The Issue Whether the Respondent Five Brothers Produce owes Petitioner an additional $13,965.00 for snap beans that Five Brothers Produce received, sold, and shipped to buyers as Petitioner's agent/broker.
Findings Of Fact Respondent Five Brothers Produce, Inc. ("Respondent" or "Five Brothers") accepts agricultural products from growers for sale or consignment and acts as an agent/broker for the growers. It has a surety bond issued by Old Republic Surety Company to secure payment of sums owed to agricultural producers. Petitioner Paul Hernandez ("Petitioner" or "Mr. Hernandez") grows snap beans. On March 26, 2010, Mr. Hernandez delivered 400 boxes of hand-picked snap beans to Five Brothers to sell. On March 27, 2010, Mr. Hernandez delivered an additional 750 boxes of snap beans to Five Brothers to sell for him. Five Brothers' Marketing Agreement and Statement included on the Grower Receipt was given to Mr. Hernandez on March 26 and 27, 2010. It provided in relevant part: The grower gives Five Brothers Produce the right to sell or consign to the general trade. No guarantees as to sales price are made and only the amounts actually received by Five Brothers Produce, less selling charges, cooler charges, and any other charges will be paid to the grower. Final settlement will be made within a reasonable length of time and may be held until payment is received from the purchaser. On March 27, 2010, Five Brothers' invoice showed that it shipped 336 of the first 400 boxes of Mr. Hernandez' beans to Nathel and Nathel, Inc., at the New York City Terminal Market. From that shipment, Five Brothers received $12.00 a box, or a total of $4,032.00. After deducting its fee of $1.60 a box, Five Brothers paid Mr. Hernandez net proceeds of $3,494.40. On the next day, Five Brothers' records show it sold the remaining 64 boxes to Tolbert Produce, Inc., for $22.70 a box. On March 26, 2010, the United States Department of Agriculture ("USDA") Fruit and Vegetable Market News Portal reported sales prices ranging from $24.85 to $25.85 a box for round green handpicked snap beans grown in Central and South Florida. Mr. Hernandez had reason to question the accuracy of Five Brother's invoice, given the USDA data and the Tolbert Produce sale. Nathel and Nathel also documented the sales of the 336 boxes of beans and 160 boxes of squash it received from Five Brothers. By the time of its settlement with Five Brothers, it paid a total of $5,643.50, of which $4,032.00 came from the sales of beans as reported on the Five Brothers' invoice. On March 29, 2010, Five Brothers shipped all 750 boxes of beans it received from Mr. Hernandez on March 27, 2010, to A and J Produce, Inc., at the New York City Terminal in the Bronx. Five Brothers' invoice indicated that it received $9.00 a box, or a total of $6,750.00 from A and J. Five Brother's fee for that shipment was also $1.60 a box, or a total of $1,200.00, leaving Mr. Hernandez with a net return of $5,550.00. USDA market data showed prices for the handpicked snap beans, on March 29, 2010, ranged from $20.00 to $20.85 a box. The actual cost of production for Mr. Hernandez, including seeds, water, fertilizer, and labor can range from $6.00 to $10.00 a box. He would not have paid for the labor to hand-pick beans if he had known he could not get an adequate return on his investment. Relying on the USDA data, Mr. Hernandez reasonably expected his net return to be $13,965.20, higher than it was. Five Brothers sold the beans in a rapidly declining market. Pointing to the same USDA data, Five Brothers showed the drop towards the end of March and into April 2010. On March 30, the price was down to $16.85 to $18.85. On March 31, the price was $14.85 to $16.85. And, from April 1 through April 6, a box of snap beans was selling for $10.00 to $12.85. Mr. Hernandez alleged that Five Brothers' invoice for the sale of the 750 boxes was not correct. He pointed to an exhibit that showed Five Brothers shipped A and J Produce 1344 boxes of beans, including the 750 boxes grown by him, and another exhibit that appeared to show that A and J received the 1344 boxes, on March 31, 2010, and paid Five Brothers $20.00 a box. That same A and J document, however, tracks the declining prices as each part of the shipment was sold. In the end the value was 68.82 percent of the target price of $20.00, which equals an average sales price of $13.76. After Five Brothers deducted the $1.60 a box fee, proceeds for Mr. Hernandez were approximately $12.00 a box consistent with that reported as A and J's final settlement with Five Brothers. The evidence that there was no guarantee of a sales price in the agreement, that market prices were declining rapidly, and that the receivers' documents support those of the shipper, Five Brothers, is sufficient to rebut any evidence that Mr. Hernandez is entitled to additional payments for the beans delivered to Five Brothers on March 26 and 27, 2010.
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 Paul Hernandez against Five Brothers Produce, Inc. DONE AND ENTERED this 20th day of September, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 September, 2010.
The Issue Should the Petitioner Estate of Glenda S. Bethel, d/b/a Bethel Farms (Bethel Farms), under the provisions of Sections 604.15 through 604.34, Florida Statutes, be allowed to recover the full amount ($9,178.80) alleged in its Amended Complaint to be owed to Bethel Farms by Naples Landscape Services, Inc. (Naples)?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Bethel Farms was in the business of growing and selling "agricultural products" (grass sod) as that term is defined in Section 604.15(3), Florida Statutes. At all times material to this proceeding, Naples was a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, issued license number 08525 by the Department, and bonded by Aetna in the sum of $16,000.00 - Bond Number 23 S 100840661 BCA. Bethel Farms and Naples had a course of dealing wherein Bethel Farms furnished agricultural products (grass sod) to Naples and Naples agreed to pay Bethel Farms for the grass sod. There was no evidence that Naples was acting as agent for Bethel Farms in the sale of the grass sod for the account of Bethel Farms on a net return basis or acting as a negotiating broker between Bethel Farms or its agent or representative and the ultimate consumer of the grass sod. Between June 7, 1994 and June 27, 1994, both dates inclusive, Bethel Farms billed Naples by invoices in the amount of $9,418.80, which included sales tax in the amount of $506.80 and pallet charges in the amount of 240.00. Naples refused and failed to pay Bethel Farms as invoiced by Bethel Farms. Bethel Farms filed a complaint with the Department's Bureau of License and Bond dated September 15, 1994, in the amount of $9,418.00 under the provisions of the Agricultural Bond and License Law, Sections 604.15 - 604.34, Florida Statutes, for the unpaid balance which included both sales tax and pallet charges. The Department preliminarily dismissed the pallet charges and Bethel Farms filed and amended complaint dated October 26, 1994, in the amount of $9,178.80 ($9,418.00 minus $240.00 pallet charge plus $0.80 error in amount claimed in initial complaint). The amended complaint included $8,672.00 for grass sod $506.80 sales tax. The parties stipulated, and there is no dispute, that Naples purchased grass sod in the amount of $8,672 from Bethel Farms and was invoiced for that amount of grass sod plus sales tax on the sale of the grass sod in the amount of $506.80. Naples does not dispute that it owes Bethel Farms for the sales tax. However, Naples contends that sales tax does not come within the definition of the term "agricultural products" as defined in Section 604.15(3), Florida Statutes; therefore, sales tax is not collectible under the provisions of Sections 604.15 through 604.34, Florida Statutes. While Naples agrees that Bethel Farms furnished grass sod to Naples in the amount of $8,672.00, which remains unpaid, Naples contends that it is entitled to a charge back for the cost of replacing contaminated sod furnished to Naples by Bethel Farms that was included in the invoiced amount that remains unpaid. There is insufficient evidence to show that any of the grass sod furnished and invoiced to Naples between June 7, 1994, and June 27, 1994, was contaminated such that it required replacing, notwithstanding the testimony of Mark Kureth or Joseph Kureth to the contrary, which I find lacks credibility in this regard. Likewise, assuming arguendo that the sod was contaminated, there is insufficient evidence to show that Naples gave Bethel Farms sufficient and timely notice of such contamination in order for Bethel Farms to decide for itself the nature and extent of contamination and whether a charge back was warranted, notwithstanding the testimony of Mark Kureth and Joseph Kureth to the contrary, which I find lacks credibility in this regard.
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 wherein the Respondent Naples Landscape Services, Inc. be ordered to pay Petitioner Bethel Farms the sum of $8,672.00. DONE AND ENTERED this 9th day of June, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 9th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0702A The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted jointly by the Respondents Aetna and Naples in this case. Bethel Farms Proposed Findings of Fact: Bethel Farms elected not to file any proposed findings of fact. Naples' and Aetna's Proposed Findings of Fact Naples and Aetna have presented their proposed findings of fact in their (Proposed) Recommended Order in 23 unnumbered paragraphs starting on page 4 and ending on page 12 which shall be numbered as proposed findings of fact 1 through 23 for purposes of a response in this Appendix. Proposed finding of fact 1 is adopted in substance as modified in Findings of Fact 4 - 6. Proposed finding of fact 2 is neither material nor relevant to this proceeding. The first sentence proposed finding of fact 3 is included the Statement of Issue. The balance of proposed finding of fact 3 is the recitation of testimony and not stated as a finding of fact. However, in any case, it is neither material nor relevant to this proceeding. Proposed findings of fact 4 - 7, 9,10, 12, 13, 15, 19 and 20 are the recitation of testimony or what a document reflects and are not stated as findings of fact. In any event, these proposed findings of fact are not supported by evidence in the record or are neither material nor relevant to this proceeding. See Findings of Fact 8 and 9. Proposed finding of fact 8 is neither material nor relevant to this proceeding. Proposed finding of fact 11 is the recitation of testimony and is not stated a finding of fact. In any event, it is neither material nor relevant to this proceeding. See Findings of Fact 8 and 9. Proposed finding of fact 14 is not supported by evidence in the record. Proposed finding of fact 16 is neither material nor relevant to this proceeding. See Findings of Fact 8 and 9. Proposed findings of fact 17 and 18 are neither material nor relevant to this proceeding. Proposed findings of fact 19 - 21 are the recitation of testimony or what a document reflects and are not stated as findings of fact. In any event, these proposed findings of fact are not supported by evidence in the record or are neither material nor relevant to this proceeding. Proposed finding of fact is argument and is cover in the Conclusions of Laws in the Recommended Order. Proposed finding of fact 23 is not supported by evidence in the record. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 C. William Allen, Esquire Allen & Meirose, P.A. Suite 340, One Urban Centre 4830 West Kennedy Boulevard Tampa, Florida 33609 William Nugent Qualified Representative Bethel Farms 3244 N.W. Pearce Street Arcadia, Florida 33821
The Issue Whether Redland Brokers Exchange, Inc., is owed $2,602.60 for agricultural products ordered by and delivered to Mo-Bo Enterprises, Inc.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Redland Brokers is an agent for producers of Florida-grown agricultural products. Mo-Bo is a dealer in such products in the normal course of its business and is bonded by Armor. During the period from October 28, 1994, until November 11, 1994, Mo-Bo ordered various agricultural products from Redland Brokers. In accordance with the usual practice of Redland Brokers when doing business with Mo-Bo, the orders were accepted by telephone and the items were loaded onto trucks sent by Mo-Bo to Redland Brokers's warehouse. Redland Brokers sent the following invoices to Mo-Bo for agricultural products order by and delivered to Mo-Bo: November19, 1994 Invoice Number 275 $180.00 November5, 1994 Invoice Number 290 756.00 November11, 1994 Invoice Number 319 793.00 November19, 1994 Invoice Number 334 353.60 November19, 1994 Invoice Number 338 520.00 TOTAL $2,602.60 Payment was due twenty-one days from the date each invoice was mailed. Despite repeated demands, Mo-Bo has not paid any of the amounts reflected in these invoices. As of September 6, 1995, the date of the formal hearing, $2,602.60 remained due and owing to Redland Brokers.
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 ordering Mo-Bo Enterprises, Inc., to pay $2,602.60 to Redland Brokers Exchange, Inc., and, if Mo-Bo Enterprises, Inc., does not pay this amount, ordering Armor Insurance Company to pay this amount, up to its maximum liability under its bond. DONE AND ENTERED this 10th day of October 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1995. COPIES FURNISHED: Frank T. Basso, Jr., Owner Amy L. Glasow, Owner Redland Brokers Exchange, Inc. 401 North Redland Road Homestead, Florida 33030 Paul Boris Mo-Bo Enterprises, Inc. Post Office Box 1899 Pompano Beach, Florida 33061 Mark J. Albrechta, Esquire Armor Insurance Company Legal Department Post Office Box 15250 Tampa, Florida 33684-5250 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
Conclusions THIS CAUSE, arising under Florida’s “Agricultural License and Bond Law” (Sections 604.15-604.34), Florida Statutes, came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On October 21, 2008, the Petitioner, Ricky A. Branch, III, a producer of agricultural products as defined by Section 604.15(9), Florida Statutes, timely filed an administrative claim pursuant to Section 604.21, Florida Statutes, to collect $31,296.18 for eggplants they sold to Respondent, a licensed dealer in agricultural products. Respondent’s license for the time in question was supported by a surety bond required by Section 604.20, Florida Statutes, written by Fidelity and Deposit Company of Maryland in the amount of $100,000. On January 7, 2009, a Notice of Filing of ‘an Amended Claim was mailed to Respondent and Co-Respondent. On January 27, 2009, the Respondent filed an ANSWER OF RESPONDENT with attachments wherein they denied the claim as being valid, admitted no indebtedness and requested a hearing. Therefore, this matter was referred to the Division of Administrative Hearings (DOAH) for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. An administrative hearing was scheduled in this matter for April 17, 2009. Attached to the NOTICE OF HEARING was an ORDER OF PRE-HEARING INSTRUCTIONS with instructions for the parties to follow prior to and at the hearing. On March 30, 2009, the Respondent filed a ' MOTION TO CONTINUE FINAL HEARING. The Administrative Law Judge (“Judge”) issued an ORDER GRANTING CONTINUANCE (“Order”) on April 3, 2009. In the Judge’s Order, he asked the parties to confer and advise him on the status of the matter among other things. An ORDER RE-SCHEDULING. HEARING was issued on April 16, 2009 and a new hearing date was set for June 9, 2009. Prior to the hearing, on June 5, 2009, the Respondent filed a RESPONDENT’S MOTION TO DISMISS claiming their efforts to contact the Claimant have been futile. Additionally, Respondent asserts that Claimant failed to comply with the ORDER GRANTING CONTINUANCE, the ORDER RE-SCHEDULING HEARING and the ORDER OF PRE-HEARING INSTRUCTIONS issued by DOAH. For the aforesaid reasons, the Respondent feels the Claimant’s claim should be denied and the claim dismissed with prejudice. On June 16, 2009, the Judge issued a RECOMMENDED ORDER OF DISMISSAL, a copy of which is attached hereto as EXHIBIT “A”, to which neither party filed written exceptions with this Department. . Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is ORDERED: Based on the fact that the Claimant failed to appear at the final hearing with DOAH on June 9, 2009 and failed to meet his burden of proof in presenting evidence in support of his claim, the Department adopts the Judge’s RECOMMENDED ORDER OF DISMISSAL. The Department hereby dismisses the captioned claim and the file is closed without further action. Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to Section 120.68, Florida Statutes (2002) and Rule 9.110, Florida Rules of Appellate Procedure (2003). Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5" Floor, Mayo Building, Tallahassee, FL 32399-0800. A copy of the petition for review or notice of appeal, accompanied by the filing fees prescribed by law must also be filed with the appropriate District Court of Appeal within thirty (30) days of the date this Final Ondet yas filed with the Agency Clerk. DONE AND ORDERED this77_ day of , 2009. ES H. BRONSON TERRY/L. RHODES Assi Commissioner of Agriculture Ke Filed with Agency Clerk this? _ day of , 2009. (pL Vb AM Agency Clerk COPIES FURNISHED TO: Judge Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Certified Receipt No. 7160 3901 9848 2604 4626) Mr. Gary Wishnatzki, Registered Agent Wishnatzki, Inc., d/b/a Wishnatzki Farms 100 Stearn Avenue Plant City, FL 33566 (Certified Receipt No. 7160 3901 9848 2605 1259) Mr. Ricky A. Branch, IIT Post Office Box 42 Webster, FL 33597 (Certified Receipt No. 7160 3901 9848 2605 1266) Ms. Kathy Alves, Claims Specialist Fidelity & Deposit Company of Maryland Post Office Box 87 , Baltimore, MD 21203-0087 (Certified Receipt No. 7160 3901 9848 2605 1273) (Claim No. 6380046897) Thomas F. Munro, Esquire FOLEY & LARDNER LLP 100 North Tampa Street, Suite 2700 Tampa, FL 33602 (Certified Receipt No. 7160 3901 9848 2605 1280) . Mr. Bedford Wilder General Counsel Staff Mayo Building, M-11 Tallahassee, Florida 32399-0800 Ms. Stephenie Butscher and Mr. Mark Moritz, Field Representatives
The Issue The issue is whether Respondent Southern Hay Sales Inc., (Southern Hay) and its surety, Respondent Old Republic Surety Company (Old Republic), 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 produces hay on a farm owned by Petitioner near Jasper, Florida. Respondent Southern Hay is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. Hay is a natural product of a farm and, therefore, an agricultural product as defined in Section 604.15(3), Florida Statutes. Old Republic is Southern Hay's surety. Both Petitioner and Southern Hay have participated in a business arrangement since at least 1997, whereby Petitioner grew and sold to Southern Hay varying quantities of hay. Petitioner would cut, process, and then store the hay in trailers provided by Southern Hay. Petitioner would deem Southern Hay to be indebted for a load of hay when a trailer of hay was hauled away by Southern Hay personnel. On January 16, 2002, Petitioner received a signed check from Southern Hay. While there is a dispute as to who filled out the check, resolution of that question is not relevant for purposes of this matter. Suffice it to say that Southern Hay's check number 1183 was written in the amount of $2,596.45 and dated January 16, 2002. Delivery of the check to Petitioner satisfied all outstanding invoices for payment where hay had been picked up, with the exception of Petitioner's invoice number 302 documenting an obligation to Petitioner from Southern Hay in the amount of $1,241.95 for hay. Southern Hay's representative maintained at final hearing that an additional check was issued on February 15, 2002, which included payment for invoice number 302. No cancelled check was presented to corroborate the testimony of Southern Hay's representative and such omission, coupled with the general demeanor of the representative, prevents the testimony of the representative, Andrew Snider, from being credited in this regard. Southern Hay and its surety, Old Republic, currently owes Petitioner for an unpaid invoice in the amount of $1,241.95.
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 Southern Hay Sales, Inc., or its surety, Respondent Old Republic Surety Company, to pay Petitioner for an unpaid invoice in the amount of $1,241.95. DONE AND ENTERED this 6th day of November, 2002, in Tallahassee, Leon County, Florida. _ DON W. DAVIS 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 6th day of November, 2002. COPIES FURNISHED: Brenda D. Hyatt, Bureau Chief Department of Agriculture 541 East Tennessee Street India Building Tallahassee, Florida 32308 Richard D. Tritschler, General Counsel Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Michael A. Jankowski Old Republic Surety Company Post Office Box 1635 Milwaukee, Wisconsin 53201 Sam Jones Jones Farm 6799 SR 6 West Jasper, Florida 32052 Stephen C. Bullock, Esquire 116 Northwest Columbia Avenue Lake City, Florida 32055
The Issue Whether Respondents are indebted to Petitioner for 35 boxes of beans sold by Petitioner to Respondent, Weis-Buy Services, Inc., and, if so, the amount of the indebtedness.
Findings Of Fact Respondent, Weis-Buy Services, Inc., is a dealer in agricultural products licensed by the Florida Department of Agriculture and Consumer Services. Respondent, Aetna Casualty & Surety Company of Maryland acts as surety for Weis-Buy. On January 5, 1995, Mark A. Underwood, Vice President of the Petitioner, sold to Respondent, Weis-Buy Services, Inc., 35 boxes of beans. This sale was the result of the order placed by Hank Douglas, a duly authorized employee of Weis-Buy. The price agreed to by the Petitioner and Weis-Buy was $28.55 per box, for a total purchase price of $999.25. The beans sold by Petitioner to Weis-Buy had been purchased by Petitioner from another grower, Suncoast Farms. There was no written contract between Petitioner and Suncoast or between Petitioner and Weis-Buy. Weis-Buy took delivery of the beans at Petitioner's dock in Homestead, Florida, on January 5, 1995. The beans were loaded into a refrigerated truck in the employ of Weis- Buy on January 5, 1995. From Homestead, the truck drove to Belle Glade, Florida, a trip of approximately 3.5 hours. In Belle Glade, the truck picked up a load of radishes. The truck then went to Immokalee, Florida, where it picked up a quantity of squash. The following day, the truck picked up a load of cherry tomatoes. On January 9, 1995, the beans were inspected by a federal inspector in Columbus, Ohio. 1/ The inspector noted on his inspection report that the beans showed evidence of freeze damage that was ". . . so located as to indicate freezing injury occurred after packing but not at present location". The inspection report noted that the beans were to be dumped. The parties disagree as to when the freeze damage to the beans occurred. Because Weis-Buy believes that the freeze damage occurred before it took delivery of the beans, it has refused to pay Petitioner for the 35 boxes of beans. The reason Weis-Buy believes that the freeze damage occurred before the beans were loaded onto the truck is because the other vegetables that were transported by the refrigerated truck were not damaged. Partly because the beans had been purchased from another grower, Mr. Underwood inspected the beans immediately prior to their being loaded onto Weis- Buy's truck. Based on his testimony, it is found that there was no freeze damage to the beans when they were loaded on Weis-Buy's truck on January 5, 1995. It is found that the freeze damage to the beans revealed by the federal inspection on January 9, 1995, occurred after the beans had been delivered to Weis-Buy. Consequently, it is concluded that Petitioner fulfilled its obligations under the verbal contract and is entitled to be paid the sum of $999.25.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services that adopts the findings of fact and conclusions contained herein, that finds Respondent Weis-Buy Services, Inc., is indebted to Petitioners in the amount of $999.25, directs Weis-Buy Services, Inc., to make payment to Petitioner in the amount of $999.25 within 15 days following the issuance of the order, and provides that if payment in full of this $999.25 indebtedness is not timely made, the Department will seek recovery from the Aetna Casualty & Surety Company of Maryland, as Weis-Buy's surety. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February 1996.
The Issue The issue in this case is whether Respondents owe Petitioner $13,512.09 for watermelons, as alleged in the Amended Complaint.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Cook Brown Farms is a melon farm in Punta Gorda, Florida. At all times pertinent to this proceeding, Cook Brown Farms was a "producer" as defined in Subsection 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Melons come within the definition of "agricultural products" as defined in Subsection 604.15(3), Florida Statutes. J.G.L. Produce is a Florida Corporation, owned by John W. Johnson, Jr., and located in Pompano Beach, Florida. At times pertinent to this proceeding, J.G.L. Produce was licensed as a "dealer in agricultural products" as defined in Subsection 604.15(1), Florida Statutes. Andrew J. Cook, a principal owner of Cook Brown Farms, and Mr. Johnson of J.G.L. Produce entered into an oral agreement regarding the sale of watermelons grown at Cook Brown Farms. The core of this case is a dispute concerning the nature of this agreement. Mr. Cook testified that, under the agreement, J.G.L. Produce would purchase the melons at the farm at their daily market price, plus 1/2 cent to cover Cook Brown Farms' cost of picking, sorting, and placing the melons in special bins and in special pallets required by the ultimate purchaser, Kroger Supermarkets. J.G.L. Produce would provide the bins and pallets and would provide the trucks to ship the melons. Mr. Johnson testified that the agreement was not for purchase but for brokerage of the melons. J.G.L. Produce would act as broker of Cook Brown Farms' watermelons, use its best efforts to sell the melons at the highest price available, and pay Cook Brown Farms the proceeds of the sale, minus expenses and a brokerage fee of one cent per pound. Mr. Johnson testified that J.G.L. Produce never took title to or purchased the melons, and that the risk of loss always remained on Cook Brown Farms. Mr. Johnson testified that he approached Mr. Cook about the melons because he had a ready buyer in another local dealer, Delk Produce, which had a longstanding arrangement to provide melons to Kroger. Mr. Johnson agreed with Mr. Cook that the arrangement included the provision of bins and pallets by J.G.L. Produce, though Mr. Johnson stated that the arrangement also called for J.G.L. Produce to retain $0.015 per pound from the amount paid to Cook Brown Farms to cover the cost of the bins and pallets. J.G.L. Produce took approximately 24 truck loads of watermelons from Cook Brown Farms. J.G.L. Produce deducted a one cent per pound brokerage fee from each load of melons it took, except for certain loads noted below, without contemporaneous objection from Cook Brown Farms. The Amended Complaint claims that J.G.L. Produce owes money to Cook Brown Farms for five of the loads taken by J.G.L. Produce. In sum, the Amended Complaint states that J.G.L. Produce owes Cook Brown Farms $19,991.74 for the five loads, less $6,479.65 already paid, for a total owing of $13,512.09. Item One of the Amended Complaint alleges that J.G.L. Produce owes $4,438.54 for a load of 38,596 pounds at a price of $0.115 per pound, sold on April 20, 2000. Item Two of the Amended Complaint alleges that J.G.L. Produce owes $4,625.30 for a load of 40,220 pounds at a price of $0.115 per pound, sold on April 21, 2000. The Amended Complaint alleges that the melons on these two loads were inspected and approved for shipment during loading by Delk Produce employee Freddie Ellis. The Amended Complaint states that Cook Brown Farms was paid in full for the loads on May 3, 2000, but that the contested amounts were deducted from subsequent settlements by J.G.L. Produce. The evidence established that the melons claimed under Item One were initially sold to Delk Produce for delivery to Kroger. On May 3, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $4,438.54, which constituted the price for 38,596 pounds of melons at $0.125 per pound, less $385.96 for the one cent per pound brokerage fee. Jay Delk, the principal of Delk Produce, testified that this load was rejected by Kroger's buyer in Virginia due to "freshness," meaning that the melons were unsuitably green. Mr. Delk stated that the melons were taken to North Carolina to ripen and eventually sold at $0.06 per pound. The final return on this load, less the brokerage fee, was $1,543.84. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $4,438.54 and the final payment of $1,543.84. The evidence established that the melons claimed under Item Two were initially sold to Delk Produce. On May 3, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $5,809.80, which constituted the price for 50,520 pounds of watermelons at $0.125 per pound, less $505.20 for the one cent per pound brokerage fee. Seminole Produce purchased 10,300 pounds of this load at $0.145 per pound, or $1,493.50. The remainder of the load was rejected by Kroger due to freshness and had to be resold at a lesser price of $0.0346 per pound, or $1,391.00. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $5,809.80 and the final payment (after deduction of the brokerage fee) of $2,576.11. The evidence established that the melons claimed under Item Three were sold to Delk Produce. On May 9, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $2,731.30, which constituted the price for 42,020 pounds of watermelons at $0.0675 per pound, less $105.05 for the brokerage fee, reduced to $0.0025 per pound. Mr. Johnson testified that he decided to forego the full brokerage fee to save money for Mr. Cook and his farm, because it was "hurting" due to the rapidly plummeting price for watermelons. Mr. Johnson discovered at this time that Delk Produce had not been retaining the agreed- upon $0.015 per pound to cover the cost of bins and pallets and decided not to lose any more money on that item. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $2,731.30 and $2,206.05, deducting $525.25 from the original payment to cover the cost of the bins and pallets. The evidence established that the melons claimed under Items Four and Five were originally shipped to Wal-Mart in Kentucky on April 29, 2000, and were rejected on the ground that the melons were not packed to specifications. The melons were trucked back to Florida at J.G.L. Produce's expense. The melons claimed under Item Four totaled 41,100 pounds. J.G.L. Produce divided the melons into four loads and sold them to four local dealers at an average price of $0.775 per pound, totaling $3,185.41. J.G.L. Produce deducted its $0.015 charge for bins and pallets, reducing the total to $2,671.51. J.G.L. Produce then deducted $1,750.00 from the total as reimbursement for the freight charge it paid to bring the melons back to Florida after their rejection by Wal-Mart. J.G.L. Produce did not include a brokerage fee. On May 26, 2000, J.G.L. Produce paid the remaining $921.51 to Cook Brown Farms as part of the final settlement. The melons claimed under Item Five totaled 45,600 pounds. J.G.L. Produce sold 2,426 pounds to Seminole Produce at $0.10 per pound, or $242.60. J.G.L. Produce sold the remaining 43,174 pounds to Belle Glade Produce at $0.065 per pound, or $2,800. From the total for Item Five, J.G.L. Produce deducted its $0.015 charge for bins and pallets and $1,950.00 for the freight charge it paid to bring the melons back to Florida after their rejection by Wal-Mart. J.G.L. Produce did not include a brokerage fee on this load of melons. On May 26, 2000, J.G.L. Produce paid the remaining $416.64 to Cook Brown Farms as part of the final settlement. The weight of the credible evidence, excluding the hearsay that was not supported by the direct testimony of Mr. Johnson, leads to the finding that there was a brokerage arrangement between the parties. J.G.L. Produce routinely deducted brokerage fees from its payments, without objection by Cook Brown Farms. This course of dealing strongly indicates a brokerage arrangement. Mr. Cook testified as to prior dealings with J.G.L. Produce, which also involved a brokerage arrangement. The evidence indicated that J.G.L. Produce fully accounted for the five loads of melons at issue, and paid Cook Brown Farms the full amounts due and owing for those loads.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order dismissing the Amended Complaint filed by Gin Brown Matthews, d/b/a Cook Brown Farms. DONE AND ENTERED this 21st day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2001. COPIES FURNISHED: Redland Insurance Company 222 South 15th Street, Suite 600, North Omaha, Nebraska 65102 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 John W. Johnson, President Post Office Box 1123 Pompano Beach, Florida 33061 Harold M. Stevens, Esquire Post Office Drawer 1440 Fort Myers, Florida 33902 Edward L. Myrick, Jr., Esquire Beighley & Myrick, P.A. 1255 West Atlantic Boulevard Suite F-2 Pompano Beach, Florida 33069 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact The Petitioners and the Respondents had a contractual agreement, whereby the Respondents agreed to purchase watermelons from the Petitioners during the 1978 harvest season. The Petitioners were to be compensated for their watermelons by the pound as the melons crossed the scales during loading of the melons onto trucks. The actual price fluctuated based upon the market conditions. The Respondents' employees were responsible for picking and loading the melons. Pete Potenza was in charge of the loading operation for the Respondents. Mr. Potenza advised the Respondents that the price for the watermelons would be two and one-half cents per pound for the medium watermelons and three cents per pound for large ones. At the agreed price, the Petitioners would have been entitled to compensation of $1,197.75 for one load of watermelons, and $1,083.50 for another load. The Respondents compensated them $958.20 and $866.80 for the respective loads. The price paid by the Respondents was less than had been agreed upon. The Petitioners are entitled to $217.50 additional compensation for the first load, and $239.55 additional compensation for the second load. The Petitioners are entitled to total additional compensation in the amount of $457.05. There was no dispute as to the quality of the Petitioners' melons. The Respondents picked several loads of melons from the Petitioners subsequent to those which were disputed. Mr. Potenza advised the Petitioners that they would receive additional compensation, but they have not. The Respondents are licensed with the Department of Agriculture and Consumer Services as an agricultural commodity dealer. The Respondents have filed a $20,000.00 bond with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final order be entered by the Department of Agriculture and Consumer Services finding that the Petitioners are entitled to $457.05 in additional compensation for agricultural goods which they sold to the Respondents and requiring the Respondents to pay this sum to the Petitioners. DONE and ENTERED this 20th day of February, 1979, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert A. Chastain, Esq. General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, FL 32304 William F. York, Esq. GILMAN, MCLAUGHLIN & HANRAHAN Ten Post Office Square Boston, MA 02109 J. Victor Africano, Esq. P. O. Box 1450 Live Oak, FL 32060 Joseph Pellegrino, President A. Pellegrino & Sons, Inc. 24 New England Produce Center Chelsea, MA 02150 E. G. Musleh, Esq. P. O. Box 924 Ocala, FL 32670
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 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.
