growers assume a more conservative yield of around 200 bags per acre to insure that all contractual requirements can be met. Here, however, except for a contract with respondent, petitioners had no other contracts with other dealers or individuals. When the contract was signed in January, the brothers expected to sell the remainder of their crop to other buyers on the open market. In this regard, they entered into an agreement (presumably verbal) with their father, who had co-signed the bank note, to split the net proceeds on all sales over and above that required under the G & G Sales Corporation contract. This latter agreement with the father was not a "similar contract" within the meaning of paragraph 6 of the contract and thus the G & G Sales Corporation contract is found to be the only relevant contract for crop year 1991. On April 23, 1991, a severe thunderstorm swept through a part of Putnam County. The storm was accompanied by high winds and hail and followed a path which ran through the potato farm belt in East Palatka. The Circle S farm, which lies about one-half mile from petitioner's farm, was "devastated" by the storm. Petitioners' farm received high winds, heavy rains and some hail. The extent of damage caused by the storm to petitioners' farm is in dispute, but it is agreed that the storm diminished the size of the crop. As it turned out, petitioners dug only 8,802 bags of potatoes, which still exceeded the amount required under their only contract. After the storm struck, Mark Mast immediately contacted Wilkerson by telephone and advised him that the farm had been hit with hail and asked that Wilkerson and Girsbirger survey the damage. On April 24, 1991, Wilkerson and Girsbirger visited the farm and found it "very wet" and muddy but the leaves on the plants still intact. This level of damage was generally corroborated by various other witnesses. Although the above conditions were present at that time, it was still impossible then for anyone to forecast exactly how the storm impacted the volume and quality of petitioners' crop. Most potato farmers purchase crop insurance prior to each farming season. A farmer has the option of purchasing either 50%, 65% or 75% coverage, although 65% coverage is the most common. This means that a farmer must lose at least 50%, 35% or 25% of his crop due to weather or insects in order to file a claim. The amount of insurance is based on a function of the percent of crop the farmer wishes to insure times the value per hundred weight of the crop. For first year farmers, such as petitioners, the Federal Crop Insurance Corporation (FCIC) establishes a designated yield per acre which is based on FCIC's estimate, albeit conservative, of what the average yield should be. In the case of petitioners, who purchased 65% coverage, the FCIC (and insurer) set a designated yield of 184 bags per acre which meant petitioner would have a crop approximating 184 hundred weight per acre. Although petitioners had a crop insurance policy in 1991, they did not file a claim after the April 23 storm since they failed to meet the threshold requirements for coverage. Indeed, the local crop insurance agent visited the farm shortly after the storm and verified there was not enough damage to file a claim. However, he noted that there was excessive water for a few days and some of the leaves on the vines had holes caused by the hail. Between May 4 and 18, 1991, petitioners sold respondent nine loads of potatoes totaling 4,101 bags at a price of $5.75 per bag. During the period from April 30, 1991, through May 18, 1991, they sold ten other loads on the open market to two other buyers. The open market sales totaled 4,701.2 bags. Because potato prices had dramatically increased after the contract was executed, nine of these latter loads were sold at an open market price of $19 per bag while one was sold at a price of $18.50 per bag, for a total of $88,806. Petitioners contend respondent agreed that the above ten loads could be sold on the open market and thus it should not be heard now to complain that it was shorted on the contract. In this regard, the evidence shows that after the storm, which is the time period relevant to this contention, Wilkerson told Mark Mast that he had no problem with petitioners selling any extra potatoes on the open market as long as respondent received its 8,000 bags. Girsbirger also advised the Masts that it was okay to sell ten loads of potatoes on the open market if production was 200 bags per acre. However, he cautioned them to sell no more than four loads on the open market if the yield fell to 180 to 185 bags per acre since the remainder would be necessary to meet the terms of the contract. Thus, it is found that respondent did not agree to the sale of the ten loads on the open market if total production did not exceed 8,000 bags. Around May 3, 1991, Mark Mast approached Wilkerson and asked if respondent would renegotiate the contract price upward. Wilkerson declined to do so. On May 6, Mast sent Wilkerson a notice by registered mail advising him that due to the crop loss, which he estimated to be one-third of the crop, he intended to adjust the contract pursuant to paragraph 6 of the contract and supply only two-thirds of the 8,000 bags. This unilateral offer to modify the contract was never accepted by respondent, and in any event, petitioners failed to supply the amount offered in their May 6 letter. In all, respondent received only 51.3% of its contracted amount of 8,000 bags. Petitioners allocated respondent this amount on the theory they had originally planned to sell one-half of their total anticipated crop of 16,000 bags to respondent, that one-half of the anticipated crop was lost in the storm, and thus respondent should receive only one-half of the remaining crop, or around 4,000 bags. At hearing, petitioners defended this decision by treating the April 23 storm as an Act of God within the meaning of paragraph 6 of the contract. However, reliance on this provision was inappropriate since, despite the effects of the storm, petitioners could still deliver the full amount of potatoes called for in the contract. The testimony is in conflict as to whether petitioners offered respondent more than 4,101 bags during the harvest season. At various times, respondent was offered several "extra" loads at the market price of $19 per bag but declined since it still wanted the contract honored. According to petitioners, they were ready to load a truck on two occasions but respondent failed to send a truck. Respondent denies this assertion. In addition, petitioners claim that a truck arrived late one Sunday afternoon when their farm equipment was inoperable and thus they could not load any potatoes. Conversely, Wilkerson contended that Mark telephoned him on several occasions and told him not to send a truck because Mark was loading for "another contract". Accordingly, it is found that petitioners offered respondent only the 4,101 bags at the contract price but that additional loads were offered at the substantially higher open market price. After receiving the 4,101 bags, respondent presented petitioners a check dated June 17, 1991, in the amount of $4,777.92 as full payment for the 4,101 bags of potatoes. The check carried the notation "The undersigned, upon cashing check, accepts payment in full for attached invoices, with no recourse." It was never cashed by petitioners. Attached to the check was an invoice which calculated the $4,777.92 in the following manner. Respondent first calculated $23,598 by multiplying 4,101 bags times $5.75 per bag and then subtracted $82.08 for "Not Pat dues", an amount not explained but nonetheless unchallenged by petitioners. It then deducted $19,038 from that total for a net amount due of $4,777.92. The latter deduction of $19,038 represented a set-off for damages incurred by respondent in having to buy potatoes elsewhere by virtue of petitioners failing to supply the contracted amount of potatoes. It was calculated by assuming that petitioners would supply 2/3 (or 68%) of its commitment, or 5,440 bags. 1/ Since only 4,104 bags were delivered, this amounted to a shortage of 1,336 bags. Respondent represented, without contradiction, that it had to replace this shortage at the same price which petitioners received for non-contract sales on the open market. Respondent assumed that petitioners sold their potatoes at an open market price of $20, or $14.25 more than the contract price. Thus, it deducted 1,336 x $14.25, or $19,038 from the final payment. In actuality, petitioners sold the bulk of those potatoes at a price of $19 per bag. Thus, respondent's set-off should have been $17,702 rather than $19,038. This amount of set-off ($17,702) is deemed to be reasonable and should be subtracted from the amount owed by respondent to petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring respondent to pay petitioners $5,813.92 within thirty days of date of final order. Otherwise, the surety should be required to pay that amount. DONE and ENTERED this 21st day of May, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1992. 1/ For purposes of determining damages, respondent decided that petitioners were entitled to some relief under the contract due to the storm. Accordingly, respondent assumed that it would receive only two-thirds of the contract requirement. APPENDIX Petitioners: 1. Covered in the preliminary statement. 2. Accepted in finding of fact 2. 3-4. Accepted in finding of fact 1. 5. Accepted in finding of fact 2. 6. Accepted in finding of fact 3. 7-8. Accepted in finding of fact 4. 9. Accepted in finding of fact 3. 10. Accepted in finding of fact 5. Accepted in findings of fact 1 and 5. Accepted in finding of fact 6. 13-14. Accepted in finding of fact 7. Accepted in finding of fact 8. Rejected as being unnecessary. Partially accepted in finding of fact 10. The remainder has been rejected as being contrary to the more persuasive evidence. Partially accepted in findings of fact 11 and 12. Accepted in finding of fact 11. Accepted in finding of fact 9. 21-22. Accepted in finding of fact 14. Accepted in finding of fact 6. Rejected as being contrary to more persuasive evidence. Partially accepted in finding of fact 6 but this finding does not excuse performance under the contract. See finding of fact 12. Respondent: * Partially accepted in finding of fact 14. The remainder is covered in the preliminary statement. Accepted in finding of fact 1. Accepted in findings of fact 2 and 3. Accepted in finding of fact 4. Accepted in findings of fact 3 and 5. 6-8. Accepted in finding of fact 7. 9-10. Accepted in finding of fact 10. Accepted in finding of fact 7. Accepted in finding of fact 9. Accepted in finding of fact 14. * Respondent G & G Sales Corporation filed thirteen unnumbered paragraphs containing proposed findings of fact. The paragraphs have been numbered 1-13 by the undersigned for the purpose of making these rulings. COPIES FURNISHED: Joe C. Miller, II P. O. Box 803 Palatka, Florida 32178-0803 Ronald W. Brown, Esquire 66 Cuna Street, Suite B St. Augustine, Florida 32084 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Chief Bureau of License & Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Charles T. Shad, Esquire 601 Blackstone Building East Bay & Market Street Jacksonville, Florida 32202 (on behalf of St. Paul Fire and Marine Insurance Co.) Richard A. Tritschler, Esquire Department of Agriculture & Consumer Affairs The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact On August 6, 1986, an indemnity bond was executed between RAINMAKER as principal and FIDELITY as surety. The effective dates of the bond were from October 21, 1986, to October 20, 1987. The bond was required under Sections 604.15-604.30, Florida Statutes, in order for RAINMAKER to become licensed as a dealer in agricultural products in Florida. The purpose of the bond is to secure the faithful accounting for a payment to producers or their agents or representatives of the proceeds of all agricultural products handled or purchased by RAINMAKER. The Petitioner, SHAN-RON, is a corporation whose address is 276 Cypress Street, La Belle, Florida. Its purpose is to conduct business by finding buyers for sod located on acreage owned by various cattle ranchers in Lee County, Florida. This practice is commonly known as "bird dogging" in the agricultural trade. The way the business is conducted is as follows: SHAN-RON is contracted by sod installers to whom it sells sod in specific quantities for a fixed price. Once the oral agreement is made, SHAN-RON tells the sod installer where a sod field is located. At this point in the business transaction, the sod installer sends independent truck drivers to the designated sod field. If the sod installer is unable to locate truckers, he telephones a SHAN-RON field foreman. The foreman, as a courtesy, will check to see if any of the independent truckers currently as the sod field can haul a load for the sod installer. Once a trucker is located, employees from SHAN-RON mow the grass, cut the sod, and load it onto pallets owned by SHAN-RON. The truck is loaded with pallets by SHAN-RON employees and the driver is given two copies of the load ticket, one for him and one for the sod installer. The driver delivers the sod and pallets to the address placed upon the load tickets. Upon delivery, the driver has the responsibility to deliver the load ticket to the business office of the sod installer. If he does not deliver the ticket, he does not get paid for hauling the sod. Employees of the sod installer are usually at the delivery site. The sod is laid and the empty pallets are returned to the sod field by the truckers. Every Friday, a representative of SHAN-RON personally delivers a weekly bill to the sod installer in order to collect is owed. When the money is collected, the funds are divided between the rancher whose sod was sold and SHAN-RON. The accountability system used within the sod industry leaves room for a high margin of error at various stages. The SHAN-RON employees occasionally short pallet loads or two layers of sod. The truck drivers occasionally misnamed the sod installer to whom the sod is to be delivered. The truck drivers also occasionally do not take empty pallets under their control back to SHAN-RON. They sell the pallets and pocket the money. The sod installer is financially responsible for the pallet costs. RAINMAKER is a corporation whose address is Post Office Box 7385, Ft. Myers, Florida. The company is primarily in the business of installing sod. It transacted business with SHAN-RON between November 11, 1986, and January 8, 1987. At the time of these transactions, RAINMAKER was licensed as a dealer in agricultural products supported by surety bond number 974 52 23 in the amount of $13,500.00. SHAN-RON, through testimony and the introduction of its business records, proved a prima facie case that RAINMAKER owes $12,964.00 for the purchase of sod between November 11, 1986, and January 8, 1987. Both parties Stipulated that $4,000.00 has been paid on the balance of the account which should be deducted from the balance owed SHAN-RON. In rebuttal to SHAN-RON's presentation, RAINMAKER presented testimony and a business record summary which revealed that six invoices were improperly charged, against its account in the amount of $1,260.00. The record summary was based upon a comparison of load tickets against production records during the time period involved. In addition, RAINMAKER's records reveal that the two drivers, Stormy and Fred Bower, were not paid for delivering the sod to RAINMAKER under the load ticket presentation to the sod installer which was previously described as an accounting method within the business. Because RAINMAKER set forth the issue of delivery discrepancies in its answer to the complaint and competent evidence was presented, $1,260.00 should be deducted from the `balance owed. SHAN-RON presented testimony that it is customary for the company to spray the sod for pest control. RAINMAKER received defective sod from SHAN-RON which contained "Creeping Charlie" weeds during the time of the deliveries in dispute. SHAN-RON was timely notified of the problem, and toad RAINMAKER to have the sod sprayed. A copy of the invoice for $300.00 was sent to SHAN-RON and has not been paid. Although the issue was not raised in RAINMAKER's answer to the complaint, it is properly before the Hearing Officer because of RAINMAKER's timely notification and cure of the defect in the product. The $300.00 should be deducted from the amount owed. Testimony relating to possible sod shortages was rejected as no evidence was presented that shortages occurred in the orders for which SHAN-RON seeks payment. The customary procedure In the sod business for handling credits for shortages requires the buyer to notify the seller within a responsible length of time of the shortages. Such notification did not take place as to the orders in dispute. The amount owed to SHAN-RON by RAINMAKER is $7,404.00. It is officially noticed that SHAN-RON's complaint was originally filed with the department on June 19, 1987, within nine months from the date of sale.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Agriculture enter a final order requiring the Respondent RAINMAKER to make payment to the petitioner SHAN-RON in the amount of $7,404.00. In the event that RAINMAKER does not comply with the department's order within fifteen days from the date it final, FIDELITY should be ordered to provide payment and the conditions and provisions of the bond furnished to RAINMAKER. DONE and ENTERED this 12th day of April, 1988, in Tallahassee, Florida. VERONICA E. DONNELLY 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 12th day of April, 1987. COPIES FURNISHED: Clinton H. Coutler, JR., Esquire Department of Agriculture Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of License and Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 Shan Ron Sod, Inc. 276 Cypress Street LaBELLE, FLORIDA 33935 Rainmaker Sod, Inc. 2290 Bruner Lane, South East Fort Myers, Florida 33912 Fidelity & Deposit Company of Maryland Post Office Box 1227 Baltimore, Maryland 21203 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain General Counsel Department of Agriculture Mayo Building, Room 513 Tallahassee, Florida 32399-0800
Findings Of Fact The Petitioners and the Respondent had a business relationship by which the Respondent received cucumbers from the Petitioners for the fall 1980 harvest season. Cucumbers on some occasions are sold on a "cash basis," which means that a buyer purchases the cucumbers for a set price, either at the field or upon arrival at the packing house. On other occasions cucumbers are sold on a "handling basis" or "brokerage basis." Under this latter arrangement the "buyer" takes delivery of the load of cucumbers from the grower, the farmer; sells them at the best obtainable market price, and a portion of the sale price goes to the grower or farmer and a portion is retained by the "handler." The Petitioners grow cucumbers in Hardee County and are, therefore, producers of agricultural products in the State of Florida. The Respondent, Southern Cucumber Co., Inc., is a dealer in agricultural products engaged in that business in the State of Florida. The Petitioners began clearing land for the purpose of putting in a cucumber crop in the summer of 1980. During the course of their land clearing and planting of the crop, they obtained certain monetary advances from the Respondent with the oral agreement that they would deliver the produced cucumbers to the Respondent's packinghouse upon the crop's maturity and harvesting. When the crop became ready for harvesting they also got, in addition to fertilizer advances and other cost advances, advances to cover the costs of labor for picking the cucumbers. In approximately October, 1980, the Petitioners began harvesting and delivering cucumbers to the Respondent's packinghouse. By oral agreement the Petitioners and the Respondent agreed that the Respondent would "pack-out" their cucumbers for approximately two dollars to two dollars and twenty-five cents per bushel, which charge covered processing the cucumbers through the machine where they were washed and waxed, packing them and preparing them for shipment. When the cucumbers were delivered by the Petitioners to the Respondent's loading dock, the Petitioners were issued a slip showing the quantity delivered by the Respondent. No money changed hands at this time. The Respondent did not pay for cucumbers upon their delivery to his packinghouse. The Petitioners rather had to wait until the cucumbers were shipped and sold to the ultimate purchaser before they were told of the price received for them and sometimes received no money for the crop until that purchaser had remitted payment for the cucumbers to the Respondent whereupon the Respondent would pay the Petitioners for the cucumbers he had received and sold on their account. The Respondent would deduct from the proceeds of the sale of the cucumbers the amounts representing the costs the Respondent advanced for fertilizer, fuel and picking, and any other items for which the Petitioners owed him. Typically, thirty days or more elapsed before the Petitioners were issued "pack-out slips" for a given lot of their cucumbers which they had delivered to the Respondent. The "pack-out slip" indicated what grade and quantity of cucumbers the Respondent was able to prepare for shipment and sale, out of the cucumbers delivered to him by the Petitioners, as well as price. The Petitioners' oral agreement was negotiated between themselves and Mr. Jack Eason, who was manager or otherwise in charge of the Respondent's packinghouse and shipment business at the time. As acknowledged by witness Connor for the Respondent, a "handler" is one who accepts produce, packs it, sells it, sends it to the ultimate purchaser, gets his remittance back, subtracts his profit from that, and returns the rest to the growers. This is consistent with the Petitioners' arrangement with the Respondent. The Petitioners delivered their cucumbers to the Respondent, had them processed, packed, shipped and sold and received no money for them, typically, until the Respondent received his remittance from the ultimate purchaser where the products were shipped. The Respondent then subtracted the amount of costs advances to the Petitioners, his own profit and then remitted the net over to the Petitioners. The Petitioners were liable for any loss on the sale of the crop. That is the nub of their complaint. They believe that the market price assured to them was less than the true market price on the day their products were sold. On several occasions when the Petitioners sought money for their crop after delivery of it to the Respondent and the ultimate purchaser and discussed the price with the Respondent, the Respondent in stating a price which the cucumbers would bring or had brought, discussed the fact that there was "room for adjustments" or that "adjustments" would be made. A "handler arrangement" (as Respondent's own witness Alvarez established) is one characteristically involving "adjustments" to be made to the portion of the sale-price due the grower because of any variances in quality of the product when delivered to the ultimate purchaser. This his in addition to charges to the grower for processing, packing, and selling the product (and in this case, growing and harvesting costs advances) , all of which charges to the growers, mostly incurred after delivery to the Respondent, are characteristic of a "handler" or agency arrangement. Witness Parker for the Respondent is a packing-house owner and cash buyer of produce in Wauchula. In his cash-buying operation he never makes growers wait for their money, but will borrow money at seventeen to eighteen percent interest if necessary to pay them either on the day or one to two days after produce is delivered to him. The Respondent established that Wauchula is traditionally a "cash market," but that was not the situation with the Petitioners' and Respondent's business arrangement. The Respondent was functioning as the Petitioners' "handler" or agent in the situation at bar. The Petitioners have not filed a complaint for a specified amount of money they feel is due and owing them for the crop, but rather ask for an accounting so that pecuniary question can be determined. In that regard the surety on the bond required of the Respondent as a dealer in agricultural commodities, is Continental Insurance Company, specifically bond number BND218 26 21.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses and arguments of the parties; it is, therefore, RECOMMENDED: That a final order be entered requiring the Southern Cucumber Co., Inc., to furnish to the Petitioners an accounting of all quantities of cucumbers received by them for the Petitioners; the parties to whom those cucumbers were ultimately sold; the sales price obtained; the prevailing market price for cucumbers with that quality and grade on the date the sales were effected; all adjustments to the gross sales price along with an explanation of the same; an itemized showing of all marketing costs, if any, deducted by the Respondents from that gross sales price; together with all production and harvesting costs deducted by the Respondent representing money advanced to the Petitioners for the growing and harvesting of the crop along with the net amount due the Petitioners. This accounting should be furnished the Petitioners within thirty (30) days of the final order herein. DONE AND ENTERED this 19th day of March, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1982.
Findings Of Fact Upon consideration of the oral testimony and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, Petitioners were producers 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 GMS was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license no. 936 by the Department and bonded by Commercial Union Insurance Company (Commercial) in the sum of $50,000.00 - Bond No. CZ 7117346. At all times pertinent to this proceeding, Respondent Commercial 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 Petitioners selling or delivering any watermelons (melons) to Respondent GMS, Petitioners and Respondent GMS entered into a verbal contract whereby: (a) Petitioners would harvest and load their melons on trucks furnished by Respondent GMS at Petitioners' farm; (b) the loading, grading and inspection, if any, was to be supervised by, and the responsibility of Respondent GMS or its agent; (c) the melons were to be U.S. No. 1 grade; (d) the melons were purchased F.O.B. Petitioner's farm subject to acceptance by Respondent GMS, with title and risk of loss passing to Respondent GMS at point of shipment (See Transcript Page 95 lines 5-7); (e) the price was left open subject to Petitioners being paid the market price for the melons at place of shipment on the day of shipment as determined by Respondent GMS less one (1) or two (2) cent sales charge, depending on the price; and requiring Respondent GMS to notify Petitioners on a daily basis of that price and; (f) the settlement was to be made by Respondent GMS within a reasonable time after the sale of the melons by Respondent GMS. Respondent GMS was not acting as Petitioners agent in the sale of the melons for the account of the Petitioners on a net return basis nor was it acting as a negotiating broker between the Petitioners and the buyers. Respondent GMS did not make the type of accounting to Petitioners as required by Section 604.22, Florida Statutes had it been their agent. Although Respondent GMS purchased over twenty (20) loads of melons from the Petitioners, there are only ten (10) loads of melons in dispute and they are represented by track report numbers 536 dated April 29, 1985, 534 dated April 30, 1985, 2363 and 537, dated May 1, 1985, 2379, 2386 and 538 dated May 2, 1985, and 2385, 2412 and 2387 dated May 3, 1985. Jennings W. Starling (Starling) was the agent of Respondent GMS responsible for loading; grading- inspecting and accepting and approving the loads of melons for shipment that Respondent GMS was purchasing from Petitioners during the 1985 melon season. Petitioners and Starling were both aware that some of the melons had hollow hearth a conditions if known, would cause the melons to be rejected. Aware of this condition in the melons, Starling allowed Petitioners to load the melons on the truck furnished by Respondent GMS. Starling rejected from 20 percent to 40 percent of the melons harvested and brought in from Petitioners' fields before accepting and approving a load for shipment. Starling accepted and approved for shipment all ten (10) of the disputed loads of melons. On a daily basis, Robert E. McDaniel, Sr., one of the Petitioners, would contact the office of Respondent GMS in Lakeland Florida to obtain the price being paid that day by Respondent GMS to Petitioners but was not always successful, however, he would within a day or two obtain the price for a particular day. Robert E. McDaniel did obtain the price to be paid by Respondent GMS for the ten (10) disputed loads and informed his son Robert E. McDaniel, Jr. of those prices. The prices quoted to Robert E. McDaniel, Sr. by Respondent GMS on the ten (10) disputed loads were 12 cents, 10 cents, 8 cents, 8 cents, 8 cents, 8 cents, 8 cents, 7 cents, 7 cents, and 7 cents on tract reports number 536, 534, 2363, 537, 2379, 2386, 538, 2385, 2412 and 2387, respectively. No written record of their prices was produced at the hearing but the testimony of Robert E. McDaniel Sr. concerning these prices was the most credible evidence presented. After the melons were shipped, sometimes as much as one week after, a track report was given to Robert E. McDaniel Jr. by Starling for initialing. Sometimes a price would be indicated on the track report but this price was based on selling price at point of destination and not the market price at point of shipment. Also, the letters "H.H." would also appear on the track report which, according to the testimony of Starling, indicated hollow heart but the evidence was insufficient to prove that Starling had rejected these loads for shipment because of a hollow heart condition in the melons. The loads in question were paid for by Respondent GMS based on a price at point of destination under its drafts no. 831912 and 851311. The amount in dispute is as follows: DATE TRACK NET AMOUNT AMOUNT SHIPPED
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent GMS be ordered to pay to the Petitioners the sum of $11.212.31. It is further RECOMMENDED that if Respondent GMS fails to timely pay the Petitioners as ordered, then Respondent Commercial be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioners in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 13th day of June, 1986, in Tallahassee, Leon County, Florida. Hearings Hearings WILLIAM R. CAVE Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative this 13th day of June, 1986.
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 Whether Respondent owes Petitioner $14,080 on account for vegetables sold and delivered at the request of Respondent.
Findings Of Fact Petitioner, M.O. "Buster" Williams, is an agent for the producers of agricultural products, carrots, red radishes and white corn. Respondent, Dougal M. Buie, III, d/b/a Blue Star Citrus and Vegetables, is a dealer of such products in the normal course of its business activity. Respondent is licensed by the Department of Agriculture and Consumer Services and is bonded by First Union National Bank of Florida. Petitioner sold Respondent carrots, red radishes and white corn by the truck load between the period May 19, 1993 and June 14, 1993, and was given a Bill of Lading therefor. Respondent was sent an Invoice for each shipment and payment was due in full following receipt of the Invoice. As of the date of the formal hearing, each invoice for shipments made between May 19 and June 14, 1993 remains due and owing and unpaid. The total amount of indebtedness owed by Respondent, Buie, to Petitioner is $14,080.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $14,080.00 DONE and ENTERED this 16th day of March, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 16th day of March, 1994. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel 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 Robert F. Vason, Jr., Esquire Potter, Vason and Clements 308 East Fifth Avenue Mount Dora, Florida 32757 M.O. Buster Williams 1412 Raintree Lane Mount Dora, Florida 32757 Lewis Stone, Esquire P. O. Box 2048 Eustis, Florida 32727-2048 First Union National Bank of Florida 21 North Grove Street Eustis, Florida 32726
