The Issue The issue presented is whether Respondents are indebted to Petitioner in the amount of $25,776.50.
Findings Of Fact Thursdays are pricing days in the produce industry. On Thursday, April 16, 1992, Jim Sutton, a salesman for Respondent Sunshine Produce Exchange, Inc., began his day making telephone calls to check the prices of agricultural products. When he called Petitioner Six L's Packing Company, Inc., he spoke with Steve Oldock, a salesman for Six L's. Oldock told Sutton that Six L's had an "unbelievable amount of pepper" which it needed to sell. Oldock further told Sutton, "Today is the day you have to support us." When Sutton asked the price, Oldock responded with the word "cuff." In the industry, "cuff" means consignment. As they further talked, Sutton and Oldock agreed that Sunshine would take some of the peppers that Six L's had and place the peppers with companies who would sell the peppers. When Sunshine received "the returns" from the receiver companies, Sutton and Oldock would then agree on a fair brokerage to be paid by Six L's to Sunshine. Sutton told the others working with him at Sunshine that Six L's needed help in placing its peppers, and Sutton's co-workers assisted him in trying to consign Six L's peppers. Sunshine arranged with two receivers it used for each to take a load of peppers from Six L's. Those receivers were Mutual Produce in Boston, a commissioned receiver which distributes produce to wholesalers and chain stores in the Boston area, and Jos. Notarianni & Co., Inc., a produce firm in Scranton, Pennsylvania, which distributes to chain stores. Sutton advised Oldock he would be placing the peppers in Boston with Mutual Produce and in northern Pennsylvania with Notarianni. Oldock had no objection to using those receivers; Oldock's only concern was that not too many peppers be sent to the same market so as to damage that market. Both companies are reputable companies with the highest Blue Book ratings. On Saturday, April 18, 1992, Mutual's trucks picked up the two loads of peppers from Six L's. At hearing, Six L's admitted that the product was not priced between Sunshine and Six L's before it was shipped. On Monday, April 20, Sutton talked to Mutual and was advised that the market was slipping. On Tuesday, April 21, Sutton talked to Oldock. Sutton advised Oldock that the market had been slipping but that the peppers were in good hands. Oldock still expressed no objection to the arrangements that Sunshine had made. Oldock did, however, advise Sutton that Oldock had to price the tickets for the peppers which had been shipped and that he wanted to put $21.00 per box on the invoices. Sutton advised Oldock that such invoicing was not acceptable, that such pricing would indicate a fixed price FOB transaction, and that Sunshine had not guaranteed any market price and had not purchased the product. Oldock explained that for internal reasons at Six L's Oldock had to price the invoices but that the invoices would be "adjusted" when the time came. Invoices were issued by Six L's on April 29, 1992, reflecting a price of $18.00 a box for the extra large red peppers and $5.00 a box for the extra large bell peppers. That price was never agreed to by Sunshine which had agreed to act as an agent of Six L's for the transaction in question and had not purchased the peppers. In May Sunshine received the returns from the two receivers. Sutton contacted Oldock to discuss the "fair brokerage" which Sunshine would deduct from the returns from the receivers before forwarding the balances to Six L's. Oldock and Sutton agreed to the commission to be paid to Sunshine. By checks dated July 9 in the amounts of $7,023.50 and $7,000.00, Sunshine forwarded to Six L's the monies paid to Sunshine by Notarianni minus the commission paid to Sunshine by Six L's. Those checks settled the account for that load of peppers. By check dated July 23, 1992, Sunshine forwarded to Six L's the monies returned to Sunshine by Mutual Produce minus the commission paid to Sunshine by Six L's. That check in the amount of $3,900.00 settled the account for that load of peppers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Complaint filed by Six L's Packing Company, Inc., against Sunshine Produce Exchange, Inc., and its surety Lawyers Surety Corporation. DONE and ENTERED this 4th day of August, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 4th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-7116 Petitioner's proposed findings of fact numbered 1-3, 5, 7-9, and 11 have been rejected as not being supported by the weight of the credible, competent evidence in this cause. Petitioner's proposed findings of fact numbered 4 and 10 have been rejected as not constituting findings of fact but rather as constituting argument, conclusions of law, or recitation of the testimony. Petitioner's proposed finding of fact numbered 6 has been rejected as being irrelevant to the issues involved herein. Respondent Sunshine's proposed findings of fact numbered 1, 2, and 4 have been rejected as not being supported by the weight of the evidence in this cause. Respondent Sunshine's proposed findings of fact numbered 3 and 5 have been adopted in substance in this Recommended Order. Respondent Sunshine's proposed finding of fact numbered 6 has been rejected as being subordinate to the issues herein. COPIES FURNISHED: Peter Dessak Six L's Packing Company Inc. Post Office Box 138 Immokalee, Florida 33934 Peter R. Goldman, Esquire Bunnell, Woulfe & Keller, P.A. 1080 S.E. Third Avenue Fort Lauderdale, Florida 33316 Lawyers Surety Corporation Legal Department 1025 S. Semoran, Suite 1085 Winter Park, Florida 32792 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol PL-10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Chief Department of Agriculture and Consumer Services Bureau of License and Bond Mayo Building, Room 508 Tallahassee, Florida 32399-0800
Findings Of Fact The Respondents, F. H. Dicks, III; F. H. Dicks, IV; and F. H. Dicks Company, are wholesale dealers in watermelons which they purchase and sell interstate. The Respondents' agents during the 1991 melon season in the Lake City area were Harold Harmon and his son, Tommy Harmon. The Harmons had purchased watermelons in the Lake City area for several year prior to 1991, and the Petitioner had sold melons through them to the Respondents for two or three seasons. The terms of purchase in these prior transactions had always been Freight on Board (FOB) the purchaser's truck at the seller's field with the farmer bearing the cost of picking. The terms of purchase of the melons sold by Petitioner to Respondents prior to the loads in question had been FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking. One of the Harmons would inspect the load being purchased during the loading and at the scale when the truck was weighed out. After this inspection, the melons accepted by Harmon were Respondents'. Price would vary over the season, but price was agreed upon before the melons were loaded. Settlement had always been prompt, and the Harmons enjoyed the confidence of the local farmers. On June 11, 1991, Petitioner was unable to fill out a load of regular size melons being sold to Respondent. Tommy Harmon was present and instructed Petitioner to finish the load with Pee Wee (smaller) melons. There were 10,602 pounds of Pee Wee melons loaded which Tommy Harmon agreed to purchase at 10 per pound. On June 18, 1991, a load of 49,330 pounds of Mirage melons was loaded for the Respondents. It is controverted by F. H. Dicks whether Harold Harmon was present when these melons were loaded; however, Dicks was uncertain and Harmon testified he could not remember. Petitioner testified Harmon was present, and inspected and accepted the melons under the same terms as all prior loads for a price of 6 per pound. Petitioner's testimony is uncontroverted, and there is no indication that the terms for this load were different from the other transactions, that is, FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking. Under the terms of sale, FOB purchaser's truck at seller's field, the Respondent bore the costs of transportation and the risk of refusal of the produce. Respondent's recourse was against the purchaser who refused delivery. If there was a problem with the grade, the Respondents also bore the risk of loss on sales which they made and which were rejected. The Respondents owe the Petitioner $1,060.20 for the Pee Wee melons, and $2,959.80 for the Mirage melons.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: Respondents be given 30 days to settle with the Petitioner in the amount of $4,020, and the Petitioner be paid $4,020 from Respondents' agricultural bond if the account is not settled. DONE and ENTERED this 6th day of October, 1992, in Tallahassee, Florida. STEPHEN F. DEAN 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 6th day of October, 1992. COPIES FURNISHED: Terry McDavid, Esquire 128 South Hernando Street Lake City, FL 32055 F. H. Dicks, III c/o F. H. Dicks Company P.O. Box 175 Barnwell, SC 29812 Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800 South Carolina Insurance Company Legal Department 1501 Lady Street Columbia, SC 29202 Victoria I. Freeman Seibels Bruce Insurance Companies Post Office Box One Columbia, SC 29202 Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810
Findings Of Fact Shortly before January 21, 1985, Tommy P. Adams, on behalf of Mid-South Distributors, placed an order with salesman Daniel Garcia, of Corky Foods Corporation, for the purchase of tomatoes. Mid-South Distributors was to purchase one hundred and forty-four (144) 5x6, eight hundred and sixty-four (864) 6x6, and five hundred and seventy-six (576) 6x7 boxes of tomatoes from Corky Foods. The parties agreed that the price of each unit would be fixed at $1.00 less than "market price." However, no price was established at the time of sale because tomato prices were unstable due to a freeze which passed through the area on January 19 and 20, 1985. Mid-South Distributors and Corky Foods had used this type of billing arrangement satisfactorily in past business transactions. On January 21, 1985, the tomatoes were shipped to Mid-South Distributors from the packing house in Boynton Beach, Florida. Thereafter, on January 23, 1985, an invoice was sent by Corky Foods to Mid-South Distributors establishing the price of the tomatoes as follows: $19.15 per unit for the 5x6 containers; $17.15 per unit for the 6x6 containers; and $15.15 per unit for the 6x7 containers. Mid-South Distributors remitted payment to Corky Foods based on the following assumed market prices: $16.00 for the 5x6; $14.00 for the 6x6; and $12.00 for the 6x7 boxes of tomatoes. Corky Foods Corporation sold 5x6 boxes of tomatoes to other dealers during the period in question for 519.15 per unit; 6x6 boxes of tomatoes during the period in question for $17.15; and 6x7 boxes of tomatoes during the time in question for $15.15. Adams Brokerage (Tommy P. Adams) purchased 5x6 boxes of tomatoes from area sellers during the time in question for $16.00; 6x6 boxes of tomatoes from area sellers during the time in question for $14.00; and 6x7 boxes of tomatoes from area sellers during the time in question for $12.00. The Southeastern Fruit and Vegetable Report, printed in Thomasville, Georgia on Thursday, January 24, 1985, set market prices on tomatoes in "South and Central Florida" at $20.00 for 5x6, $18.00 for 6x6, and $16.00 for 6x7. The Southeastern Fruit and Vegetable Report is often used as a guideline in establishing prices for the industry; the prices reported are based in part on information or "quotes" received from different shippers in the area under consideration. Notably, a shipper's quoted price for a particular day may not be the same price at which the shipper actually sells the commodity. The Southeastern Fruit and Vegetable Report used the geographical area of "South and Central Florida" in establishing market prices for tomatoes. The south and central Florida area is a reasonable geographical boundary to consider in establishing market prices for tomatoes sold at individual locations within those boundaries. The customary way in which Corky Foods Corporation determines market prices is by calling other large area packing houses, and by referring to the Southeastern Fruit and Vegetable Report. In establishing the prices for the tomatoes herein discussed, Corky Foods Corporation consulted (among other area packers) Florida Tomato Packers, a large tomato packer located in Homestead, Florida. The locations at which Tommy P. Adams purchased tomatoes for the lower prices included Lantana, Naples, Bonita Springs, Boca Raton, and Immokalee. Area market prices for tomatoes immediately prior to the freeze were as low as $11.00 for 5x6; $10,00 for 6x6; and $8.00 for 6x7. Generally, severe weather conditions, such as a freeze, will cause market prices for tomatoes to rise. The Respondents did not dispute the quality or condition of the tomatoes; market price was the sole source of disagreement between the parties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing Corky Foods Corporation's Amended Complaint herein. DONE AND ORDERED this 8th day of November, 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1985. APPENDIX Pursuant to Section 120.59(2), Florida Statutes (1983), following is submitted in response to Petitioner's and Respondent's Proposed Findings of Fact: Petitioner's Proposed Findings of Fact Paragraph: Ruling: Accepted; see paragraphs 1 and 2, Recommended Order. Rejected as a conclusion of law and not supported by the evidence. Partially accepted; see paragraph 7, Recommended Order. Partially accepted; see paragraphs 6 and 7, Recommended Order. Facts not included therein were rejected as not being established by evidence presented at the hearing. Rejected; irrelevant and not supported by the evidence. Accepted; see paragraph 4, Recommended Order. Accepted; see paragraphs 1 and 2, Recommended Order. Accepted; see paragraph 10, Recommended Order. Rejected; not a finding of fact. Respondent's Proposed Findings of Fact Paragraph: Ruling: a law. 1 Partially accepted; see paragraphs 1-10, Recommended Order. Rejected to the extent that the majority of this paragraph contains statement of the issues and conclusions of COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building Room 513 Tallahassee, Florida 32301 Mr. Joe W. Kight Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301 Donna L. Fuller Vice-President Corky Foods Corporation Post Office Box 1019 Boynton Beach, Florida 33425 Mid-South Distributors, Inc. 2601 South Blossom Trail Orlando, Florida 32805
The Issue Whether Respondent, Unity Groves Corporation (Unity Groves), owes Petitioner, Maria Rodriguez, $1,321.00 for peppers purchased from Petitioner in March 2013.
Findings Of Fact The Parties Petitioner owns property in the Miami, Florida, area on which she grows a variety of peppers which she sells to agricultural retailers. Unity Groves is a family-owned and operated agricultural dealer which purchases produce from growers and growing facilities and resells to vendors across the country. During March and May 2013, Petitioner sold peppers on 14 separate dates to Unity Groves. Unity Groves then resold the peppers to retail vendors. During the brief course of dealings between parties, Petitioner would either contact Unity Groves and indicate the type and quantity of peppers she had available to determine whether Unity Groves needed to fill an order for a vendor or she would be contacted by an employee of Unity Groves to determine whether Petitioner had peppers available. The price for Petitioner's peppers would be negotiated prior to, or at the time of, delivery of the peppers to Unity Groves. Petitioner primarily negotiated with the receiver for Unity Groves, Emilio (last name unknown), or another employee, Pete (last name unknown). On ten occasions, Petitioner received a receipt prepared by Unity Groves at the time of delivery indicating the quantity of half or full bushels of the particular types of peppers and the agreed upon rate per half or full bushel that she would be paid. As demonstrated by the receipts and "Grower Payout" sheets submitted into evidence by both parties, the course of dealings between the parties supports Petitioner's testimony that in all but two instances, she in fact received payment in the amount indicated as the purchase price on the delivery receipts received from Unity Groves. Unity Groves' contention that the price indicated on the receipts was merely a desired "target price" is rejected because it is contrary to the greater weight of the evidence. On the four occasions for which Petitioner received a receipt with no indication of price, Petitioner was paid in accordance with her agreement with a Unity Groves' employee, Pete, which was reached in a telephone conversation prior to her delivery of the peppers to Unity Groves. Petitioner did not submit formal invoices to Unity Groves because the receipts provided by Unity Groves at the time of delivery accurately reflected the quantities of peppers sold by type and price, and she received the indicated price for all transactions except for the two instances which are the subject of this dispute. Petitioner was never informed that her products supplied to Unity Groves were deteriorating or that the quantity delivered was rejected because it was more than requested or needed. The Grower Payout sheets reflect that Petitioner received one duplicate payment in the amount of $130.00 for peppers delivered to Unity Groves on March 13, 2013. The Dispute Giving Rise to This Proceeding In March 2013, Petitioner received a telephone call from a Unity Groves' employee, Dennis (last name unknown), who requested a pallet of Hungarian Wax peppers and a pallet of Anaheim peppers. A pallet for Unity Groves is approximately 120 half bushel boxes of peppers. Petitioner advised Dennis that she did not think she could fill such a large order and that her workers could not yet pick those peppers. Petitioner told Dennis she would call him back and let him know how much she had available after picking. After the peppers were picked, Petitioner contacted Emilio and advised that she could deliver 78 half bushels of Hungarian Wax peppers and 84 half bushels of Anaheim peppers. Emilio confirmed with Dennis that, although Petitioner could not supply a pallet of each, Unity Groves still wanted those peppers. Petitioner delivered them to Unity Groves on March 22, 2013. Petitioner received receipt 4055 indicating delivery of the peppers and an agreed upon price of $10.00 per half bushel for the Hungarian Wax peppers and $12.00 per half bushel for the Anaheim peppers for a total price of $1,788.00. On March 25, 2013, Petitioner delivered the following to Unity Groves: 13 half bushels of Finger Hot peppers at $8.00 per half bushel; 20 bushels of Long Hot at $14.00 per bushel; 5 half bushels of Banana peppers at $12.00 per half bushel; 10 half bushels of Anahie peppers at $12 per half bushel. Petitioner received receipt 4067 from Unity Groves, and the total price based upon the prices indicated on the receipt for this delivery was $564.00. When Petitioner went to Unity Groves on April 14, 2013, to pick up her check in payment for the March 22 and 25 deliveries, she was given check 11439 in the amount of $1,031.00. She was also provided a "Grower Payout" sheet number 3807 indicating the breakdown by pepper, quantity, and price paid by Unity Groves for receipt numbers 4055 and 4067. Respondent immediately noticed that the prices paid for the large delivery of Hungarian Wax and Anaheim peppers was significantly lower than the agreed upon price as reflected on receipt 4055. Unity Groves also paid less for four out of five types of peppers on receipt 4067 for the March 25 delivery. The total difference between the total based upon the agreed upon receipt prices and the amount actually paid by Unity Groves was $1,321.00. When Petitioner realized the magnitude of the discrepancy, she and her daughter, Susana Rodriguez, went to discuss the issue with Carricarte. She inquired why she was paid $3.00 per unit versus $10.00 for the Hungarian Wax peppers and $4.00 per unit versus $12.00 for the Anaheim peppers (the prices reflected on receipt 4055). Carricarte told Petitioner that she was paid the price he received from his customer. He did not believe that Dennis purchased such a large quantity of peppers and wanted to verify this with him. Emilio confirmed in the presence of Petitioner and her daughter that Unity Groves, through Dennis, had requested two pallets of peppers from Petitioner. Dennis was out of the country and Carricarte told Petitioner he would call her after speaking with Dennis upon his return. Dennis was terminated by Unity Groves upon his return. Petitioner met with Carricarte two additional times. Each time she had one of her daughters present and, at the third meeting, she brought a representative from the Department. During these meetings, Carricarte disputed that Unity Groves would order such an unusually large quantity of peppers and that the price reflected on the receipt was not an agreed upon price but rather the "target price" Unity Groves hoped to be able to secure for the grower. Unity Groves never notified Petitioner that any of the peppers received on March 22 and 25, 2013, were defective or non- conforming, nor did it seek to revoke acceptance of the peppers or return the peppers to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order (1) finding that Unity Groves is indebted to Petitioner in the amount of $1,191.00 for the balance due for the peppers it purchased from Petitioner on March 22 and 25, 2013 ($1,321.00, minus $130.00 for the duplicate payment for the March 13 delivery); (2) directing Unity Groves to make payment to Petitioner in the amount of $1,241.00 ($1,191.00, plus $50.00 for reimbursement of the filing fee Petitioner paid) within 15 days following the issuance of the order; and (3) announcing that, if Unity Groves fails to make timely payment in full, the Department will seek recovery from FCCI, Unity Groves' surety. DONE AND ENTERED this 10th day of October, 2013, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 10th day of October, 2013.
Findings Of Fact The Respondents, F. H. Dicks, III; F. H. Dicks, IV; and F. H. Dicks Company, are wholesale dealers in watermelons which they purchase and sell interstate. The Respondents' agents during the 1991 melon season in the Lake City area were Harold Harmon and his son, Tommy Harmon. The Harmons had purchased watermelons in the Lake City area for several year prior to 1991, and the Petitioner had sold melons to them in previous seasons. The terms of purchase in these prior transactions had always been Freight on Board (FOB) the purchaser's truck at the seller's field with the farmer bearing the cost of picking. The terms of purchase of the melons sold by Petitioner to the Respondents prior to the loads in question had been FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking. One of the Harmons would inspect the load being purchased during the loading and at the scale when the truck was weighed out. After this inspection, the melons accepted by Harmon were Respondents'. Price would vary over the season, but price was agree upon before the melons were loaded. Settlement had always been prompt, and the Harmons enjoyed the confidence of the local farmers. In June 1991, the Harmons left the Lake City area. There were still melons being picked in the area, and Harold Harmon advised the Petitioner that Jim would be handling their business. On June 30, 1991, load F 267 of 48,600 pounds of watermelons was sold to the Respondents through their agent, Jim, for 4 per pound. Fifteen thousand pounds of this load of melons was purchased by Food Lion in Salisbury, NC, for $1,450, and the remaining 33,600 pounds were refused. That portion which was refused was transported back to Respondents' workplace, and 33,600 pounds of the melons were sold at 3 per pound, or $1,008. The Respondents received a total of $2,458 for load F 267, and had transportation cost of $1,202.50 on this load. On July 1, 1991, load F 269 of 43,710 pounds of watermelons was sold to the Respondent through his agent, Jim, for 4 per pound. This load was to be shipped to Rich Food, Richmond, VA. An annotation on the Bill of Laden indicates the load was returned to Respondent and subsequently dumped. The load was not inspected after refusal, and there is no evidence that the load did not grade to standard. Petitioner's testimony is uncontroverted, and there is no indication that the terms for these two loads were different from the earlier transactions between Petitioner and Respondent, that is, FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking. Under the terms of sale, FOB purchaser's truck at seller's field, the Respondent bore the costs of transportation and the risk of refusal of the produce. Respondent's recourse was against the purchaser who refused delivery. If there was a problem with the grade, the Respondents also bore the risk of loss on sales which they made and which were rejected. The Petitioner is entitled to his full purchase price on both loads: $1,748.40 on F 269 and $1,944 on F 267.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: Respondents be given 30 days to settle with the Petitioner in the amount of $3,692.40, and the Petitioner be paid $3,692.40 from Respondents' agricultural bond if the account is not settled. DONE and ENTERED this 6th day of October, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 6th day of October, 1992. COPIES FURNISHED: Terry McDavid, Esquire 128 South Hernando Street Lake City, FL 32055 F. H. Dicks, III c/o F. H. Dicks Company P.O. Box 175 Barnwell, SC 29812 Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800 South Carolina Insurance Company Legal Department 1501 Lady Street Columbia, SC 29202 Victoria I. Freeman Seibels Bruce Insurance Companies Post Office Box One Columbia, SC 29202 Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue Does Respondent Sanford Produce Exchange, Incorporated (Sanford), owe Petitioner for agricultural products purchased by Sanford from Petitioner between April 1, 1997, and April 25, 1997?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Petitioner was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Sanford was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes. Sanford was issued license number 9434 by the Department, which is supported by bond number 957712 20250566 in the amount of $31,000, written by Auto Owners, as surety, with an inception date of October 25, 1996, and an expiration date of October 24, 1997. The Complaint was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes. Beginning April 1, 1997, and ending on April 25, 1997, Sanford ordered and agreed to pay for the following agricultural products from Petitioner, which Petitioner shipped by truck to Sanford: Date Item Quantity Price Total 4/1/97 Green Cabbage 100 $ 4.50 $ 450.00 4/1/97 Green Cabbage Bags 325 $ 3.50 $1,137.50 4/2/97 Green Cabbage 125 $ 4.50 $ 562.50 4/2/97 Green Cabbage Bags 100 $ 3.50 $ 350.00 4/17/97 Green Cabbage Bags 226 $ 3.00 $ 678.00 4/17/97 Medium Green Squash 77 $12.35 $ 950.95 4/18/97 Yellow Crookneck Squash 40 $ 5.00 $ 200.00 Fancy Yellow Squash 110 $ 8.35 $ 918.50 Medium Yellow Squash 40 $ 6.35 $ 254.00 Fancy Zucchini 79 $12.35 $ 975.65 Medium Zucchini 40 $10.35 $ 414.00 4/25/97 Yellow Crookneck Squash 40 $ 8.35 $ 334.00 Number 1 Yellow Crookneck Squash 120 $ 5.35 $ 642.00 Number 2 Fancy Zucchini 80 $ 6.35 $ 508.00 Medium Zucchini 50 $ 4.35 $ 217.50 4/25/97 Fancy Zucchini 92 $ 6.35 $ 584.20 Total $9,176.80 The above shipments are represented by invoice numbers 07987, 07991, 07772, 07773, 07785, 07896, and 07802, respectively. Petitioner has billed Sanford for the amount of $9,176.80, which Sanford has failed to pay. The cabbage, squash, and zucchini shipped to Sanford between April 1, 1997, and April 25, 1997, by Petitioner was of the quality purchased by Sanford and was in good condition when shipped.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding that Sanford Produce Exchange, Incorporated, owes Fresh Pride Sales, Incorporated, the sum of $9,176.80. DONE AND ENTERED this 14th day of January, 1998, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1998. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza 10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32299-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0810 Troy Cobb Qualified Representative Fresh Pride Sales, Incorporated Post Office Box 577 Wauchula, Florida 33873 Anthony L. Thomas, President Sanford Produce Exchange, Incorporated 6060 Hensel Road Port Orange, Florida 32119 F. J. Manuel, Jr., Esquire Sears and Manuel, P.A. 511 North Ferncreek Avenue Orlando, Florida 32803
Findings Of Fact At all times pertinent to the issues herein, Ingram Grove Services, Inc., (Ingram), was a commercial grower of citrus fruit and a licensed citrus fruit dealer in Florida. Mark Fetzer, Inc. (Fetzer), was also a grower and a licensed citrus fruit dealer in Florida. U.S. Fidelity & Guaranty Company was an insurance company authorized to write surety bonds in this state during the 1991-1992 citrus shipping season and was the underwriter of Fetzer's bond for the transaction in issue herein. Liberty Mutual Insurance Company was an insurance company authorized to write surety bonds in this state during the 1991-1992 citrus shipping season and was the underwriter of Ingram's bond for the transaction herein. By contract number 518, dated January 14, 1992, and drafted on the letterhead of Mark Fetzer, Inc., Ingram, the grower, sold and conveyed to Fetzer, the buyer, approximately 20,000 boxes of valencia oranges at a price of $10.50 per box, with a moving date of April 30, 1992. This description was intended to cover all valencia oranges grown by Ingram and contained in Suncrest #11 field in Sebring, Florida and included transportation to Polk County. Ingram was authorized to, and did, request a deposit of $1.00 per box, and by check dated April 27, 1992, Fetzer paid Ingram the sum of $20,000. The oranges were to be delivered by Ingram to the Commercial Carriers Cold Storage, (CCCS), facility in Auburndale, Florida. The entire crop of fruit covered by this contract was to be paid for within 30 days of delivery to CCCS. The contract did not prohibit Fetzer from re-selling the fruit covered thereby. Ingram and Fetzer had done business together for several years, since 1985. In every case, each had paid what was owed to the other, but it is admitted that on occasion, such payment was delayed for a short time. Neither had ever failed to ultimately pay what was owed the other, however. Sometime after delivery of the fruit to CCCS by Ingram, Fetzer sold 3,000 of the boxes to Vero Beach Groves, Inc., (VB), a producer of commercial orange juice for commercial sales. At that time, and at all times pertinent to the issues herein, VB was having financial difficulties. Evidence of record indicates that at the time, VB owed approximately $32,000 to Fetzer, somewhat more than $60,000 to Ingram, and over $600,000 to Florida Growers, another entity not pertinent to the issues herein. The terms of Fetzer's sale to VB called for a payment of $13.65 per box. This included $11.65 per box for the oranges then delivered, including 15 brokerage, and $2.00 per box to satisfy VB's antecedent debt to Fetzer. If all the Ingram fruit were resold by Fetzer to VB, this procedure would have paid off VB's debt to Fetzer before all the Ingram fruit was pulled out of storage. When the antecedent debt was liquidated, the price per box would have been reduced to $11.65. Fetzer had not allowed VB's debt to it to grow very large, and the above practice, which had been followed for several years, had to this point, been successful. There was no dispute under the terms of the contract between Ingram and Fetzer until sometime in mid-May, 1992 when, prior to the delivery of any fruit, Mr. Ingram called Mr. Fetzer and asked for a meeting. At that meeting, Mr. Ingram told Mr. Fetzer that unless an agreement was made to get him, Ingram, a debt reduction procedure similar to Fetzer's, he would not make available to Fetzer the fruit called for under the contract. Mr. Ingram indicated at the hearing that when he heard Fetzer had contracted with VB, in light of VB's tenuous financial condition, he was concerned about being able to get paid and this caused him to seek the meeting with Fetzer. However, he did not communicate this to Fetzer nor did he ask Fetzer for payment in advance or some security for the obligation. In fact, according to Fetzer, he had the money available, in cash, to pay the entire amount owed Ingram if necessary. In addition, Fetzer told Ingram that even if VB could not take the fruit, there were at least 3 -5 other "juicers" to whom he could sell the fruit and pay Ingram. In point of fact, the fruit was subsequently sold, by Ingram, to other juice processors at a per box price which varied from $12.50 to $13.35. Nonetheless, Fetzer tried to work the situation out for all concerned with no consideration given him for any purported change to the contract. Faced with the potential for not being able to get the fruit for sale to VB, the contract with whom was worth in excess of $200,000 to him, Fetzer met with a representative of VB and reached an agreement with it whereby VB would pay an additional $3.35 over the $13.65 so that Ingram could be paid. At this meeting he was told by Mr. Kordick, VB's vice president, that VB would work something out with Ingram for the remaining fruit. Thereafter, VB agreed with Ingram to make additional payments to Ingram. It appears, however, that this agreement to pay the extra on Ingram's antecedent debt was more acquiescence to coercion than voluntary agreement. Fetzer then released the first shipment of oranges to VB. VB paid for the shipment of oranges when it came in.It also issued four checks in the amount of $1,680.00 each fdor payment on VB's antecedent debt to Ingram which were made payable to Ingram or Fetzer. These four checks were cashed by Fetzer and were dishonored. They were ultimately redeemed by VB after several weeks, but none of the funds were transmitted by Fetzer to Ingram. Fetzer kept them as compensation for the amount of profit he lost because of Ingram's refusal to release any more oranges after the first shipment. In addition, Fetzer did not pay Ingram for the first 3,000 box shipment. After the first shipment was delivered to VB, Mr. Fetzer was contacted by VB's representative, Mr. Kordick, who advised VB could not pay the amount asked for the fruit which included the "surcharge" to reimburse Ingram because the processed juice would not bring enough to cover it. Admittedly, Mr. Fetzer did not ask Mr. Ingram to rescind the requirement for the "surcharge" payment. Had he done so and had Ingram agreed, it is most likely that VB could have purchased all the oranges from the entire contract and paid for it. All Fetzer did was tell Ingram he should not place the extra burden on VB, and as it was, VB went out of business. Mr. Fetzer knew of the arrangements for the "surcharge" that Ingram wanted before the delivery of the one shipment to VB and requested that shipment knowing what was required. He decided to go along with Ingram to see what would happen even though he felt by then that Ingram had breached the contract. However, he did not put this in writing to Ingram. He felt he had no choice due to Mr. Ingram's representation to him at their May meeting that it would be Ingram's way or not at all. Fetzer went along with it because he saw it as the only way to potentially get the money owed him by VB. Considering the net amount paid by Fetzer as deposit, ($20,000 - $3,000 = $17,000); the amount of antecedent debt unrecoverable due to Ingram's actions, ($26,000) and the anticipated profit lost of the remaining boxes un- delivered by Ingram, ($14,950), Ingram owes Fetzer a gross total of $57,590. From this must be deducted the $6,720 which Fetzer collected from VB on Ingram's behalf but which was not delivered to Ingram, and the $31,500 unpaid for the 3,000 boxes delivered, leaving Ingram's net obligation to Fetzer as $19,730.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that A Final Order be issued by the Commissioner of Agriculture awarding the sum of $19730 to Mark Fetzer, Inc. RECOMMENDED this 1st day of June, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 1st day of June, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR FETZER: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact but a statement of the law. Not a Finding of Fact but a Conclusion of Law. Accepted as a restatement of the case history. - 9. Accepted and incorporated herein. & 11. Accepted and incorporated herein. Accepted and incorporated herein except that the debt of VB to Ingram was approximately $60,000. Accepted that no tripartite agreement was reached. Accepted. Accepted and incorporated herein. Not a Finding of Fact. Accepted. Not a Finding of fact but a restatement of testimony. Accepted and incorporated herein. Accepted. Accepted that Ingram resold to others the fruit not released to Fetzer. Not a Finding of Fact but a statement of law. Accepted and incorporated herein with amount stated. Accepted and incorporated herein. FOR INGRAM: & 2. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. First sentence rejected in so far as it indicates a tri-party agreement. VB's participation was more a matter of acquiescence than agreement. Second sentence accepted and incorporated herein. First sentence rejected. Fetzer did not decline to take fruit as called for in the original contract. Second sentence accepted as it notes the sale to third parties but not "as a result" of Fetzer's failure to take the fruit. Not a Finding of Fact but a Conclusion of law. Rejected as contra to the weight of the evidence. Rejected. Not a proper Finding of Fact but more a comment on the state of the evidence. COPIES FURNISHED: Douglas A. Lockwood, III, Esquire Peterson, Myers, Craig, Crews, Brandon & Puterbaugh, P.A. P.O. Drawer 7608 Lake Region Plaza, Suite 300 141 5th Street, N.W. Winter Haven, Florida 33883-7608 C. Kennon Hendrix, Esquire Hendrix & Brennan P.O. Box 520- 2043 14th Avenue Vero Beach, Florida 32961-0520 Chester C. Payne Financial Examiner Analyst Office of Citrus Bond and License Division of Marketing Development Department of Agriculture P.O. Box 1072 500 Third Street, N.W. Winter Haven, Florida 33882-1072 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact Petitioner Donald Jones caused peppers he had grown "on high ground" to be delivered to respondent's packing house in Center Hill, Florida, on May 16, May 27 (in the rain) and June 4, 1991. As was customary, respondent undertook to grade, size, pack and load the vegetables, to arrange transportation to market, to get the best price possible, and to account for the proceeds, all for an unspecified "reasonable fee." The parties had no written agreement. Petitioner, who had dealt with respondent in eight preceding seasons, does not take issue with any of the "packing charges" respondent imposed for its services (on average $3.56 per box on May 27, 1991 and $2.36 per box on June 4, 1991), or raise any question regarding the physical handling of the peppers. He makes no claim of any kind regarding the peppers he delivered on May 16, 1991. It affirmatively appears from his verified complaint that respondent gave a timely accounting, and the evidence left no doubt as to the accuracy of the accounting, with one trivial exception. On May 27, 1991, petitioner delivered to respondent enough large green peppers to fill 903 boxes, enough medium green peppers to fill 1195 boxes, enough small (also called select) green peppers to fill 461 boxes, and enough red peppers to fill 278 boxes. Respondent's Exhibits Nos. 12 and 16. Respondent authorized Gator Produce, Inc. to sell petitioner's produce for a commission of seven percent, which is within the industry norm. Mr. Odom had known Bob Rutledge, the principal in Gator Produce, Inc. with whom he dealt, for some 25 years. At Mr. Rutledge's direction, Mr. Odom shipped the peppers to their various destinations "free on board, inspection after arrival," in keeping with industry practice. Respondent loaded 150 boxes of large green peppers and 50 boxes of small green peppers on a truck bound for Columbia, South Carolina, on May 27, 1991. Senn Brothers received the produce that night and eventually paid $16.50 a box for the large and $7.20 a box for the small peppers. Respondent's Exhibit No. 3. By a second refrigerated truck, respondent shipped another 150 boxes of large green peppers on the night of May 27, 1991, to Mushroom Growers in Chicago, Illinois, and a like number of boxes each of red, small green and medium green peppers to the same buyer. Respondent's Exhibit No. 4. When the peppers reached Chicago, Bob Rutledge of Gator Produce reported to Mr. Odom, "We've got a problem [with decay]." Instructed by Mr. Odom to "work it out," Mr. Rutledge sold the peppers at prices below those that fresh peppers without decay brought. Respondent received $6.27 a box for large peppers, $7.11 a box for medium peppers, $7.39 a box for small peppers, and $7.57 a box for red peppers. Respondent's Exhibit No. 18. On May 28, 1991, at about two o'clock in the morning, respondent shipped 128 boxes of red peppers, 153 boxes of large peppers and 229 boxes of small peppers to Ag Fresh in Oklahoma City. Respondent received $7.44 a box for the large peppers, $3.72 a box for the small peppers and $4.19 a box for the red peppers. The $9.30 a box for 125 boxes of medium peppers respondent shipped an hour earlier and the $9.06 a box for the 919 boxes of medium peppers respondent shipped to Memphis later the same day represent market price for peppers free from decay. The $6.51 a box to respondent for 450 boxes of large peppers respondent shipped to New York on May 28, 1991, like the price on the large peppers respondent shipped for petitioner to Chicago and Oklahoma City included an adjustment for decay. Although the New York buyer was billed for 32 boxes of red peppers, it actually received 32 boxes of small or select peppers, for which respondent was eventually paid $4.18 a box. On June 4, 1991, petitioner delivered to respondent enough large green peppers to fill 205 boxes, enough medium peppers to fill 330 boxes, enough small or select peppers to fill 220 boxes and enough red peppers to fill 120 boxes. On June 6, 1991, respondent shipped all of the large green peppers and all of the red peppers along with 200 boxes of medium peppers he had received from petitioner on June 4, 1991, to Philadelphia. On account of sales in Philadelphia, respondent realized $6.05 a box for large peppers, $4.65 a box for medium peppers, and $3.72 a box for red peppers. The same day respondent shipped all the small green peppers and 120 boxes of medium green peppers to Lexington Produce in Baltimore, Maryland, the only buyer of petitioner's peppers with whom it had not dealt extensively before. When Lexington Produce reported that petitioner's peppers had decay, respondent or its agent ordered and paid for a "federal inspection" which confirmed the report. After authorizing its agent to work it out, respondent received $2.79 per box for the small peppers and $5.58 per box for the medium peppers. In the 1991 pepper season, "everybody's" peppers had decay. Peppers rot from the inside out. Whether rot begins around the stem, as usually happens, or shows up suddenly as sidewall rot, it often escapes detection in its early stages. Even an experienced eye may see no sign of rot one day, while the morrow makes decay unmistakable. Several buyers reported that petitioner's peppers had decayed by the time they reached them. In consultation with Mr. Rutledge, Mr. Odom decided against incurring the expense of government inspections, when spoliage reports came from dealers on whom they had come to rely over many years. As far as the evidence shows, petitioner received fair market value, taking the peppers' condition into account, for each shipment, less commission and packing charges. Respondent fully accounted to petitioner for every penny that came into its hands, and disbursed some moneys to petitioner before it had itself received the sale proceeds. When asked, respondent made all of its invoices and other records available to petitioner. There is, however, one box of medium peppers petitioner delivered on May 27, 1991, which has not been accounted for. On average, those boxes of medium peppers yielded respondent $8.84 from which a $3.56 packing charge should be deducted to determine the value of the missing box to petitioner: $5.28.
Recommendation It is, therefore, RECOMMENDED: That DACS order respondent Jeff Odom, Inc. to pay petitioner five dollars and twenty-eight cents ($5.28) within fifteen (15) days of the final order. That, in the event Jeff M. Odom, Inc. fails to pay petitioner five dollars and twenty-eight cents ($5.28) within (15) days of the final order, DACS order Lawyers Surety Corporation to pay five dollars and twenty-eight cents ($5.28) or such lesser sum as satisfies the requirements of Section 604.21(8), Florida Statutes (1991), for disbursal to petitioner. DONE and ENTERED this 10th day of May, 1993, at Tallahassee, Florida. ROBERT T. BENTON, II 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 10th day of May, 1993. APPENDIX Petitioner filed no proposed findings of fact. Respondent's proposed findings of fact Nos. 1 and 2 are properly proposed conclusions of law. Respondent's proposed findings of fact Nos. 3-8, 10, 11, 13-19 and 21-27 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 9, the destinations included Oklahoma City, Memphis and New York, but not Philadelphia and Baltimore. With respect to respondent's proposed finding of fact No. 12, respondent apparently absorbs inspection fees. Respondent's proposed finding of fact No. 20 is adopted, except that the payments to petitioner were $5.28 short. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agricultural and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agricultural and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 John Coniglio, Esquire Post Office Box 1119 Wildwood, Florida 34785 W. Scott Wynn, Esquire Post Office Box 447 Groveland, Florida 34736
Findings Of Fact Respondent is a dealer in agricultural products and is licensed by the Department of Agriculture and Consumer Services, under Sections 604.15-604.34, Florida Statutes. On January 8, 1988, Jerome Allison, a truck driver employed by Respondent, picked up 47 pigeon plum trees from Petitioner's yard in Miami. Petitioner sold these trees to Respondent for the price of $90 per tree, or $4230, for a total of $4441.50 including tax. Mr. Allison delivered a check to Petitioner in the amount of $1057.50, leaving a balance of $3384. Respondent had not specified to Petitioner that the trees be of any particular grade. Petitioner did not sell the trees by reference to grade and guaranteed only that the trees were true to their name and were in good healthy condition. Petitioner brought the trees to the trailer for loading. Two of Petitioner's employees drove a tractor which carried the trees two at a time. In the course of loading, Petitioner's employees allowed the trees to rub together, damaging the bark of many of the trees. Mr. Allison tried unsuccessfully to alert one of Petitioner's managers to the problem, but was unable to find anyone in the office. Mr. Allison's warning to one of the tractor operators was ignored. Mr. Allison's illiteracy prevented him from noting this damage on the sales order that he signed acknowledging receipt of the trees. Upon receipt of the trees at the Key West jobsite, Respondent's president, Alberto Ribas, who was director of the project for which the trees had been purchased, noticed the damage, but decided to plant the trees anyway. Respondent pruned the trees in order to repair as much of the damage as possible. Following the delivery of the trees, the first contact between Petitioner and Respondent took place on February 15, 1988, when Keith Weyrich, general manager of Petitioner, called Mr. Ribas and asked when Petitioner was going to be paid. Mr. Ribas informed Mr. Weyrich that there had been a problem with the trees. Shortly prior to this conversation, a representative of the Florida Department of Transportation, which was Respondent's customer on the subject project, informed Mr. Ribas that they were rejecting all of the pigeon plum trees due to their poor quality. In early May, 1988, the representative of the Florida Department of Transportation announced its final decision. It rejected 23 trees and accepted seven trees. The remaining 17 trees were reclassified from Florida No. 1, which was evidently specified in the contract between Respondent and the Florida Department of Transportation, to Florida No. 2, which is a lower quality. Of the 47 trees delivered to Respondent, 24 were good healthy trees and 23 were not.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring Respondent to pay Petitioner the sum of $1210.50. DONE and RECOMMENDED this 5th day of October, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 5th day of October, 1988. APPENDIX Treatment Accorded Respondent's Proposed Findings 1-3 and 12. Adopted. 4. Adopted in substance, although not all trees were significantly damaged. 5 and 8-9. Adopted in substance. 6. Rejected as repetitious. 7 and 11. Rejected as against the greater weight of the evidence. Paragraph 7 also rejected as irrelevant to the extent that Respondent gave Petitioner the chance to remove the trees after they were planted. 10. Rejected as irrelevant. Treatment Accorded Petitioner's Proposed Findings and 12. Rejected as irrelevant. and 7. Adopted. 3-5. Adopted in substance. 6. Rejected as legal conclusion and against the greater weight of the evidence. 8. Rejected as repetitious. 9-10. Rejected as legal conclusion. 11. Rejected as against the greater weight of the evidence. COPIES FURNISHED: Keith Stuart Weyrich General Manager Quail Roost Nursery, Inc. 15100 Quail Roost Drive Miami, Florida 33187 Emilia Diaz-Fox, Esquire Courthouse Tower 44 West Flagler Street Suite 350 Miami, Florida 33130 (Post-Hearing for Petitioner) Stuart H. Sobel, Esquire Sobel & Sobel, P.A. Penthouse 155 South Miami Avenue Miami, Florida 33130 United States Fidelity & Guaranty Company Post Office Box 14143 Tampa, Florida 33623 Clinton H. Coulter, Jr., Esquire Department of Agriculture & Consumer Services Mayo Building Ben Pridgeon Bureau of License & Bond Mayo Building Tallahassee, Florida 32399 Robert Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32399-0810 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810
The Issue Whether or not Respondent, Dixie Growers, Inc., is indebted to Petitioner, Leah Raulerson, for agriculture produce purchased and not paid for in the amount of $3,722.49.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, I make the following relevant factual findings. During times material, Petitioner, Leah Raulerson, was an agricultural producer within the meaning of Section 604.15(5), Florida Statutes and concentrated primarily in the production of peppers. During times material, Respondent, Dixie Growers, Inc., was an agricultural dealer within the meaning of Section 604.15(1), Florida Statutes, and wholesaler and purchased peppers from Petitioner during May and June, 1992. Respondent, U.S. Fidelity & Guaranty Company, issued a surety bond to Respondent Dixie during times material. During late May and June, 1992, Petitioner sold various types of pepper including hungarian wax, finger hots, long hots, bell pepper, fancy cubanelle and jalopeno to Respondent Dixie. During times material, Petitioner inquired of one of Respondent Dixie's owners, Charles Lawton, what the wholesale market was bringing for the type of peppers that she produced and desired to sell. Respondent Dixie advised that the average wholesale price was $8.00 per box. Petitioner told Respondent Dixie, that she could sell her peppers for that price but if the market deteriorated to the point where the price was $4.00 or less per box that she should be advised whereupon she would cease picking the peppers as her labor and other related costs would be below her breakeven point of $4.00 per box. Respondent Dixie, advised Petitioner that he (Charles Lawton) would let her know if the market declined. The agreement was struck and Petitioner was advised by Respondent Dixie to "bring the peppers on." Based on their agreement, Petitioner continued picking the peppers. Petitioner delivered to Respondent Dixie, a load of the various types of peppers that she produced and expected to be compensated at the rate of an average of $8.00 per box for her produce. Petitioner was not paid for the peppers at that time nor was she told that she should not bring any more peppers to Respondent's warehouse. Approximately two weeks from the date of delivery, Petitioner was paid an average of $1.03 per box by Respondent Dixie. Petitioner provided copies of the wholesale market reports for the types of peppers that she produced and sold to Respondent, Dixie, during May and June, 1992. The reports reflect an average wholesale price of $8.00 per box. Petitioner is owed by Respondent Dixie, the sum of $3,722.49 for nonpayment of produce (peppers) that she delivered to Respondent Dixie during May and June, 1992. Respondent Dixie, has countered that Petitioner's produce was bad and that the market had declined to the point whereupon they (Dixie Growers) were only able to obtain approximately $1.03 per box for the produce that Petitioner sold to Respondent Dixie. However, Respondent Dixie, failed to present any credible evidence which would establish that either Petitioner's produce was bad or that they were only able to obtain $1.03 as contended. No evidence was presented that the market declined or situation was anything different from the prices Petitioner was quoted and as reflected by the prices shown in the wholesale market reports. It is more probable than not that Respondent Dixie received the amounts reflected in the wholesale market reports for the produce that it purchased from Petitioner during May and June, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Agriculture, Bureau of License and Bond, issue a Final Order requiring that Respondent, Dixie Growers, Inc., pay to Petitioner the sum of $3,722.49 as claimed for agricultural produce purchased from Petitioner. In the event that Respondent Dixie fails to pay Petitioner, within 30 days of the date of the Department's Final Order, the sum of $3,722.49, that Respondent, U.S. Fidelity & Guaranty Company, as surety, remit to the Department that sum which should then be timely remitted to Petitioner. DONE AND ENTERED this 17th day of May, 1993, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1993. COPIES FURNISHED: Linda Terry Lawton P. O. Box 1686 Plant City, Florida 33564 U.S. Fidelity & Guaranty Company Legal Department P. O. Box 1138 Baltimore, Maryland 21203-0000 Richard Tritschler, Esquire Department of Agriculture The Capitol - PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Dixie Growers, Inc. P. O. Box 1686 Plant City, Florida 33564 Honorable Bob Crawford Commissioner of Agriculture The Capitol - PL 10 Tallahassee, Florida 32399 0350
