Findings Of Fact Robert J. Walsh and Company, Inc. has been in the business of selling agricultural products since 1962. It is a "dealer in agricultural products" as defined in s. 604.15(1), Florida Statutes (1985). It is not a "producer" as defined in s. 604.15(5), Florida Statutes (1985). Walsh's modus operandi which it has used for many years is to have its salesmen call on landscapers, nurseries and other customers for trees, plants and other agricultural products to determine their needs. These salesmen have the prices of products and their availability from producers and the salesmen take orders from these purchasers. This order is sent to the producer who delivers the product to the purchaser and sends Walsh a copy of the delivery ticket. Walsh bills the customer for the product delivered and the producer bills Walsh for the consumer-cost of the product less a 20-25 percent discount from which Walsh derives its profit from the sale. The producer relies solely on Walsh for payment for the product it produces and delivers to the customer. Walsh has no authority to sell the product at a price other than that set by the producer. In any event, the producer bills Walsh for the product delivered at the producer's established price less the discount it gives Walsh for acting as intermediary in the sale. If products are damaged in transit, the producer's driver will make any necessary adjustment with the customer or return the damaged plant for replacement by the producer. Walsh does not represent the grower if such a situation develops. Similarly, if the product is rejected by the purchaser for not meeting quality standards, that issue is resolved between the grower and the customer without input from Walsh. Whatever agreement is reached between the grower and the customer is reflected on the invoice signed by the customer and forwarded to Walsh who has the responsibility of collecting from the customer. The grower bills Walsh for the cost of the product less Walsh's commission. The sales forming the bases for the complaints filed by Walsh with Respondent involve sales to Paul Pent, d/b/a Paul Pent Landscape Company, Dean Pent and J & W Landscape. On January 31, 1985, Walsh sold Pent three laurel oaks grown by Stewart Tree Service for a total price of $467.46 including sales tax (Ex. 2). On March 27, 1985, Walsh sold various trees and plants grown by Goochland Nurseries to J & W Landscape for a total price of $403.98 (Ex. 3). On April 22, 1985, Walsh sold two live oaks grown by Stewart Tree Service to Pent Landscape Company for a total price of $336.00 (Ex. 4). On July 3, 1985, Walsh sold various plants grown by Goochland Nurseries to J & W Landscape for a total price of $564.96 (Ex. 5). On all of these sales the producers billed Walsh for the product and were paid by Walsh. Walsh billed the customers who did not pay and Walsh filed the complaints (Ex. 8, 9 and 10), denied by Respondent on grounds Walsh was not an agent or representative of the producers. In 1976, Petitioner filed a complaint against the bond of the Ernest Corporation, a licensed dealer in agricultural products and received $5,589.20 from Respondent who recovered from the bonding company. In the complaint Walsh alleged that it was agent for Southeast Growers, Inc., selling their nursery stock throughout Florida. Respondent's witnesses could not recall what additional evidence they saw to conclude that Walsh was, in fact, an agent for the producer. However, these witnesses all testified that had they then believed Walsh was solely responsible to the producer for payment for the products sold they would not have concluded Walsh was the agent or representative of the producer. The bond on which Petitioner is attempting to recover provides that if the principal "shall faithfully and truly account for and make payment to producers, their agents or representatives, as required by Sections 604.15 - 604.30, Florida Statutes, that this obligation to be void, otherwise to remain in full force and effect." (Ex. 11 and 12)
Conclusions The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Section 604.21, Florida Statutes (1985) provides in pertinent part: Any person claiming himself to be damaged by any breach of the conditions of a bond or certificate of deposit, assignment or agreement given by a licensed dealer in agricultural products as herein before provided may enter complaints thereof against the dealer and against the surety, if any, to the department, which complaint shall be a written statement of the facts constituting the complaint. Section 604.15(1) , Florida Statutes (1985) provides: "Dealers in agricultural products" means any person, whether itinerant or domiciled within this state, engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer or his agent or representative for resale or processing for sale; acting as an agent for such producer in the sale of agricultural products for the account of the producer on a net return basis; or acting as a negotiating broker between the producer or his agent or representative and the buyer. (emphasis supplied) One of the complexities of this case which leads to some confusion is the fact that both Pent and Walsh were dealers in agricultural products as above defined. Walsh fits into the category of a person claiming himself to be damaged by a breach of any condition of the bond of Pent. However, he has the burden of showing that he is a person covered by the bond. According to the terms of the bond, coverage is provided only for "producers, their agents or representatives." Walsh is clearly not a producer in this case but claims coverage as an agent or representative. In construing "agent" or "representative" the legislative intent should be considered. The purpose of these provisions of the statute requiring licensing and bonding of dealers in agricultural products, as expressed in Section 604.151, Florida Statutes, is to protect producers from economic harm. Economic harm sustained by an agent or representative is imputed back to the principals, which in this case are the producers. An agency may be defined as a contract either expressed or implied upon a consideration, or a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in the former's name or on his account, and by which the latter assumes to do the business and render an account of it. 2 Fl. Jur. 2d "Agency," Section 1. Here, Walsh was selling agricultural products on its own account, which products it was purchasing from the producers. The producer sold its product to Walsh and delivered it to the address Walsh indicated. The customer receipted for the product and the producer billed Walsh for the total cost, including transportation, to the ultimate buyer, less the 20-25 percent commission Walsh received. Walsh paid the producer and billed the customer. Whether or not Walsh collected from the customer had no bearing on the debt Walsh owed the producer for the product. It could be said that the producer was the agent for Walsh in delivering the product to the user. Even though Walsh never had actual possession of the product the sale to Walsh was complete when the producer delivered the product to the user. The entire transaction clearly is a buy-and-sell operation by Walsh and not Walsh acting as an agent for the producer. The fact that Walsh sells the producer's product does not make Walsh the agent or representative of the producer, when the producer holds only Walsh responsible to pay for the product. Nor was Walsh a representative of the producers. Representative is defined in Webster's New Collegiate Dictionary (1977 Ed.) as: "standing or acting for another esp. through delegated authority." Walsh had no delegation of authority to act for the producer. Walsh had no authority to modify the price, settle disputes, or any other function normally performed by a representative. The above interpretation of those having standing to file a complaint against a dealer in agricultural products is the same interpretation of the applicable statutory provisions that is made by Respondent. As stated in Natelson v. Dept. of Insurance, 454 So.2d 31 (Fl 1st DCA 1984): Agencies are afforded a wide discretion in the interpretation of a statute which it [sic] administers and will not be overturned on appeal unless clearly erroneous. The reviewing court will defer to any interpretation within the range of possible interpretations. (citations omitted). This interpretation limiting recovery on an agricultural bond to producers and their agents or representatives is certainly within the range of possible interpretations, especially considering the purpose of these statutory provisions to be the protection of the economic well being of the producer. From the foregoing, it is concluded that Robert J. Walsh & Company, Inc. was not the agent or representative of Goochland Nurseries and Stewart Tree Service and does not have standing to file a complaint against Dean Pent, d/b/a Pent Landscape Company, and Paul Pent, d/b/a Paul Pent Landscape Company, and their surety, Transamerica Insurance Company.
Recommendation It is recommended that a Final Order be entered dismissing the petition as contained in Petitioner's letter dated March 24, 1986. ENTERED this 14th day of July 1986 in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July 1986. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building, Room 513 Tallahassee, Florida 32301 Thomas M. Egan, Esquire Phillip Kuhn, Esquire Post Office Box 7323 Winter Haven, Florida 33883 Ronnie H. Weaver, Esquire Mayo Building, Room 513 Tallahassee, Florida 32301 Mr. Joe W. Right Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301
Findings Of Fact Based upon all of the evidence, including the stipulation of the parties, the following findings of fact are determined: Petitioner, Charles W. Ward, Jr., is a co-owner, with other members of his family, of a cattle ranch in south Hendry County known as Ward Farms. Respondent, Maddox Brothers Produce, Inc., is a licensed agriculture dealer engaged in the business of brokering agriculture products in the State of Florida. As an agriculture dealer, respondent is subject to the regulatory jurisdiction of the Department of Agriculture and Consumer Services (Department). One such requirement of the Department is that all dealers post a surety bond with the Department's Division of Licensing and Bond. To this end, respondent has posted a $50,000 surety bond with Fireman's Fund Insurance Company as the surety. In addition to raising livestock, petitioner also grows watermelons on his property. Pursuant to an agreement by the parties, between April 16 and May 15, 1990, respondent harvested and then transported petitioner's watermelons to other destinations outside the state. The parties have stipulated that respondent still owes petitioner $53,980.92 as payment for the watermelons. Respondent has agreed to pay petitioner the above sum of money on or before February 15, 1991, or within fifteen days after the agency's order becomes final, whichever is later. Otherwise, payment shall be made from respondent's bond posted by the surety, Fireman's Fund Insurance Company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent, a licensed agriculture dealer, is indebted to petitioner in the amount of $53,980.92, and that such debt be satisfied in accordance with the time limitations set forth in this recommended order. Otherwise, Fireman's Fund Insurance Company shall be obligated to pay over to the Department the full amount of the bond, or $50,000. DONE and ENTERED this 24th day of January, 1991, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 24th day of January, 1991. COPIES FURNISHED: Charles W. Ward, Jr. Star Route, Box 72 LaBelle, Florida 33440 Patricia Maddox Harper 4253 Kingston Pike Knoxville, Tennessee 37919 Barbara J. Kennedy, Esquire Fireman's Fund Insurance Company Post Office Box 193136 San Francisco, California 94119-3136 Bob Crawford Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire General Counsel Department of Agriculture 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Chief Bureau of Licensing & Bond 508 Mayo Building Tallahassee, Florida 32399-0800
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 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 The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Oglesby Nursery, Inc., is a commercial nursery providing a variety of landscape agricultural products. The principal office for Petitioner is located at 3714 SW 52nd Avenues Hollywood, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highway, Delray Beach, Florida. Respondent, Garden of Eden, is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about August 22, 1986, Garden of Eden ordered and received delivery of $7673.40 worth of agricultural products from Petitioner. This purchase consisted of nine may pan coconuts and thirty green malayans trees. All of the trees were accepted and no issue was made as to their condition. On or about September 2, 1986, Garden of Eden ordered and received delivery of $1190.00 worth of agricultural products from Petitioner. This purchase consisted of seven coconut malayans dwarf trees. All of the trees were accepted and no issue was made as to their condition. The total amount of the agricultural products purchased by Garden of Eden from Petitioner was $8863.40. The total amount Garden of Eden paid on this account was $5000.00. The balance of indebtedness owed by Garden of Eden t o Petitioner for the purchases listed above is $3863.40. Petitioner claims it is due an additional sum of $247.77 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry and since Respondent took delivery of additional products knowing interest on past due accounts to be Petitioner's policy. No written agreement of acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
The Issue Whether Respondent owes payment to Petitioner in the amount of $60,748.78 for watermelons sold by Petitioner to Respondent.
Findings Of Fact Between May 18 and June 5, 1990, Petitioner James G. Young sold a total of 40 truckloads of watermelons to Respondent Maddox Brothers Produce, Inc. Petitioner was to have received a price of five cents per pound through May 26, 1990 and four cents per pound through the remainder of the shipping season. Respondent has failed to pay $60,748.78 of the amount owed to Petitioner for such produce. At no time did Petitioner received any complaint that the watermelons were unsatisfactory. Respondent is a licensed agricultural dealer engaged in the business of brokering agricultural products, Florida license #0030. Respondent is subject to regulation by the Department. Respondent has posted a Fireman's Fund Insurance Company surety bond #11141308327 in the amount of $50,000 with the Department. Respondent did not appear at the hearing. No evidence was presented to contradict the testimony of the Petitioner.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that The Florida Department of Agriculture and Consumer Services enter a Final Order requiring Maddox Brothers Produce, Inc., to pay to Petitioner the sum of $60,748.78. DONE and RECOMMENDED this 26th day of April, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of April, 1991. COPIES FURNISHED: The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 James G. Young Route 3 Box 272-A Wildwood, Florida 34758 Patricia M. Harper, President Maddox Brothers Produce, Inc. 2124 Forest Avenue Knoxville, Tennessee 37916 Fireman's Fund Insurance Company Surety Claims Center Post Office Box 193136 San Francisco, Florida 94119-3136
The Issue An administrative complaint dated January 24, 1991, alleges that Respondent violated Chapter 450, F.S., Part III, by acting as a farm labor contractor without an active certificate of registration and by contracting with an unregistered individual. The issue for disposition is whether those violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Gabriel Bain, the Respondent, has worked in citrus fields for 37 years. At various times he has been registered as a farm labor contractor. He had his own company, Mid-Florida Harvesting, but became bankrupt in 1990 after the citrus freeze disaster. Bain's business address is 30 South Ivey Lane, Orlando, Florida. On or about December 14, 1990, Compliance Officers, Henry Parker and Marshall Carroll were at Nevins Fruit Company in Mims, Brevard County, checking leads on unregistered farm labor contractors. In the course of an interview with Steve Schaffer, Harvest Manager for Nevins, Gabriel Bain was called in as the man who was in charge of the harvesting job. Bain identified himself to the officers with a driver's license and did not have his certificate of registration with him. Schaffer produced the certificate that Bain had submitted when he was hired by Nevins. The certificate was in the name of General Traders, Inc., and had an expiration date of February 28, 1991. "G. Bain" was handwritten on the signature line. During the meeting with Carroll and Parker, on December 14, 1990, Bain freely admitted hiring Jerome Pender as a sub-contractor. Pender was not registered as a farm labor contractor, but had shown Bain papers that he had applied for his certificate. Bain signed a notarized statement attesting to this fact and gave it to the compliance officers. The compliance officers issued a summary of violations to Bain for utilization of an unregistered crewleader. At the time, they were unaware that Bain was, himself, unregistered. Gabriel Bain's registration in the name of Mid-Florida Harvesting expired on June 30, 1990. His application, in the name of General Traders, Inc., was approved on March 1, 1991. In December 1990, he was working for General Traders but was not included in that company's registration. He was not registered in any other name in December 1990, and a subsequent summary of violations was issued, citing "fail to register." In December 1990, at the time of the compliance officers' investigation, Gabriel Bain was working for Nevins Fruit Company as a farm labor contractor and was paid for his work in that capacity. In this work he subcontracted with other labor contractors who provided crews. At the hearing Bain claimed that he lied to the compliance officers about hiring Jerome Pender. He claimed he lied because he had actually hired Willie Simmons, someone whom the Nevins people had told him they did not want "within 100 miles" of their groves. This self-impeachment in no way advances Respondent's averment of innocence.
Recommendation Based upon the foregoing, it is hereby recommended that a final order be entered, finding Gabriel Bain guilty of violating Sections 450.30(1), F.S. and 450.35, F.S., and assessing a civil fine of $1250.00 to be paid within thirty (30) days. RECOMMENDED this 22nd day of July, 1992, at Tallahassee, Florida. MARY W. CLARK 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 22nd day of July, 1991. COPIES FURNISHED: Francisco Rivera, Sr. Atty. Department of Labor and Employment Security 2012 Capital Circle, S.E. 307 Hartman Building Tallahassee, Florida 32399-0658 Gabriel Bain 30 S. Ivey Lane Orlando, Florida 32811 Frank Scruggs, Secretary 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Cecilia Renn Chief Legal Counsel 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152
Findings Of Fact By publication in the Florida Administrative Weekly, Volume 20, Number 32, August 12, 1994, the Department of Banking and Finance (Department) gave notice of a Request for Proposals (RFP No. BF5/94-95) seeking public auction services related to the disposition of abandoned property. Timely proposals were submitted by Golden Gavel Auctioneers, Fisher Auction Company, Inc., Wayne Smith Auction Company, and Hamburg Auction Company. The RFP states that proposals will be evaluated in three phases for compliance with mandatory requirements (Phase I), quality of technical proposals (Phase II) and fee schedules (Phase III). Proposals were evaluated by three employees of the Department. The RFP provided that the criteria were weighted to permit each proposal to be numerically ranked. Each evaluator could award a score of up to 100 points according to evaluation criteria set forth in the RFP. The contract award would go to the proposal receiving the highest score from the 300 total points available. The Petitioner presented no evidence that the Phases I and II proposal evaluations were inappropriate or otherwise failed to meet the requirements of law. Phase III of the evaluation process was directed toward examination of the proposed fees to be paid to the successful bidder. As to the award of points for the fee schedule, the RFP provides as follows: For each proposal received acknowledging the services outlined in this RFP, the corresponding Fee Schedule...will be examined. All fee proposals must be expressed solely in the form of a percentage of the gross sales of property sold. A total maximum value of seventy-five (75) pts. will be awarded (out of total of 100 pts) to the lowest proposed fee percentage submitted. All other proposals will be awarded points based on the following formula Points Awarded for Fee percentage = 75 x (1 - C) C = Difference of proposal fee percentage from lowest proposal; This formula only includes valid proposals. Decimals will be rounded to the nearest whole number; .5 points will be rounded upward. The Petitioner proposed the lowest fee schedule at 9.45 percent of gross sales and, as the lowest fee proposal, received the full 75 points available for Phase III. Fisher Auction Company was the second lowest bidder, proposing a fee of 10 percent of gross sales. Application of the formula and calculation of the points awarded was completed according to the following steps: Step 1. 75 x (1 - C) Step 2. 75 x [1 - (.10 - .0945)] (Note that "C" is the difference of Fisher's 10 percent fee from Golden Gavel's 9.45) Step 3. 75 x (1 - .0055) Step 4. 75 x .9945 Step 5. 74.58 As provided in the RFP, scores were rounded to the nearest whole numbers. Fisher's point total of 74.58 was rounded to an award of 75 points for Phase III. Based on evaluation by the three Department employees, the following scores were awarded: Fisher Auction Company - 299 points Golden Gavel Auctioneers - 287 points Wayne Evan Auction Company - 284 points Hamburg Auction Company - 273 points The Department posted the results at 3:30 p.m. on September 16, 1994, proposing an award to Fisher. The Petitioner asserts that in calculating the point awards under Phase III of the evaluation process, the evaluator should use the percentage difference between the proposed fees rather than the numerical difference as was done by the Department. The result of such application would be a broader range in the points awarded under Phase III of the evaluation. The Petitioner suggests that to do otherwise is contrary to the RFP's stated intention to provide a weighted score to each proposal. There is no evidence that the Department's application of the formula is inappropriate or that the calculation of points related to fee schedules was fraudulent, arbitrary, illegal or dishonest. There is no evidence that the Petitioner questioned or objected to the formula set forth in the RFP prior to the announcement of the intended award.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Banking and Finance enter a Final Order DISMISSING the Petition filed in this case and making an award to the Intervenor. DONE and RECOMMENDED this 21st day of November, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 21st day of November, 1994. APPENDIX TO CASE NO. 94-5734BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3, 6-10. Rejected, unnecessary. Rejected, subordinate. Rejected, the evidence does not indicate that "75 x 3" was part of the formula. Otherwise accepted as modified and included herein. Rejected, the evidence does not indicate that "75 x 3" was part of the formula. There is no evidence that the Department's application of the formula was inappropriate or contrary to the language of the RFP. Respondent and Intervenor The Respondent-Intervenor's jointly submitted proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3, 6-10. Rejected, unnecessary. Rejected, subordinate. COPIES FURNISHED: Hon. Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Dale M. Vash, Esquire FOWLER, WHITE, GILLEN, BOGGS, VILLAREAL, & BANKER, P.A. 501 East Kennedy Boulevard Post Office Box 1438 Tampa, Florida 33601 Margaret S. Karniewicz, Esquire Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Bernard T. Moyle, Esquire BENSON, MOYLE & CHAMBERS Suite 1602, One Financial Plaza Fort Lauderdale, Florida 33394-1697
The Issue Has Respondent Fancy Farms Sales, Inc. (Fancy Farms) made proper accounting to Petitioner Wayne Sullivan in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Fancy Farms from November 8, 1994, through December 10, 1994, by Wayne Sullivan to be handled by Fancy Farms as agent for Wayne Sullivan on a net return basis as defined in Section 604.15(4), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Wayne Sullivan was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Fancy Farms was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8453 issued by the Department, supported by bond number 57 92 20 in the amount of $75,000, written by Gulf Insurance Company with an inception date of September 1, 1994, and an expiration date of August 31, 1995. From November 8, 1994, through December 10, 1994 Wayne Sullivan delivered certain quantities of an agricultural product (zucchini) to Fancy Farms. It is the accounting for these zucchini (zukes) that is in dispute. It was stipulated by the parties that Fancy Farms was acting as agent in the sale of the zukes delivered to Fancy Farms for the account of Wayne Sullivan on a net return basis. There is no dispute as the quantity or size of the zukes delivered by Wayne Sullivan to Fancy Farms during the above period of time. Furthermore, there is no dispute as to the charges made by Fancy Farms for handling the zukes, including but not limited to the commission charged by Fancy Farms. The agreed upon commission was ten per cent (10 percent) of the price received by Fancy Farms from its customers. There is no evidence that Fancy Farms found any problem with the quality of the zukes delivered to Fancy Farms by Wayne Sullivan during the above period of time. Upon delivering the zukes to Fancy Farms, Sullivan was given a prenumbered delivery receipt ticket (delivery ticket) showing Wayne Sullivan as Grower number 116 and containing the following additional information: (a) date and time of delivery; (b) produce number, i.e., 37 indicating fancy zukes and 38 indicating medium zukes; (c) description of the produce, i.e., zukes, fancy; (d) a lot number containing number of delivery ticket, grower number and produce number, i.e. 2074-116-37 and; (e) the number of units of zukes received by Fancy Farm. The accounting for the zukes from the following delivery receipt ticket numbers is being contested in this proceeding: (a) 2127 dated November 8, 1994, lot nos. 2127-116-37 and 2127-116-38; (b) 22145 dated November 10, 1994, lot nos. 2145-116-37 and 2145-116-38; (c) 2181 dated November 15, 1994, lot nos. 2181-116-37 and 2181-116-38; (d) 2242 dated November 29, 1994, lot nos. 2242- 116-37 and 2242-116-38; (e) 2254 dated December 1, 1994, lot nos. 2254-116-37 and 2254-116-38; (f) 2289 dated December 7, 1994, lot nos. 2289-116-37 and 2289- 116-38 and; (g) 2313 dated December 10, 1994, lot nos. 2313-116-37 and 2313-116- 38. Once Fancy Farms found a customer for the zukes, Fancy Farms prepared a prenumbered billing invoice. Additionally, a bill of lading and load sheet was prepared and attached to the invoice. The bill of lading and load sheet would have the same number as the invoice. Basically, the invoice and bill of lading contained the customer's name and address, produce number, description of produce, number of units ordered, number of units shipped and the price per unit. The load sheet contains the customer's name, produce number, description of produce, units ordered, units shipped and the lot number for the units that made up the shipment. On numerous occasions Fancy Farms made adjustments to the selling price after the price had been quoted and accepted but before the invoice was prepared. Fancy Farms did not make any written notations in its records showing the adjustments to the price or the reasons for the adjustments to the price. Salvatore Toscano testified, and I find his testimony to be credible, that this usually occurred when there was a decrease in the market price after Fancy Farms made the original quote. Therefore, in order to keep the customer, Fancy Farms made an adjustment to the price. Sullivan was never made aware of these price adjustments. In accounting for the zukes delivered by Sullivan, Fancy Farms prepared a Grower Statement which included the delivery ticket number, the date of delivery, the lot number, grower number, produce number, description of the produce, quantity (number of units), price per unit and total due. Payment for the zukes was made to Wayne Sullivan from these statements by Fancy Farms. Sometimes payment may be for only one delivery ticket while at other times payment would be for several delivery tickets for different dates. A portion of Petitioner's composite exhibit 1 is the Florida Vegetable Report (Market Report), Volume XIV, Nos. 19, 21, 23, 31, 33, 37 and 40, dated October 28, 31, 1994, November 8, 10, 15, 29, 1994, and December 7, 12, 1994, respectively. The Market Report is a federal-state publication which reports the demand (moderate), market (steady), volume (units) sold and prices paid per unit for numerous vegetables, including zucchini, on a daily basis. The prices quoted for zucchini is for 1/2 and 5/9th bushel cartons and includes palletizing. The average cost for palletizing in the industry is 65 per carton. Fancy Farms receives and sells zukes in one-half (1/2) bushel cartons. Fancy Farms does not palletize the cartons for handling at its warehouse or for shipment. On November 8, 10, 15, 1994, Sullivan delivered a combined total of 130 units of fancy zukes and a combined total 206 units of medium zukes represented by delivery receipt ticket nos. 2127, 2145 and 218l, for a combined total of fancy and medium zukes of 336 units for which Fancy Farms paid Sullivan the sum of $1,171.00 as evidenced by the Grower Statement dated November 25, 1994. Forty eight units of fancy zukes represented by lot no. 2127-116-37 was billed out by Fancy Farms to P. H. Lucks, Inc. for $5.00 per unit. Without an explanation, Fancy Farms reduced the price to $2.50 per unit. However, Fancy Farms paid Sullivan $5.00 per unit for the 48 units of fancy zukes. Five units of medium zukes represented by lot no. 2145-116-38 were not accounted for by invoice. Thirty two units of fancy zukes represented by lot no. 2181-116-37 were not accounted for by invoice. Nineteen units of medium zukes represented by lot no. 2242-116-38 were not accounted for by invoice. Where there is no invoice the price quoted in the Market Report is used to calculate the amount due Sullivan. The amount due Sullivan from the Grower Statement dated November 25, 1994, is: Lot No. 2127-116-37: $5.00 per unit x 48 units (Invoice 3814) = $ 240.00 Lot No. 2127-116-38: $3.50 per unit x 45 units (Market Report) = $ 157.50 $3.50 per unit x 35 units (Invoice 3783) = $ 122.50 Lot No. 2145-116-37: $5.00 per unit x 12 units (Invoice 3818) = $ 60.00 $5.00 per unit x 38 units (Invoice 3822) = $ 190.00 Lot No. 2145-116-38: $3.00 per unit x 13 units (Invoice 3820) = $ 39.00 $3.00 per unit x 22 units (Invoice 3822) = $ 66.00 $3.00 per unit x 5 units (Market Report) = $ 15.00 Lot No. 2l81-116-37: $8.00 per unit x 32 units (Market Report) = $ 256.00 Lot No. 2181-116-38: $3.50 per unit x 86 units (Invoice 3778) = $ 301.00 Total owed to Sullivan = $1,447.00 Less: Amount paid Sullivan = $1,171.00 Ten per cent commission = 144.70 Net due Sullivan = 131.30 On November 29, 1994, Sullivan delivered 53 units of fancy zukes and 69 units of medium zukes as represented by delivery ticket no. 2242 for a combined total of 112 units for which Sullivan was paid $472.00 by Fancy Farms as represented by the Grower Statement dated December 7, 1994. The prices of $3.25 and $3.00 as indicated by invoice nos. 3941 and 3947, respectively are not indicative of the market for fancy zukes as established by the Market Report for December 1, 1994. The Market Report established an average price of $8.00 per unit for fancy zukes. Likewise, the price of $3.00 per unit for medium zukes as indicated by invoice no. 3927 is not indicative of the market for medium zukes as established by the Market Report for December 1, 1994. The Market Report established an average price of $6.00 per unit for medium zukes. The amount due Sullivan from the Grower Statement dated December 7, 1994, is: Lot no. 2242-116-37: $8.00 per unit x 53 units (Market Report) = $ 424.00 Lot no. 2242-116-38: $6.00 per unit x 69 units (Market Report) = $ 414.00 Total owed Sullivan = $ 838.00 Less: Amount paid Sullivan = $ 472.00 Ten Percent Commission = $ 83.80 Net due Sullivan = $ 282.20 On December 1, 7, 1994, Sullivan delivered a combined total of 51 units of fancy zukes and a combined total of 87 units of medium zukes for a combined total of 138 units of fancy and medium zukes represented by delivery ticket nos. 2254 and 2289 and was paid $516.00 for these zukes by Fancy Farms as represented by the Grower Statement dated December 15, 1994. There was no invoice for lot nos. 2254-116-37 or 2254-116-38. The Market Report established a market price of $8.00 and $6.00 per unit for fancy and medium zukes, respectively. The amount due Sullivan from the Growers Statement dated December 15, 1994, is: Lot No. 2254-116-37: $8.00 per unit x 39 units (Market Report) = $ 312.00 Lot No. 2254-116-38: $6.00 per unit x 20 units (Market Report) = $ 120.00 Lot No. 2289-116-37: $6.00 per unit x 12 units (Invoice 4049) = $ 72.00 Lot No. 2289-116-38: $3.50 per unit x 67 units (Invoice 3946) = $ 234.50 Total owed Sullivan = $ 738.50 Less: Amount paid Sullivan = $ 516.00 Ten Percent Commission = $ 73.85 Net due Sullivan = $ 148.65 On December 10, 1994, Sullivan delivered 27 units of fancy zukes and 18 units of medium zukes for a combined total of 45 units as represented by delivery ticket no. 2313 and was paid $211.50 for those zukes by Fancy Farms as represented by Growers Statement dated December 23, 1994. The 18 units of medium zukes represented by lot no. 2313-116-38 are not covered by an invoice. The Market Report established a unit price of $6.00 for the fancy zukes. Invoice no. 4075 billed the fancy zukes at zero without any explanation. Fancy Farms paid Sullivan $5.50 per unit for the fancy zukes. The Market Report established a per unit price of $8.00 for the fancy zukes which is more in line with the market than is the $5.50 per unit paid by Fancy Farms. The amount due Sullivan from the Grower Statement dated December 23, 1994, is: Lot No. 2313-116-38: $6.00 per unit x 18 units (Market Report) = $ 108.00 Lot No. 2313-116-37: $8.00 per unit x 27 units (Market Report) = $ 216.00 Total owed Sullivan = $ 324.00 Less: Ten percent commission = $ 32.40 Amount received by Sullivan = $ 211.50 Net due Sullivan = $ 80.10 The net amount owed to Sullivan by Fancy Farms: From Grower Statements dated: November 25, 1994 $ 131.30 December 7, 1994 $ 282.20 December 15, 1994 $ 148.65 December 23, 1994 $ 80.10 Total owed to Sullivan $ 642.25
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Fancy Farms Sales, Inc. be ordered to pay Petitioner Wayne Sullivan the sum of $642.25. DONE AND ENTERED this 28th day of November, 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 28th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3015A The parties elected not to file any proposed findings of fact and conclusions of law. 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 Wayne Sullivan 49 Myrtle Bush Lane Venus, Florida 33960 James A. Crocker Qualified Representative Fancy Farms Sales, Inc. 1305 W. Dr. M. L. King, Jr., Blvd. Plant City, Florida 33564-9006 Gulf Insurance Company Legal Department 4600 Fuller Drive Irving, Texas 75038-6506
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
