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JEROME N. MATTHEWS vs FLORIDA LIME GROWERS, INC., AND COMMUNITY BANK OF HOMESTEAD, 92-002385 (1992)
Division of Administrative Hearings, Florida Filed:Miami, Florida Apr. 20, 1992 Number: 92-002385 Latest Update: Oct. 15, 1992

The Issue The issue in this case concerns whether the Respondent Florida Lime Growers, Inc., is indebted to the Petitioner for agricultural products and, if so, in what amount.

Findings Of Fact On May 29, 1991, Petitioner entered into an agreement with Florida Lime Growers, Inc., for the handling of the sale of his fruit on consignment. The terms of that agreement included the following: Florida Lime Growers, Inc., agreed to grade Petitioner's fruit, pack that which met quality standards, and use its best efforts to sell the packed fruit for the benefit of Petitioner on a pooled basis at market price. No specified price was guaranteed by or agreed to be paid to Petitioner by Florida Lime Growers, Inc. Florida Lime Growers, Inc., was entitled to charge a fee for packing Petitioner's fruit and a commission on the sale of the fruit. Florida Lime Growers, Inc., agreed to pay to Petitioner that portion of the sale proceeds received attributable to Petitioner's share of the pool, less all expenses of sale. Florida Lime Growers, Inc., also agreed to pay Petitioner a portion of the anticipated return prior to actual receipt of payment by Florida Lime Growers, Inc., from the ultimate purchaser. At no time did Petitioner contract with Florida Lime Growers, Inc., for the outright purchase by it of all of Petitioner's mangos and avocados, regardless of quality. The terms of Petitioner's agreement with Florida Lime Growers, Inc., are substantially similar to the agreement he entered into with another packing house, Limeco, Inc., on May 28, 1991. When Petitioner or his employees delivered mangos or avocados to Florida Lime Growers, Inc., the load of fruit would be weighed and a receiving ticket would be given to the Petitioner or to his employee showing the date, type of produce, number of bin boxes brought, and the total weight expressed in pounds and bushels (55 pounds per bushel). Florida Lime Growers, Inc., would then take the fruit and grade it, that is, separate out the fruit of good enough quality to be packed and sold. Petitioner was offered the opportunity to pick up the culls (the fruit not good enough to be packed), so that he might attempt to sell them on his own, but he declined to do so as he felt it was too much of a bother to be worth the effort. Florida Lime Growers, Inc., would then sort Petitioner's fruit by size and pack it for sale. Florida Lime Growers, Inc., kept a record of the quantity of Matthews' fruit, by type and size, as well as the proportion of the pool of fruit available for sale which Petitioner's fruit represented. Florida Lime Growers, Inc., sold Petitioner's mangos and avocados at market price. Market prices fluctuate, which is why Florida Lime Growers, Inc., as well as Petitioner's other dealer, Limeco, did not guarantee a rate of return or agree to pay a specified price. Petitioner's rates of return per bushel for sales of his packed mangos and avocados by Florida Lime Growers, Inc., can be determined by dividing the net return by the total weight packed (in pounds) to get a per pound return, then multiplying the result by 55 to arrive at the per bushel return. Applying this formula to the information contained in the account sales reports contained in Respondent's Composite Exhibit 8, the rates of return to Petitioner were as follows: Type of Fruit To be Packed Receipt # Total Weight Packed Total Net Return Per Bushel Return Mango 610 8,280 2,584.58 17.05 Mango 617 4,600 1,435.88 17.05 Mango 623 8,987 3,303.23 20.35 Mango 630 3,102 1,073.95 19.25 Mango 635 2,629 935.79 19.80 Mango 641 3,597 1,311.14 19.80 Mango 651 3,680 1,201.16 15.40 Mango 654 6,083 1,138.35 10.45 Mango 676 1,540 340.14 12.10 Avocado 689 3,800 2,783.91 40.15 Mango 692 220 50.44 12.65 Avocado 696 925 692.56 41.25 Mango 727 15,455 1,666.98 6.05 Mango 740 13,728 2,002.61 8.25 Mango 747 10,021 1,399.91 7.70 Mango 753 7,953 1,159.16 8.25 Petitioner presented no evidence to show that the prices obtained for his fruit by Florida Lime Growers, Inc., were below the market. The only evidence of price other than Respondents' sales was the net return paid to Petitioner by Limeco for mangos delivered by him to that dealer on May 28 and 29, 1991, and after July 1, 1991. That evidence shows that there was a substantial decrease in sales price between May 28, 1991, and July 1, 1991. For instance, Exhibit 2 reflects a net return for mangos delivered at the end of May of $17.85 per bushel. Exhibit 5 reflects a net return for mangos delivered on July 3, 1991, of $9.78 per bushel, with $6.20 per bushel for "No. 2's." Exhibit 4 reflects a net return for mangos delivered between July 5 and July 11 of $6.08 per bushel, with $4.59 per bushel for "No. 2's." The last sale of mangos by Florida Lime Growers, Inc., which included those of the Petitioner, was to Amerifresh, a broker. Amerifresh selected and arranged for the trucking company to transport the shipment to Seattle, Washington. Upon arrival, the shipment of mangos was rejected as a "failed" shipment. The shipment was inspected by a U.S.D.A. inspector and a copy of the U.S.D.A. inspection certificate was obtained by Florida Lime Growers, Inc., maintained in its records, and offered to Petitioner. Florida Lime Growers, Inc., received payment for only the small portion of the shipment which was salvageable. The funds received representing that portion of the shipment comprised of Petitioner's mangos, less his proportionate share of the expenses of sale, were paid to Petitioner. Petitioner presented no evidence to show that Florida Lime Growers, Inc., received any money for his mangos and avocados that it did not pay to him, after deducting the costs of sale and the advances or prepayments made in accordance with their agreement. Petitioner was provided with an accounting with the final check issued for payment from each pool. With respect to the final payment on September 10, 1991, in the amount of $233.07, Matthews received an accounting, including a letter of explanation, and the opportunity to review the records of Florida Lime Growers, Inc. Petitioner spoke with both William Planes and Rachel Trant of Florida Lime Growers, Inc., at unspecified times, but he was not satisfied with the information that either of them provided. The computerized accounting system used by Florida Lime Growers, Inc., is also used by several other businesses in the produce industry. Florida Lime Growers, Inc., employees have offered to explain the printed reports to its customers and have done so on request. 2/ Although he had the opportunity to do, Petitioner never requested assistance or an explanation from the employee of Florida Lime Growers, Inc., who ran the computerized accounting system and who calculated the adjustments and final return to be made on the Amerifresh shipment. Petitioner made no attempt to communicate with anyone from Florida Lime Growers, Inc., after he received his final payment on September 10, 1991. July 1, 1991, was the last date on which Petitioner brought mangos to Florida Lime Growers, Inc., which were accepted by the latter. The last load of Petitioner's mangos brought to Florida Lime Growers, Inc., was refused due to the poor quality. Petitioner's first effort at filing a complaint was on November 18, 1991, when he filed a complaint against "Bill Planes d/b/a Florida Lime Growers, Inc." William "Bill" Planes is the president of, and is one of two directors of, Florida Lime Growers, Inc. Mr. Planes is the person with whom the Petitioner had most of his dealings involving Florida Lime Growers, Inc. Mr. Planes, in his individual capacity, was not a dealer pursuant to Chapter 604, Florida Statutes. Petitioner was notified by the Department of Agriculture and Consumer Services by letter dated January 7, 1992, that his complaint could not be processed until he amended it to name Florida Lime Growers, Inc., as the Respondent. The actual date Petitioner filed the amendment to his complaint is unclear from the documents, but it was not until some time after March 2, 1991, the date on which it was notarized. The first notice of Petitioner's complaint that the Department of Agriculture and Consumer Services sent to Respondent, Florida Lime Growers, Inc., was on March 11, 1992.

Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order in this case dismissing the Petitioner's complaint, as amended, and denying the relief requested by the Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of September 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September 1992.

Florida Laws (9) 120.57159.16201.16311.14604.15604.18604.20604.21604.34
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M. O. "BUSTER" WILLIAMS vs DOUGAL M. BUIE, III, D/B/A BLUE STAR CITRUS AND VEGETABLES AND FIRST UNION NATIONAL BANK OF FLORIDA, 93-005869 (1993)
Division of Administrative Hearings, Florida Filed:Tavares, Florida Oct. 13, 1993 Number: 93-005869 Latest Update: Aug. 03, 1995

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

Florida Laws (6) 120.57604.15604.17604.19604.20604.21
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GREEN CAY CORPORATION vs. SANCO DISTRIBUTORS, INC., 83-001463 (1983)
Division of Administrative Hearings, Florida Number: 83-001463 Latest Update: Oct. 28, 1983

Findings Of Fact Petitioner, Green Cay Corporation, acts as a sales agent in selling vegetables primarily for producers in Dade and Broward Counties. Its principal offices are at 700 Northwest Twelfth Terrace, Pompano Beach, Florida. Respondent Sanco Distributors, Inc., acts as a broker for supermarket chains and consequently purchases produce from agents such as Green Cay for further resale to wholesalers and distributors. On the morning of February 7, 1983, Sandy Geraci, president of respondent, telephone petitioner's general manager, Harold Rabin, to inquire about the availability of peppers and other produce. After agreeing on the price and amount, Geraci sent a truck to petitioner's warehouse that same evening which picked up the following produce: 300 boxes of peppers at $28.25 per box, 14 boxes of cucumbers at $13.25 per box, 20 boxes of "Fcy Zucs" at $8.25 per box, 40 boxes of "Med Zucs" at $5.25 per box, and 300 boxes of extra- large peppers at $28.25 per box. The total charge on the invoice was $14,685.50. Before accepting the shipment, Gareci made a cursory inspection of the produce and found it to be acceptable. The shipment was picked up F.O.B. Pompano Beach, which meant Sanco took title to the produce once it was loaded on the truck. Two hundred boxes of peppers were initially delivered to Califf Company in Columbus, Ohio, on February 9 or 10. At around 4:00 a.m. on February 10, Sanco's truck arrived at the loading dock of Walter Gailey and Sons in Cleveland, Ohio, to deliver the remaining 300 boxes of peppers. After the truck was unloaded, it departed the city to make further deliveries. There was no inspection of the peppers by Gailey before they were unloaded or when they were first placed in his warehouse. Sometime later that morning, a United States Department of Agriculture inspector examined a load of peppers on Gailey's dock and noted that "[d]amage by bruising occurring throughout pack ranges from 12 percent to 16 percent, average 14 percent. No decay." However, it was not conclusively shown that the peppers inspected were those delivered by Sanco. The report also noted that "[g]rade defects average 4 percent, consisting of mechanical damage and pulled calix." A pulled calix means the pepper has no stem. The report concluded in part that the boxes met "quality requirements but fail[ed] to grade U.S. No. 1. account of condition." Gailey contacted Geraci by telephone on the morning of February 10 to complain about the peppers. Geraci then telephone Rabin. After being read the results of the inspection report, Rabin asked Geraci to try to make a settlement with Gailey and to offer a $3.00 per box allowance on the peppers. When Gailey was told of this offer by Geraci, he apparently refused. Geraci then offered to move the peppers to Chicago, but Rabin declined this offer since they had already been unloaded and placed in refrigeration. He feared that if they were reloaded and the refrigeration changed again, the perishable items might spoil by the time they reached Chicago. Geraci interpreted Rabin's refusal to move the produce to another destination to mean that he should sell the peppers at the best price available. He thereafter sent Rabin a telegram on February 11, 1983, stating in pertinent part as follows: USDA Inspection ordered at 7 AM February 10, 1983 shows "damage by bruising ranges from 12-16 percent average 14 percent failed to grade US#1" and regards to invoice #009950 dated February 7, 1983 500 large peppers your offer of $3.00 is not acceptable. You have the option to take pepper elsewhere but refused. Peppers will be sold for your account and will forward government inspection account sales plus 25 cents brokerage account will be charged. After receiving the above telegram, Rabin sent a reply telegram to Geraci the same date stating as follows: Reference your Western Union wire of February 11, terms not acceptable. We are turning this matter over to USDA for their consideration. We also intend turning this matter over to the Florida Department of Agriculture reference your bond. On February 11, 1983, the Califf Company in Columbus, Ohio, contacted Geraci concerning the 20 boxes of peppers he had delivered the previous day. Califf claimed its shipment was also bruised and wanted the $3.00 allowance offered to Gailey. Sanco agreed to this discount. After taking the 300 boxes of peppers on a consignment basis, Walter Gailey and Sons eventually sold the peppers for $10.50 per box on the average. Gailey then rebated $3,150 to Sanco, who in turn remitted that amount to Green Cay. The "account sale" given by Gailey to Sanco to evidence the above sale was not in accordance with normal trade procedures. The invoice reflected only the gross amount received for all 300 boxes ($3,150) at an average cost of $10.50 per box. It did not identify the sales price for each individual box, the freight charges, commission, or handling charges, if any. Such itemization is normally shown on the document. Some 2,000 boxes of peppers were sold by petitioner on February 7 and shipped to various buyers. There were no other complaints of bruised peppers received by Green Cay other than those that were delivered to Gailey and Califf.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent repay $4,425 to petitioner for goods sold by petitioner to respondent on February 7, 1983. DONE AND ENTERED this 28th day of October 1983 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 28th day of October 1983. COPIES FURNISHED: Mr. Harold Rabin, General Manager Green Cay Corporation 700 Northwest 12th Terrace Pompano Beach, Florida 33060 Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 Glenn A. Bissett, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services Room 418, Mayo Building Tallahassee, Florida 32301 Doyle Conner, Commissioner Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301

Florida Laws (3) 120.57672.314672.316
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HARMON SOD, LLC vs T AND J SOD SERVICE, INC., AND GREAT AMERICAN INSURANCE COMPANY, AS SURETY, 08-006019 (2008)
Division of Administrative Hearings, Florida Filed:Fort Pierce, Florida Dec. 04, 2008 Number: 08-006019 Latest Update: Apr. 30, 2009

The Issue Whether Respondent T and J Sod Service, Inc. (T and J Sod) is indebted to Petitioner for agricultural products (the sale of sod represented by Trip Tickets 11902 and 11917), and, if so, the amount of the indebtedness. Whether Respondent Great American Insurance Company is liable to Petitioner for any unpaid indebtedness owed Petitioner by T and J Sod.

Findings Of Fact At all times relevant to this proceeding, Harmon Sod was a producer of agricultural products within the meaning of Subsection 604.15(9), Florida Statutes.1 Sod is an agricultural product within the meaning of Subsection 604.15(1), Florida Statutes.2 At all times relevant to this proceeding, T and J Sod was a “dealer in agricultural products” within the meaning of Subsection 604.15(2), Florida Statutes.3 At all times relevant to this proceeding, T and J Sod was licensed as a dealer in agricultural products by the Department. At all times relevant to this proceeding, Great American Insurance Company served as surety for T and J Sod. At all times relevant to this proceeding, T and J Sod was a customer of Harmon Sod. T and J Sod purchased sod from Harmon Sod and thereafter resold and installed the sod to T and J Sod’s customers. Harmon Sod sold to its customers sod on wooden pallets. An integral part of each transaction involved the pallet. If a customer did not give Harmon Sod an empty pallet when it purchased a pallet of sod, Harmon Sod charged the customer for the sod and an additional $5.00 for the pallet. There was a dispute whether T and J Sod purchased the sod represented by Trip Ticket 19902 or by Trip Ticket 11917. Mr. Gonzalez testified that his driver did not sign for the sod on either Trip Ticket and that he did not receive the pallets of sod represented by either Trip Ticket. As to Trip Ticket 11902, the greater weight of the credible evidence established that on Friday, April 25, 2008, Harmon Sod had six extra pallets of Bahia sod. Tommy Wuchte wanted to sell the sod so it would not sit on the pallets over the weekend. Tommy Wuchte testified, credibly, that he called Mr. Gonzalez and asked if could use the sod. Mr. Gonzalez agreed to purchase the six pallets of sod. Tommy Wuchte thereafter delivered the six pallets of sod to T and J Sod and signed his name on the Trip Ticket 11902. As to Trip Ticket 11902, T and J Sod is indebted to Harmon Sod in the amount of $148.50 plus tax in the amount of $9.65 (at the rate of 6.5 percent) for six pallets of sod and $30.00 for six pallets at $5.00 per pallet, for a total of $188.15. As to Trip Ticket 1197, the greater weight of the evidence established that on Tuesday, April 29, 2008, Mr. Gonzalez called Tommy Wuchte and told him that he was sending a contract driver to pick up 18 pallets of Bahia sod. Mr. Gonzalez told Tommy Wuchte that he had fired his regular driver. On April 29, 2008, a contract driver came to the sod farm where Harmon Sod was cutting sod, and told Ronald Wuchte that he was picking up the 18 pallets of sod for T and J Sod. Ronald Wuchte loaded the 18 pallets of sod on the driver’s truck and had the driver sign Trip Ticket 1197. As to Trip Ticket 1197, T and J Sod is indebted to Harmon Sod in the amount of $445.50 plus tax in the amount of $28.96 (at the rate of 6.5 percent) for the 18 pallets of sod and $90.00 for 18 empty pallets at $5.00 per pallet, for a total of $564.46. Harmon Sod had to pay a $50.00 filing fee to file this claim, for which it is entitled to reimbursement from T and J Sod pursuant to Subsection 604.21(1)(a), Florida Statutes. T and J Sod is indebted to Harmon Sod in the total amount of $802.61.4

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Pursuant to Subsection 604.21(7), Florida Statutes, T and J Sod should be ordered to pay to Harmon Sod the sum of $802.61 within 15 days of the entry of the Final Order. Pursuant to Subsection 604.21(8), Florida Statutes, Great American Insurance Company, as surety, should be ordered to pay to Harmon Sod the sum of $802.61 should T and J Sod fails to timely make that payment. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 5th day of March, 2009.

Florida Laws (5) 120.569120.57243.27604.15604.21
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CAROL VREELAND vs LESTER TOWELL DISTRIBUTORS, INC., 92-005433 (1992)
Division of Administrative Hearings, Florida Filed:Fort Pierce, Florida Sep. 04, 1992 Number: 92-005433 Latest Update: Dec. 06, 1993

The Issue The ultimate issue for determination at formal hearing was whether Lester Towell Distributors, Inc., is indebted to Carol Vreeland for produce, i.e., squash, sold to Lester Towell Distributors by Carol Vreeland's son, Kurt Vreeland, as grower.

Findings Of Fact Richard Vreeland and Carol Vreeland (Petitioner) are husband and wife. Kurt Vreeland is their adult son. Kurt Vreeland did not appear at the hearing. In prior years before the incident in this case, Richard Vreeland had grown and sold produce. However, for the 1992 season, because of a neck injury, he had decided not to grow and sell produce. Kurt Vreeland who had no experience in the growing of produce convinced his parents to allow him to grow and sell the produce, i.e., squash. Petitioner and her husband agreed but placed certain conditions on their son. The conditions were that Kurt Vreeland would rent the land from his parents and that from the proceeds of the sale of the squash, he would reimburse his parents for the expenses they incurred in growing the produce and that Kurt Vreeland would receive the balance of the proceeds from the sale of the squash. The squash was grown on land owned by Petitioner and her husband. Supervision for the crop of squash was performed by Rodney Willis. Willis had an oral agreement with Kurt Vreeland to supervise the growing of the crop of squash, and in return Kurt Vreeland would pay him for his services and labor expenses that he, Willis, incurred. Willis was aware that the squash would be transported to Lester Towell Distributors, Inc. (Respondent) for sale. Willis has never received any payment from Kurt Vreeland for his services or the labor expenses that he incurred. Respondent is a company in the business of selling produce for growers at a commission plus expenses. On or about April 1, 1992, an individual who identified himself as Kurt Vreeland, offered to sell squash to Respondent. Respondent had no reason to doubt that the individual was Kurt Vreeland. No evidence was presented that the individual was not Kurt Vreeland. On April 14, 1992, a "Packing and Sales Agreement" (Agreement) was entered into by Kurt Vreeland and Respondent, represented by Fred Towell who is Respondent's President. On April 16, 1992, the Agreement was executed by them. In the Agreement, Kurt Vreeland was specifically referred to as "Grower," and Respondent, at times, as "Grower's Agent." The Agreement states in pertinent part: [W]hereas, Grower desires to retain LESTER TOWELL DISTRIBUTORS, INC. as its agent for the purpose of sale of the Grower's produce and for the performance of such other services in connection therewith as may be specifically set forth, and whereas, * * * Now, therefore, it is agreed as follows: FIRST: Grower hereby retains Grower's Agent during 1992 farm year and entrust him from time to time for the purpose of sale, with the possession and control of Grower's produce. SECOND: Prior to delivering any produce to the Grower's Agent, Grower will apprise Grower's Agent whether Grower has pledged any of the crop proceeds or granted a security interest therein to any third party and if so the name and address of such third party. Grower will, at all times during the term of this agreement, apprise Grower's Agent of any such additional liens placed on his crops as soon as such has occurred. Grower shall indemnify Grower's Agent from all losses and expenses, including reasonable attorney fees incurred by Grower's Agent caused by (1) failure of Grower to promptly furnish such information and (2) any misstatements with regard to the information provided. THIRD: Grower's Agent shall receive at LESTER TOWELL DISTRIBUTORS, INC. located at 900 Lester Towell Blvd., in Belle Glade, Florida 33430, Growers, produce for the purpose of shipping and selling the same at the ten percent (10 percent) of sales charge established between the Grower and Grower's Agent which shall only be changed by mutual agreement. Grower's Agent shall be respon- sible for the INVOICING AND ACCOUNTING of all Grower's produce received by and or sold by Grower's Agent. * * * SIXTH: Accounting and/or payment shall be made to Grower within sixty (60) business days from the date Grower's produce is deliv- ered and sold on the terms accepted, but only on the basis of the actual final selling price. By the execution of this agreement, Grower permits that there may be deducted from the actual selling price all actual ex- penses as described in paragraphs Fourth and Fifth, and the agreed upon charges set forth in paragraph Third. * * * GENERAL CONDITIONS AND STATEMENTS UNDER THE PERISHABLES AGRICULTURAL COMMODI- TIES ACT, 7 U.S.C. S499 (a)et seq AND REGU- LATIONS OF THE AGRICULTURAL MARKETING SERVICE OF THE UNITED STATES DEPARTMENT OF AGRICUL- TURE, IT IS REQUIRED THAT THERE BE MADE A STATEMENT OF THE TERMS AND CONDITIONS UNDER WHICH THE GROWER'S AGENT WILL HANDLE PRODUCE FOR THE GROWER. THE FOLLOWING IS THAT AGREE- MENT BETWEEN THE GROWER AND THE GROWER'S AGENT, TOGETHER WITH THE CONTRACT TERMS OF THIS DOCUMENT. * * * 2. Grower shall haul and deliver all produce to Grower's Agent packing house at Grower's expense. Produce must be delivered either in crates, Grower's pallet box or such other containers as have been agreed to by the Grower's Agent. * * * Grower's Agent shall issue receipts to Grower for all produce received. A lot num- ber or other positive means of identification shall be assigned by Grower's Agent to each lot in order to segregate the various lots of produce received from different Growers for similar produce being handled at the same time, and each lot shall be so identified and segregated throughout all operations con- ducted by Grower's Agent. At the end of April 1992 or first of May 1992, Petitioner telephoned Respondent notifying Respondent that checks for the sale of the produce should be made payable to Petitioner and Kurt Vreeland. Petitioner spoke with Margaret Jeanne "Jeannie" Woodward. Petitioner was assured by Ms. Woodward that the checks would be made payable to Petitioner and her son. What Ms. Woodward had agreed to do was contrary to Respondent's standard operating procedure which was to issue checks for the sale of produce only to persons with whom Respondent had entered into a contract. In April 1992, Respondent sold squash supplied to it by Kurt Vreeland. On or about May 4, 1992, a check for squash sold was issued by Respondent and made payable to Petitioner and Kurt Vreeland and was mailed to an address other than Petitioner's address. The check was prepared and signed by Ms. Woodward. On or about May 19, 1992, Kurt Vreeland and another person appeared at Respondent's place of business, requesting another check, indicating that he had never received the original check. Ms. Woodward attempted to issue the check payable to Petitioner and Kurt Vreeland, but he objected, insisting that the check be made payable only to him, since the contract was with him and no one else. Ms. Woodward complied with the demand and issued another check payable only to Kurt Vreeland. Ms. Woodward complied with Kurt Vreeland's demand because: 1) The contract was in fact with Kurt Vreeland and no one else; 2) Respondent's standard operating procedure was to issue checks only to persons with whom Respondent had entered into a contract; and 3) Kurt Vreeland was demanding that Respondent comply with the contract that he, and only he, receive payment. On the same day the new check was issued, it was cashed at Respondent's bank, showing an endorsement by Kurt Vreeland. Subsequently, after not receiving any money from Respondent, Petitioner telephoned Respondent. Ms. Woodward notified Petitioner that the checks could only be made payable to Kurt Vreeland because the contract for sale of the squash was with him only. Further, Petitioner was informed by Ms. Woodward that she must present proof to Respondent that she, not Kurt Vreeland, owns the produce. This was the first time that Ms. Woodward had experienced this type of situation and was not sure what kind of evidence or proof Petitioner would need to submit. Petitioner and her husband telephoned Respondent several times attempting to convince Respondent that they, not their son, Kurt Vreeland, owned the produce and that checks should be made payable to Petitioner and her son. However, their efforts were to no avail. On May 9, 1992, Petitioner mailed a letter to Respondent, by certified mail, reiterating that the produce was owned by her and checks should be made payable to her and her son. Respondent received the certified letter on May 21, 1992. On May 19, 1992, prior to receiving Petitioner's certified letter, Respondent issued to Kurt Vreeland another check in the amount of $3,346.20 for the sale of additional squash delivered by Kurt Vreeland to Respondent. The check was prepared and signed on behalf of Respondent by Ms. Woodward. That same day, the check was cashed at Respondent's bank, showing an endorsement by Kurt Vreeland. After mailing the certified letter, Petitioner and her husband believed that the matter, regarding the checks, had been resolved, but shortly discovered that they were mistaken. Merchants to whom their son had written checks and with whom Petitioner and her husband did business, were complaining to Petitioner and her husband that their son's checks had been returned for insufficient funds. This new development caused Petitioner and her husband to again contact Respondent by telephone. At that time, Respondent informed Petitioner and her husband of the check issued on May 19, 1992, made payable only to Kurt Vreeland, reiterating that the contract was only with their son. Further, Respondent informed them that Florida Department of Health and Rehabilitative Services (HRS) had verbally made a claim on the proceeds from the squash on behalf of Kurt Vreeland's ex-wife for his children and that Respondent was not complying with HRS' request either because it had shown no proof that the ex-wife was entitled to the proceeds. On June 19, 1992, Ms. Woodward issued to Kurt Vreeland a check in the amount of $1,774.35 for more squash that it had sold in May 1992 on behalf of Kurt Vreeland. That same day, the check was cashed at Respondent's bank, showing an endorsement by Kurt Vreeland. Before the June 19, 1992 check was issued, Petitioner and her husband made numerous telephone calls to Respondent attempting to convince Respondent to make the checks payable to Petitioner and her son, Kurt Vreeland. Again, all to no avail. After the June 19, 1992 check, Kurt Vreeland did not provide Respondent with any more squash for it to sell. Consequently, no further checks were issued. At one point in time, out of frustration, Respondent requested Petitioner and her husband to remove some remaining squash that had been brought to Respondent by Kurt Vreeland. However, the squash was not removed. At all times material hereto, Petitioner and her husband were aware of the different periods that their son removed squash from the land to take to Respondent for sale. At all times material hereto, at no time did Kurt Vreeland inform Respondent that either Petitioner or her husband had ownership in the squash. Neither Petitioner nor her husband have received any money from their son, Kurt Vreeland, for the expenses they incurred with the 1992 crop of squash, nor for rent of their land to grow the produce.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a final order dismissing Petitioner's complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of August 1993. ERROLL H. POWELL 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 17th day of August, 1993.

Florida Laws (6) 120.55120.57604.15604.17604.19604.20
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BOBBY, SR, AND BOBBY, vs. GROWERS MARKETING SERVICES, INC., AND COMMERCIAL UNION INSURANCE COMPANY, 85-002824 (1985)
Division of Administrative Hearings, Florida Number: 85-002824 Latest Update: Jun. 16, 1986

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.

Florida Laws (6) 120.68604.15604.17604.20604.21604.22
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ROBERT J. WALSH AND COMPANY vs. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, 86-001422 (1986)
Division of Administrative Hearings, Florida Number: 86-001422 Latest Update: Jul. 14, 1986

Findings Of Fact Robert J. Walsh and Company, Inc. has been in the business of selling agricultural products since 1962. It is a "dealer in agricultural products" as defined in s. 604.15(1), Florida Statutes (1985). It is not a "producer" as defined in s. 604.15(5), Florida Statutes (1985). Walsh's modus operandi which it has used for many years is to have its salesmen call on landscapers, nurseries and other customers for trees, plants and other agricultural products to determine their needs. These salesmen have the prices of products and their availability from producers and the salesmen take orders from these purchasers. This order is sent to the producer who delivers the product to the purchaser and sends Walsh a copy of the delivery ticket. Walsh bills the customer for the product delivered and the producer bills Walsh for the consumer-cost of the product less a 20-25 percent discount from which Walsh derives its profit from the sale. The producer relies solely on Walsh for payment for the product it produces and delivers to the customer. Walsh has no authority to sell the product at a price other than that set by the producer. In any event, the producer bills Walsh for the product delivered at the producer's established price less the discount it gives Walsh for acting as intermediary in the sale. If products are damaged in transit, the producer's driver will make any necessary adjustment with the customer or return the damaged plant for replacement by the producer. Walsh does not represent the grower if such a situation develops. Similarly, if the product is rejected by the purchaser for not meeting quality standards, that issue is resolved between the grower and the customer without input from Walsh. Whatever agreement is reached between the grower and the customer is reflected on the invoice signed by the customer and forwarded to Walsh who has the responsibility of collecting from the customer. The grower bills Walsh for the cost of the product less Walsh's commission. The sales forming the bases for the complaints filed by Walsh with Respondent involve sales to Paul Pent, d/b/a Paul Pent Landscape Company, Dean Pent and J & W Landscape. On January 31, 1985, Walsh sold Pent three laurel oaks grown by Stewart Tree Service for a total price of $467.46 including sales tax (Ex. 2). On March 27, 1985, Walsh sold various trees and plants grown by Goochland Nurseries to J & W Landscape for a total price of $403.98 (Ex. 3). On April 22, 1985, Walsh sold two live oaks grown by Stewart Tree Service to Pent Landscape Company for a total price of $336.00 (Ex. 4). On July 3, 1985, Walsh sold various plants grown by Goochland Nurseries to J & W Landscape for a total price of $564.96 (Ex. 5). On all of these sales the producers billed Walsh for the product and were paid by Walsh. Walsh billed the customers who did not pay and Walsh filed the complaints (Ex. 8, 9 and 10), denied by Respondent on grounds Walsh was not an agent or representative of the producers. In 1976, Petitioner filed a complaint against the bond of the Ernest Corporation, a licensed dealer in agricultural products and received $5,589.20 from Respondent who recovered from the bonding company. In the complaint Walsh alleged that it was agent for Southeast Growers, Inc., selling their nursery stock throughout Florida. Respondent's witnesses could not recall what additional evidence they saw to conclude that Walsh was, in fact, an agent for the producer. However, these witnesses all testified that had they then believed Walsh was solely responsible to the producer for payment for the products sold they would not have concluded Walsh was the agent or representative of the producer. The bond on which Petitioner is attempting to recover provides that if the principal "shall faithfully and truly account for and make payment to producers, their agents or representatives, as required by Sections 604.15 - 604.30, Florida Statutes, that this obligation to be void, otherwise to remain in full force and effect." (Ex. 11 and 12)

Conclusions The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Section 604.21, Florida Statutes (1985) provides in pertinent part: Any person claiming himself to be damaged by any breach of the conditions of a bond or certificate of deposit, assignment or agreement given by a licensed dealer in agricultural products as herein before provided may enter complaints thereof against the dealer and against the surety, if any, to the department, which complaint shall be a written statement of the facts constituting the complaint. Section 604.15(1) , Florida Statutes (1985) provides: "Dealers in agricultural products" means any person, whether itinerant or domiciled within this state, engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer or his agent or representative for resale or processing for sale; acting as an agent for such producer in the sale of agricultural products for the account of the producer on a net return basis; or acting as a negotiating broker between the producer or his agent or representative and the buyer. (emphasis supplied) One of the complexities of this case which leads to some confusion is the fact that both Pent and Walsh were dealers in agricultural products as above defined. Walsh fits into the category of a person claiming himself to be damaged by a breach of any condition of the bond of Pent. However, he has the burden of showing that he is a person covered by the bond. According to the terms of the bond, coverage is provided only for "producers, their agents or representatives." Walsh is clearly not a producer in this case but claims coverage as an agent or representative. In construing "agent" or "representative" the legislative intent should be considered. The purpose of these provisions of the statute requiring licensing and bonding of dealers in agricultural products, as expressed in Section 604.151, Florida Statutes, is to protect producers from economic harm. Economic harm sustained by an agent or representative is imputed back to the principals, which in this case are the producers. An agency may be defined as a contract either expressed or implied upon a consideration, or a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in the former's name or on his account, and by which the latter assumes to do the business and render an account of it. 2 Fl. Jur. 2d "Agency," Section 1. Here, Walsh was selling agricultural products on its own account, which products it was purchasing from the producers. The producer sold its product to Walsh and delivered it to the address Walsh indicated. The customer receipted for the product and the producer billed Walsh for the total cost, including transportation, to the ultimate buyer, less the 20-25 percent commission Walsh received. Walsh paid the producer and billed the customer. Whether or not Walsh collected from the customer had no bearing on the debt Walsh owed the producer for the product. It could be said that the producer was the agent for Walsh in delivering the product to the user. Even though Walsh never had actual possession of the product the sale to Walsh was complete when the producer delivered the product to the user. The entire transaction clearly is a buy-and-sell operation by Walsh and not Walsh acting as an agent for the producer. The fact that Walsh sells the producer's product does not make Walsh the agent or representative of the producer, when the producer holds only Walsh responsible to pay for the product. Nor was Walsh a representative of the producers. Representative is defined in Webster's New Collegiate Dictionary (1977 Ed.) as: "standing or acting for another esp. through delegated authority." Walsh had no delegation of authority to act for the producer. Walsh had no authority to modify the price, settle disputes, or any other function normally performed by a representative. The above interpretation of those having standing to file a complaint against a dealer in agricultural products is the same interpretation of the applicable statutory provisions that is made by Respondent. As stated in Natelson v. Dept. of Insurance, 454 So.2d 31 (Fl 1st DCA 1984): Agencies are afforded a wide discretion in the interpretation of a statute which it [sic] administers and will not be overturned on appeal unless clearly erroneous. The reviewing court will defer to any interpretation within the range of possible interpretations. (citations omitted). This interpretation limiting recovery on an agricultural bond to producers and their agents or representatives is certainly within the range of possible interpretations, especially considering the purpose of these statutory provisions to be the protection of the economic well being of the producer. From the foregoing, it is concluded that Robert J. Walsh & Company, Inc. was not the agent or representative of Goochland Nurseries and Stewart Tree Service and does not have standing to file a complaint against Dean Pent, d/b/a Pent Landscape Company, and Paul Pent, d/b/a Paul Pent Landscape Company, and their surety, Transamerica Insurance Company.

Recommendation It is recommended that a Final Order be entered dismissing the petition as contained in Petitioner's letter dated March 24, 1986. ENTERED this 14th day of July 1986 in Tallahassee, Leon County, Florida. K. N. AYERS 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 14th day of July 1986. 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 Thomas M. Egan, Esquire Phillip Kuhn, Esquire Post Office Box 7323 Winter Haven, Florida 33883 Ronnie H. Weaver, Esquire Mayo Building, Room 513 Tallahassee, Florida 32301 Mr. Joe W. Right Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301

Florida Laws (5) 589.20604.15604.151604.21604.30
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FLORIDA SOD OF HENRY COMPANY, INC. vs DANNY YATES LANDSCAPING, INC., AND OHIO CASUALTY INSURANCE COMPANY, 94-000078 (1994)
Division of Administrative Hearings, Florida Filed:Fort Myers, Florida Jan. 10, 1994 Number: 94-000078 Latest Update: Jul. 06, 1994

The Issue The issue in this case is whether Petitioner is entitled to payment from Respondent for sod that it sold.

Findings Of Fact Petitioner grows sod and sells it to persons who are in the business of installing sod. Respondent installs sod for its customers, such as homeowners, businesses, and schools. Both parties are experienced in the sod business, although Respondent has more experience than Petitioner with Floratam sod. Respondent is a large user of sod. Petitioner sold from 3-6 loads daily to Respondent from July to October, 1993. Until the loads in question, there were no problems, and Respondent paid for the sod. On October 5, 1993, Petitioner sold Respondent 18 pallets of Floratam sod. At the agreed-upon rate of 6 cents per square foot, the price of this sod was $432. The next day, Petitioner sold Respondent 36 pallets of Floratam Sod for $864. On October 11, Petitioner sold Respondent 34 pallets for $816. The next day, Petitioner sold Respondent 18 pallets for $432. And on October 14, Petitioner sold Respondent 18 pallets for $432. The total price of the Floratam sod sold to Respondent was thus $2976. For each sale, Petitioner cut the sod and loaded it on the truck of an independent contractor hired by Respondent to transport the sod to the customer's site for installation. For each load, the driver signed an invoice indicating the amount of sod and stating: Your signature acknowledges acceptance. Any claims must be made within 24 hours of delivery or pick up. A 1.5 percent (18 percent per annual) service charge will be added to all accounts 30 days past the invoice date. In the event it is necessary to turn the invoice over for collection or the same has to be collected upon demand of an attorney[,] purchaser agrees to pay all attorney's fees and costs for such collection. The sod was in below-average condition. Petitioner agreed to sell it, and Respondent agreed to buy it, in "as is" condition. The sole warranty attaching to the sod was that Respondent could assert a claim against Petitioner if the claim was asserted within 24 hours of pick up. Sod harvested in early October has undergone the stress of summer weather, in which heat and moisture can damage the grass and leave it in weakened condition. There was little sod left in the area, Respondent's demand for sod due to contractual commitments was great, and Respondent was left with few options but to try to use Petitioner's sod. The price paid by Respondent was somewhat reduced to reflect the below-average condition of the sod. Several factors militate against Respondent's claim that the sod was of such poor quality as to warrant cancellation of the invoiced amounts. First, Respondent did not timely assert a claim against the sod. Respondent did not assert a claim within the 24 hours set forth in the invoices. More important, Respondent ignored subsequent billings for the sod and did not complain about the sod until Petitioner's president spoke with Respondent's president and demanded payment. This conversation took place about 70-80 days after the sales. Other important factors undercutting Respondent's defense are the satisfaction of other purchasers of sod in the same time period and the questionable cultivation practices of some of Respondent's customers. Several persons bought Floratam sod from Petitioner in late September and early October. In most cases acknowledging that the sod was in below-average condition, these purchasers reported that they knew that the sod was purchased in "as is" condition and that, with appropriate irrigation and fertilizing, the sod was successfully established in the customers' property. The record suggests that the some of Respondent's customers, including a major institutional customer, may not have been as careful in maintaining the newly installed sod that was already in somewhat stressed condition.

Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding Respondent liable for the sum of $2976, plus interest at 18 percent annually, and, if Respondent does not pay said amount, ordering the surety to pay said amount, up to the amount of the bond. ENTERED on April 20, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on April 20, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-8: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3-6: rejected as subordinate. 7-8: adopted or adopted in substance. 9: rejected as subordinate. 10-14: adopted or adopted in substance. 15: rejected as subordinate. 16-22: rejected as unsupported by the appropriate weight of the evidence. 23: rejected as unsupported by the appropriate weight of the evidence to the extent of implication that Respondent initiated the call to express his concerns about the sod quality. 24-26: rejected as subordinate. 27: rejected as recitation of evidence and subordinate. 28-30: rejected as subordinate. 31: [omitted from proposed recommended order]. 32: rejected as irrelevant given "as is" nature of subject transaction, as well as limitation of this remedy to sod against which timely claims are made. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Attorney Kristy C. Shaffer P.O. Drawer 1820 LaBelle, FL 33935 John Charles Coleman Coleman & Coleman 2300 McGregor Blvd. Ft. Myers, FL 33901 Ohio Casualty Insurance Co. Legal Department 136 North Third St. Hamilton, OH 45025

Florida Laws (9) 120.57120.68604.15604.20604.21604.34672.313672.315672.316
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RICHARD VREELAND vs. GOPHERBROKE FARMS PINKINGHOUSE, INC., AND HARTFORD INSURANCE COMPANY, 85-003921 (1985)
Division of Administrative Hearings, Florida Number: 85-003921 Latest Update: Apr. 08, 1986

Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983) At all times pertinent to this proceeding, Respondent Gopherbroke was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4528 by the Department, and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $25,000. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1) Florida Statutes (1983). Prior to April 1, 1985, Petitioner and Robert Neill, President of Gopherbroke, verbally agreed for Respondent Gopherbroke to act as agent in the sale of certain zucchini squash produced by Petitioner in 1985 on a net return basis, i.e. Petitioner to receive the gross sale price of the squash minus a handling fee of $0.50 per carton and a sales commission of 1/ 6.5 per cent of the gross sales price. Between April 1, 1985 and April 12, 1985 Petitioner through Tommy York delivered to Respondent Gopherbroke 84, 107 and 19 cartons of small, medium and large zucchini squash respectively for a total of 210 cartons represented by receipt tickets numbers 276-282 issued by Respondent Gopherbroke. Petitioner and Tommy York (York) had an agreement whereby York would harvest, clean, grade, package and deliver the zucchini squash produced by Petitioner to Respondent Gopherbroke for a percentage of the net proceeds derived from the sale of the squash. Respondent Gopherbroke was not a party to the agreement between Petitioner and York and was not authorized to withhold any money derived from the sale of Petitioner's squash to be paid to York under York's agreement with Petitioner. The net return on the 210 cartons of zucchini squash referred to in paragraph 6 above was $698.17 of which Petitioner has received only $349.09, the balance of $349.08 was paid to York by Respondent Gopherbroke. After April 12, 1985 York was no longer involved in the harvesting of Petitioner's squash due to a disagreement between York and Petitioner. On April 15 and 17, 1985 Petitioner delivered 30, 62 and 3 cartons of small, medium and large zucchini squash, respectively to Respondent Gopherbroke. The net return on the 95 cartons of zucchini squash referred to in paragraph 10 above was $127.35 which has been paid to Petitioner in two separate checks. However, Petitioner was not paid for 5 cartons of medium zucchini squash that Respondent Gopherbroke shows on its exhibit 2 (4/19 - 8731) as being dumped and on 21 cartons of medium zucchini squash Respondent Gopherbroke shows on its exhibit 2 (4/17 - 87298) as open but later shows a gross sale of $47.25 with charges of $10.50 for handling and $3.07 commission and an adjustment of $43.29 for a minus net proceeds to Petitioner of $9.61. The evidence is clear that the zucchini squash delivered to Respondent Gopherbroke by Petitioner on April 15 and 17, 1985 were harvested, cleaned, graded and packaged by Petitioner and his family and were of good quality when delivered. Respondent Gopherbroke presented no testimony or documentary evidence to support the dumping of the 5 cartons of squash or any justification for the adjustment on the 21 cartons of squash. On at least one occasion, Petitioner advised Respondent Gopherbroke that it was not authorized to pay York any of moneys owed to Petitioner by Respondent Gopherbroke for zucchini squash delivered by York. The price of medium zucchini squash during the period that the 5 cartons were dumped was $2.00 per carton for a gross amount of $10.00 minus the handling fee of $2.50 for a net return of $7.50. A sales commission of $0.65 had been deducted in Respondent Gopherbroke's earlier calculation. Petitioner was not furnished an account of sales within 48 hours after Respondent Gopherbroke sold the squash and the earliest payment for the squash was made 9 days after Respondent Gopherbroke had collected for Petitioner's squash.

Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Gopherbroke be ordered to pay to the Petitioner the sum of $399.87. It is further RECOMMENDED that if Respondent Gopherbroke fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21, Florida Statutes 1983 and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 8th day of April, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of April, 1986.

Florida Laws (6) 120.57604.15604.17604.20604.21604.22
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