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 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 issue in this case is whether Petitioners sold nursery plant materials to Respondent U.S. Lawns of Orlando, Inc. for which the latter did not pay.
Findings Of Fact On May 24, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 460 Juniper plants, for $731.40 including tax. The plants were picked up by U.S. Lawns employee Mark Rosetta. U.S. Lawns of Orlando, Inc. does not dispute the validity of the claim arising out of the May 24 sale. However, U.S. Lawns has never paid for these plant materials. On June 6, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 40 Juniper plants and 50 grass plants for $166.95 including tax. These plants were picked up by Jeffrey Miller, who was an employee of U.S. Lawns. U.S. Lawns disputes the validity of the June 6 sale. However, the owner of U.S. Lawns, Glen Jaffee, never responded to numerous telephone calls from Pen Smith of Jon's Nursery, Inc. concerning the unpaid invoices. Nor did anyone respond to a certified demand letter that Mr. Smith mailed to U.S. Lawns on August 29, 1990, or the numerous monthly statements reflecting the unpaid balances. An officer and employee of U.S. Lawns of Orlando, Inc., Pat Oyler, had ordered the plant materials by telephone from Jon's Nursery, Inc. Mr. Oyler had previously ordered plant materials on behalf of U.S. Lawns from Jon's Nursery, which had always been paid. On two occasions subsequent to the sales in question, Mr. Oyler ordered plant materials from Jon's Nursery, Inc. on behalf of U.S. Lawns, but paid for them with his personal check, and Mr. Smith told him that he would need, in such cases, to order the plants in his name. On May 31, 1990, Concepts in Greenery, Inc. sold U.S. Lawns ten 15-gallon crepe myrtles for $318 including tax. These items were picked up by Jeffrey Miller driving a U.S. Lawns truck. These plant materials had been ordered by Mr. Oyler of U.S. Lawns. Concepts in Greenery, Inc. had also previously done business with U.S. Lawns and been paid. In a sale which had taken place on March 25, 1990, Mr Oyler had ordered about $400 worth of plant materials on behalf of U.S. Lawns. Additionally, in its application for credit with Concepts in Greenery, Inc. dated April 11, 1988, Mr. Jaffee, as president of U.S. Lawns of Orlando, Inc., had certified that Mr. Oyler was vice president of U.S. Lawns of Orlando, Inc. Repeated telephone calls and monthly statements from Concepts in Greenery, Inc. to U.S. Lawns of Orlando, Inc., as well as a certified letter dated September 19, 1990, to Mr. Jaffee, were unsuccessful in obtaining any response whatsoever from the latter company. Spring Hill Nursery, Inc. made several sales of a variety of plant materials to U S. Lawns of Orlando, Inc. Including tax, these sales were as follows: March 13, 1990, for $131.18; March 26, 1990, for $544.05; April 5, 1990, for $12.24; April 6, 1990, for $90.10; April 17, 1990, for $593.60; April 18, 1990, for $55.65; and April 27, 1990, for $92.75. An eighth invoice dated June 4, 1990, for $581.15 has been excluded because it bears the names of Oyler Construction Company, Inc., Bentley Green, and Pat Oyler as the persons invoiced and nowhere mentions U.S. Lawns. The total of the seven sales to U.S. Lawns is $1519.57. Spring Hill Nursery, Inc. repeatedly tried to contact Mr. Jaffee and U.S. Lawns, including by letter dated August 27, 1990, but never received any response to its demand for payment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring U.S. Lawns of Orlando, Inc. to pay the above-indicated sums to the respective parties. DONE AND ENTERED this 9th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1991. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel Department of Agriculture 515 Mayo Building Tallahassee, FL 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Pen Smith, Sales Manager Jon's Nursery, Inc. 24546 Nursery Way Eustis, FL 32726 Charles Brown, Nursery Manager Concepts in Greenery, Inc. 16366 Old Cheney Highway Orlando, FL 32833 David Rubright, President Spring Hill Nursery, Inc. 1921 Hill Drive Apopka, FL 32703 Glen Jaffee 612 Bryn Mawr Orlando, FL 32804 Bankers Insurance Company 10051 5th Street North St. Petersburg, FL 33702
Findings Of Fact Respondent is a dealer in agricultural products and is licensed by the Department of Agriculture and Consumer Services, under Sections 604.15-604.34, Florida Statutes. On January 8, 1988, Jerome Allison, a truck driver employed by Respondent, picked up 47 pigeon plum trees from Petitioner's yard in Miami. Petitioner sold these trees to Respondent for the price of $90 per tree, or $4230, for a total of $4441.50 including tax. Mr. Allison delivered a check to Petitioner in the amount of $1057.50, leaving a balance of $3384. Respondent had not specified to Petitioner that the trees be of any particular grade. Petitioner did not sell the trees by reference to grade and guaranteed only that the trees were true to their name and were in good healthy condition. Petitioner brought the trees to the trailer for loading. Two of Petitioner's employees drove a tractor which carried the trees two at a time. In the course of loading, Petitioner's employees allowed the trees to rub together, damaging the bark of many of the trees. Mr. Allison tried unsuccessfully to alert one of Petitioner's managers to the problem, but was unable to find anyone in the office. Mr. Allison's warning to one of the tractor operators was ignored. Mr. Allison's illiteracy prevented him from noting this damage on the sales order that he signed acknowledging receipt of the trees. Upon receipt of the trees at the Key West jobsite, Respondent's president, Alberto Ribas, who was director of the project for which the trees had been purchased, noticed the damage, but decided to plant the trees anyway. Respondent pruned the trees in order to repair as much of the damage as possible. Following the delivery of the trees, the first contact between Petitioner and Respondent took place on February 15, 1988, when Keith Weyrich, general manager of Petitioner, called Mr. Ribas and asked when Petitioner was going to be paid. Mr. Ribas informed Mr. Weyrich that there had been a problem with the trees. Shortly prior to this conversation, a representative of the Florida Department of Transportation, which was Respondent's customer on the subject project, informed Mr. Ribas that they were rejecting all of the pigeon plum trees due to their poor quality. In early May, 1988, the representative of the Florida Department of Transportation announced its final decision. It rejected 23 trees and accepted seven trees. The remaining 17 trees were reclassified from Florida No. 1, which was evidently specified in the contract between Respondent and the Florida Department of Transportation, to Florida No. 2, which is a lower quality. Of the 47 trees delivered to Respondent, 24 were good healthy trees and 23 were not.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring Respondent to pay Petitioner the sum of $1210.50. DONE and RECOMMENDED this 5th day of October, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 5th day of October, 1988. APPENDIX Treatment Accorded Respondent's Proposed Findings 1-3 and 12. Adopted. 4. Adopted in substance, although not all trees were significantly damaged. 5 and 8-9. Adopted in substance. 6. Rejected as repetitious. 7 and 11. Rejected as against the greater weight of the evidence. Paragraph 7 also rejected as irrelevant to the extent that Respondent gave Petitioner the chance to remove the trees after they were planted. 10. Rejected as irrelevant. Treatment Accorded Petitioner's Proposed Findings and 12. Rejected as irrelevant. and 7. Adopted. 3-5. Adopted in substance. 6. Rejected as legal conclusion and against the greater weight of the evidence. 8. Rejected as repetitious. 9-10. Rejected as legal conclusion. 11. Rejected as against the greater weight of the evidence. COPIES FURNISHED: Keith Stuart Weyrich General Manager Quail Roost Nursery, Inc. 15100 Quail Roost Drive Miami, Florida 33187 Emilia Diaz-Fox, Esquire Courthouse Tower 44 West Flagler Street Suite 350 Miami, Florida 33130 (Post-Hearing for Petitioner) Stuart H. Sobel, Esquire Sobel & Sobel, P.A. Penthouse 155 South Miami Avenue Miami, Florida 33130 United States Fidelity & Guaranty Company Post Office Box 14143 Tampa, Florida 33623 Clinton H. Coulter, Jr., Esquire Department of Agriculture & Consumer Services Mayo Building Ben Pridgeon Bureau of License & Bond Mayo Building Tallahassee, Florida 32399 Robert Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32399-0810 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810
Findings Of Fact Petitioner, Hillside Sod Farms, Inc., is a producer of agricultural products, grass sod. Respondent, S. J . Harper Landscaping Enterprises, Inc., is a dealer of such products in the normal course of its landscaping business activity. Petitioner generally deals on a cash basis with customers, unless the customer is licensed by the Department of Agriculture and Consumer Services for the sale of agricultural products. Customers who are licensed may maintain an open account status with Petitioner. Respondent is licensed by the Department. The Respondent has maintained an open account with Petitioner since 1986. Petitioner sold Respondent grass sod by the truck load for various projects, and was given an invoice therefor. Under the terms of the account, payment was due in full the week following receipt of the sod. On November 21, 1988, including invoice number 12284, Respondent's account balance was $2,098.80. On November 25, 1988, the account balance was $3,129.12. On December 12, 1988, Respondent paid on the account the sum of $2,594.88, leaving a balance due, owing and unpaid of $534.24. Respondent's alleged that in early November, 1988 several trucks loads that were accepted by Respondent were short of sod by approximately eight pallets (each pallet contains 400 square feet of sod) Simon J. Harper, Respondent'S president, reported this fact to Petitioner's foreman, Larry Poole, at night after the work day. He did not reject the trucks with the lesser amount of sod on them, but accepted them. Respondent did not file a complaint or objection to the billing, verbally or in writing, to an officer in the Petitioner's company, although he had dealt with the company for years. Respondent estimated the amount of sod it believed they had been shorted and sent a check for the unpaid balance, less the charges for shorted sod. The amount withheld was the sum of $534.24.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $534.24. DONE AND ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 31st day of January, 1990. COPIES FURNISHED: Avery P. Wisdom Vice President Hillside Sod Farms, Inc. 1620 East State Road 46 Geneva, FL 32732 Simon J. Harper President S. J. Harper Landscaping Enterprises, Inc. 205 Zenith Point Geneva, FL 32732 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Ben H. Pridgeon, Jr. Chief Bureau of License and Bond Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32399-0810 Mallory Horne General Counsel 515 Mayo Building Tallahassee, FL 32399-0800
Findings Of Fact Suncoast Highland Corp. (Suncoast), is the developer and registrant of Shadow Run Subdivision in Hillsborough County. Prior to 1970, Suncoast was known as Suncoast Peach Corporation. C. Thomas Petersen, Peter Lenhardt, and two other individuals formed Suncoast Peach Corporation in 1964. In 1974 Suncoast registered Unit 1 of Shadow Run with the Division of Land Sales (Division). At that time Suncoast's principals were C. Thomas Petersen, President and Director, and Peter M. Lenhardt, Vice President, Director, and in charge of marketing. As a charter stockholder and owner of 166,000 shares (26-2/3 percent of ownership), Lenhardt filed an affidavit stating he devoted 100 percent of his time five days per week to Suncoast's business affairs. Lenhardt was (and presumably still is) a registered real estate broker and was in charge of sales in Shadow Run. In 1977 Suncoast registered Unit 2 (consolidated with Unit 1) with the Division. At this time Petersen and Lenhardt alleged each owned 13.5 percent of Suncoast and Lenhardt again filed an affidavit stating he devoted 100 percent of his time to Suncoast's business affairs and was in charge of sales in Shadow Run. In the Annual Report filed November 13, 1978, Lenhardt executed an affidavit representing himself to be Suncoast's principal officer in connection with this filing. This report included financial and inventory data for Shadow Run, Units 1 and 2, as well as 16 other registered subdivisions. At this time Petitioner and Lenhardt represented they each owned 38 percent of Suncoast (Exhibit 1E). On January 30, 1979, Lenhardt filed, under oath, renewal applications for Shadow Run, Units 1 and 2. This application (Exhibit 1F) showed out of 277 lots registered in Unit 1, 227 had been deeded and 50 remained to be sold. In Unit 2 out of 89 registered lots, 76 had been deeded and only 13 remained unsold. In August 1978 the Division began receiving complaints from Shadow Run homeowners concerning assessments, placing of utilities, and lack of promised recreational facilities. After meeting with the homeowners association and representatives of Suncoast, the Division issued a Notice to Show Cause against Suncoast. For several months thereafter representatives of the Division, Suncoast, and the homeowners association attempted to resolve the complaints. On April 19, 1979, C. Thomas Petersen, President, and Thomas Coates, Secretary, of Suncoast executed a stipulation in which, inter alia, further sales would remain suspended pending submission of all promotional and advertising materials to the Division, Suncoast would enter into an agreement concerning recreational facilities to be furnished by Suncoast, and Suncoast would pay a $7,500 civil penalty to the Division (Exhibit 1G). On December 10, 1979, Suncoast executed an agreement (Exhibit 1H) whereby it agreed, among other things, to install a concrete boat ramp no longer than 20 feet extending not more than two feet into Lake Grady on Lot 14, Block 1, Shadow Run, Unit 1, and convey legal title of the boat ramp area to the association; and, in conjunction with the boat ramp, provide a parking area 96 feet wide abutting on Shadow Run Boulevard at Lot 14, Unit 1, Shadow Run Subdivision, running from Shadow Run Boulevard to the water. This agreement was not recorded. No evidence was submitted when, or if, Lenhardt disposed of his ownership interest in Suncoast and Timber Oaks and terminated his management role in those companies. Lenhardt was listed as Secretary/Treasurer of Suncoast in the annual corporate report for 1980. His name on the 1981 annual corporate report for Suncoast was lined out and Linda Burr's name was added as Secretary. Lenhardt's name does not appear on subsequent reports. Timber Oaks, Inc., was incorporated February 11, 1980, with C. Thomas Petersen as President, Peter M. Lenhardt as Vice President, and Linda Burr as Secretary (Exhibit 3). On the 1981 annual corporate report Lenhardt's name was lined out and Linda Burr's name was added as Secretary. Coppice-Boden, Inc., was incorporated August 28, 1980, with Peter Lenhardt as President, Helen K. Lenhardt as Vice President, and Delores Hamm as Secretary. Hamm's name was deleted from the 1982 annual corporate report and both Lenhardts continued to be listed through the 1984 annual corporate report. No evidence was submitted showing transfer of the property which included Lot 14, Unit 1, Shadow Run Subdivision 1, from Suncoast to Timber Oaks, Inc.; however, by warranty deed dated October 29, 1982, Timber Oaks, Inc., conveyed property which specifically included Lot 14, Unit 1, Shadow Run Subdivision 1, to Coppice-Boden Corp., for a stated consideration of $340,000 (Exhibit 5). On November 11, 1982, Coppice-Boden, Inc., mortgaged the property which included Lot 14, Block 1, Unit 1, Shadow Run Subdivision, to G. G. Moore to secure a note in the amount of $72,031.63. The Special Warranty Deed dated February 29, 1980 (Exhibit 8) whereby Community Banks of Pinellas conveyed certain property to Timber Oaks, Inc., excluded Lots 1 through 22, inclusive, of Block 1, of Shadow Run, Unit 1.
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $39,167.58 for mangoes grown by Petitioner and picked and sold by Respondent southeast
Findings Of Fact Petitioner Marcus D. Alston d/b/a Alston Groves is a grower of mangoes in Goulds, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the mangoes, then takes them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the mangoes pays Southeast after receipt of the mangoes, Southeast ascertain's what prices were paid for the mangoes and then calculates its costs and pays the grower the difference. Between June 24 and August 9, 1988, Southeast sold 3,861.2 bushels of mangoes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's mangoes sold by Southeast. Petitioner disputes Southeast's calculations as to the price which Southeast received for the mangoes, the percentage of the mangoes sold by Southeast which "graded out" for sale, and the amount of picking and inspection fees charged by Southeast. Although Petitioner claims he had a verbal contract whereby Southeast agreed to pay him a flat rate of $20 per bushel minus picking charges, his Complaint seeks payment based on prices ranging from $6 to $20 per bushel which he also alleges were the market prices quoted to him by Southeast. At final hearing, Petitioner took the position that he is not seeking reimbursement of $20 per bushel but for only the lesser per bushel prices. No competent, substantial evidence was offered to prove that the prices Southeast received for the mangoes were higher than those reflected in Southeast's records. Petitioner claims that 100% of each picking was high quality, saleable fruit. No competent, substantial evidence was offered to justify Petitioner's selection of 100% for all pickings. The 100% figure selected by Petitioner allows for no differences in the amount of marketable mangoes from each picking, and there is no evidence to support the proposition that no matter when during the season the mangoes were picked exactly 100% of them were marketable as top grade mangoes. Further, during final hearing, Petitioner testified regarding his low cull rate, thereby admitting he knew that his mangoes were not 100% marketable. Although Southeast's records erroneously reflect inspection fees paid by Southeast to be deducted by Southeast from the sale price of the mangoes, no inspection fees were actually paid by Southeast, and Southeast has not deducted any inspection fees from Petitioner's account in calculating the net amounts to be paid to Petitioner by Southeast. The parties have stipulated that Southeast is not entitled to deduct picking fees for those batches of mangoes which Petitioner picked himself and delivered to Southeast. Southeast's records reflect that no picking fees were charged to Petitioner for the mangoes grown by Petitioner and sold by Southeast relating to 19 of the 48 tickets at issue in this proceeding. As to the mangoes reflected in 13 additional tickets, at the conclusion of the final hearing the parties requested and were afforded additional time to jointly review the actual picking tickets (not offered in evidence) for the name of the picker on each ticket to ascertain if the picker was a member of Petitioner's crew, thereby entitling Southeast to no picking fee, or a member of Southeast's crew, thereby entitling Southeast to collect a picking fee. The parties were to then file a statement regarding which additional batches of mangoes were picked by Petitioner's own employees. The parties have failed to do so, and Petitioner offered no evidence regarding this point on which a Finding of Fact can be made. Southeast's accounting sheet contains a column entitled "Net Actual" which sets forth the figures Southeast claims it owes Petitioner for the mangoes represented by each picking ticket. The total for that column equals $35,874.68, the total figure which Southeast claims it owes Petitioner. Southeast has paid Petitioner a total of $28,888.51 for his mangoes. Therefore, Southeast owes Petitioner the additional amount of $6,986.17.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Marcus D. Alston d/b/a Alston Groves in the amount of $6,986.17 and that such monies should be paid to him within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31 day of January, 1990. LINDA M. RIGOT 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 31 day of January, 1990. COPIES FURNISHED: Cliff Willis Florida Farm Bureau Mutual Insurance Company 1850 Old Dixie Highway Homestead, Florida 33033 Don Reynolds c/o Aaron Thomas, Inc. 11010 North Kendall Drive, Suite 200 Miami, Florida 33176 Marcus D. Alston Alston Groves 14100 Southwest 232nd Street Goulds, Florida 33110 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
Findings Of Fact Respondent Emerald Plaza West, Inc., holds license No. 23-12623-H, issued by petitioner. Miami Garden West Apartments consists of 31 or 38 (T. 79) apartments, in several buildings located on Northwest 183rd Street in Miami, Florida. Rogers Brown, who has worked as an inspector for petitioner for six years, visited Miami Garden West Apartments on April 29, 1981, to perform a "call back" inspection. He wanted to determine whether violations he had noted on a routine inspection on February 19, 1981, had been corrected. He found that a hot water faucet handle with stripped threads had not been replaced; that an old, tagless car remained in the complex's parking lot; and that a handrail leading to the second story of building No. 18259 had not been properly secured. It still needed welding. The eaves on buildings 18257 and 18259 were rotten; the laundry room lacked a door and the living room ceiling in apartment No. 3 in building No. 18259 leaked. In addition, Mr. Brown found on April 29, 1981, that certain conditions had persisted since June of the year before. The drop ceiling in apartment No. 4 continued to need repair; the ceiling in apartment No. 2 in the building at 2250 Northwest 183rd Street continued to leak; and roaches and evidence of rodents continued to be present. By September 3, 1981, the drop ceiling had been repaired and a new faucet handle had replaced the threadless one. The window in apartment No. 2 in the building at 2250 Northwest 183rd Street had been worked on, but the handrail in building No. 18259 still needed repair. Moisture remained on the ceilings of the southeast bedroom of apartment No. 4 in the building at 2250 Northwest 183rd Street and the living room of apartment No. 3 in building No. 18259, notwithstanding various roof repairs. The laundry room lacked not only a door but also a door frame. Respondent makes repairs from time to time and regularly exterminates the premises. Petitioner filed a proposed order which has been considered in the drafting of the foregoing findings of fact and substantially adopted, in substance. Proposed findings that have not been adopted have been rejected as inconsistent with or unsupported by the evidence or as irrelevant to the controversy.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty against respondent in the amount of $1,500. DONE AND ENTERED this 14th day of January, 1982, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1982. COPIES FURNISHED: Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Tomas F. Gamba, Esquire 779 Brickell Plaza, Suite 706 Miami, Florida 33131 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sherman S. Winn, Director Division of Hotels and Restaurants 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
