The Issue The issue in this case is whether Respondent, Mo-Bo Enterprises, Inc., is indebted to Petitioner, Orrin H. Cope Produce, Inc., as alleged in the complaint filed by Petitioner with the Department of Agriculture and Consumer Services dated March 14, 1994.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Cope was a produce broker located in Homestead, Florida. At all times pertinent to this proceeding, Mo-Bo was a purchaser of produce located in Pompano Beach, Florida. Mo-Bo is an agricultural dealer as defined by Section 604.15(1), Florida Statutes. As such, Mo-Bo is obligated to obtain a dealer's license from the Department and to post a surety bond executed by a surety corporation to insure that payment is made to producers for agricultural products purchased by the dealer. At all times pertinent to this proceeding, General Accident Insurance Company of America was the surety for Mo-Bo pursuant to Section 604.20, Florida Statutes. For several years prior to the growing season that began in the fall of 1993, Cope sold produce to Mo-Bo on an intermittent basis. As a result of Mo- Bo's alleged failure to pick up orders and because of its alleged unauthorized price adjustments, there were some disputes between the companies during this period. At the beginning of the growing season in the Fall of 1993, a representative of Mo-Bo contacted Cope about buying cherry tomatoes. Cope agreed to sell cherry tomatoes to Mo-Bo provided the billing disputes that had occurred in the past were avoided. Cope advised Mo-Bo that the parties should agree to a sales price for a shipment of produce before a truck was loaded. The next day, Cope would fax a manifest to Mo-Bo setting forth the terms of the sale, including the price. An invoice would be sent by Cope to Mo-Bo two or three days later. The reason for this delay in sending the invoice was to allow Mo-Bo an opportunity to review the manifest and put Cope on notice of any objections. The delay also allowed the parties to make price adjustments if the market had not settled. Mo-Bo was supposed to immediately notify Cope if the invoice did not reflect the correct price so that the price could be verified and, if a mistake was made, a credit memo would be issued. The price for cherry tomatoes varies according to their color. They are classified from lightest to darkest as follows: breakers, light pinks, pinks, or high color. Cope would determine the color and the condition of the produce at the time the tomatoes were loaded on the truck. If, after receiving the produce, Mo-Bo felt there were quality problems (which would include a dispute as to the color classification), Mo-Bo was required to order an USDA inspection. This requirement for an inspection was discussed between Mo-Bo's buyer and the president of Cope at the beginning of the growing season. In addition, the invoices issued by Cope include the following: "No claims accepted unless supported by USDA inspection within twenty-four hours from arrival and when confirmed by Adjustment Memo from our Sales Office. Notification by mailgram is required." Between December 24, 1993, and January 10, 1994, Cope invoiced Mo-Bo for three shipments of cherry tomatoes. Invoice #1 was for 576 loads of light pink cherry tomatoes at $8.75 per case and 480 cases of pink cherry tomatoes at $8.75 per case, for a total of $9,240. The order was placed and loaded on December 24, 1993. Mo-Bo did not notify Cope of any complaint or dispute with the invoice until approximately sixty days after shipment. On or about February 2, 1994, Mo-Bo returned a marked-up copy of Invoice #1 to Cope along with a check in the amount of $8,414. The changes to the Invoice included a claimed credit of $298 for 149 damages boxes on an unrelated shipment and a reduction in the price per case from $8.75 to $8.25. Cope acknowledges that the $298 credit was authorized. However, the change in the unit price was never authorized by Cope. Cope returned the check sent by Mo-Bo with the marked-up version of Invoice #1 and advised Mo-Bo that the practice of clipping, i.e., unilaterally reducing the price on invoices was not acceptable. Cope advised Mo-Bo that any price disputes had to be raised at the time the manifest was received or, at the latest, when the invoice was received. Mo-Bo's buyer indicated that he would review the situation. As of the date of the hearing in this matter, Mo-Bo had not made any further attempts to pay Invoice #1. After considering all the evidence, it is concluded that Mo-Bo is indebted to Cope in the amount of $8,942 plus interest1 pursuant to Invoice #1. Invoice #2 was for 372 cases of light pink cherry tomatoes at $6.90 per case and for 190 cases of pink cherry tomatoes at $6.90 per case, for a total of $3,877.80. The order was placed on January 8, 1994, and loaded on January 10, 1994. Mo-Bo did not dispute the price or complain about the invoice until approximately one month after shipment. On February 7, 1994, Mo-Bo returned a marked-up version of Invoice #2 to Cope along with a check in the amount of $3,315.80. The change to the Invoice reflected a reduction in price from $6.90 to $5.90 per unit. The change in unit price was never authorized by Cope. Cope refused to accept the price adjustment reflected on the marked-up version of Invoice #2 and returned the check to Mo-Bo. As of the date of the hearing in this case, Mo-Bo had not made any further attempts to pay the Invoice. After considering all the evidence, it is concluded that Mo-Bo owes Cope $3,877.80 plus interest pursuant to Invoice #2. Mo-Bo's buyer testified that he had a verbal agreement with Cope for the lower prices reflected on the marked-up versions of Invoices #1 and #2. This contention is rejected as not credible. In any event, alleged verbal agreements were not consistent with the procedures the parties had agreed upon for doing business. Invoice #3 was for 960 cases of pink cherry tomatoes at $6.25 per case, for a total of $6,000. The order was placed on January 3, 1994, and loaded on January 5, 1994. The truck upon which the tomatoes were loaded was controlled by Mo-Bo. The shipment was sent to New Jersey where it arrived on January 10, 1994. This was an abnormally long shipping time to New Jersey. By the time the tomatoes reached New Jersey, the pink cherry tomatoes had ripened to high color. No explanation was provided for the delay in shipping. Based upon the evidence presented, it is concluded that Mo-Bo should bear the responsibility for any over-ripening that occurred during the extended shipping time. Mo-Bo claims that its customer wanted light pink tomatoes. This contention is rejected as not credible. Both the manifest and the invoice described the shipped tomatoes as "pink." Mo-Bo did not timely and properly object when it received the manifest and/or invoice. On January 10, Mo-Bo's buyer contacted Cope and advised that the cherry tomatoes that had arrived in New Jersey were high color and had been rejected by the purchaser. Cope responded that, since the tomatoes were on the truck for five days, this development was not surprising. Mo-Bo's buyer stated that his customer no longer wanted the cherry tomatoes, but he would try to sell them to another customer. He asked Cope whether it wanted a federal inspection. Cope stated that no inspection would be necessary unless there was going to be a problem in receiving the price as invoiced. No federal inspection was obtained. The cherry tomatoes included in the shipment reflected in Invoice #3 came from three different days of shipments from the same grower. Cope did not receive any complaints from other buyers who received portions of those shipments. Mo-Bo contends that Cope agreed that the transaction would be converted to a consignment rather than a sale. This contention is rejected. Mo-Bo's buyer told Cope he would move the tomatoes and get a good price for them, but Mo-Bo's unilateral attempt to convert the transaction to a consignment was not accepted by Cope and was never confirmed in writing. Mo-Bo delivered 104 cases to its original customer and the remaining 856 cases were sent by Mo-Bo to a second customer at a substantially reduced price. After freight expenses, Mo-Bo claims that it lost money on the transaction. On or about February 7, 1994, Mo-Bo sent a marked-up version of Invoice #3 to Cope showing a zero balance due. As of the date of the hearing, Mo-Bo, has not made any further attempts to pay the invoice. After considering all the evidence, it is concluded that Mo-Bo owes Cope $6,000 plus interest pursuant to Invoice #3. At the conclusion of the hearing, Mo-Bo indicated that it was willing to pay Cope the amounts that were not in dispute without prejudice to Cope's right to collect any remaining amounts that are determined to be owed at the conclusion of this proceeding. There is, however, no proof of record that any such payment has been made.
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 directing Mo-Bo Enterprises, Inc., to pay Orrin H. Cope Produce, Inc., a total of $18,819.80 for the shipments of cherry tomatoes reflected by Invoices #1, #2 and #3, along with interest in accordance with the Invoices. In the event Mo-Bo does not comply with this directive, the surety for the dealer should pay the amount due to the Department for the benefit of the producer in accordance with Section 604.21(8), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of November 1994. J. STEPHEN MENTON 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 30th day of November 1994.
The Issue The issues are whether Respondent operated as a public food service establishment without a license in violation of Subsections 509.241(1) and (2), Florida Statutes (2008),1 and, if so, what penalty, if any, should be imposed against Respondent.
Findings Of Fact Petitioner is the state agency responsible for regulating and inspecting public food service establishments defined in Subsection 509.013(5). Based on clear and convincing testimony by the sole witness for Respondent, Respondent operated as a food service establishment without a license at all times material to this proceeding. The business address of Respondent is 4008 Gall Boulevard, Zephyrhills, Florida. The witness for Respondent is its owner and principal. The witness operated Respondent under the mistaken belief that Respondent would be licensed by the Department of Agriculture and Consumer Services (the Department) and was permitted to conduct business operations prior to being licensed by the Department. Two inspectors for Petitioner inspected the premises of Respondent on November 13, 2008, and observed Respondent operating its business without a license from either Petitioner or the Department.2 The inspectors provided Respondent with notice that Respondent was operating without a license from Petitioner and gave Respondent 60 days to submit plans for operating as a new establishment. On January 31, 2009, three inspectors performed a call- back inspection. Respondent provided no proof of licensure from Petitioner during either the initial or call-back inspection.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of operating a public food service establishment without a license and imposing a fine of $1,000.00, to be paid within 30 days of the date that this proceeding becomes final. DONE AND ENTERED this 21st day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 21st day of December, 2009.
Findings Of Fact Shortly before January 21, 1985, Tommy P. Adams, on behalf of Mid-South Distributors, placed an order with salesman Daniel Garcia, of Corky Foods Corporation, for the purchase of tomatoes. Mid-South Distributors was to purchase one hundred and forty-four (144) 5x6, eight hundred and sixty-four (864) 6x6, and five hundred and seventy-six (576) 6x7 boxes of tomatoes from Corky Foods. The parties agreed that the price of each unit would be fixed at $1.00 less than "market price." However, no price was established at the time of sale because tomato prices were unstable due to a freeze which passed through the area on January 19 and 20, 1985. Mid-South Distributors and Corky Foods had used this type of billing arrangement satisfactorily in past business transactions. On January 21, 1985, the tomatoes were shipped to Mid-South Distributors from the packing house in Boynton Beach, Florida. Thereafter, on January 23, 1985, an invoice was sent by Corky Foods to Mid-South Distributors establishing the price of the tomatoes as follows: $19.15 per unit for the 5x6 containers; $17.15 per unit for the 6x6 containers; and $15.15 per unit for the 6x7 containers. Mid-South Distributors remitted payment to Corky Foods based on the following assumed market prices: $16.00 for the 5x6; $14.00 for the 6x6; and $12.00 for the 6x7 boxes of tomatoes. Corky Foods Corporation sold 5x6 boxes of tomatoes to other dealers during the period in question for 519.15 per unit; 6x6 boxes of tomatoes during the period in question for $17.15; and 6x7 boxes of tomatoes during the time in question for $15.15. Adams Brokerage (Tommy P. Adams) purchased 5x6 boxes of tomatoes from area sellers during the time in question for $16.00; 6x6 boxes of tomatoes from area sellers during the time in question for $14.00; and 6x7 boxes of tomatoes from area sellers during the time in question for $12.00. The Southeastern Fruit and Vegetable Report, printed in Thomasville, Georgia on Thursday, January 24, 1985, set market prices on tomatoes in "South and Central Florida" at $20.00 for 5x6, $18.00 for 6x6, and $16.00 for 6x7. The Southeastern Fruit and Vegetable Report is often used as a guideline in establishing prices for the industry; the prices reported are based in part on information or "quotes" received from different shippers in the area under consideration. Notably, a shipper's quoted price for a particular day may not be the same price at which the shipper actually sells the commodity. The Southeastern Fruit and Vegetable Report used the geographical area of "South and Central Florida" in establishing market prices for tomatoes. The south and central Florida area is a reasonable geographical boundary to consider in establishing market prices for tomatoes sold at individual locations within those boundaries. The customary way in which Corky Foods Corporation determines market prices is by calling other large area packing houses, and by referring to the Southeastern Fruit and Vegetable Report. In establishing the prices for the tomatoes herein discussed, Corky Foods Corporation consulted (among other area packers) Florida Tomato Packers, a large tomato packer located in Homestead, Florida. The locations at which Tommy P. Adams purchased tomatoes for the lower prices included Lantana, Naples, Bonita Springs, Boca Raton, and Immokalee. Area market prices for tomatoes immediately prior to the freeze were as low as $11.00 for 5x6; $10,00 for 6x6; and $8.00 for 6x7. Generally, severe weather conditions, such as a freeze, will cause market prices for tomatoes to rise. The Respondents did not dispute the quality or condition of the tomatoes; market price was the sole source of disagreement between the parties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing Corky Foods Corporation's Amended Complaint herein. DONE AND ORDERED this 8th day of November, 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1985. APPENDIX Pursuant to Section 120.59(2), Florida Statutes (1983), following is submitted in response to Petitioner's and Respondent's Proposed Findings of Fact: Petitioner's Proposed Findings of Fact Paragraph: Ruling: Accepted; see paragraphs 1 and 2, Recommended Order. Rejected as a conclusion of law and not supported by the evidence. Partially accepted; see paragraph 7, Recommended Order. Partially accepted; see paragraphs 6 and 7, Recommended Order. Facts not included therein were rejected as not being established by evidence presented at the hearing. Rejected; irrelevant and not supported by the evidence. Accepted; see paragraph 4, Recommended Order. Accepted; see paragraphs 1 and 2, Recommended Order. Accepted; see paragraph 10, Recommended Order. Rejected; not a finding of fact. Respondent's Proposed Findings of Fact Paragraph: Ruling: a law. 1 Partially accepted; see paragraphs 1-10, Recommended Order. Rejected to the extent that the majority of this paragraph contains statement of the issues and conclusions of COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building Room 513 Tallahassee, Florida 32301 Mr. Joe W. Kight Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301 Donna L. Fuller Vice-President Corky Foods Corporation Post Office Box 1019 Boynton Beach, Florida 33425 Mid-South Distributors, Inc. 2601 South Blossom Trail Orlando, Florida 32805
The Issue Whether or not an Administrative fine may be imposed upon proof of allegations contained in the Administrative Complaint dated June 6, 1986, wherein Respondent is charged with violations of Section 482.226(1), (2)(f) and (g), and 482.161(1)(a),(e) and/or (f) Florida Statutes. Petitioner presented the oral testimony of Roger Gagnon and Frederick Hassut, Jr., and had 3 exhibits admitted in evidence (P-1, P-2, and P-4). Respondent presented her own oral testimony and that of Susan Rickenbach and had admitted 1 exhibit (R-1). At the close of Petitioner's case in chief, and at the conclusion of her own case. Respondent moved to dismiss for failure to prove the allegations of the Administrative Complaint. Ruling on same was reserved for disposition in this recommended order. No transcript was filed. Both parties have filed post-hearing proposals. To the extent they contain proposed findings of fact, these proposals are ruled on pursuant to Section 120.59(2), F.S., in the appendix hereto. Respondent's post-hearing Motion for Dismissal is ruled on in the course of this recommended order.
Findings Of Fact On October 16, 1985, Diane M. Jellen, representing Terminix International, Inc., Cocoa, inspected the property consisting of 12 units which is located at 141 Bluff Terrace, Melbourne, Florida. The inspection was for purposes connected with a real estate transfer. Ms. Jellen issued a report of findings on a Wood-Destroying Organisms Inspection Report (HRS Form 1145, May 1983) dated October 16, 1985. At the time of making the inspection, Ms. Jellen felt herself to be sexually harassed by an individual representing the seller who obstructed her entry into certain units, and she did not complete the inspection of each and every unit for this reason. The top portion of the report issued by Ms. Jellen indicates that Ms. Jellen is the "inspector" and states: "Specific structures inspected: 12 units; Structures on property NOT inspected: none; Areas of structures NOT inspected: none." Essentially the report goes on to indicate that no wood destroying organisms existed. However, at the bottom on the COMMENTS line, Respondent wrote "not all apts accessable" and "low crawl." She made the latter comments in reliance on instructions from her Terminex supervisor that this was sufficient. 1/ Thereafter, partly in reliance on Ms. Jellan's report, Mr. Roger Gagnon purchased the 12 units previously inspected. On May 14, 1986 Mr. Roger Gagnon, owner of the property, filed a written complaint alleging that the inspection performed by Ms. Jellen on October 16, 1985, had failed to detect evidence of wood destroying organisms which were present within the structure at the time of the October 16, 1985 inspection, and which wood destroying organisms Mr. Gagnon had subsequently discovered. On May 15, 1986 Frederick Hassut, Jr., Entomologist-Inspector for the State of Florida Department of Health and Rehabilitative Services performed a wood-destroying organism inspection of the premises which revealed wood-decaying fungus damage present in wood braces and overhang located above apartments No. 3. and No. 4; in several wood members of the stairway and railing adjacent to apartments No. 3 and No. 4; in several floor joists located within the storage room of building No. 2; in the baseboard located in the bathroom of apartment No. 10; and in several wood members of the stairway adjacent to apartment No. Further, he found drywood termite fecal pellets and damage in the east window frame located in the living room of apartment No. 3. Mr. Hassut determined, within his expert education, training and experience, that the old wood decay, fungus damage and the dry-wood termite evidence and damage had to have been present and visible on October 16, 1985, when Ms. Jellen issued the inspection report indicating an infestation. Terminex International subsequently repaired all losses incurred by Roger Gagnon at its own expense. Prior to the time of the inspection, October 16, 1985, Respondent had filed an application to become a pest control employee identification cardholder. Petitioner did not affirmatively show that the card was issued prior to the October 16, 1985 inspection, however Ms. Jellan's application, admitted in evidence as P-4, specifies the agency policy that: "The effective date of this ID Card when issued will be the date of receipt of post- mark if mailed, of this application." The application bears two receipt dates: "10-3-85" and "October 07, 1985," both of which pre-date the inspection at issue. The parties agree that an identification card was subsequently issued. Accordingly, Respondent is found to have been an identification cardholder as contemplated by Chapter 482 F.S. 2/ and therefore subject to Petitioner's jurisdiction at all times relevant. Respondent's unrebutted testimony that she was hired by Terminex International as an office salesperson and was insufficiently trained by that employer to do wood-destroying organism inspections is accepted but deemed irrelevant and immaterial. In mitigation, it is noted that Respondent has, at her own initiative, recently completed 5 days training in pest control with an eye to continued competent employment in this field.
Recommendation That DHRS issue a final order of private reprimand to Respondent for negligent performance of a pest control inspection. DONE and ORDERED this 24th day of October 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 24th day of October 1986.
The Issue The issue is whether Petitioner is entitled to additional compensation for tomatoes that it sold Respondent.
Findings Of Fact On April 4, 1996, Frank Basso of Petitioner talked to H. D. Budd of Respondent H. D. Budd Farms, Inc. (Respondent). Petitioner represents 31 food brokers in South Florida, of which eight handle tomatoes. Respondent purchases tomatoes for Publix and other chain supermarkets. Respondent and Petitioner have done business in the past, and Mr. Basso knew that Mr. Budd would require tomatoes of the highest quality. In the past, Mr. Basso would ship tomatoes to Mr. Budd, who would take only those tomatoes that met his high standards. During their telephone conversation on April 4, Mr. Budd asked Mr. Basso how many of the tomatoes would make U. S. Grade Number 1. Mr. Basso told him that 85 percent of them would. They agreed on a price of $17 per box, but Mr. Budd warned Mr. Basso that he would only pay $17 per box if the tomatoes graded out at 85 percent U. S. Grade Number 1; if they did not, Mr. Budd stated that he would pay Mr. Basso an unspecified lesser amount. In the past, Mr. Basso has allowed Mr. Budd to retain nonconforming tomatoes and try to sell them for whatever he could. In those cases, the parties' agreement was that Mr. Budd would not pay the asking price for the tomatoes, but the amount he owed Mr. Basso would be based on what he could sell the tomatoes for. The two parties agreed that Petitioner would ship 810 25-pound boxes of tomatoes to Respondent. Petitioner shipped the tomatoes on the evening of April 4 for the six-hour trip to Plant City. The only documentation accompanying the shipment, or in existence at the time, was a shipping manifest. The document contains few conditions of the sale. It describes the tomatoes as vine ripe, extra large. It states that the shipment, which is free on board at the shipper's warehouse, consists of 810 25- pound boxes. The shipping manifest does not refer to any conditions of sale, such as warranties or procedures if the tomatoes are unsatisfactory to Respondent. The tomatoes arrived at Respondent's plant during the early-morning hours of April 5. As soon as the plant opened, Respondent's employees began unloading the tomatoes. Mr. Basso telephoned Mr. Budd first thing in the morning, and Mr. Budd said that he would call back Mr. Basso as soon as they had finished grading the shipment. Later in the day, Mr. Budd and Mr. Basso spoke again on the phone. Mr. Budd informed Mr. Basso that the tomatoes had not graded out as promised. Instead, they were only 70 percent U. S. Grade Number 1. Two days later, Mr. Basso sent Mr. Budd a fax of an invoice showing the shipment of April 4 of 810 25-pound boxes. Unlike the shipping manifest, this invoice showed a price of $18 per box and total price of $14,580. This invoice also contained disclaimers requiring inspections prior to claims and imposing a federal trust interest in the tomatoes pending full payment. These were not conditions of the agreement between Mr. Budd and Mr. Basso. Petitioner has failed to prove that Respondent mishandled the tomatoes under their agreement. Consistent with their past practice, Respondent sold the nonconforming tomatoes for the best prices that it could get. Mr. Budd accurately calculated that Respondent owed Petitioner $12,150, and Respondent sent Petitioner a check in that amount on April 19, 1996.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the Complaint. ENTERED on October 9, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this October 9, 1996. COPIES FURNISHED: Frank Basso Iori Farms Post Office Box 3271 Key Largo, Florida 33037 H. D. Budd 3701 East Trapnell Road Plant City, Florida 33567 Ohio Farmers Insurance Company Legal Department One Park Circle Westfield Center, Ohio 44251-5001 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 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
The Issue Whether, under the provisions of sections 604.15 - 604.34, Florida Statutes, Lester Towell Distributors, Inc., is entitled to recover $2,098 for agricultural products ordered by and delivered to VBJ Packing, 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. Lester Towell is a dealer in Florida-grown agricultural products. VBJ is a dealer in Florida-grown agricultural products. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of extra-large green bell peppers. Lester Towell delivered 200 boxes of such peppers to VBJ on May 23, 1995. To fill this order, Lester Towell purchased 63 boxes of peppers from producer Ott Farms, Inc., in Estero, Florida, and 137 boxes from producer Thomas Produce, in Boca Raton, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of yellow corn. Lester Towell delivered 100 boxes of such corn to VBJ on May 24, 1995. To fill this order, Lester Towell purchased 100 boxes of corn from producer Wilkinson-Cooper, in Belle Glade, Florida. Lester Towell did not act as agent for this producer; it purchased the products outright. On May 24, 1995, VBJ placed an order with Lester Towell to purchase a quantity of jalapeno peppers, white corn, and red radishes. Lester Towell delivered two boxes of jalapeno peppers, 26 boxes of white corn, and 20 boxes of red radishes to VBJ on May 25, 1995. To fill this order, Lester Towell purchased 2 boxes of jalapeno peppers from producer Ott Farms, Inc., in Estero, Florida, and 26 boxes of white corn and 20 boxes of red radishes from producer American Growers in Belle Glade, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. Lester Towell filed its complaint with the Department of Agriculture and Consumer Services ("Department") pursuant to the provisions of section 604.21(1), Florida Statutes, because VBJ did not pay for the products identified above. There is, however, no evidence to establish that Lester Towell was a producer or the agent or representative of a producer with respect to the products for which it seeks payment. It is, therefore, not a "person" entitled to file a complaint with the Department against VBJ and its surety.
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 Lester Towell Distributors, Inc. DONE AND ENTERED this 3nd day of July 1996 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 3rd day of July 1996
The Issue The issue presented for decision herein is whether or not the Petitioner is entitled to an award of $11,952 for payment of a shipment of tomatoes made to Respondent, Georgia Tomato Company, Inc.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, including the proposed ore tenus requests by Petitioner's counsel, I hereby make the following relevant factual findings. Petitioner, Corky Foods Corporation, is a diversified agri-business company engaged in, among other things, the sale of produce from one of its warehouses in Boynton Beach, Florida. On January 21, 1985, Pat Adams, a broker for Adams brokerage company in Bonita Springs, Florida, placed an order with Petitioner's salesman, Daniel Garcia, for a load of tomatoes from Georgia Tomato Company. The tomatoes were sold to Respondent, Georgia Tomato Company, on January 21, 1985. The invoice of these products (No. 18917) was dated January 23, 1985 and contained a total of 1,440 boxes. Respondent was allowed a $1 credit under the market price which amount reflects the amount of the initial claim by Petitioner against Respondent, Georgia Tomato Company; i.e., $25,560 less the credit of $1,440 for a total claim of $24,120. During this period of time, there was a freeze in South Florida which occurred on January 20, 1985 and the price of produce dropped substantially for products picked after January 20, 1985. The market value for tomatoes picked on January 19, 1985 was as follows: 5 x 6 #1 @ $18.00 6 x 6 #1 @ $16.00 6 x 7 #1 @ $14.00 This amount, less the $1 credit given to Respondent, Georgia Tomato Company, by Petitioner represents the amount initially claimed by Petitioner; i.e., $24,120. Respondent, Georgia Tomato Company, failed to pay Petitioner's invoiced amount which resulted in a complaint being filed by Petitioner against Respondent, Georgia Tomato Company, on March 4, 1985. Once that complaint was filed, Respondent, Georgia Tomato Company, tendered to Petitioner an amount of $12,168 which reduced the complaint by that amount leaving a balance now due and owing Petitioner of $11,952 based on its amended claim filed herein dated April 24, 1985. Respondent, Georgia Tomato Company, contends that it was overcharged on the amount of this shipment of tomatoes and attempted to substantiate its position by showing several invoices for tomatoes that it purchased subsequent to January 21, 1985. Daniel Garcia, Petitioner's vice-president in charge of marketing, determined the market price for the tomatoes shipped to Respondent, Georgia Tomato Company, on January 21, 1985. In doing so, he called brokerage houses in Homestead, Bonita Springs, and other brokers, including Pat Adams, the broker who purchased the tomatoes here in question on behalf of Adams Brokerage House, and established the market price as per the invoice sent to Respondent, Georgia Tomato Company. In addition, Mr. Garcia referred to the Southeastern Fruit and Vegetable Report, Volume 30, No. 17, which is a guide to the pricing information for fruit and vegetables in the southeast and which is relied upon to ascertain fruit and vegetable prices in this area. (Petitioner's Exhibit 1) This data supports Petitioner's claim for the amount invoiced to Respondent, Georgia Tomato Company. Respondent, Georgia Tomato Company, did not dispute the quality of the tomatoes shipped by the Petitioner. Respondent offered no other defenses against the amount claimed by Petitioner. Based thereon, it is herein concluded that the Petitioner is entitled to an award of the amount in its amended claim of $11,952.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Georgia Tomato Company, Inc., be ordered to pay Petitioner, Corky Foods Corporation, the amount of $11,952 as set forth in its amended complaint filed herein dated April 24, 1985, within fifteen (15) days of the date of entry of the Final Order by the Department of Agriculture and Consumer Services, Bureau of License and Bond. DONE and ORDERED this 9th day of October, 1985, in Tallahassee, Florida. JAMES E. BRADWELL, 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 9th day of October, 1985. COPIES FURNISHED: Roger C. Lambert, Esquire 250 South County Road, Suite 201 West Palm Beach, Florida 33480 Glenn Vaughn, General Manager Georgia Tomato Company, Inc. Building F State Farmers Market Forest Park, Georgia 30050 Joe Kight, Chief Bureau of License & Bond Department of Agriculture and Consumer Services Mayo Building, Room 418 Tallahassee, Florida 32301 Continental Insurance Company Legal Section (License & Bond) 80 Maiden Lane New York, New York Robert Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Doyle Conner Commissioner Department of Agriculture The Capitol Tallahassee, Florida 32301
The Issue The issues in this case are whether Raysbrook Sod, Inc. (Respondent), is indebted to Florida Sod, Inc. (Petitioner), related to the sale and purchase of sod, and, if so, in what amount.
Findings Of Fact Petitioner is a corporation engaged in the business of harvesting sod. Petitioner is located in LaBelle, Florida. Respondent is a corporation located in Riverview, Florida, and is also engaged in the sod business. In September 2007, Respondent was interested in purchasing some sod in order to satisfy a customer's needs. Respondent's regional supervisor, Gabriel Monsivais, approached a gentleman by the name of Trampis Dowdle about purchasing sod. Monsivais had never met Dowdle and, in fact, knew him only as "Mr. Trampis." Dowdle represented that he could obtain sod from Petitioner, and a deal was struck. There was no written contract between Monsivais and Dowdle, nor--quite interestingly- -between Petitioner and Respondent. Nonetheless, Respondent had its drivers go to Petitioner's sod field and begin loading sod for Respondent's use. In all, approximately 1,700 pallets of sod were acquired from Petitioner's field by Respondent. Each time a load of pallets was taken, a Load Sheet was created to show the number of pallets, the location of the field, and the name of the person taking the sod. The driver of the truck was expected to sign the Load Sheet, indicating that the sod had indeed been received. There is no dispute between the parties about the number of pallets taken by Respondent's drivers.1 As sod was taken by Respondent, Petitioner would issue an invoice reflecting the amount of sod and the price to be paid. The invoices were sent to Respondent via U.S. Mail. The total amount billed for the sod was $42,559.16. Respondent issued a check (No. 8899) in the amount of $1,271.16, made payable to Petitioner on November 30, 2007, in payment of the first invoice from Petitioner. No further checks from Respondent were received by Petitioner, leaving a balance due of $41,288.00.2 Respondent, however, did attempt to make payments for the sod it purchased. Respondent wrote checks to Dowdle based on Dowdle's representations that he either owned Petitioner's company or was working for Petitioner. In fact, Dowdle neither owned nor was in any way affiliated with Petitioner. Dowdle was apparently defrauding Respondent (and possibly Petitioner as well). Respondent's representative, Joseph Bushong, and Petitioner's representative, Jake Alderman, had never met prior to the day of the final hearing in this matter. There was no written contract between the parties. The entire business relationship between the parties was done orally, based on conversations between Monsivais and Dowdle. Nonetheless, Respondent did obtain over $42,000.00 worth of sod from Petitioner. Respondent does not contest this fact. Respondent's actions indicate acknowledgement of the presumed relationship between the parties. Respondent submitted a credit application to Petitioner with references and credit information to be used by Petitioner in extending credit to Respondent for the sod it was purchasing. Respondent issued at least one check directly to Petitioner for payment of the sod in response to an invoice issued by Petitioner. The check was made payable to "Florida Sod" in the amount of $1,271.16. That check directly corresponds to the amount in Invoice No. 1697 from Petitioner dated October 8, 2007. Respondent did receive additional invoices from Petitioner for the sod Respondent had purchased and received. Clearly, there was an understanding between the two companies that a business relationship existed. After making its first payment to Petitioner, Respondent's subsequent payments for the sod were made directly to Dowdle and his companies. One such payment, made by way of a credit card, was actually applied to a restaurant with which Dowdle apparently had some business connection. Other payments were made via checks made payable to other Dowdle interests. Respondent made payments to Dowdle in the mistaken belief that Dowdle was the agent of or employed by Petitioner. In fact, Dowdle has never been affiliated with Petitioner. Petitioner did not receive any of the payments made by Respondent to Dowdle. Petitioner and Dowdle are not related or affiliated in any fashion (other than a prior arm's-length sod purchase between the two). It is clear that Dowdle received the payments intended for Petitioner in payment for the sod purchased by Respondent. Dowdle, whose whereabouts are unknown by the parties, did not provide Petitioner with the payments. Rather, from the evidence, it appears that Dowdle kept the payments, thereby committing a fraud on both Petitioner and Respondent. Though both parties are somewhat at fault in this matter for failure to utilize normal and acceptable business practices, one or the other party must necessarily bear the burden of payment. The evidence supports Petitioner in this regard because it best followed normal business procedures. Had Respondent made its remittance checks payable to Petitioner (who had issued the invoices), Dowdle would not have been able to abscond with the money. Had Respondent obtained some affirmative proof that Dowdle was an agent of Petitioner, Respondent would have known better than to provide money to Dowdle. Had Respondent contacted Petitioner directly instead of relying on third parties (its foreman and Dowdle), the deception would have been uncovered. However, the facts of this case support the proposition that Petitioner made a valid sale of sod to Respondent, and Respondent did not pay Petitioner for the sod.
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 requiring Respondent to pay Petitioner the sum of $41,288.00 within 30 days of entry of a final order. DONE AND ENTERED this 31st day of October, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 31st day of October, 2008.
The Issue The issues presented for decision in this case are whether Respondent violated Section 760.10, Florida Statutes, as alleged, by discriminating against Petitioner in her employment on the basis of her sex and her condition of pregnancy, and, if that violation occurred, what relief is appropriate.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Petitioner, Minchi Torres, was 34 years old at the time of the hearing. She is married and has three children. In January 1995, she began working for Garden Fresh Restaurant Corporation, d/b/a Sweet Tomatoes Restaurant, a restaurant chain with its main corporate offices in California. Sweet Tomatoes operates restaurants in Brandon, Carrollwood, and Sarasota, Florida. Ms. Torres began her employment as a manager trainee in the Carrollwood restaurant. After completing her training, Ms. Torres transferred to the Brandon restaurant and began work as a service manager late in the summer of 1995. The service manager in a Sweet Tomatoes restaurant supervises the "front of the house": the area where guests are seated and the salad bar. After about a year and a half, Ms. Torres was promoted to production manager. The production manager supervises the "back of the house," i.e., the kitchen area. The production manager also performs inventories, orders food and supplies for the restaurant, and monitors expenses. While working as production manager in the Brandon store, Ms. Torres became pregnant. She had complications, and her physician allowed her to undertake only "light duty," which was inconsistent with her position as production manager. Ms. Torres was placed on unpaid maternity leave, effective April 1, 1997. During her maternity leave, Ms. Torres approached Robert Wilson, the local director of operations for the Sweet Tomatoes chain. She told Mr. Wilson that she needed income and asked if there was anything she could do with her limited capabilities. At the time, Mr. Wilson had an opening for a "technical shopper," a person who evaluates the restaurants for service, quality, and cleanliness. This was a contractual position, paid on an hourly basis. Mr. Wilson offered Ms. Torres the position, and she accepted. Ms. Torres worked part-time in the technical shopper position from April 1997 until shortly before she gave birth to her daughter on July 1, 1997. She then reverted to unpaid maternity leave. She requested and was granted an extension of the maternity leave and returned to work on September 13, 1997. She reported to the Tampa restaurant and was promoted to assistant general manager. Ms. Torres remained an assistant general manager in Tampa until September 1998, when she was promoted to general manager of the Brandon restaurant. In late 1999, Ms. Torres again became pregnant. She developed problems with this pregnancy in November 1999. She expressed to Mr. Wilson concern that she might lose the baby. Ms. Torres requested that she be relieved of her general manager's duty and placed in the less arduous position of service manager, at a different restaurant. Mr. Wilson accommodated her request, moving her to a service manager's position at the Carrollwood restaurant, but leaving her salary at a general manager's level. Ms. Torres' health problems kept her out of work from late November until December 27, 1999. Mr. Wilson testified that from November 15, 1999, through March 8, 2000, Ms. Torres was able to work a total of approximately four weeks. On February 9, 2000, Ms. Torres was at work when she began to have contractions. She left work and went directly to her physician's office. The physician determined that Ms. Torres required bed rest while he monitored her progress. She remained off work for the remainder of February. Ms. Torres returned to work on March 4, 2000, pursuant to a written release signed by her physician. The release specified that Ms. Torres should spend "limited hours on [her] feet," and that her work day should be limited to 6 hours of "limited activity" or "light duty." The job description for Ms. Torres' position as service manager called for a minimum shift of 10 hours, five to eight hours of which are spent standing or walking. Ms. Torres gave the release to the general manager of the Carrollwood restaurant, who relayed it to Mr. Wilson. The general manager told Ms. Torres that she would need to have a meeting with Mr. Wilson before resuming her duties. Ms. Torres met with Mr. Wilson at 10:30 a.m. on March 3, 2000. She requested light duty with limited time on her feet, consistent with her medical release. She asked if she could perform the technical shopping job she had done during her previous pregnancy. She also suggested performing marketing and auditing for the company or traveling to the various restaurants and updating their files. Mr. Wilson responded that none of these positions were available. He told Ms. Torres that accommodating her would require him to create a position for her, or to displace people who were already performing the jobs, and that he could not do either one. Mr. Wilson also noted that none of the jobs suggested by Ms. Torres were consistent with her actual position as a service manager in a restaurant. At the hearing, Ms. Torres testified that, though she requested a change in her duties, she also told Mr. Wilson that she was capable of performing as a service manager if that was her only option. She estimated that the job required her to spend three to four hours on her feet and that she could delegate duties and sit down occasionally. Mr. Wilson told her that the duties of a service manager were inconsistent with the medical release calling for "light duty." At the hearing, Mr. Wilson testified that he believed Ms. Torres could not perform the functions of a service manager. He stated that he was "torn," because Ms. Torres wanted to work, but he had nothing for her that did not conflict with the terms of her medical release. Mr. Wilson consulted Wendy Jewell, at that time the employee relations manager for Sweet Tomatoes. Ms. Jewell testified that, after Mr. Wilson apprised her of the situation, she investigated Ms. Torres' request. She independently confirmed that there were no openings for the type of light duty requested by Ms. Torres. She also consulted the company's vice-president for human resources and in-house legal counsel. She discussed the matter with Ms. Torres and told her that accommodating her request would mean displacing someone already in a job or creating a new job, which Sweet Tomatoes could not do. Ms. Jewell, in consultation with Sweet Tomatoes' director of employee benefits, made the decision not to accommodate Ms. Torres' request for light duty and to place Ms. Torres on unpaid leave under federal Family Medical Leave Act ("FMLA"). Ms. Jewell testified that this decision was consistent with the company's practice regarding employees who are unable to perform the essential elements of their jobs. Ms. Jewell pointed out that this decision was consistent with the company's actions toward Ms. Torres in 1997, when she was also placed on unpaid maternity leave. Ms. Jewell stated that the only distinction was that in 1997 the company happened to have an opening for a technical shopper, paid by the hour on a contractual basis, and that in 2000 there was no such opening. Ms. Torres was placed on FMLA leave, effective February 15, 2000, and continuing until April 31, 2000. She requested and was granted an extension of her leave until September 1, 2000. She delivered her child on June 29, 2000. Ms. Torres returned to work on September 11, 2000, as a production manager. She was dismissed by Sweet Tomatoes in November 2000, for reasons unrelated to her pregnancy. Ms. Torres claimed that Sweet Tomatoes' failure to accommodate her situation in 2000 was discriminatory because the company had made such an accommodation early in 1999 for a male employee, James Smith. In January 1999, James Smith was production manager in the Brandon restaurant. Ms. Torres was the general manager and his immediate supervisor. Early in January, Mr. Smith fell through the ceiling of his attic at home. He suffered four fractured vertebrae and two herniated discs. He was off work for virtually the entire month of January, taking either vacation days or sick leave. At some point in January, he attempted to return to work, but was sent home by Mr. Wilson because he was in obvious pain. Mr. Smith returned to work with a "light duty" physician's release on February 7. Mr. Smith's light duty release specified that he perform no heavy lifting and work for a period of six to eight hours. He followed these instructions until March 8, 1999, when he was transferred to the Sarasota restaurant as general manager. At that time, he resumed a full work schedule without restrictions. Ms. Torres testified that during the period of Mr. Smith's light duty restriction, he was unable to perform his duties as production manager. She stated Mr. Wilson asked her to "see what we can do for him," meaning that she should find work that Mr. Smith could do consistent with his physician's release. She had Mr. Smith perform office work, such as preparing schedules and placing orders. Ms. Torres testified that Mr. Smith worked about five hours per day during this period. Mr. Smith was allowed to take time off during the work day to attend physical therapy. Mr. Wilson testified that he was unaware that Ms. Torres had extended an accommodation to Mr. Smith and was unaware whether Ms. Torres had consulted the human resources department of Sweet Tomatoes about allowing Mr. Smith to work while injured. He did not recall telling Ms. Torres to make work for Mr. Smith. Mr. Wilson testified that the only accommodation he made for Mr. Smith was to allow him to attend physical therapy, because it was available only during working hours. Mr. Wilson testified that he knew Mr. Smith had been injured in a fall, but that he became aware of the extent of Mr. Smith's injuries only when he came to the restaurant and saw Mr. Smith attempting to work, in obvious pain. Mr. Wilson recalled that this occurred on or about January 21. Mr. Wilson testified that he ordered Mr. Smith to seek further medical attention and to obtain a medical release before returning to work. Mr. Smith's testimony corroborated Mr. Wilson's version of this event. Ms. Torres' testimony on the question of Mr. Smith's treatment by Sweet Tomatoes is not entirely reliable. She changed her testimony as to when and how long Mr. Smith was on light duty. Her testimony was inconsistent as to whether Mr. Wilson asked her if she had work that Mr. Smith could do or whether Mr. Wilson ordered her to create work for Mr. Smith. Mr. Wilson's version of events was more consistent with the documentary evidence and is therefore credited. Even if Ms. Torres' testimony were credited on this point, it would not establish that Mr. Smith enjoyed an accommodation denied to Ms. Torres. Mr. Smith's period of light duty lasted for a period of three to four weeks, whereas Ms. Torres would have required light duty from March 2000 until the completion of her pregnancy, a period of approximately four months. For that reason, the two situations are not comparable. In summary, the evidence established that Sweet Tomatoes was able to accommodate Ms. Torres' limitations in 1997, because there happened to be an opening for a technical shopper. The evidence established that Sweet Tomatoes made a good faith effort to accommodate Ms. Torres in 2000, but that no work was available and that Sweet Tomatoes reasonably declined to create a position or to displace other workers.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint and Petition for Relief. DONE AND ENTERED this 20th day of February, 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) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2001. COPIES FURNISHED: Donald E. Cope, Esquire Fine, Boggs, Cope & Perkins, LLP 225 South Cabrillo Highway Suite B-200 Half Moon Bay, California 94019 Scott Charlton, Esquire Clark, Charlton, Martino & Borders, P.A. 3407 West Kennedy Boulevard Post Office Box 24268 Tampa, Florida 33623-4268 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
