The Issue Whether Respondent Five Brothers Produce Inc. is indebted to Petitioner for agricultural products and, if so, in what amount?
Findings Of Fact Petitioner grows tomatoes on its farm in Dade County. Jack Wishart is in charge of the farm's operations. Five Brothers Produce, Inc., is a dealer in agricultural products. At all times material hereto, Pete Johnson was responsible for buying and selling produce for Five Brothers. He was assisted by Robert Barbare. On Friday, January 19, 1990, Johnson met with Wishart at Petitioner's farm. During their meeting, they discussed the possibility of Five Brothers purchasing all of Petitioner's 6x7 tomatoes. They ultimately entered into a verbal agreement concerning the matter. Under the terms of the agreement, Five Brothers agreed to purchase from Petitioner, and Petitioner agreed to sell to Five Brothers, Petitioner's supply of 6x7 tomatoes, which consisted of 293 packages, for $26.00 a package. At the time, tomatoes were in scarce supply because of the damage that had been done to the South Florida tomato crop by the freeze of the prior month. As a result, the market price for U.S.#1 grade 6x7 tomatoes was $32.00 a package. Wishhart agreed to a lower price for Petitioner's 6x7 tomatoes because they were U.S.#2 grade. The 293 packages of tomatoes were delivered to Five Brothers on the following day, Saturday, January 20, 1990. Johnson had purchased the tomatoes for Five Brothers to resell to a customer in Atlanta, Georgia. Upon inspecting the tomatoes after their arrival at Five Brothers' loading dock in Florida City, Johnson determined that they did not meet the needs of this particular customer because, in Johnson's opinion, they were too ripe to be shipped out of state. Johnson thereupon telephoned Wishart to tell him that the tomatoes were not suitable for his Atlanta customer. Later that same day, January 20, 1990, pursuant to Johnson's instructions, Barbare, Five Brothers' "late night clerk," contacted Wishart and advised him that Five Brothers wanted to return the tomatoes to Petitioner. The gates of Petitioner's farm were closed, and Wishart so informed Barbare. He then asked Barbare to store the tomatoes in Five Brothers' cooler until they could be returned to Petitioner's farm. Barbare agreed to do so. Approximately a day or two later, Barbare again telephoned Wishart. He told Wishart that Five Brothers had found a customer to whom it could sell the tomatoes, which were still in Five Brothers' cooler. Wishart, in response, stated that Petitioner would lower its sale price and "take $20.00," instead of $26.00 as previously agreed, for the tomatoes. 1/ On Monday, January 22, 1990, Five Brothers consummated a deal with Leo Genecco & Sons, Inc., (Genecco) of Rochester, New York, which agreed to purchase the tomatoes from Five Brothers. 2/ The tomatoes were priced "open," that is, the price of the tomatoes was to be established after the sale. Five Brothers ultimately received $3,149.75 ($10.75 a package) for the 293 packages of 6x7 tomatoes it had sold to Genecco. It thereupon sent a check in that amount to Petitioner as payment for these tomatoes. In the transaction at issue in the instant case, Five Brothers was not acting as a broker or agent for Petitioner. It purchased the tomatoes from Petitioner. The sales price was initially $26.00 a package and was later reduced to $20.00 a package. Accordingly, for the 293 packages of tomatoes Petitioner sold Five Brothers, it should have received from Five Bothers $5,860.00, $2,710.25 more than it was paid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Agriculture and Consumer Services enter a final order (1) finding that Five Brothers is indebted to Petitioner in the amount of $2,710.25, (2) directing Five Brothers to make payment to Petitioner in the amount of $2,710.25 within 15 days following the issuance of the order, and (3) announcing that, if such payment is not timely made, the Department will seek recovery from the Florida Farm Bureau Mutual Insurance Co., Five Brother's surety. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March, 1991. STUART M. LERNER 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 18th day of March, 1991. COPIES FURNISHED: Jack Wishart Pine Islands Farms, Inc. Post Office Box 247 Goulds, Florida 33170 Pete Johnson Five Brothers Produce, Inc. Post Office Box 3592 Florida City, Florida 33034 Florida Farm Bureau Mutual Insurance Co. 5700 Southwest 34th Street Gainesville, Florida 32608 Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Above All Lawn Care & Landscaping, Inc. (Above All), should be required to pay the sum of $7,129.05 to the Petitioner for landscape plants and materials allegedly purchased by the Respondent from the Petitioner, and, with regard to the Hartford Fire Insurance Company, whether it should be obligated for the payment of the plants and materials in question to the extent of its surety bond number 2 1BSBBU 6765 (the Bond), in the bonded amount of $4,999.00.
Findings Of Fact The Petitioner, Skinner Nurseries, Inc. (Skinner), is a corporation whose address is 2970 Hartley Road, Suite 302, Jacksonville, Florida. The Respondent Above All is a corporation whose address is Post Office Box 2772, Ocala, Florida. The Respondent was licensed as a dealer in agriculture products at times pertinent hereto and was supported by surety bond number 2 1BSBBU 6765, in the amount of $4,999.00. The surety bond was issued by the co- Respondent, Hardford Fire Insurance Company, as surety. The conditions and provisions of the bond were to assure proper accounting and payment to producers, their agents or representatives for agricultural products purchased by the Respondent, Above All. On July 23, 2003 through August 1, 2003, Skinner Nurseries, Inc. sold the Respondent certain nursery plants as an agent for Florida producers, totaling $7,129.05. That amount remains unpaid to Skinner. The subject complaint was filed with the Department within six months of the dates of sale. The only response to the complaint by the Respondent was that to the effect that it agreed that amounts were owed to Skinner, but it disagreed with the amounts Skinner was claiming. The testimony of Chris Diaz establishes that invoices in the amount of $7,129.05 represent the number of trees, shrubs, and various nursery stock or materials sold and shipped to the Respondent. The Petitioner sent statements on a monthly basis, as well as certified letters, to the Respondent and received no payment at all in return, not even as to an undisputed amount. The amount of $7,079.05 referenced in the Administrative Complaint does not include freight charges. The goods and materials in question were shipped from the Bunnell nursery site of Skinner to the Respondent's location in Ocala, Florida. The Respondent did not appear at either hearing scheduled and presented no testimony or evidence. The facts that are established by the Petitioner are thus undisputed. The Respondent has never paid any of the amounts represented by the subject invoices contained in Petitioner's Composite Exhibit 1 in evidence.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witness, it is, therefore, RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring that Above All Law Care & Landscaping, Inc., pay the complainant Skinner Nurseries, Inc., the amount of $7,129.05, to be paid within fifteen days from the date of entry of a final order in this matter. In the event that the Respondent does not comply with that order then the surety, Hartford Fire Insurance Company, should be ordered to provide payment under the conditions and provisions of the applicable bond. DONE AND ENTERED this 27th day of December, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 27th day of December, 2004. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services Bureau of License and Bond 407 South Calhoun Street, Mayo Building Tallahassee, Florida 32399-0800 Daniel I. Lawrence, President Above All Landscaping Post Office Box 2772 Ocala, Florida 34471 Chris Diaz Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Scott Cochrane Hartford Insurance Company Hartford Plaza, T-4 Hartford, Connecticut 06115
The Issue Whether Respondent is indebted to Petitioners for agricultural products and, if so, in what amount?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties Petitioners are producers and sellers of tomatoes. They own and operate Sunfresh Farms in Florida City, Florida. Respondent is a dealer in agricultural products. The Controversy The instant case involves two separate transactions involving the sale of tomatoes pursuant to verbal agreements between Petitioners (as the sellers) and Respondent (as the buyer). Both transactions occurred in January of 1995. The First Transaction (Petitioners' Invoice Number 5270) Under the terms of the first of these two verbal agreements (First Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 96 boxes of cherry tomatoes for $12.65 a box (which was the market price at the time). In accordance with the terms of the First Agreement, Petitioners delivered 96 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 23, 1995. Respondent accepted the delivery. Respondent sold these 96 boxes of cherry tomatoes to a local produce house, which subsequently sold the tomatoes to another local produce house. The tomatoes were eventually sold to a company in Grand Rapids, Michigan. On January 28, 1995, five days after Petitioners had delivered the 96 boxes of cherry tomatoes to Respondent, the tomatoes were inspected in Grand Rapids, Michigan. According to the inspection certificate, the inspection revealed: "Decay (3 to 28 percent)(mostly early, some advanced stages);" "Checksum;" and "Average approximately 85 percent light red to red." Petitioners have yet to be paid any of $1,214.40 Respondent owes them (under the terms of the First Agreement) for the 96 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the agreement. The Second Transaction (Petitioners' Invoice Number 5299) Under the terms of the second verbal agreement at issue in the instant case (Second Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 132 boxes of ("no grade") cherry tomatoes for $12.65 a box. In accordance with the terms of the Second Agreement, Petitioners delivered 132 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 27, 1995. Respondent accepted the delivery. Respondent sold 84 of these 132 boxes of cherry tomatoes to a Florida produce house, which subsequently sold the tomatoes to a company in Houston, Texas. These 84 boxes of cherry tomatoes were inspected in Houston, Texas, on January 31, 1995, four days after Petitioners had delivered them to Respondent. The defects found during the inspection were noted on the inspection certificate. Petitioners have yet to be paid in full for the 132 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the Second Agreement. Respondent tendered payment (in the form of a check) in the amount of $811.20, but Petitioners refused to accept such payment because it did not represent the full amount ($1,669.80) Respondent owed them (under the terms of the Second Agreement) for these cherry tomatoes. (Although they have not endorsed or cashed the check, Petitioners are still holding it in their possession.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that Respondent is indebted to Petitioners in the amount of $2,884.20, (2) directing Respondent to make payment to Petitioners in the amount of $2,884.20 within 15 days following the issuance of the order, (3) indicating that the $811.20 check that was previously tendered to Petitioners by Respondent (and is still in Petitioners' possession) will be considered partial payment of this $2,884.20 indebtedness, if Respondent advises Petitioners, in writing, that it desires the check to be used for such purpose and if it provides Petitioners written assurance that the check is still a valid negotiable instrument; and (4) announcing that if payment in full of this $2,884.20 indebtedness is not timely made, the Department will seek recovery from the Farm Bureau, Respondent's surety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February, 1996. STUART M. LERNER, 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 2nd day of February, 1996.
The Issue The issue in this case concerns whether the Respondent Florida Lime Growers, Inc., is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact On May 29, 1991, Petitioner entered into an agreement with Florida Lime Growers, Inc., for the handling of the sale of his fruit on consignment. The terms of that agreement included the following: Florida Lime Growers, Inc., agreed to grade Petitioner's fruit, pack that which met quality standards, and use its best efforts to sell the packed fruit for the benefit of Petitioner on a pooled basis at market price. No specified price was guaranteed by or agreed to be paid to Petitioner by Florida Lime Growers, Inc. Florida Lime Growers, Inc., was entitled to charge a fee for packing Petitioner's fruit and a commission on the sale of the fruit. Florida Lime Growers, Inc., agreed to pay to Petitioner that portion of the sale proceeds received attributable to Petitioner's share of the pool, less all expenses of sale. Florida Lime Growers, Inc., also agreed to pay Petitioner a portion of the anticipated return prior to actual receipt of payment by Florida Lime Growers, Inc., from the ultimate purchaser. At no time did Petitioner contract with Florida Lime Growers, Inc., for the outright purchase by it of all of Petitioner's mangos and avocados, regardless of quality. The terms of Petitioner's agreement with Florida Lime Growers, Inc., are substantially similar to the agreement he entered into with another packing house, Limeco, Inc., on May 28, 1991. When Petitioner or his employees delivered mangos or avocados to Florida Lime Growers, Inc., the load of fruit would be weighed and a receiving ticket would be given to the Petitioner or to his employee showing the date, type of produce, number of bin boxes brought, and the total weight expressed in pounds and bushels (55 pounds per bushel). Florida Lime Growers, Inc., would then take the fruit and grade it, that is, separate out the fruit of good enough quality to be packed and sold. Petitioner was offered the opportunity to pick up the culls (the fruit not good enough to be packed), so that he might attempt to sell them on his own, but he declined to do so as he felt it was too much of a bother to be worth the effort. Florida Lime Growers, Inc., would then sort Petitioner's fruit by size and pack it for sale. Florida Lime Growers, Inc., kept a record of the quantity of Matthews' fruit, by type and size, as well as the proportion of the pool of fruit available for sale which Petitioner's fruit represented. Florida Lime Growers, Inc., sold Petitioner's mangos and avocados at market price. Market prices fluctuate, which is why Florida Lime Growers, Inc., as well as Petitioner's other dealer, Limeco, did not guarantee a rate of return or agree to pay a specified price. Petitioner's rates of return per bushel for sales of his packed mangos and avocados by Florida Lime Growers, Inc., can be determined by dividing the net return by the total weight packed (in pounds) to get a per pound return, then multiplying the result by 55 to arrive at the per bushel return. Applying this formula to the information contained in the account sales reports contained in Respondent's Composite Exhibit 8, the rates of return to Petitioner were as follows: Type of Fruit To be Packed Receipt # Total Weight Packed Total Net Return Per Bushel Return Mango 610 8,280 2,584.58 17.05 Mango 617 4,600 1,435.88 17.05 Mango 623 8,987 3,303.23 20.35 Mango 630 3,102 1,073.95 19.25 Mango 635 2,629 935.79 19.80 Mango 641 3,597 1,311.14 19.80 Mango 651 3,680 1,201.16 15.40 Mango 654 6,083 1,138.35 10.45 Mango 676 1,540 340.14 12.10 Avocado 689 3,800 2,783.91 40.15 Mango 692 220 50.44 12.65 Avocado 696 925 692.56 41.25 Mango 727 15,455 1,666.98 6.05 Mango 740 13,728 2,002.61 8.25 Mango 747 10,021 1,399.91 7.70 Mango 753 7,953 1,159.16 8.25 Petitioner presented no evidence to show that the prices obtained for his fruit by Florida Lime Growers, Inc., were below the market. The only evidence of price other than Respondents' sales was the net return paid to Petitioner by Limeco for mangos delivered by him to that dealer on May 28 and 29, 1991, and after July 1, 1991. That evidence shows that there was a substantial decrease in sales price between May 28, 1991, and July 1, 1991. For instance, Exhibit 2 reflects a net return for mangos delivered at the end of May of $17.85 per bushel. Exhibit 5 reflects a net return for mangos delivered on July 3, 1991, of $9.78 per bushel, with $6.20 per bushel for "No. 2's." Exhibit 4 reflects a net return for mangos delivered between July 5 and July 11 of $6.08 per bushel, with $4.59 per bushel for "No. 2's." The last sale of mangos by Florida Lime Growers, Inc., which included those of the Petitioner, was to Amerifresh, a broker. Amerifresh selected and arranged for the trucking company to transport the shipment to Seattle, Washington. Upon arrival, the shipment of mangos was rejected as a "failed" shipment. The shipment was inspected by a U.S.D.A. inspector and a copy of the U.S.D.A. inspection certificate was obtained by Florida Lime Growers, Inc., maintained in its records, and offered to Petitioner. Florida Lime Growers, Inc., received payment for only the small portion of the shipment which was salvageable. The funds received representing that portion of the shipment comprised of Petitioner's mangos, less his proportionate share of the expenses of sale, were paid to Petitioner. Petitioner presented no evidence to show that Florida Lime Growers, Inc., received any money for his mangos and avocados that it did not pay to him, after deducting the costs of sale and the advances or prepayments made in accordance with their agreement. Petitioner was provided with an accounting with the final check issued for payment from each pool. With respect to the final payment on September 10, 1991, in the amount of $233.07, Matthews received an accounting, including a letter of explanation, and the opportunity to review the records of Florida Lime Growers, Inc. Petitioner spoke with both William Planes and Rachel Trant of Florida Lime Growers, Inc., at unspecified times, but he was not satisfied with the information that either of them provided. The computerized accounting system used by Florida Lime Growers, Inc., is also used by several other businesses in the produce industry. Florida Lime Growers, Inc., employees have offered to explain the printed reports to its customers and have done so on request. 2/ Although he had the opportunity to do, Petitioner never requested assistance or an explanation from the employee of Florida Lime Growers, Inc., who ran the computerized accounting system and who calculated the adjustments and final return to be made on the Amerifresh shipment. Petitioner made no attempt to communicate with anyone from Florida Lime Growers, Inc., after he received his final payment on September 10, 1991. July 1, 1991, was the last date on which Petitioner brought mangos to Florida Lime Growers, Inc., which were accepted by the latter. The last load of Petitioner's mangos brought to Florida Lime Growers, Inc., was refused due to the poor quality. Petitioner's first effort at filing a complaint was on November 18, 1991, when he filed a complaint against "Bill Planes d/b/a Florida Lime Growers, Inc." William "Bill" Planes is the president of, and is one of two directors of, Florida Lime Growers, Inc. Mr. Planes is the person with whom the Petitioner had most of his dealings involving Florida Lime Growers, Inc. Mr. Planes, in his individual capacity, was not a dealer pursuant to Chapter 604, Florida Statutes. Petitioner was notified by the Department of Agriculture and Consumer Services by letter dated January 7, 1992, that his complaint could not be processed until he amended it to name Florida Lime Growers, Inc., as the Respondent. The actual date Petitioner filed the amendment to his complaint is unclear from the documents, but it was not until some time after March 2, 1991, the date on which it was notarized. The first notice of Petitioner's complaint that the Department of Agriculture and Consumer Services sent to Respondent, Florida Lime Growers, Inc., was on March 11, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order in this case dismissing the Petitioner's complaint, as amended, and denying the relief requested by the Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of September 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September 1992.
The Issue The issue for determination is whether Respondents owe Petitioner approximately $2,018.33 for a quantity of watermelons which Petitioner alleges he sold to Respondents; secondarily, 1 The name of Co-Respondent U.S. Fidelity and Guaranty Co. has been added to the style in this case and the name of the Florida Department of Agriculture deleted as a party in correction of obvious error in the previous titling of the case. resolution of this issue requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.
Findings Of Fact Petitioner is a farmer who produces agricultural products, including watermelons. Respondent Southern Farms is a dealer of such products in the course of normal business activity. Respondent U. S. Fidelity and Guaranty Company is the bonding agent for Respondent Southern Farms, pursuant to Section 604.20, Florida Statutes. Petitioner’s testimony at the final hearing establishes that Respondent Southern Farms, Inc., is indebted to Petitioner for the total sum of $2,018.33 with regard to purchase of 47,350 pounds of watermelons belonging to Petitioner on or about June 17, 1996. In the absence of presentment of any evidence at the final hearing in support of the claim of Respondent Southern Farms, as set forth in Southern Farms’ “Answer Of Respondent” filed on November 1, 1996, that no business dealings had been had between Petitioner and Southern Farms, such claim is not credited.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondents are indebted to Petitioner for the total sum of $2,018.33 with regard to purchase of 47,350 pounds of watermelons belonging to Petitioner on or about June 17, 1996.DONE AND ENTERED this 12th day of March, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Bo Bass 2829 Southwest SR 45 Newberry, FL 32669 Southern Legal Farms, Inc. Legal Department Post Office Box 1975 Salisbury, MD 21802 Elizabeth Stosur US Fidelity and Guaranty Co. Post Office Box 1138 Baltimore, MD 21203-1138 Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, FL 32399-1550 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, FL 32399-0800
Findings Of Fact Davis was general manager of the Florida Food Industry Credit Union from May 31, 1980 to May 30, 1985. He was a member of the Board of Directors of the Credit Union from 1980 to May 31, 1985. Davis resigned as General Manager and Director of the Credit Union effective May 31, 1985. In his letter of resignation, Davis acknowledged that he had falsely reported delinquent loans in reports to the Board of Directors for the previous eight years (including three years before he became General Manager). These reports understated the status and amount of delinquent loans. A review of loan records of the Credit Union by the Department of Banking and Finance in June, 1985, confirmed that delinquency reports to the Board of Directors and the Department had been understated over $300,000 for at least six months of 1984. Other source documents of actual loan delinquency and reports thereof could not be located by the Credit Union. The amount of loans past due two months and over were significantly understated as follows: DATE REPORTED AMOUNT REPORTED ACTUAL AMOUNT AMOUNT UNDERSTATED 12/84 $90,117.02 $415,054.48 $324,937.46 9/84 $107,792.25 $446,224.48 $348,400.50 6/30/84 $86,378.35 $454,206.15 $367,827.80 5/31/84 $85,003.54 $492,721.49 $407,717.95 4/30/84 $80,538.85 $477,767.97 $397,299.12 The June 30, 1984, Report of Condition of the Credit Union to the Department understated loans delinquent over sixty days by $367,827. Loans past due two months and over as of April 30, 1985, Report of Examination, totaled $520,600. Of this amount $348,700 were classified by the examiner as loss and $57,400 doubtful of collection. The earned net worth of the Credit Union, as of the date of the examination, was 3.8 percent of total assets. Earned net worth, adjusted for loans classified loss and 50.0 percent of loans classified doubtful of collection, was 1.4 percent of total assets. Essentially, the loans classified loss and doubtful of collection are those that were not reported by Davis. By his response to Requests for Admissions and by his letter of resignation, Davis has acknowledged that he knowingly reported the false delinquent loan information. The understatement of delinquent loans as it relates to an inflation of earned net worth could seriously prejudice the interests of the depositors, members or shareholders of the Credit Union in that inflation of earned net worth impacts on future lending policies and declaration of dividends. The Complaint seeking formal removal of Respondent as a director and officer of Florida Food Industry Credit Union was dated and served on August 29, 1985. At the time the Department of Banking and Finance issued and served the Complaint instituting these proceedings, Respondent was not an officer, director, committee member or employee of Florida Food Industry Credit Union or of any other financial institution in the State of Florida, having resigned on May 31, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a Final Order finding Respondent, Thomas E. Davis, guilty of violating Sections 655.037(1)(a) and (g), Florida Statutes, and prohibiting his participation in the affairs of any financial institution for a period of three years from May 31, 1985. DONE and ENTERED this 19th day of February, 1986, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of February, 1986. COPIES FURNISHED: Rodney C. Wade, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 Thomas E. Davis 1775 N. Andrews Avenue, 204W Fort Lauderdale, Florida 33311 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 Charles Stutts General Counsel Office of the Comptroller Plaza Level, The Capitol Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed. findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Adopted in substance in Finding of Fact 3. Adopted in substance in Findings of Fact 2 and 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Rulings on Proposed Findings of Fact of Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 3.
The Issue Whether Respondent, Debruyn Produce Co. owes Petitioner, Florida Farm Management Inc. the sum of $4,846.00 for watermelons shipped by Petitioner and handled by Respondent as Petitioner's agent during the period from May 30, 1989 through July 5, 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant fact are found: At all times material to this proceeding, Petitioner, Florida Farm Management, Inc. was a "producer" of agricultural products in the state of Florida as that term is defined in Section 605.15(5), Florida Statutes. At all times material to this proceeding, Respondent, Debruyn Produce Co. was a licensed "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes. Respondent was issued license number 596 by the Department, and bonded by Peerless Insurance Company (Peerless) for the sum of $47,000.00, bond number R2-27-13, with an effective date of November 13, 1988 and a termination date of November 13, 1989. At all times material to this proceeding, Debruyn was authorized to do business in the state of Florida. Around the last week of April, 1989, Petitioner and Respondent orally agreed, among other things, for Petitioner to produce certain quantities of Mickey Lee Watermelons and for Respondent to market those watermelons. This oral agreement was reduced to writing, executed by the Respondent and sent to Petitioner to execute. Petitioner, after making certain changes in the agreement and initialing those changes, executed the agreement and returned it to the Respondent. It is not clear if Respondent agreed to the change since they were not initialed by Respondent. However, the parties appeared to operate under this agreement as modified by Petitioner. Under the agreement, Respondent was to advance monies for harvesting and packing, furnish containers and labels for packing and agreed to pay certain chemical bills. Petitioner was to reimburse any monies advanced by the Respondent for (a) harvesting or packing; (b) containers and labels and; (c) chemicals, from the proceeds of the sale of watermelons. Any balance owed Petitioner for watermelons was to be paid within 30 days. Additionally, Respondent was to receive a commission of 8% of net FOB, except 30 cent maximum on sales of less than $6.25 per carton and 40 cents per carton for melons delivered on contract to National Grocers Co. The relationship of the parties was to be that of producer and sales agent. Before entering into the agreement with Respondent, Petitioner had agreed to furnish National Grocers Co. four shipments of melons totalling 8,000 cartons. Respondent agreed to service that agreement. Although Petitioner's accounts receivable ledger shows a credit of $6,007.13 for chemicals paid for by Respondent, the parties agreed that only $3,684.68 was expended by Respondent for chemicals and that Respondent should receive credit for that amount. The parties agree that Respondent advanced a total of $18,960.00 for harvesting and packing and the Respondent should be given credit for this amount. The parties agree that Respondent paid to Petitioner the sum of $12,439.32 and the Respondent should be given credit for this amount. Cartons and pads for packing the melons were shipped on two occasions and the total sum paid by Respondent for those cartons and pads was $17,225.00. The cartons were printed with the logo of Respondent on one side and the logo of Petitioner on the other side. Petitioner agrees that the number of cartons and pads used by him came to $12,463.78 and the Respondent should be given credit for that amount. All cartons and pads in the sum of $17,255.00 were delivered to Petitioner's farm. The amount in dispute for the remainder of the carton is $4,762.22. The Respondent was responsible under the agreement to furnish cartons and pads (containers). Respondent ordered the cartons and pads after determining from Petitioner the number needed. There were two orders for cartons and pads placed and delivered. There was an over supply of cartons and pads delivered to Petitioner. This over supply was the result of a miscommunication between Petitioner and Respondent as to the amount of cartons and pads needed. Petitioner agrees that all of the cartons and pads were delivered to his farm but that he was unable to protect these cartons and pads from the weather. However, Petitioner advised Respondent that the remainder of the carton and pads could be picked up at his farm. Respondent contended that he was denied access to the farm and was unable to pick up the remainder of the cartons and pads and, therefore, they were ruined by exposure to the weather. While there may have been times when Respondent attempted to retrieve the carton and Petitioner was unavailable, there is insufficient evidence to show that Respondent was intentionally denied access to Petitioner's farm to retrieve the cartons. Clearly, the ordering, purchasing and storing of the cartons and pads was a joint effort and both Petitioner and Respondent bear that responsibility. Therefore, the Petitioner is responsible for one-half of the difference between the total cost of the cartons ($17,225.00) and the amount used by Petitioner ($12,462.78) which is $2,381.11 and Respondent should be given credit for this amount. Petitioner's accounts receivable ledger shows that Petitioner shipped melons to Respondent in the amount of $54,715.63, after adjustments for complaints and commission. Respondent's accounts payable ledger shows receiving melons from Petitioner in the amount of $51,483.00, after adjustments for complaints and commission. The difference in the two ledgers in the amount of is accounted for as follows: Invoice No. 210066 - Customer paid $2.00 per carton less on 93 cartons, Petitioner agreed to the reduction. However, Petitioner's account is in error by 9 cents which reduces total amount to $54,715.54. Invoice No. 210067 - Respondent paid for more melons than Petitioner shows were shipped - $39.60. Invoice No. 210068 - difference in calculation of commission $13.32 Invoice No. 2100105 - difference due to Petitioner not agreeing to adjustment in price taken by customer. $2,886.00 Invoice No. 2100239 - difference of $108.04 due to Respondent allowing customer adjustment which Petitioner did not agree to. Invoice No. 2100267 - difference of $210.00 for same reason stated in (e) above. Petitioner should be allowed the difference due to miscalculation of commission in invoice Nos. 210068, 2100134 and 2100160 in the sum of $68.10 since Petitioner's calculation was in accordance with the agreement. There was no dispute as to the condition of melons being as contracted for upon receipt. There was insufficient evidence to establish that the melons shipped under invoice Nos. 2100105, 2100239 and 2100267 by Petitioner were not of the size and number contracted for by the customer. As to invoice Nos. 2100239 and 2100267, the adjustments were made after the fact without contacting Petitioner. As to invoice No. 2100105, the Petitioner shipped the melons to Russo Farms, Inc., Vineland, N.J., as per Respondent's order who then unloaded the melons and reloaded on Russo's truck and shipped to another buyer. It was this buyer's complaint that resulted in Russo demanding an adjustment. Respondent granted such adjustment without approval of the Petitioner. Although Respondent did contact Petitioner in regard to this complaint, Petitioner would not authorize a federal inspection, which he could have, but instead, requested that Respondent obtain an independent verification of the basis of the complaint. Instead of an independent verification of the complaint, Respondent had Russo evaluate the load as to size of melons and number of boxes. No complaint was made as to condition of the melons. Petitioner would not accept Russo's evaluation because based on the total weight of the melons shipped, as indicated by the freight invoice, Russo's evaluation could not have been correct. The only evidence presented by Respondent as to size and number of melon in regard to invoice Nos. 2100105, 2100239 and 2100267 was hearsay unsupported by any substantial competent evidence. Petitioner should be allowed the difference in invoice Nos. 2100105, 2100239 and 2100267 for a sum total of $3,204.00. No adjustment should be made for the differences in invoice No. 210067 other than the 9 cent error made by Petitioner because this amount is not used in Petitioner's calculation of the gross amount due for melons shipped. Therefore, the sum total of all melons sold and shipped is $54,715.63 - 0.09 = $54,715.54. The amount due Petitioner is calculated as follows: Sum total of melons shipped with proper adjustments $54,715.54 Subtract from that the following: Chemicals 3,684.68 Advances 18,960.00 Cost of Cartons $12,462.78 + 2,381.11 14,773.89 Payment 12,439.32 Subtotal of Deductions 49,857.89 Difference and amount owed $4,857.65
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent Debruyn Produce Company, Inc. be ordered to pay the Petitioner Florida Farm Management, Inc. the sum of $4,857.65. It is further RECOMMENDED that if Respondent Debruyn Produce Company, Inc. fails to timely pay Petitioner, Florida Farm Management, Inc. as ordered, the Respondent, Peerless Insurance Company be ordered to pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse the Petitioners in accordance with Section 604.21, Florida Statutes. DONE and ORDERED this 23rd day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE 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 23rd day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner. 1. Not a finding of fact but the issue in this case. 2.-3. Adopted in findings of fact 2 and 4. Adopted in finding of fact 8. Adopted in finding of fact 4. First sentence adopted in finding of fact 7. The balance is not material but see findings of fact 16-23. Not material but see findings of fact 16-23. Rejected as not being supported by substantial competent evidence in the record but see findings of fact 9-14. Adopted but modified in findings of fact 21 and 22. 10(A), 10(C)(1), 10(E), and 10(F) adopted in finding of fact 24. 10(C)(2)(3), 10(d) rejected as not being supported by substantial competent evidence in the record. See findings of fact 5, ,7, 9 - 15. Rulings on Proposed Findings of Fact Submitted by Respondent. 1.-7. Adopted in findings of fact 2, 1, 4, 4, 4, 6, and 7 respectively as modified. Not material. This involved invoice Nos. 210066 and 210067 and adjustment were agreed to be Petitioner and is not part of this dispute. See Petitioner's accounts receivable ledger, Petitioner's Exhibit 1. Adopted in finding of fact 21 as modified. Rejected as not being supported by substantial competent evidence in the record. Not material. This involved invoice No. 2100160 and adjustments were granted by Petitioner and is not part of this dispute. See Petitioner's Exhibit 1. 12.-13.Adopted in finding of fact 21 as modified. Adopted in finding of fact 5, and 9-15 as clarified. Rejected as not supported by substantial competent evidence in the record but see findings of fact 9-15. Adopted in finding of fact 13 as clarified. Adopted in finding of fact 23 as clarified but see findings of fact 9-22.
The Issue The issue is whether Boyer Produce, Inc. and its surety, Southern Farm Bureau Casualty Insurance Company, owe petitioner $1,751.80 as alleged in the complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In July 1993, petitioner, Patricia Thomas, was given authority by her brother to sell all remaining watermelons on his farm located in Citra, Florida. This amounted to approximately one truckload. She eventually sold them to respondent, Boyer Produce, Inc., a dealer (broker) in agricultural products located in Williston, Florida. Its owner and president is Kennedy Boyer (Boyer), who represented his firm in this proceeding. As an agricultural dealer, respondent is required to obtain a license from and post a surety bond with the Department of Agriculture and Consumer Services (Department). In this case, the bond has been posted by respondent, Southern Farm Bureau Casualty Insurance Company, and is in the amount of $75,000.00. Although the parties had never had business dealings before this transaction, through a mutual acquaintance, Randy Rowe, respondent learned that petitioner was interested in selling her watermelons. After Boyer visited the field and examined three watermelons which he described as "good," Boyer offered to purchase a truckload for 4 per pound if all melons were of the same quality. Thomas declined and counteroffered with a price of 5 per pound. The parties then agreed to split the difference and arrived at a sales price of 4 per pound. During the negotiations, Rowe acted as an intermediary between the parties and observed the formation of the contract as well as the loading of the goods onto the truck. Although the matter is in dispute, it is found that both parties agreed that Thomas would be paid 4 per pound for "good" watermelons delivered. This meant that petitioner would not be paid unless and until the watermelons were delivered to their final destination in "good" condition. In the trade, being in "good condition" meant that the watermelons would meet U. S. Grade No. 1 standards. Respondent also agreed to provide a truck and driver at petitioner's field and to transport the produce to Brooklyn, New York, the final destination. At the same time, petitioner was given the responsibility of loading the watermelons on the truck. To assist petitioner in meeting her up- front labor costs, respondent advanced $500.00 as partial payment for the shipment. Winston Smith was hired by respondent to transport the melons to New York. He arrived at petitioner's field on Saturday, July 16, 1993, and remained there while approximately 46,000 pounds of melons were loaded on an open top flat bed trailer. One of the loaders said the melons were "packed real tight," and four bales of straw were used in packing. According to Rowe, who observed the loading, the watermelons packed that day were in "good" condition, and any nonconforming watermelons were "kicked" off the truck. Also, by way of admission, the driver, as agent for Boyer, acknowledged to Rowe that the melons loaded were in "good" condition. Late that afternoon, a thunderstorm came through the area and, due to lightening, no further loading could be performed. Since around 46,000 pounds had already been loaded, petitioner desired for the truck to be sent on its way north. Smith, however, told petitioner he wanted 50,000 pounds in order to make his trip to New York worthwhile and he would not go with anything less. Acceding to his wishes, petitioner agreed to meet Smith the next morning and load an additional two hundred watermelons, or 4,000 pounds, on the truck. Smith then drove the loaded truck to a nearby motel where he spent the night. That evening it rained, and this resulted in the uncovered watermelons and straw getting wet. The next morning, Smith telephoned petitioner and advised her to meet him at 9:00 a. m. at a local Starvin' Marvin store, which had a weight scale that could certify the weight of the shipment. Petitioner carried two hundred watermelons to the store at 9:00 a. m., but Smith did not arrive. Around noon, she received a call from Smith advising that his truck was broken down at the motel and would not start. The watermelons were then taken to the motel and loaded onto the trailer. In all, 50,040 pounds were loaded. Smith's truck would still not start after the watermelons were loaded, and Smith refused to spend any money out of his own pocket to repair the truck. Not wanting to delay the shipment any longer, petitioner gave Smith $35.00 to have someone assist him in starting the vehicle. In order for the repairs to be made, the loaded trailer had to be jacked up and the truck unhooked from and later rehooked to the trailer. This was accomplished only with great difficulty, and Smith was forced to "jostle" the trailer with the power unit for some two hours altogether. According to Rowe, he warned Smith that such jostling could bruise the melons and "mess them up." Smith was also cautioned early on that he should make the necessary repairs as soon as possible so that the load of watermelons would not continue to sit uncovered in the sun. The truck eventually departed around 9:00 p. m., Sunday evening after the uncovered trailer had sat in the sun all day. The shipment was delivered to Brooklyn on the following Tuesday afternoon or evening, and it was inspected by a government inspector on Wednesday morning. According to the inspection report, which has been received in evidence, the load was split evenly between crimson and jubilee melons, and 23 percent and 21 percent, respectively, of the two types of melons failed to meet grade. No greater than a 12 percent "margin" is allowed on government inspections. Almost all of the defects cited in the report were attributable to the melons being "over-ripe." The buyer in New York rejected the entire shipment as not meeting standards. Respondent then sold the shipment for only $1350.00 resulting in a loss of $350.00 on the transaction. In addition, respondent says the driver (Smith) accepted $1200.00 instead of the $2,000.00 he would have normally charged to transport a load to New York. When petitioner asked for her money a few weeks later, respondent declined, saying the goods had not met specification when delivered to their destination, and if she had any remedy at all, it was against Smith, the driver. If petitioner had been paid 4 per pound for the entire shipment, she would have been entitled to an additional $1,751.80, or a total of $2,251.80. Petitioner contends that the melons failed to meet grade because of the negligence of the driver. More specifically, she says the loaded melons sat in the sun for almost two days, including all day Sunday after being soaked from the Saturday evening rain. If wet melons are exposed to the hot sun for any length of time, they run the risk of "wet burning," which causes decay. But even if this occurred, only 1 percent of the shipment was found to have "decay" by the government inspector. Petitioner also says that by being jostled for two hours on Sunday, the melons were bruised. Again, however, the melons were rejected primarily because they were over-ripe, not bruised. Therefore, and consistent with the findings in the inspection report, it is found that the jostling and wet burning did not have a material impact on the quality of the melons. Respondent contended the melons were close to being fully ripened when they were picked and loaded. In this regard, Charles Strange, Sr. agreed that if the melons sat in the field for another four or five days, they would have started "going bad." By this, it may be reasonably inferred that, unless the melons were loaded and delivered in a timely manner, they would have become over-ripe and would not meet grade within a matter of days. Therefore, a timely delivery of the melons was extremely important, and to the extent respondent's agent, Smith, experienced at least a twenty-four hour delay in delivering the melons through no fault of petitioner, this contributed in part to their failure to meet grade. Petitioner is accordingly entitled to some additional compensation, a fair allocation of which is one-half of the value of the shipment, or $1125.90, less the $500.00 already paid.
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 $625.90 within thirty days from date of the agency's final order. In the event such payment is not timely made, the surety should be liable for such payment. DONE AND ENTERED this 2nd day of December, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 2nd day of December, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Chief Bureau of Licensing & Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Richard A. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810 Southern Farm Bureau Casualty Insurance Company Post Office Box 1985 Jackson, Mississippi 39215-1985 Patricia Thomas Post Office Box 522 Archer, Florida 32618 Kennedy Boyer 15A South West 2nd Avenue Williston, Florida 32696
