The Issue The issue is whether Respondent, Akers Holdings, LLC, and its surety, Fidelity and Deposit Company of Maryland, are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner operates a nursery supply company that produces trees, plants, and other landscaping supplies at a location in Bunnell, Florida. Respondent is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Respondent was a landscape distribution company and a licensed dealer in agricultural products supported by a surety bond provided by Fidelity and Deposit Company of Maryland. This matter arose over an Agent Complaint filed by Petitioner on March 23, 2005, in which it alleged that Respondent owed $136,942.49, based upon numerous invoices for nursery goods delivered to various job sites where Respondent was providing landscaping services. Respondent Akers Holdings, LLC, by its agent or employee, R. Dean Akers, signed a Promissory Note on March 23, 2005, in the amount of $137,445.47 plus ten percent simple interest per annum. Under the note, Respondent agreed to repay its outstanding debt to Petitioner at the rate of $12,083.64 per month, commencing March 15, 2005, until paid in full. Respondent made payments under the note as follows: Date of Payment Amount Paid Check No. 3/15/2005 $12,083.64 13536 4/15/2005 12,097.81 1360 5/13/2005 12,090.51 13657 6/14/2005 12,129.37 1372 7/29/2005 12,103.41 13782 The payment dated 7/29/2005 was received by Petitioner on August 8, 2005. No subsequent payments were made by Respondent, Akers Holdings, LLC, after that date. At the time of hearing, based upon the evidence presented by Petitioner, the amount due to Petitioner under the Promissory Note was $81,655.81, and the amount due to Petitioner on open account was $30,734.58. Respondent, Akers Holdings, LLC, offered no excuse for its nonpayment of either the Promissory Note or the open account with Petitioner. Accordingly, Respondent Akers Holdings, LLC, or its surety, Fidelity and Deposit Company of Maryland, owe Petitioner $81,655.81 on the Promissory Note and $30,734.58 on open account, for a total amount owed of $112,390.39.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent, or its surety, to pay Petitioner $112,390.39 for unpaid invoices. DONE AND ENTERED this 26th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2006. COPIES FURNISHED: Kathy Alves Fidelity & Deposit Company of Maryland Post Office Box 87 Baltimore, Maryland 21203 R. Dean Akers Akers Holdings, LLC 5006 20th Avenue, South Tampa, Florida 33619 Donald M. DuMond Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Christopher E. Green, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Division of Marketing 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Department of Agriculture and Consumer Services Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether the Petitioner's complaint that Respondent is indebted to Petitioner in the amount of $4,149.40 for two loads of melons, shipped on June 22, 1977, is valid. Respondent appeared at the hearing without counsel. After being advised of his rights in an administrative proceeding under Chapter 120, Florida Statutes, he acknowledged that he understood such rights and did not desire representation by legal counsel.
Findings Of Fact Petitioner Malvin Ford of Labelle, Florida and Respondent Charles L. Warren, Adel, Georgia are dealers in agricultural products. Pursuant to a telephonic agreement, Petitioner sold two truck loads of watermelons to Respondent which were shipped from Branford, Florida to Baltimore, Maryland on June 22, 1977. One load consisted of 43,680 pounds of melons and was shipped for cost plus freight in the total amount of $2,009.28. The other load weighed 45,220 pounds and was billed at $2,140.12, which included a charge of $60.00 for four "drops" along the way. Petitioner paid the grower of the melons, Hal Walker, and also the carrier. On June 27, 1977, he invoiced Respondent in the above amounts. The invoice stated "terms: net 10 days." (Testimony of Ford, Petitioner's Composite Exhibits 1, 5, 6) Petitioner did not receive payment for the produce from the Respondent and therefore proceeded to file a complaint with the Department of Agriculture and Consumer Services on December 8, 1977. Respondent thereafter issued a check to Petitioner on February 24, 1978, in the amount of $890.10. A statement attached to the check reflected that the amount represented the sum owing to Petitioner in the amount of $4,149.40, less $3,259.30 which apparently represented a setoff of sums owed Respondent by Petitioner for two transactions in the amounts of $1,625.30 and $1,634.00. Petitioner returned the check to Respondent by letter of March 1, 1978, in which he stated that he did not owe any outstanding indebtedness to Respondent. (Petitioner's Exhibits 2 - 4) Although Respondent conceded in his testimony at the hearing that he was indebted to Petitioner for the two loads of melons shipped on June 22, 1977, he claimed that in two separate 1974 transactions involving another two truck loads of melons Petitioner had not paid him in the total amount of $3,259.30. However, Respondent produced no documentary evidence concerning these transactions other than an unsworn statement of Frank Koza of Oliver, Pennsylvania, stating that he had received a load of watermelons weighing 47,803 pounds on August 13, 1974, from Petitioner and that he had paid Petitioner for the load. Petitioner testified that this dispute arose at a time when he and Respondent both had offices in Virginia and Respondent asked him how to get rid of a load of melons that he had been unable to sell on the Pennsylvania Turnpike. Petitioner says that he told him to contact Koza who had two fruit stands in Pennsylvania, and that that was his only connection with the transaction. He denied receiving any payment from Koza for the load. Respondent, on the other hand, testified that Petitioner had promised to sell the load for him and make arrangements for the driver hired by the Respondent to reach Koza's place of business. Respondent further testified that he turned over the delivery tickets from the load to Petitioner, but did not send an invoice for the amount because he had dealt many times with Petitioner in the past and that it was a question of trusting him to account for the proceeds from the load. He further testified that he talked to Petitioner several days after the transaction and Ford told him that he had never received a settlement for the load from Koza. Respondent testified that the other transaction occurred on June 28, 1974, when, pursuant to a telephonic agreement with Petitioner, Respondent shipped a load of melons from Georgia to a firm in Baltimore, Maryland and that thereafter Respondent provided Petitioner with delivery tickets on the load signed by the receiver of the goods. No documentary evidence was submitted in connection with this alleged transaction and Petitioner denied any knowledge of it. In view of the above conflicting evidence and the lack of writings to support the claimed oral agreements, it is found that Respondent has failed to establish by preponderance of the evidence that Petitioner is indebted to him on either of the purported 1974 transactions. The Koza statement which was purportedly signed on March 22, 1978, is hearsay and insufficient alone to support a finding that the facts contained therein are true and correct. It cannot serve as supplementary evidence to Respondent's testimony concerning the transaction because Respondent has no personal knowledge that payment for the goods was made by Koza to Petitioner. (Testimony of Ford, Warren, Respondent's Exhibit 1)
Recommendation That the Department of Agriculture and Consumer Services enter a Final Order requiring Respondent to pay Petitioner the sum of $4,149.40, as claimed. DONE and ENTERED this 12th day of June, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Harrell, II, Esquire Post Office Box 865 Labelle, Florida 33935 Charles L. Warren Warren Produce Farms 801 South Gordon Post Office Box 305 Adel, Georgia 31620 Robert A. Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
The Issue Is Skinner Nurseries, Inc. (Skinner), entitled to collect $28,097.10 on account, as a producer of agricultural products allegedly delivered to A & R Landscaping & Lighting, Inc. (A & R), a dealer in agricultural products?
Findings Of Fact From the pleadings it is found that Skinner is a producer of agricultural products and A & R is a dealer in agricultural products in Florida. Old Republic is the surety for the bond to secure A & R's performance consistent with its activities as a dealer. §§ 604.15 through 604.34 Fla. Stat. (2002). Skinner has a business address of 2970 Hartley Road, Jacksonville, Florida 32257. The A & R business address is 739 Long Lake Drive, Oviedo, Florida 32765. The Old Republic business address is 445 South Moorland Road, Brookfield, Wisconsin 53005. On July 31, 2001, A & R applied for a line of credit with Skinner for the provision of plants, shrubs, and trees in their respective capacities as a dealer in agricultural products and a producer of agricultural products. That application was granted and the entities commenced business. This case involves claims by Skinner for agricultural products delivered to A & R that have not been paid for. Within Composite Exhibit 1 by Skinner is a statement of the amount owed by A & R on account no. 3008, a number assigned by Skinner. The account statement depicts transaction dates, invoice numbers, and job descriptions in relation to the charges. In addition, Composite Exhibit 1 by Skinner contains the various invoices in support of the claim. The statement date for account no. 3008 was prepared on July 8, 2003, to support the complaint in this case. But it was, and continues to be, an accurate portrayal of the amount owed by A & R to Skinner for agricultural products provided. The matters set forth in the July 8, 2003, statement of account no. 3008 that accompanies the complaint were in relevant part the same as those in a billing statement that had been mailed to A & R on July 2, 2003, that A & R has not paid. The statement of account no. 3008 for purposes of the complaint excludes certain items from the claim. Among the exclusions are charges that date from December 2002 through January 9, 2003. Those charges were not promoted in the complaint based upon their untimeliness. The dates about which claims are made end on February 26, 2003. In addition, certain charges for what are described as hard goods, mulch, and freight were not claimed. Reference to hard goods refers to items to stake trees sold, also referred to as tree guy kits. Finally, no interest is claimed on the account. Within the July 8, 2003, statement of account no. 3008 an asterisk by invoice numbers indicates that the charges were solely for the provision of mulch. Therefore, these invoices are not included in Skinner's Composite Exhibit numbered 1, as is the case where invoices are associated with the period before January 13, 2003, and after February 26, 2003. At hearing Skinner established without contradiction that, with the exclusions noted, it supplied the plants, shrubs, and trees to A & R and has not been paid $28,097.10 on account no. 3008.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that A & R owes Skinner $28,097.10. DONE AND ENTERED this 18th day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2003. COPIES FURNISHED: Christopher Diaz, C.P.A. Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Michael A. Jankowski Old Republic Surety Company Post Office Box 1635 Milwaukee, Wisconsin 53201 Rita J. Robinson, President A & R Landscaping & Lighting, Inc. 739 Long Lake Drive Oviedo, Florida 32765
Findings Of Fact Petitioner, Monticello Nursery Company of Florida, Inc., is a corporation whose address is Post Office Box 190, Monticello, Florida. (Petitioner's Complaint) Respondent, Paul Pent, d/b/a Paul Pent Landscape Company, is located at 1660 Emerson Street, Jacksonville, Florida. At the time of the transactions involved, Respondent was licensed as a dealer in agricultural products under License No. 3531. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985) Corespondent, Transamerica Insurance Company as surety provided bond number 5182-39-34 for Respondent in the amount of $4,750. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985) Petitioner's complaint for $6,159.30 is based upon two invoices for nursery plants: Invoice 1060 in the amount of $2,612.80, and Invoice 1308 in the amount of $6,109.30. From the total of $8,722.10 is deducted "payments and credit" of $2,562.80. (Petitioner's Complaint) The figures on the complaint and the attached invoices accurately reflect the statement of account for the subject transactions. (Testimony of Sandy Mazza) Invoice No. 1060 is for several kinds of nursery plants and is dated 12/31/84. On the invoice the order date is 10/26/84 and the "ship date" is 12/07/84. Whether the sale occurred upon order, shipment or date of invoice is immaterial, as all three dates are more than nine months prior to the filing of the complaint on September 5, 1985. Invoice No. 1308 is for a quantity of crepe myrtle trees and is dated 1/31/85. The order date and "ship date" are both 1/28/85. One invoice supports, and the other conflicts with, the date of 12/31/84, stated on the face of the complaint as the "date of sale". The invoices are competent evidence as supported by the bookkeeper's testimony. The finding in the November 15, 1985 order of the Department of Agriculture and Consumer Services that the sale totaling $6,159.30 was made on September 5, 1985, conflicts with both the complaint and the invoices and is unsupported by any evidence in the record.
Recommendation Based on the foregoing, it is recommended that a Final Order be issued requiring Respondent Paul Pent, pay Petitioner $3,546.50. The Final Order should specify that failure to comply will result in a requirement that Transamerica Insurance Company pay said sum to the Department of Agriculture and Consumer Services for distribution to Monticello Nursery. DONE and RECOMMENDED this 1st day of May, 1986, in Tallahassee, Florida. MARY CLARK, 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 1st day of May, 1986. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 John C. Cooper, Esquire Douglas, Cooper & Coppins, P.A. 211 East Call Street Tallahassee, Florida 32302-1674 Mr. Paul Pent Pent Landscape Company 1660 Emerson Street Jacksonville, Florida 32207 Transamerica Insurance Company 1150 South Olive Street Los Angeles, California 90015 Joe W. Kight, Chief Division of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Ron Weaver, Esquire Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Room 513 Tallahassee, Florida 32301
Findings Of Fact Willie J. Woods is a farmer. He entered into an agreement with W. R. Ward, Jr., President of Growers Marketing Service, Inc. (GMS) concerning the disposition of watermelons which he had grown. The testimony of Woods and Ward concerning the nature of the agreement is conflicting. In the absence of a written contract, the nature of the agreement must be determined from the other documents surrounding their transactions. From these documents, it is determined that the agreement between the parties was not for the purchase of Woods' watermelons by GMS. The documentation surrounding the transactions by GMS, show that GMS was acting as a broker or middle man in introducing Woods' watermelons into the stream of commerce. According to Mr. Ward's records, each shipment was assigned a transaction number, and each sale from a lot of watermelons was also assigned a transaction number. The record of each of these transactions was examined in detail. Below each of these transactions is discussed, and where portions of the record are particularly pertinent, they have been copied and attached to this order for ease of reference. In some instances, the settlement statement has been reproduced and corrected to reflect what the actual charges should have been based upon the underlying record. A handwritten explanation of the adjusting entries has been added to these statements. Transaction number 1439: On June 4, 1991, Woods delivered 43,750 pounds of watermelons to GMS The documentation surrounding this transaction shows that GMS, sold the load of watermelons FOB Brooksville, Florida for a price of 14 cents per pound.The purchaser's driver transported the load from Brooksville to Canada where the purchaser "rejected" the load because the melons were immature. By purchasing the watermelons FOB Brooksville, the purchaser waived any right to reject the melons upon their arrival at their destination. Further, the only evidence of immaturity is an inspection report which states that the inspection was limited and may not reflect the condition of the whole load. The inspection report itself is hearsay. The dollar value of this load as stated in the Bill of Lading/Customs Declaration was $6,125.00. The cost of freight was not shown in the file because it was delivered FOB Brooksville and the costs were borne by the purchaser. The GMS's handling fee was 1 cent per pound or $438.00. GMS owed Woods $5,687.00 on transaction number 1439. GMS paid Woods $2,879 on this transaction. GMS still owes Woods $2,808 on this transaction. Transaction number 1424: On June 4th, GMS sold in behalf of Woods $4,320 pounds of watermelons for 20.25 cents per pound. W. R. Ward stated that the price was reduced from 15 to 5 cents per pound, and was a bookkeeping error. The file reflects the sales price for the 46,320 pounds of watermelons was $9,380. The file reflects that transportation on this load of watermelons was $1,683.00, and GMS, was entitled to 2.5 cents per pound for packing and 1 cent handling for a total of $1,621. The total expenses were $3,304.00 for transaction number 1424. GMS owed Woods $6,077.00 for transaction 1424, but only paid him $1,844. GMS still owes Woods $4,233 on this transaction. Transaction number 3534: On June 4th, GMS, handled a load of yellow meat watermelons weighing 4,071 pounds for Willie J. Woods. Subsequently, GMS sold portions of this load of watermelons in transactions number 1565, 1507, 1461, 1403, and 1476. On June the 6th, GMS sold 13,337 pounds of watermelons at 17 cents a pound for a total sales price of $2,267.29 in transaction 1461. On June 6th, Growers Marketing Service sold 18,909 pounds at 14 cents a pound for a total of $2,647.26 in transaction number 403. On June 7th, Growers Marketing Service sold 1,945 pounds at 22 cents a pound for a total of $427.90 in transaction 1476. On June 14th, Growers Marketing Service sold 5,347 pounds on transaction 1565 which were subsequently rejected because of severe decay. See, Dump Report dated July 5 in Transaction 1565. Growers Marketing Service showed no income nor expense to the grower on transaction 1565. Because these melons were not sold until June 14, it is possible that they decayed. GMS's treatment of the transaction on the settlement statement is contrary to the notes on transaction 1565 which treat is as a wash with no income or expense to Woods. The assessment of freight and handling charges was not inappropriate under the circumstances, and are disallowed. See, Corrected Invoice 3534 attached to this Order. The total revenue from the remaining transactions was $6,142. The expenses on the various loads total $2,285. GMS owed Woods $3,857 on this load, but only paid him $1152. GMS still owes Woods $2705 on this transaction. Transaction number 3541: On June 7, 1991, Growers Marketing Service handled 9,997 pounds of watermelons for Willie J. Woods on transaction number 1565. This load was sold to Castellini Produce on transaction 1565, discussed above, where it was rejected for excessive decay. The assessment of the freight charges and handling charges on this load which was handled 10 days after it was picked was inappropriate, and is disallowed. It is treated also as a wash in this transaction just as it was in 3534, and just as GMS treated it in transaction 1565. Transaction number 3546: On June 11th, Growers Marketing Service received 4,949 pounds of yellow meat watermelons from Woods. It subsequently sold these watermelons for Woods in transactions 1589, 1607, and 1613. Regarding transaction 1589, the Growers Marketing Service's settlement statement to Woods reflects that this transaction is subject to PACA Audit; however, GMS included the 14,121 pounds of watermelons in its settlement at a expense to Woods of 5 cents per pound on a sales price of 1.67 cents per pound. Because this transaction is still subject to audit, it was inappropriate to settle with the farmer. For purposes of this accounting, 1589 is not considered. In transaction 1607, GMS sold 16,775 pounds of yellow meat watermelons received from Woods on transaction 3546. Transaction 1607 and the funds received from the transaction are discussed in full below with regard to transaction 3548; therefore, it is not discussed or accounted for as part of transaction 3546. In transaction 1613, Growers Marketing Service sold 10,053 pounds of watermelons at 11.6 cents per pound for a total of $1,069.00. Expenses attributable to transaction 1613 were $554.00. Woods was entitled to $614.00 on transaction 1613; however, he was paid nothing on this transaction; GMS owes Woods $614 on this transaction. Transaction 1475: On June 11th, Growers Marketing Service received 45,050 pounds of watermelons from Woods. Growers Marketing Service asserts that the original price of these watermelons was dropped from 15 cents to 12 cents; however, the checkstub attached to the invoice shows a total payment to GMS of $7,298.10 at the original purchase price of 17.2 cents per pound. Growers Marketing Service's costs in this transaction were $2,358. Because this transaction clearly shows the original price was paid, it reflects adversely on creditability of the witnesses for Growers Marketing Service with regard to their testimony in other transactions that the original price was reduced due to fall in the market. Growers Marketing Service owed Woods $4,940 on transaction 1475, and paid him $4,484. GMS still owes Woods $456 on this transaction. Transaction number 1508: On June 11, 1991, Growers Marketing Service received 46,000 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these melons at a price of 10.25 cents per pound. Growers Marketing Service received $4,715.00 on transaction 1508 and had expenses in the amount of $2,259.00. Growers Marketing Service owed Woods $2,456.00 on transaction 1508, and paid Woods $2,284. GMS still owes Woods $172 on this transaction. Transaction number 1497: On June 11, 1991, Growers Marketing Service received 45,340 pounds of watermelons in this transaction. Growers Marketing Service sold these watermelons at 16.35 cents per pound and deducted freight of 4.35 cents per pound, showing a net sales price of 12 cents per pound. This resulted in sales revenue of $5,441 from which GMS deducted its 1 cent handling charge and an additional $4,750 listed as a harvesting advance. GMS paid Woods $204. GMS introduced no proof of a harvesting loan; however, Woods' complaint admits this loan. Nothing is owed to Woods on this transaction. Transaction number 3548: On June 12, 1991, Growers Marketing Service received 41,132 pounds of watermelons from Willie J. Woods. Subsequently, Growers Marketing Service sold watermelons received from Woods on this transaction in its transaction numbered 1613, 1607 and 1627. Growers Marketing Service asserts that 24,457 pounds of watermelons were rejected and destroyed on transaction 1607. The records regarding transaction 1607 show handwritten notation on the invoice that Growers Marketing Service received a total after expenses of sale of $3,286.00 on transaction 1607. In transaction 1613, Growers Marketing Service sold 10,032 pounds of watermelons at 11 cents a pound and in transaction 1627 Growers Marketing Service sold 7,899 pounds of watermelons at 7 cents a pound. The original settlement statement reflected incorrectly that Woods owed GMS $810. A corrected settlement statement on transaction 3548 is attached to this Order and reflects that Willie J. Woods was owed the amount of $1,019.00 in transaction 1607, $624.00 in transaction 1613, and $1,019.00 in transaction 1627. GMS paid Woods no money on this transaction, and owes Woods a total of $1,873. Transaction number 1527: On June 12, 1991, Growers Marketing Service received 50,080 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these watermelons for 17.35 cents per pound receiving a total of $8,689.00 less expenses of $2,441.00. GMS owed Willie J. Woods $6,248.00 on transaction 1527, and paid Woods $247. GMS owes Woods $6,001. Transaction number 1536: On June 12, 1991, Growers Marketing Service received 41,320 pounds watermelons from Willie J. Woods. Growers Marketing Service consigned these watermelons and received $2,078.00 less expenses of $1,473.00. Woods owed $605.00 from Growers Marketing Service on transaction 1536, and paid Woods $307. GMS still owes Woods $298. Transaction number 1535: On June 12, 1991, Growers Marketing Service received 43,240 pounds of watermelons from Willie J. Woods in this transaction. Growers Marketing Service subsequently sold these watermelons at 16.45 cents per pound receiving a total of $7,113.00 less expenses of $2,357.00. Growers Marketing Service owed Willie J. Woods $4,856.00 on transaction 1535, and paid Woods $2,802. GMS still owes Woods $2,054. Transaction number 1505: On June 13, 1991, Growers Marketing Service received 44,950 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold these watermelons for a total of $6,967.00 to a dealer in Canada. The dealer in Canada rejected the watermelons upon their receipt serving that they were overripe on June 15, 1991, when they were received. A Canadian agricultural inspection was ordered and conducted on June 21, 1991, which revealed that 28% of the melons showed decay. However, the inspection was not timely and the report is hearsay. GMS failed to exercise due diligence in obtaining a prompt inspection and seeking recovery in behalf of Woods. Therefore, after absorbing expenses of $2,747.00, Growers Marketing Service owed Woods $4,220.00 for his loss in this transaction. GMS paid Woods $1,250 salvage on the load; however, it still owes him $2,970. Transaction number 1520: On June 13, 1991, Growers Marketing Service received 45,940 pounds of watermelons from Willie J. Woods in this transaction. The front of the folder shows that Growers Marketing Service sold this load of watermelons to Winn Dixie in South Carolina for 12 cents per pound, or $5,513. Upon receiving the watermelons on June 15 1991, Winn Dixie rejected the melons because they were "cutting white, green fresh." See copy of front of file. Growers Marketing Service asked another broker to move the load, and that broker and Growers Marketing Service arranged to have the load inspected at its next destination, Staunton, Virginia. The truck broke down in route to Staunton, Virginia and did not arrive until June 18, 1991. The other broker described the melons as looking "cooked" on arrival. Growers Marketing Service charged Woods with freight on this load. Because Growers Marketing Service had a legitimate freight claim against the trucking company, yet charged the loss and freight charges to the grower, GMS owes Woods $5,940 less the salvage, freight and expenses totaling $2,125. GMS owes Woods $3,816. Transaction number 3553: On June 13, 1991, Growers Marketing Service received 29,478 pounds of watermelons from Willie J. Woods on transaction 3553. Subsequently, Growers Marketing Service sold these melons to various concerns realizing $3,450.76 on these sales. GMS's settlement statement with Woods on this transaction reflects a deficit on transaction 1505 of $822.50. According to the records reviewed by the Hearing Officer there was no deficit in transaction 1505; therefore, the deduction of $822.50 was inappropriate. Adding this money back into the amount due Woods, Woods should have received $1,615.74 on transaction number 3553. GMS paid Woods $675, and still owes Woods $941. Transaction number 3552: On June 13, 1991, Growers Marketing Service received 32,769 pounds of watermelons from Willie J. Woods on this transaction. A review of the records reflects that Growers Marketing Service subsequently sold 10,403 pounds of these melons at three cents a pound, realizing $312.09. Growers Marketing Service also sold 19 bins of these melons weighing 22,366 pounds for nine cents a pound for a total of $2,012.94. Growers Marketing Service's settlement statement reflects a packing charge of two and a half cents per pound for 22,366 pounds of melons that were in bins. This is excluded as an expense because the adjustment for packing charges was included in the Hearing Officer's recomputation of the price of nine cents per pound. Similarly, the price adjustment of one and a half cents per pound was included in the recomputation of the price and is therefore excluded. The settlement statement which is attached to this Order reflects total receipts of $2,325 and total expenses of $750. Growers Marketing Services owed Willie J. Woods $1,575 on transaction number 3552, and paid Woods $1,551. GMS owes Woods $24 on this transaction. Transaction number 3549: On June 13, 1991, Growers Marketing Service received 32,564 pounds of watermelon from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold 4,008 pounds of watermelons at three cents a pound on transaction 1669, realizing $120.24 on the sale. Growers Marketing Service sold seven bins of watermelons weighing 8,400 pounds at $217.66 for each bin, realizing a total of $1,523.66 on transaction 1532. Growers Marketing Service sold 1,346 pounds of watermelon at eight cents a pound, realizing $107.68 on transaction 1678. Growers Marketing Services sold 18,810 pounds of watermelons at sixteen and a half cents a pound, realizing $3,104 on transaction 1530. The Growers Marketing Services' settlement statement on transaction 3549, corrected as indicated above, shows that Growers Marketing Services received a total of $4,855 on this transaction. Growers Marketing Services' statement reflects packing charges of four cents per pound for 24,164 pounds. This packing charge was not applicable because the melons are indicated to have been in bins, not in cartons. Further, the price adjustment of one and a half cents per pound on 18,810 pounds was included in the Hearing Officer recomputation of the price per pound. Taking into account these corrections, total revenue was $4,855, and the total expenses of Growers Marketing Services were $1,613. Growers Marketing Services owed Woods $3,242 on transaction 3549, and paid him $1,690. GMS still owes Woods $1,552. Transaction 3556: On June 13, 1991, Growers Marketing Services received 32,898 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Services sold 2,086 pounds of these watermelons for 12 cents a pound on transaction 1622. Growers Marketing Services sold 2,096 pounds of these watermelons at 10 cents a pound realizing $210 on transaction 1575. Growers Marketing Services sold 1,983 pounds of these watermelons at 10 cents a pound realizing $198 in transaction 1647. Growers Marketing Services' settlement for transaction 3556 is attached to this Order and reflects an original price for these melons of 4 cents per pound; however, Growers Marketing Services sold 1,029 of these watermelons at 11.6 cents a pound in transaction 1613. The settlement statement, a copy of which is attached, is corrected to reflect the sales price of 11.6 cents a pound, and the resulting change in the monies received from $41.16 to $119. GMS sold 2086 pounds of melon for 12 cents per pound realizing $250 on transaction 1622. GMS sold 3,841 pounds of watermelons for 10 cents per pound realizing $384 on transaction 1707. Growers Marketing Services sold 21,862 of these watermelons at 7 cents a pound realizing $1,530 on transaction 1627. The total received by Growers Marketing Services was $2,691 less expenses of $1,952. Growers Marketing Services owed Willie J. Woods $739, and paid him $662 on transaction 3556. GMS still owes Woods $77. Transaction number 3557: On June 14, 1991, Growers Marketing Services received 20,013 pounds of watermelons from Willie J. Woods on this transactions. Subsequently, Growers Marketing Services sold 9,214 watermelons at 12 cents a pound on transaction 1616. Growers Marketing Services 3,418 pounds of watermelons at 3 cents a pound in transaction 1669. Growers Marketing Services sold three bins of watermelons weighing 3,525 pounds at 16.5 cents a pound and an additional 3,852 pounds of watermelons at 16.5 cents a pound in transaction 1530. This is a total of 16,162 pounds of watermelons. The Growers Marketing Service's settlement statement, which is attached, is corrected to show the correct number of pounds sold and the correct amounts of money received by Growers Marketing Service. Growers Marketing Service received a total of $3,301.50 for the sell of these watermelons. Concerning the expenses shown by Growers Marketing Service, the number of pounds handled is adjusted to show that 16,162 pounds was handled. In addition, the 4 cent packing charge for 16,484 pounds of watermelons is deleted since these melons were not packed in cartons but in bins. In addition, the 1.5 cent price adjustment for 3,525 pounds of watermelons handled in transaction 1530 is in the recomputation of the price. The corrected expense total is $254. Growers Marketing Service owes Willie J. Woods $3,048 on transaction 3557. GMS paid Woods $643; however, it still owes Woods $2,405. The total of the sums still owed Mr. Woods by GMS is $32,999.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the parties be notified of these findings, and GMS permitted the opportunity to pay to Willie J. Woods $32,999 within 30 days, and if GMS fails to settle with Mr. Woods, Mr. Woods should be permitted to obtain settlement from the Respondent's bond in the amount of $32,999, or to the limits of the bond. DONE and ENTERED this 29th day of July, 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 29th day of July, 1992. COPIES FURNISHED: Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-1550 Willie J. Woods 1022 Piercewood Point Brooksville, Florida 34602 W. R. Ward, Jr., President Growers Marketing Srevice, Inc. Post Office Box 2595 Lakeland, Florida 33806 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether Respondent, Landtech Services, Inc., is indebted to Petitioner in the amount of $1,347.07 for the purchase of agricultural products.
Findings Of Fact Petitioner, Holmberg Farms, Inc., is a producer of agricultural products located in Lithia, Florida. Respondent, Landtech Services, Inc. (Landtech), is an agricultural dealer located in Largo, Florida. Respondent, Western Surety Company, is a surety and issued to Respondent, Landtech, a surety bond for the purchase of agricultural products in Florida. On or about April 9, 1993, Respondent, Landtech, purchased from Petitioner, on invoice number T7284, eleven hundred and ten (1,110) six inch honeysuckle ornamental plants for the price of $1,950.55. The terms of the sale between Petitioner and Respondent, Landtech, were C.O.D. at the time of delivery. However, Petitioner's truck driver was unaware of the terms of the sale and therefore, did not collect full payment at the time he delivered the plants to Landtech. Respondent, Landtech, paid Petitioner's driver the sum of $400.00 toward the purchase of the honeysuckle plants leaving a balance due of $1,550.55. On August 20, 1993, Respondent, Landtech, paid to Petitioner the payment of $250.00 of which $203.48 was applied to the balance and $46.50 was applied to interest owed. Petitioner, now claims the balance of $1,347.07. Respondent, Landtech, is indebted to Petitioner in the amount of $1,347.07 as claimed in its complaint. As noted, Respondents, Landtech and Western Surety, did not appear at the hearing to contest or otherwise refute the allegations in the statement of claim.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Agriculture issue its final order requiring that Respondent, Landtech Services, Inc., pay to Petitioner, Holmberg Farms, Inc., the amount of $1347,07, within fifteen (15) days of its Final Order. It is further RECOMMENDED that if Respondent, Landtech, fail to timely remit payment to Petitioner, the Department shall call upon the surety to pay over to the Department, from funds out of the surety certificate, the amount called for in this order. 2/ RECOMMENDED this 3rd day of March, 1995, in Tallahassee, Leon County, 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 3rd day of March, 1995.
The Issue The issue is whether the claims of $98,935.20 and $19,147.70, filed by Petitioner under the Agricultural Bond and License Law, are valid. §§ 604.15 - 604.34, Fla. Stat. (2008).
Findings Of Fact At all material times, Petitioner has been a producer of agricultural products located in Plant City, Florida. At all material times, American Growers has been a dealer in agricultural products. Respondent Lincoln General Insurance Company, as surety, issued a bond to American Growers, as principal. American Growers is licensed by the Department of Agriculture and Consumer Services ("DACS"). Between December 16, 2008, and February 4, 2009, Petitioner sold strawberries to American Growers, each sale being accompanied by a Passing and Bill of Lading. Petitioner sent an Invoice for each shipment, and payment was due in full following receipt of the Invoice. Partial payments have been made on some of the invoices, and as of the date of this Recommended Order, the amount that remains unpaid by American Growers to Petitioner is $117,982.90, comprising: Invoice No. Invoice Date Amount Balance Due 103894 12/16/08 $7,419.00 $1,296.00 103952 12/22/08 $18,370.80 $1,944.00 103953 12/23/08 $3,123.60 $648.00 193955 12/26/08 $8,164.80 $1,728.00 103984 12/28/08 $28,764.40 $28,764.40 104076 12/31/08 $17,236.80 $17,236.80 104077 1/5/09 $17,658.00 $17,658.00 104189 1/5/09 $1,320.90 $1,320.90 104386 1/20/09 $16,480.80 $16,480.80 104517 1/29/09 $17,449.20 $17,449.20 104496 2/4/09 $13,456.80 $13,456.80 TOTAL $117,982.90
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring Respondent, American Growers, Inc., and/or its surety, Respondent, Lincoln General Insurance Company, to pay Petitioner, Crown Harvest Produce Sales, LLC, the total amount of $117,982.90. DONE AND ENTERED this 18th day of May, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 18th day of May, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture and Consumer Services The Capital, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, Mail Station 38 Tallahassee, Florida 32399-0800 Glenn Thomason, President American Growers, Inc. 14888 Horseshoe Trace Wellington, Florida 33414 Katy Koestner Esquivel, Esquire Meuers Law Firm, P.L. 5395 Park Central Court Naples, Florida 34109 Renee Herder Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Boulevard, Suite 155 Tampa, Florida 33634 Glenn C. Thomason, Registered Agent American Growers, Inc. Post Office Box 1207 Loxahatchee, Florida 33470
The Issue Whether Respondents (“Dobson’s” and “Western Surety”) should be required to pay an outstanding amount owed to Petitioner, Doug Lancaster Farms, Inc. (“Lancaster Farms”).
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: Oden Hardy was the general contractor for a project in Apopka, Florida, known as the Space Box project. Dobson’s, a subcontractor on the Space Box project, contracted to purchase 269 trees (including Live Oaks, Crape Myrtles, Elms, and Magnolias) for $53,245.00 from Lancaster Farms. Dobson’s supplied Lancaster Farms with all the information needed to file a “notice to owner” as authorized by section 713.06, Florida Statutes. A truck from Dobson’s picked up the trees and transported them to the site of the Space Box project. Upon arriving with the trees, Dobson’s discovered that there was no means by which the trees could be watered at the site. Rather than attempting to jury rig some manner of watering system as requested by Oden Hardy, Dobson’s transported the trees to its place of business, and the trees remain there. The parties have stipulated that Dobson’s has paid all of the invoices except for Invoice No. 5810, totaling $12,580.00. There is no dispute that the trees at issue are “agricultural products” within the meaning of section 604.15(1). There is also no dispute that Dobson’s is a “dealer in agricultural products” within the meaning of section 604.15(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Doug Lancaster Farms, Inc., against Dobson’s Woods and Water, Inc., in the amount of $12,630.00. DONE AND ENTERED this 20th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2020. COPIES FURNISHED: Larry K. Dobson Dobson's Woods and Water, Inc. 851 Maguire Road Ocoee, Florida 34761-2915 Kelly Lancaster Doug Lancaster Farms, Inc. 3364 East County Road 48 Center Hill, Florida 33514 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Kristopher Vanderlaan, Esquire Vanderlaan & Vanderlaan, P.A. 507 Northeast 8th Avenue Ocala, Florida 34470 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
The Issue Whether the Respondent Terra Bella and Associates, Inc., owes the Petitioner $17,806.20 for sod purchased from Petitioner, Action Sod and Landscape, LLC.
Findings Of Fact Action Sod is a 25-year-old business that sells plants and sod for lawn and landscaping. Terra Bella is a construction landscape maintenance company that has been in existence since 2004. 2011. Great American was the surety for Terra Bella during In the latter part of 2011, Action Sod sold and invoiced Terra Bella the following sod orders: Invoice 114825 on November 16, 2011, for Vero Beach in the amount of $1,979.50; Invoice 114828 for Parkland Heron Bay on November 16, 2011, in the amount of $1,979.50; Invoice 114875 for Parkland on November 16, 2011, in the amount of $2,268.40; Invoice 115360 for Pickup at Okechobbe Farm on November 21, 2011, in the amount of 1,455.20; Invoice 116151 for Harron Beach on November 29, 2011, in the amount of 3,852.00; Invoice 116350 for Enin 5613480172 on December 1, 2011, in the amount of $3,852.00; and Invoice 116880 for Pickup at Okechobbe Farm on December 6, 2011, in the amount of $1,369.60. Action Sod expected payment of each invoice within 30 days from date of pick up or delivery. After Barbara Callado Lopez ("Lopez"), Action Sod's President and Director, did not receive payment for the outstanding November and December invoices totaling $26,396.90, she called Terra Bella repeatedly to request payment. On January 24, 2012, Terra Bella paid Action Sod $9,640.00 for Invoices 113134, 113750, 114132, and 114626, leaving an outstanding balance of $16,756.20. On February 22, 2012, Action Sod filed a claim against Terra Bella with the Department because $16,756.20 had not been paid. Action Sod ultimately amended the claim to $16,806.20 to include the remaining monies owed for sod purchased plus the $50.00 filing fee for a claim. On February 29, 2012, Lopez went to Terra Bella's office requesting payment. The parties had a heated argument about the sod and monies owed. Lopez requested payment in the amount of $16,756.20. Terra Bella provided a counter offer to Action Sod of $13,006.20, which was calculated by subtracting $750.00 for pallets returned and $3,000.00 for the sod that didn't pass inspection and had to be replaced. Even though Lopez was dissatisfied with the offered amount of $13,006.20, she accepted it. Terra Bella paid Action Sod $13,006.20 with check #5098, which stated in the memo section, "Final Payment of Agreed Upon Open Bal." During the meeting, Lopez also signed six Final Waiver and Release of Lien forms for the following properties: Vero Lago, LLC,; The Ranches at Cooper City, LLC; Parkland Reserve, LLC; Miami Dade Aviation Department; Heron Bay; and Monterra Clubhouse. The waivers neither provided invoice numbers nor identified and described the property locations as listed on the invoices. Each waiver provided in relevant part the following: The undersigned lienor, received FINAL payment and hereby waives and releases its lien and right to claim a lien for labor, services, equipment, or materials furnished to Terra Bella & Associated, Inc., though February 29, 2012, on the . . . project. . . to the following property. . . Action Sod cashed check #5098 and therefore Terra Bella is not indebted to Petitioner for any sod sold in November and December of 2011.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the complaint of Action Sod and Landscape against Terra Bella and Associates. DONE AND ENTERED this 5th day of September, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 September, 2012. COPIES FURNISHED: Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Lorena Holley, General Counsel Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capital, Plaza Level 10 Tallahassee, Florida 32399-0810 Barbara Callado, President Action Sod and Landscape, LLC Post Office Box 833143 Miami, Florida 33283-3143 Dan Hurrelbrink Great American Insurance Company 580 Walnut Street Post Office Box 2119 Cincinnati, Ohio 45201-3180 Dennis Hall, President Terra Bella and Associates, Inc. PO Box 22397 Hialeah, Florida 33002
