The Issue Whether, under the provisions of sections 604.15 - 604.34, Florida Statutes, Lester Towell Distributors, Inc., is entitled to recover $2,098 for agricultural products ordered by and delivered to VBJ Packing, Inc
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made. Lester Towell is a dealer in Florida-grown agricultural products. VBJ is a dealer in Florida-grown agricultural products. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of extra-large green bell peppers. Lester Towell delivered 200 boxes of such peppers to VBJ on May 23, 1995. To fill this order, Lester Towell purchased 63 boxes of peppers from producer Ott Farms, Inc., in Estero, Florida, and 137 boxes from producer Thomas Produce, in Boca Raton, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of yellow corn. Lester Towell delivered 100 boxes of such corn to VBJ on May 24, 1995. To fill this order, Lester Towell purchased 100 boxes of corn from producer Wilkinson-Cooper, in Belle Glade, Florida. Lester Towell did not act as agent for this producer; it purchased the products outright. On May 24, 1995, VBJ placed an order with Lester Towell to purchase a quantity of jalapeno peppers, white corn, and red radishes. Lester Towell delivered two boxes of jalapeno peppers, 26 boxes of white corn, and 20 boxes of red radishes to VBJ on May 25, 1995. To fill this order, Lester Towell purchased 2 boxes of jalapeno peppers from producer Ott Farms, Inc., in Estero, Florida, and 26 boxes of white corn and 20 boxes of red radishes from producer American Growers in Belle Glade, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. Lester Towell filed its complaint with the Department of Agriculture and Consumer Services ("Department") pursuant to the provisions of section 604.21(1), Florida Statutes, because VBJ did not pay for the products identified above. There is, however, no evidence to establish that Lester Towell was a producer or the agent or representative of a producer with respect to the products for which it seeks payment. It is, therefore, not a "person" entitled to file a complaint with the Department against VBJ and its surety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the complaint of Lester Towell Distributors, Inc. DONE AND ENTERED this 3nd day of July 1996 in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July 1996
Findings Of Fact Wayne and Suzanne Stewart, doing business as Circle S Farms, grow potatoes in East Palatka, Florida. On approximately March 1, 1991, Stewart entered into two contracts with J.P. Mach, Inc., for the sale of potatoes. The terms of the contracts related to potatoes to be shipped between April 28 and May 31, 1991. Stewart agreed to sell 30,000 CWT of Atlantic potatoes guaranteed to chip for $5.75 per CWT and to sell 10,000 CWT of Sebago potatoes 1 and 7/8 inches in diameter for $6.00 per CWT. Both contracts provided as follows: If through any act of God, labor disturbance, war or any other circumstances beyond the control of Seller or Buyer, the Seller or Buyer are prevented from full or partial performance of the terms of this agreement, it is agreed that such failure to perform shall be excused and shall not form the basis for any claim of damage or breach. As part of the overall arrangement between these parties, Mach provided seed potatoes to Stewart and Stewart was required to reimburse Mach for those seed potatoes. In early April, 1991, the financial institutions which had loans to Circle S Farms wanted to see signed contracts between Circle S and licensed and bonded dealers. Stewart found out that J.P. Mach, Inc., and J.P. Mach Agri- Marketing, Inc., were not licensed and bonded in Florida. When Stewart brought this up to Mach, Mach demanded payment for the seed potatoes in order to pay the bond. Stewart was unable to pay for the seed potatoes at that time, but he did eventually pay for some of the seed potatoes. While there was conflicting testimony about the amount of the seed potato bill which remains unpaid, the greater weight of the competent, substantial evidence establishes that Stewart owes Mach $31,943.13 for the seed potatoes. Mach finally was licensed and bonded in Florida on April 25, 1991, as J.P. Mach Agri-Marketing, Inc. Pursuant to a separate verbal agreement, Stewart sold potatoes to Mach between April 22 and 27, 1991, at the established market prices of $19.50 CWT for LaChippers and for Atlantics. Mach never paid Stewart for the following deliveries: (1 load of LaChippers and 3 loads of Atlantics, respectively) 4/23 45,540 lbs @$19.50 $8.880.30 4/26 47,420 lbs @$19.50 $9,246.90 4/27 44,340 lbs @$19.50 $8.646.30 4/27 43,880 lbs @$19.50 $8,556.60 TOTAL $35,330.10 On April 23, 1991, a devastating tornado, which brought high winds, rain and hail, struck East Palatka and inflicted major damage to the potato crop on Circle S Farms. The damage to the potato crop at Circle S included the complete destruction of the vines, the erosion of the soil from around the roots, the exposure of the potatoes, and the pitting, cracking and splitting of the potatoes. Stewart immediately harvested the potatoes that could be shipped and covered the roots and potatoes in the field. He did what could be done to save the vines and allow them to regrow. The potatoes shipped to Mach between April 23 and 28, 1991, were from these salvaged potatoes. Between April 23 and 30, 1991, Stewart and Mach renegotiated the contracts based on the severe damage to the potato crop. Finally, on April 30, 1991, they entered into a verbal modification of the contract for the Atlantic potatoes that involved shipments that had been shipped on April 28-30, 1991, at $19.00 CWT and 8 shipments of Atlantics at $12.00 CWT, with shipment of late potatoes and those that recovered from the damage in June, 1991, at the contract rate of $5.75 CWT. The contract for Sebagoes was not renegotiated because the Sebagoes had vascular rings and could not be salvaged for the making of potato chips. That contract became void based on the destruction of the Sebago crop by the storm. Mach was offered Sebagoes, but turned them down because they were not chipping quality. Stewart shipped the Atlantics at $12.00 CWT except that he did not have enough potatoes to completely fill the eighth truck. After the time that the contract for Atlantics was renegotiated, Stewart sold no Atlantic potatoes to any other dealer and he shipped to Mach all of the Atlantic potatoes he had. He fulfilled the renegotiated verbal contract to the extent possible in light of the act of God which had occurred. The following shipments of Atlantics were made pursuant to the renegotiated verbal contract: 4/30 47,580 lbs @19.00 CWT $9,040.20 4/30 44,360 lbs @19.00 CWT $8,428.40 4/30 46,400 lbs @19.00 CWT $8,816.00 4/30 43,340 lbs @19.00 CWT $8,234.60 4/30 46,060 lbs @19.00 CWT $8,751.40 4/30 47,740 lbs @12.00 CWT $5,728.80 5/1 45,000 lbs @12.00 CWT $5,400.00 5/1 48,280 lbs @12.00 CWT $5,793.60 5/1 45,670 lbs @12.00 CWT $5,480.40 5/2 48,780 lbs @12.00 CWT $5,853.60 5/6 49,080 lbs @12.00 CWT $5,889.60 5/6 40,780 lbs @12.00 CWT $4,893.60 TOTAL $82,310.20 Mach never paid for these potatoes. For the remainder of May, 1991, Stewart had only LaChipper potatoes available. He had no contract with Mach for LaChippers, so Stewart sold the LaChipper potatoes to another dealer. On June 2 and 3, 1991, Stewart shipped five loads of Atlantics to that same dealer. Stewart shipped his last three loads of potatoes, on June 4 and 5, 1991, to that same dealer, but none were Atlantics. Mach sent no trucks to Circle S Farms for loading after May 6, 1991. Stewart made calls to Mach regarding the late potatoes he had promised, but Mach did not return the calls. At no time during this period did Mach send a truck to Circle S Farms which was refused potatoes. By the third week of June, Stewart's crop had recovered and Circle S Farms was again producing for the market. Stewart offered these late potatoes to Mach, but Mach had already left Florida. Stewart sent a FAX to Mach in Wisconsin which stated "I thought you wanted my late potatoes?" Mach never replied. Stewart also sent an invoice for the potatoes which Mach had received, but for which he had never paid. Because Stewart believed that the renegotiated verbal contract with Mach promised Mach the late crop of Atlantic potatoes, Stewart left a forty acre field of late Atlantic potatoes in the field rather than harvest them and sell them to someone else. He believed that he needed to do so based on his discussion with Mach about his unpaid bill, during which Mach advised that he thought Stewart had breached his contracts. Mach made many allegations in defense of his failure to pay for these potatoes, however the credible evidence at hearing failed to support his claims that Stewart failed to fulfill his obligations under the contracts, original and renegotiated, that Stewart fraudulently breached the contracts, that Stewart intended to breach the contracts all along and used the tornado as an excuse, that the renegotiated contract required delivery of all varieties of potatoes to be applied to the contract or else the price of the delivered loads would revert back to the original contract price, or that Stewart owed to Mach any amount except for $31,943.13 for the seed potatoes. Mach made many outrageous allegations against Stewart, but did not present any credible evidence to support them. Mach failed to pay for $117,640.30 worth of potatoes which were delivered to him by Circle S Farms. Circle S Farms owes Mach $31,943.13 for seed potatoes. Therefore it is found that Mach owes Stewart and Circle S Farms $85,697.17.
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 and therein: Determine that J.P. Mach Agri-Marketing, Inc., is indebted to Wayne Stewart d/b/a Circle S Farms in the amount of $85,697.17. Order J.P. Mach Agri-Marketing, Inc., to pay the indebtedness to Wayne Stewart d/b/a Circle S. Farms within fifteen days after the entry of the Final Order. Order the payment of the bond of J.P. Mach Agri-Marketing, Inc., in the amount of $50,000 to Wayne Stewart d/b/a Circle S Farms if Mach fails to pay said indebtedness within the fifteen days allotted for said payment. DONE and ENTERED this 11th day of January, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 11th day of January, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3327A The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Wayne Stewart d/b/a Circle S Farms Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1); 4(7); 6(7); 8 & 9(10);10(14); 11(18); and 12(15 & 16). Proposed findings of fact 5 and 7 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, J.P. Mach Agri-Marketing, Inc. 1. The proposed findings of fact offered by Mach are contained in such long and rambling paragraphs that making of specific rulings is extremely difficult. Additionally, Mach has intermixed proposed findings of fact, summaries of testimony and argument so extensively that the actual proposed findings of fact cannot be separated. However, the proposed findings of fact are subordinate to the facts actually found in this Recommended Order, except for those proposed findings of fact which relate to the allegations discussed in Finding of Fact 17, which are rejected as being unsupported by the credible, competent and substantial evidence. COPIES FURNISHED: J. P. Mach J. P. Mach Agri-Marketing, Inc. Post Office Box 7 Plover, WI 54467 Wayne Stewart Circle S Farms Route 1, Box 60 East Palatka, FL 32131 Joyce D. Mahr, Asst. Manager First Performance Bank Post Office Box 306 Hastings, FL 32145 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue Whether Respondents are indebted to Petitioner for 106 boxes of beans sold by Petitioner to Respondent, G & B Produce Company, Inc. and, if so, the amount of the indebtedness.
Findings Of Fact On January 30, 1995, Mark A. Underwood, Vice President of the Petitioner, was contacted by telephone by Troy Bennett, an employee of the Respondent, G & B Produce Company, Inc. (G & B). Mr. Bennett wanted to purchase 150 boxes of beans. Mr. Underwood informed Mr. Bennett that the Petitioner had sold all of the beans it had grown, but that Petitioner could obtain beans from another grower. Thereafter, Suncoast Farms, a grower that is not a party to this proceeding, sold to Petitioner 106 boxes of beans, which Petitioner re-sold to G & B on February 1, 1995. There was no written contract between Petitioner and Suncoast or between Petitioner and G & B. Between February 1, 1995, and February 6, 1995, the beans were loaded onto one of G & B's trucks and transported to Houston, Texas. On February 6, 1995, the beans were inspected by a federal inspector in Houston, Texas. The inspector noted on his inspection report that the beans were "generally shriveled, flabby, watersoaked, or decayed". The use of the term "generally" by the inspector indicates that 90 percent or more of the beans were deficient. There is a notation on the inspection report that the beans would be dumped. On February 7, 1995, Mr. Underwood was told by G & B's employee about the inspection and was notified that the beans had been dumped. Mr. Underwood was sent by fax a copy of the inspection report. He was also provided a copy of the dump certificate. Petitioner was not consulted by G & B prior to the beans being dumped. 1/ Since there was no written contract between Petitioner and G & B and no verbal agreement as to how a failed inspection would be handled, Petitioner must rely on industry practices to support its contention that it is entitled to be compensated because G & B did not give it the opportunity to salvage the load of beans. Petitioner did not establish what the practices of the industry are when a load of produce fails to pass inspection. In addition, Petitioner did not establish that it was commercially reasonable to attempt to salvage the load of beans at issue in this proceeding. There was no evidence as to the salvage value of the beans and there was no evidence as to costs that would have been incurred in an attempt to salvage the beans.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services that adopts the findings of fact and conclusions contained herein and denies Petitioner's claim against Respondents. DONE AND ENTERED this 30th day of October 1995 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October 1995.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: In January, 1990, the Respondent filed an application for credit with the Petitioner. The terms and conditions of the credit application provided: "All written 'Terms and Conditions of Sale' on invoices, statements, contracts or other written agreements must be observed and performed as stated." Further, the application provided: Payment of all amounts due shall be made not later than 30 days from the billing date. Amounts in default will be subject to a SERVICE CHARGE of 1 1/2 % per month (18 % Per Annum) on the unpaid balance. Failure to make payment within terms will result in cancellation of credit. Following acceptance of that application, Respondent sought to purchase sod from Petitioner's LaBelle sod farm. Invoices issued by Petitioner to Respondent at the time of the delivery of the sod provided that the amounts owed would be payable upon receipt of invoice. Further, the printed invoice required the purchaser to make claims within 24 hours of delivery or pick up. The invoices reiterated the 18 percent service charge for past due accounts. From December, 1990, through January 17, 1991, Respondent purchased and accepted in excess of $45,000 worth of sod from the Petitioner. The invoices for those purchases are identified in this record as Petitioner's exhibit 2. From January 30, 1991 until March 4, 1991, Respondent purchased and accepted $4,664.00 worth of sod from the Petitioner. The invoices for those purchases are identified in the record as Petitioner's exhibit 3. In February, 1991, when the Petitioner became concerned about nonpayment for the amounts claimed, contact with the Respondent was made for the purpose of resolving the matter. When those efforts failed to secure payment, the Petitioner instituted action through the Department of Agriculture against the Respondent's bond. The Petitioner claimed $45,080.25 was due for the invoices prior to January 30, 1991. The Petitioner claimed $4,664.00 was owed for the invoices subsequent to January 30, 1991. Subsequent to its claims, Petitioner received payments from the Respondent in the following amounts: $5,000.00 on March 11, 1991; $5,000 on March 26, 1991; and $2,000.00 on April 30, 1991. Applying the total of those payments ($12,000) to the indebtedness on the first claim reduces that amount to $33,080.25. Prior to the claims being filed, Respondent had notified Petitioner that some sod deliveries had been unacceptable because of the quality of the sod or the amount. Respondent claimed the Petitioner had "shorted" the square footage amounts per pallet so that Respondent was being charged for a pallet that did not contain the requisite square footage of sod. On one occasion, in January, 1991, the Petitioner gave Respondent a credit in the amount of $1,173.75 for either refund on poor quality sod or a shortage. The Respondent continued to purchase sod from Petitioner until its credit was no longer accepted by Petitioner, i.e. March 4, 1991. Respondent did not, within 24 hours of receipt of sod, make a claim regarding the quality of the sod or the amount. By letter dated March 14, 1991, the Respondent, through its attorney, advised Petitioner as follows: St. Amour Sod Services, Inc., does not dispute the balance due to you as set forth in your letter and they will pay same in payments that are being determined now. For your information, the balance accrued because of the loss of several of our customers resulting from the poor quality of sod purchased from your firm. Respondent did not timely challenge the quality of the sod accepted, and did not present evidence regarding its alleged poor quality.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Agriculture and Consumer Services enter a final order finding that Respondent is indebted to Petitioner in the amounts of $33,080.25 and $4,664.00, with service charge to be computed through the date of the final order; directing Respondent to make payment of the amounts to Petitioner within 15 days following the issuance of the order; and, notifying all parties that if such payment is not timely made, the Department will seek recovery from Respondent's surety, Aetna Casualty and Surety Company. DONE and ENTERED this 13th day of March, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1992. APPENDIX TO CASE NOS. 91-6388A AND 91-6389A RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: 1. Paragraphs 1 through 4 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: Paragraph 1 is accepted. Paragraphs 2, 3, 4, 6, 7, and 8 are rejected as contrary to the weight of the credible evidence or unsupported by the record in this case. With regard to paragraph 5, that portion of the paragraph which states the amount of payments made by Respondent ($12,000) is accepted. Otherwise, rejected as stated in 2. above. COPIES FURNISHED: Barry L. Miller P.O. Box 1966 Orlando, FL 32802 Gary A. Ralph 2272 Airport Rd. South, Ste. 101 Naples, FL 33962 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel Dept. of Agriculture & Consumer Svcs. The Capitol, PL-10 Tallahassee, FL 32399-0810 Aetna Casualty & Surety Company Attn: Legal Dept. 151 Farmington Ave. Hartford, CT 06156
The Issue An administrative complaint dated January 24, 1991, alleges that Respondent violated Chapter 450, F.S., Part III, by acting as a farm labor contractor without an active certificate of registration and by contracting with an unregistered individual. The issue for disposition is whether those violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Gabriel Bain, the Respondent, has worked in citrus fields for 37 years. At various times he has been registered as a farm labor contractor. He had his own company, Mid-Florida Harvesting, but became bankrupt in 1990 after the citrus freeze disaster. Bain's business address is 30 South Ivey Lane, Orlando, Florida. On or about December 14, 1990, Compliance Officers, Henry Parker and Marshall Carroll were at Nevins Fruit Company in Mims, Brevard County, checking leads on unregistered farm labor contractors. In the course of an interview with Steve Schaffer, Harvest Manager for Nevins, Gabriel Bain was called in as the man who was in charge of the harvesting job. Bain identified himself to the officers with a driver's license and did not have his certificate of registration with him. Schaffer produced the certificate that Bain had submitted when he was hired by Nevins. The certificate was in the name of General Traders, Inc., and had an expiration date of February 28, 1991. "G. Bain" was handwritten on the signature line. During the meeting with Carroll and Parker, on December 14, 1990, Bain freely admitted hiring Jerome Pender as a sub-contractor. Pender was not registered as a farm labor contractor, but had shown Bain papers that he had applied for his certificate. Bain signed a notarized statement attesting to this fact and gave it to the compliance officers. The compliance officers issued a summary of violations to Bain for utilization of an unregistered crewleader. At the time, they were unaware that Bain was, himself, unregistered. Gabriel Bain's registration in the name of Mid-Florida Harvesting expired on June 30, 1990. His application, in the name of General Traders, Inc., was approved on March 1, 1991. In December 1990, he was working for General Traders but was not included in that company's registration. He was not registered in any other name in December 1990, and a subsequent summary of violations was issued, citing "fail to register." In December 1990, at the time of the compliance officers' investigation, Gabriel Bain was working for Nevins Fruit Company as a farm labor contractor and was paid for his work in that capacity. In this work he subcontracted with other labor contractors who provided crews. At the hearing Bain claimed that he lied to the compliance officers about hiring Jerome Pender. He claimed he lied because he had actually hired Willie Simmons, someone whom the Nevins people had told him they did not want "within 100 miles" of their groves. This self-impeachment in no way advances Respondent's averment of innocence.
Recommendation Based upon the foregoing, it is hereby recommended that a final order be entered, finding Gabriel Bain guilty of violating Sections 450.30(1), F.S. and 450.35, F.S., and assessing a civil fine of $1250.00 to be paid within thirty (30) days. RECOMMENDED this 22nd day of July, 1992, at Tallahassee, Florida. MARY W. CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1991. COPIES FURNISHED: Francisco Rivera, Sr. Atty. Department of Labor and Employment Security 2012 Capital Circle, S.E. 307 Hartman Building Tallahassee, Florida 32399-0658 Gabriel Bain 30 S. Ivey Lane Orlando, Florida 32811 Frank Scruggs, Secretary 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Cecilia Renn Chief Legal Counsel 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152
The Issue The issue presented is whether the bid of Intervenor Velda Farms, Inc., is responsive to and complies with Respondent's Invitation to Bid No. SB 97C-85R.
Findings Of Fact On August 15, 1996, Respondent The School District of Palm Beach County, Florida (hereinafter "School District") issued an Invitation to Bid entitled "Term Contract for Uncooked Pizza Products," soliciting vendors for the 1996-97 school year. Both Petitioner Jukebox Express Drive-In Restaurants of America, Inc. (hereinafter "Jukebox Express"), and Intervenor Velda Farms, Inc. (hereinafter "Velda Farms"), timely submitted bids. The School District opened the bids on September 11, 1996, and determined that Jukebox Express and Velda Farms, as well as five other vendors, had submitted responsive bids. The School District prepared a list of approved vendors for that contract and included Jukebox Express and Velda Farms and the other responsive vendors on that list. The cafeteria manager for each school in the School District can select any vendor from that approved list to supply pizza products to that school. Jukebox Express timely filed its protest to the School District's determination that Velda Farms should be included on the list of approved vendors for pizza products, alleging that the bid of Velda Farms was not responsive and that Velda Farms is not a responsible bidder as to the subject bid. The School District is purchasing pizza products "off-bid" from Velda Farms during the pendency of this proceeding. Velda Farms does not manufacture or prepare the pizza products it currently supplies and would supply pursuant to the School District's Invitation to Bid. It is the distributor. The pizza is manufactured by Mimmo's Gourmet Pizza, a business currently located in Pompano Beach, Florida. During the 1995-96 school year Mimmo's supplied pizza to the School District through Jukebox Express. That pizza was manufactured by Mimmo's in its Fort Lauderdale location. Jukebox Express stopped supplying Mimmo's pizza to the School District in March 1996 due to deficiencies in the quality of the product. On May 7, 1996, Mimmo's Fort Lauderdale facility was inspected by the Florida Department of Agriculture and Consumer Services. Mimmo's received an overall rating of poor, with several critical sanitation items cited for correction within 48 hours. When the Department returned to that Fort Lauderdale facility on May 28, it discovered that Mimmo's was no longer doing business out of that facility. Instead, Mimmo's had begun doing business out of its Pompano Beach facility. It is from that facility that Mimmo's began supplying pizza products to the School District through Velda Farms in June 1996 and continuing through the time of the final hearing in this cause. No evidence was offered as to when Mimmo's obtained a permit to commence construction of its Pompano Beach facility. The records of the City of Pompano Beach reveal that on April 10, 1996, Mimmo's received approval for temporary electrical service for 30 days to test equipment. That approval did not permit operating a business at the site. That approval for temporary electrical service was never extended or renewed. Mimmo's August 6, 1996, request for a temporary certificate of occupancy for its Pompano Beach facility was denied. On September 12, 1996, Mimmo's Pompano Beach facility was "red-tagged" for failure to have a certificate of occupancy. On the following day Mimmo's applied for and received a temporary certificate of occupancy. Mimmo's did not obtain a final certificate of occupancy from the City until November 7, 1996. On September 19, 1996, the City of Pompano Beach received Mimmo's application for an occupational license which represents that Mimmo's opened for business in September 1996. The City issued an occupational license to Mimmo's that same day. Special Condition H.3. of the subject Invitation to Bid provides as follows: Vendors must have a system in place that provides for quality control and the delivery of product at consistent and specified quality levels. Vendors must have in place a system for safety and sanitation inspections assuring the delivery of product that is free from contamination and product degradation. At the time it submitted its bid and through the time of the final hearing in this cause, Velda Farms had no system in place for quality control of Mimmo's product and had no system in place for safety and sanitation inspections of Mimmo's product. Velda Farms performed no investigation of Mimmo's product or manufacturing facility before it commenced supplying Mimmo's product to the School District. Velda Farms relied solely on the fact that Mimmo's pizza was listed as an approved product in the School District's Invitation to Bid. The School District's employee who prepared the Invitation to Bid included Mimmo's pizza in the approved product list pursuant to oral information given by the director of food services that Mimmo's was tested and accepted as an approved product by the School District in May 1996 for the 1996-97 school year. That same employee is not aware of any written test report to that effect. When Velda Farms submitted its bid to the School District, it attached a letter on Velda Farms stationery which read as follows: As per our conversation, Velda Farms [sic] ability to fulfill the obligations of the Pizza Bid No. SB 97C-85R is contingent upon the following: Mimmo's Pizza's ability to supply the required amounts at the agreed pricing. Mimmo's Pizza's ability to meet the nutritional specifications and requirement of the Palm Beach County School District. I appreciate your understanding in this matter. Should you have any questions, please contact me. The statements in that letter are directly contrary to the requirements contained in Special Condition H.3. of the Invitation to Bid. Indeed, the statements in that letter render the bid submitted by Velda Farms only a conditional offer to supply pizza products. Special Condition B of the Invitation to Bid provides that the contract will be awarded to the lowest and best responsive, responsible multiple bidders. Section 6.14 of the School District's Procurement Department Purchasing Procedures were adopted as School Board policy on November 21, 1995. Section 6.14(5) provides, in part, as follows: Responsible bidder or offeror is defined as a person/firm who has the capability, in all respects, to perform the contract requirements fully and the moral and business integrity and reliability to assure good faith performance. Responsive bidder or offeror is defined as a person/firm who has submitted a bid that conforms in all material respects to the invitation for bids or request for proposals. As to the subject bid, Velda Farms is neither a responsible bidder nor a responsive bidder. Its letter attachment to its bid form represents that Velda Farms does not have the capability to fully perform the contract and that Velda Farms will not assure good faith performance. Further, its bid does not conform in all material respects to the subject Invitation to Bid. Although the School District's Procurement Department Manager suggests that the deficiencies in Velda Farms' bid can be waived by the School Board, those deficiencies are not minor. They are material deficiencies in that they involve the quality of the food in the School District's schools and the price of Velda Farms' bid. No other bidder included a condition giving itself the right to cease performance of its agreement to supply pizza products to the School District. No other bidder was advised by the School District's Procurement Department employees that the bidders could condition their bids in such a fashion. At the time Velda Farms submitted its bid and at the time the bids were opened and the School District announced the award, Mimmo's was operating illegally from a building which had not been approved for occupancy and without benefit of an occupational license. Although Velda Farms may not have known that the pizza product it was supplying to the School District at the time of the bid submittals and bid opening was manufactured without the necessary government approvals, General Condition 19 provides as follows: Legal Requirements: Federal, State, county, and local laws, ordinances, rules, and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the bidder will in no way be a cause for relief from responsibility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Intervenor Velda Farms, Inc., is not a responsible or responsive bidder for Respondent The School District of Palm Beach County, Florida's term contract for uncooked pizza products, Bid No. SB 97C-85R, and deleting Intervenor Velda Farms, Inc., from the list of approved multiple bidders under that bid award. DONE AND ENTERED this 31st day of January, 1997, in Tallahassee, Florida. LINDA M. RIGOT Administrative Law Judge 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 31st day of January, 1997. COPIES FURNISHED: Michael B. Small, Esquire Small and Small, P.A. 324 Royal Palm Way, Suite 231 Palm Beach, Florida 33480 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Jim E. Solomon, Esquire Jim E. Solomon and Associates, P.A. 1180 South Powerline Road Suite Nos. 207-209 Pompano Beach, Florida 33069 Dr. Joan Kowal Superintendent of Palm Beach County Schools 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
Findings Of Fact During January and February, 1987, Respondent acted as a farm labor contractor without a certificate of registration having been issued to him by Petitioner. Specifically, he was hired by Goodson Farms as a farm labor contractor, after holding himself out as such, and did act as a farm labor contractor by supplying and transporting 55 to 75 farm workers for the harvesting of cauliflower at Goodson Farms. He received payment for his services and disbursed payments to these workers. Respondent has failed to possess, for a period of three years, proof of payments he has made to each farm worker for whom he has acted as a farm labor contractor. Records he did provide to Herb Mize, crew chief compliance officer, were incomplete and did not include a record of payments for social security, income taxes withheld, and deductions for food and transportation.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing an administrative penalty of $1400.00 against Respondent. DONE AND ENTERED this 23rd day of October, 1987, in Tallahassee, Florida. DONALD D. CONN 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 23rd day of October, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle East Montgomery Building, Suite 117 Tallahassee, Florida 32399-2152 James Quillen, II, Esquire 509 North Morgan Street Tampa, Florida 33602 Hugo Menendez, Secretary Department of Labor and Employment Security 2590 Executive Center Circle East 206 Berkeley Building Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 2562 Executive Center Circle East 131 Montgomery Building Tallahassee, Florida 32399-2151
Findings Of Fact In the summer of 1986, petitioner, Leo R. Fleming, as the agent for a Mr. Griffin, entered into an agreement with Jimmy Davis, representing D & M Pecan Company, to sell an unspecified amount of watermelons to D & M at the "ground" price which was to be determined daily. The parties also agreed to "joint" the melons, meaning that D & M and Mr. Griffin would split whatever profit or loss was made on the sale of the watermelons. Under the terms of the agreement D & M supplied the trucks and petitioner was responsible for harvesting and loading the melons on the trucks. Fifteen loads of watermelons were loaded and sold to D & M between June 28 and July 2, 1986. On June 28, 1986, D & M paid petitioner $3,000 as an advance on the watermelons so that the field crew could be paid. On June 30, 1986, D & M paid $5,000 and on July 2, 1986, D & M paid $3,000. None of the monies paid to petitioner between June 28 and July 2 were for specific loads or lots of melons, but were advances to be credited against the total amount that was ultimately owed to petitioner. From the first day of loading, June 28, 1986, D & M experienced problems with the melons loaded by petitioner. Mr. Davis would call petitioner the night before the loading to advise him as to the type and size of melon that was to be put on each truck to be loaded the following day. However, petitioner would get the orders confused, which resulted in the trucks being loaded with a different size and type of watermelon than was ordered. D & M usually did not discover the problem until the trucks reached their destination. On a few occasions, the discrepancies were discovered when petitioner called back in after the trucks had left the field to report the amount of melons put on each truck. In any event, the failure to load the right melons on the trucks caused D & M to have to find other buyers and reroute the trucks or reduce the price of the melons delivered. On July 12, 1986, petitioner and Mr. Davis met in Cordele, Georgia, for the purpose of determining the amount owed by D & M for the watermelons. Petitioner brought typed invoices with him which reflected the type of watermelon, the number of pounds shipped, and ground price per pound for each lot or load. However, due to the problems with the wrong melons being loaded, the parties agreed to reduce the price per pound on those loads which had not been loaded as ordered. The adjusted price agreed upon was written on the original invoices and the typed price was marked through. No adjustment was made for the lots that were loaded properly. Lot 621 was not included in the negotiations because petitioner did not present an invoice for that lot and neither party at that time knew what had happened to that truck. However, the parties did agree to settle the other 14 loads for a total price of $25,783.60. (See Appendix A which lists the invoiced price and negotiated price per load.) D & M deducted $10,000 from that total for the advances that had been made and gave petitioner a check for $15,783.60. 1/ The stamp marks on the back of the check reveal that the check was deposited by petitioner on or before July 14, 1986. On July 15, 1986, petitioner wrote a check to the grower for the watermelons. The amount of the check was based on the negotiated price minus petitioner's commission and the cost of the harvesters. This amount is reflected on the original invoices. (P.Ex.1) However, Mr. Griffin did not accept the changes in the price and insisted upon payment from petitioner based on the original invoiced amount. Petitioner then paid Mr. Griffin based on the original invoiced amount "for keeping him from going to the PACA." (T-30) Thereafter, on August 6, 1986, petitioner sent D & M a statement reflecting a balance due based on the original invoiced amounts. From thee evidence presented, it is clear that on July 12, 1986, the parties reached an agreement concerning the full amount to be paid for all the loads of watermelons purchased by D & M except for the load labelled Lot No. 621. D & M admits that it owes petitioner for Lot No. 621, but it contends that it only owes $1,898.40 for that load, whereas the invoice indicates that $2,133.90 is owed. Mr. Davis explained that D & M should not have to pay $2,133.90 for that load because that was the total amount it was able to get for the load. In other words, if D & M paid the full invoiced amount, it would not make a profit. Nevertheless, the original agreement of the parties was that D & M would pay ground price for the melons. D & M paid full invoice price on the melons that were correctly loaded and paid an agreed upon adjusted price for the melons that were not loaded as ordered. D & M failed to present any evidence establishing that Lot No. 621 consisted of melons that were not of the type and size ordered. Therefore, D & M owes petitioner $2,133.90 for Lot 621.
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 directing respondent to pay petitioner the sum of $2,133.90 within 15 days after the final order is entered. DONE AND ENTERED this 26th day of February, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 26th day of February, 1988.
Findings Of Fact Willie J. Woods is a farmer. He entered into an agreement with W. R. Ward, Jr., President of Growers Marketing Service, Inc. (GMS) concerning the disposition of watermelons which he had grown. The testimony of Woods and Ward concerning the nature of the agreement is conflicting. In the absence of a written contract, the nature of the agreement must be determined from the other documents surrounding their transactions. From these documents, it is determined that the agreement between the parties was not for the purchase of Woods' watermelons by GMS. The documentation surrounding the transactions by GMS, show that GMS was acting as a broker or middle man in introducing Woods' watermelons into the stream of commerce. According to Mr. Ward's records, each shipment was assigned a transaction number, and each sale from a lot of watermelons was also assigned a transaction number. The record of each of these transactions was examined in detail. Below each of these transactions is discussed, and where portions of the record are particularly pertinent, they have been copied and attached to this order for ease of reference. In some instances, the settlement statement has been reproduced and corrected to reflect what the actual charges should have been based upon the underlying record. A handwritten explanation of the adjusting entries has been added to these statements. Transaction number 1439: On June 4, 1991, Woods delivered 43,750 pounds of watermelons to GMS The documentation surrounding this transaction shows that GMS, sold the load of watermelons FOB Brooksville, Florida for a price of 14 cents per pound.The purchaser's driver transported the load from Brooksville to Canada where the purchaser "rejected" the load because the melons were immature. By purchasing the watermelons FOB Brooksville, the purchaser waived any right to reject the melons upon their arrival at their destination. Further, the only evidence of immaturity is an inspection report which states that the inspection was limited and may not reflect the condition of the whole load. The inspection report itself is hearsay. The dollar value of this load as stated in the Bill of Lading/Customs Declaration was $6,125.00. The cost of freight was not shown in the file because it was delivered FOB Brooksville and the costs were borne by the purchaser. The GMS's handling fee was 1 cent per pound or $438.00. GMS owed Woods $5,687.00 on transaction number 1439. GMS paid Woods $2,879 on this transaction. GMS still owes Woods $2,808 on this transaction. Transaction number 1424: On June 4th, GMS sold in behalf of Woods $4,320 pounds of watermelons for 20.25 cents per pound. W. R. Ward stated that the price was reduced from 15 to 5 cents per pound, and was a bookkeeping error. The file reflects the sales price for the 46,320 pounds of watermelons was $9,380. The file reflects that transportation on this load of watermelons was $1,683.00, and GMS, was entitled to 2.5 cents per pound for packing and 1 cent handling for a total of $1,621. The total expenses were $3,304.00 for transaction number 1424. GMS owed Woods $6,077.00 for transaction 1424, but only paid him $1,844. GMS still owes Woods $4,233 on this transaction. Transaction number 3534: On June 4th, GMS, handled a load of yellow meat watermelons weighing 4,071 pounds for Willie J. Woods. Subsequently, GMS sold portions of this load of watermelons in transactions number 1565, 1507, 1461, 1403, and 1476. On June the 6th, GMS sold 13,337 pounds of watermelons at 17 cents a pound for a total sales price of $2,267.29 in transaction 1461. On June 6th, Growers Marketing Service sold 18,909 pounds at 14 cents a pound for a total of $2,647.26 in transaction number 403. On June 7th, Growers Marketing Service sold 1,945 pounds at 22 cents a pound for a total of $427.90 in transaction 1476. On June 14th, Growers Marketing Service sold 5,347 pounds on transaction 1565 which were subsequently rejected because of severe decay. See, Dump Report dated July 5 in Transaction 1565. Growers Marketing Service showed no income nor expense to the grower on transaction 1565. Because these melons were not sold until June 14, it is possible that they decayed. GMS's treatment of the transaction on the settlement statement is contrary to the notes on transaction 1565 which treat is as a wash with no income or expense to Woods. The assessment of freight and handling charges was not inappropriate under the circumstances, and are disallowed. See, Corrected Invoice 3534 attached to this Order. The total revenue from the remaining transactions was $6,142. The expenses on the various loads total $2,285. GMS owed Woods $3,857 on this load, but only paid him $1152. GMS still owes Woods $2705 on this transaction. Transaction number 3541: On June 7, 1991, Growers Marketing Service handled 9,997 pounds of watermelons for Willie J. Woods on transaction number 1565. This load was sold to Castellini Produce on transaction 1565, discussed above, where it was rejected for excessive decay. The assessment of the freight charges and handling charges on this load which was handled 10 days after it was picked was inappropriate, and is disallowed. It is treated also as a wash in this transaction just as it was in 3534, and just as GMS treated it in transaction 1565. Transaction number 3546: On June 11th, Growers Marketing Service received 4,949 pounds of yellow meat watermelons from Woods. It subsequently sold these watermelons for Woods in transactions 1589, 1607, and 1613. Regarding transaction 1589, the Growers Marketing Service's settlement statement to Woods reflects that this transaction is subject to PACA Audit; however, GMS included the 14,121 pounds of watermelons in its settlement at a expense to Woods of 5 cents per pound on a sales price of 1.67 cents per pound. Because this transaction is still subject to audit, it was inappropriate to settle with the farmer. For purposes of this accounting, 1589 is not considered. In transaction 1607, GMS sold 16,775 pounds of yellow meat watermelons received from Woods on transaction 3546. Transaction 1607 and the funds received from the transaction are discussed in full below with regard to transaction 3548; therefore, it is not discussed or accounted for as part of transaction 3546. In transaction 1613, Growers Marketing Service sold 10,053 pounds of watermelons at 11.6 cents per pound for a total of $1,069.00. Expenses attributable to transaction 1613 were $554.00. Woods was entitled to $614.00 on transaction 1613; however, he was paid nothing on this transaction; GMS owes Woods $614 on this transaction. Transaction 1475: On June 11th, Growers Marketing Service received 45,050 pounds of watermelons from Woods. Growers Marketing Service asserts that the original price of these watermelons was dropped from 15 cents to 12 cents; however, the checkstub attached to the invoice shows a total payment to GMS of $7,298.10 at the original purchase price of 17.2 cents per pound. Growers Marketing Service's costs in this transaction were $2,358. Because this transaction clearly shows the original price was paid, it reflects adversely on creditability of the witnesses for Growers Marketing Service with regard to their testimony in other transactions that the original price was reduced due to fall in the market. Growers Marketing Service owed Woods $4,940 on transaction 1475, and paid him $4,484. GMS still owes Woods $456 on this transaction. Transaction number 1508: On June 11, 1991, Growers Marketing Service received 46,000 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these melons at a price of 10.25 cents per pound. Growers Marketing Service received $4,715.00 on transaction 1508 and had expenses in the amount of $2,259.00. Growers Marketing Service owed Woods $2,456.00 on transaction 1508, and paid Woods $2,284. GMS still owes Woods $172 on this transaction. Transaction number 1497: On June 11, 1991, Growers Marketing Service received 45,340 pounds of watermelons in this transaction. Growers Marketing Service sold these watermelons at 16.35 cents per pound and deducted freight of 4.35 cents per pound, showing a net sales price of 12 cents per pound. This resulted in sales revenue of $5,441 from which GMS deducted its 1 cent handling charge and an additional $4,750 listed as a harvesting advance. GMS paid Woods $204. GMS introduced no proof of a harvesting loan; however, Woods' complaint admits this loan. Nothing is owed to Woods on this transaction. Transaction number 3548: On June 12, 1991, Growers Marketing Service received 41,132 pounds of watermelons from Willie J. Woods. Subsequently, Growers Marketing Service sold watermelons received from Woods on this transaction in its transaction numbered 1613, 1607 and 1627. Growers Marketing Service asserts that 24,457 pounds of watermelons were rejected and destroyed on transaction 1607. The records regarding transaction 1607 show handwritten notation on the invoice that Growers Marketing Service received a total after expenses of sale of $3,286.00 on transaction 1607. In transaction 1613, Growers Marketing Service sold 10,032 pounds of watermelons at 11 cents a pound and in transaction 1627 Growers Marketing Service sold 7,899 pounds of watermelons at 7 cents a pound. The original settlement statement reflected incorrectly that Woods owed GMS $810. A corrected settlement statement on transaction 3548 is attached to this Order and reflects that Willie J. Woods was owed the amount of $1,019.00 in transaction 1607, $624.00 in transaction 1613, and $1,019.00 in transaction 1627. GMS paid Woods no money on this transaction, and owes Woods a total of $1,873. Transaction number 1527: On June 12, 1991, Growers Marketing Service received 50,080 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these watermelons for 17.35 cents per pound receiving a total of $8,689.00 less expenses of $2,441.00. GMS owed Willie J. Woods $6,248.00 on transaction 1527, and paid Woods $247. GMS owes Woods $6,001. Transaction number 1536: On June 12, 1991, Growers Marketing Service received 41,320 pounds watermelons from Willie J. Woods. Growers Marketing Service consigned these watermelons and received $2,078.00 less expenses of $1,473.00. Woods owed $605.00 from Growers Marketing Service on transaction 1536, and paid Woods $307. GMS still owes Woods $298. Transaction number 1535: On June 12, 1991, Growers Marketing Service received 43,240 pounds of watermelons from Willie J. Woods in this transaction. Growers Marketing Service subsequently sold these watermelons at 16.45 cents per pound receiving a total of $7,113.00 less expenses of $2,357.00. Growers Marketing Service owed Willie J. Woods $4,856.00 on transaction 1535, and paid Woods $2,802. GMS still owes Woods $2,054. Transaction number 1505: On June 13, 1991, Growers Marketing Service received 44,950 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold these watermelons for a total of $6,967.00 to a dealer in Canada. The dealer in Canada rejected the watermelons upon their receipt serving that they were overripe on June 15, 1991, when they were received. A Canadian agricultural inspection was ordered and conducted on June 21, 1991, which revealed that 28% of the melons showed decay. However, the inspection was not timely and the report is hearsay. GMS failed to exercise due diligence in obtaining a prompt inspection and seeking recovery in behalf of Woods. Therefore, after absorbing expenses of $2,747.00, Growers Marketing Service owed Woods $4,220.00 for his loss in this transaction. GMS paid Woods $1,250 salvage on the load; however, it still owes him $2,970. Transaction number 1520: On June 13, 1991, Growers Marketing Service received 45,940 pounds of watermelons from Willie J. Woods in this transaction. The front of the folder shows that Growers Marketing Service sold this load of watermelons to Winn Dixie in South Carolina for 12 cents per pound, or $5,513. Upon receiving the watermelons on June 15 1991, Winn Dixie rejected the melons because they were "cutting white, green fresh." See copy of front of file. Growers Marketing Service asked another broker to move the load, and that broker and Growers Marketing Service arranged to have the load inspected at its next destination, Staunton, Virginia. The truck broke down in route to Staunton, Virginia and did not arrive until June 18, 1991. The other broker described the melons as looking "cooked" on arrival. Growers Marketing Service charged Woods with freight on this load. Because Growers Marketing Service had a legitimate freight claim against the trucking company, yet charged the loss and freight charges to the grower, GMS owes Woods $5,940 less the salvage, freight and expenses totaling $2,125. GMS owes Woods $3,816. Transaction number 3553: On June 13, 1991, Growers Marketing Service received 29,478 pounds of watermelons from Willie J. Woods on transaction 3553. Subsequently, Growers Marketing Service sold these melons to various concerns realizing $3,450.76 on these sales. GMS's settlement statement with Woods on this transaction reflects a deficit on transaction 1505 of $822.50. According to the records reviewed by the Hearing Officer there was no deficit in transaction 1505; therefore, the deduction of $822.50 was inappropriate. Adding this money back into the amount due Woods, Woods should have received $1,615.74 on transaction number 3553. GMS paid Woods $675, and still owes Woods $941. Transaction number 3552: On June 13, 1991, Growers Marketing Service received 32,769 pounds of watermelons from Willie J. Woods on this transaction. A review of the records reflects that Growers Marketing Service subsequently sold 10,403 pounds of these melons at three cents a pound, realizing $312.09. Growers Marketing Service also sold 19 bins of these melons weighing 22,366 pounds for nine cents a pound for a total of $2,012.94. Growers Marketing Service's settlement statement reflects a packing charge of two and a half cents per pound for 22,366 pounds of melons that were in bins. This is excluded as an expense because the adjustment for packing charges was included in the Hearing Officer's recomputation of the price of nine cents per pound. Similarly, the price adjustment of one and a half cents per pound was included in the recomputation of the price and is therefore excluded. The settlement statement which is attached to this Order reflects total receipts of $2,325 and total expenses of $750. Growers Marketing Services owed Willie J. Woods $1,575 on transaction number 3552, and paid Woods $1,551. GMS owes Woods $24 on this transaction. Transaction number 3549: On June 13, 1991, Growers Marketing Service received 32,564 pounds of watermelon from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold 4,008 pounds of watermelons at three cents a pound on transaction 1669, realizing $120.24 on the sale. Growers Marketing Service sold seven bins of watermelons weighing 8,400 pounds at $217.66 for each bin, realizing a total of $1,523.66 on transaction 1532. Growers Marketing Service sold 1,346 pounds of watermelon at eight cents a pound, realizing $107.68 on transaction 1678. Growers Marketing Services sold 18,810 pounds of watermelons at sixteen and a half cents a pound, realizing $3,104 on transaction 1530. The Growers Marketing Services' settlement statement on transaction 3549, corrected as indicated above, shows that Growers Marketing Services received a total of $4,855 on this transaction. Growers Marketing Services' statement reflects packing charges of four cents per pound for 24,164 pounds. This packing charge was not applicable because the melons are indicated to have been in bins, not in cartons. Further, the price adjustment of one and a half cents per pound on 18,810 pounds was included in the Hearing Officer recomputation of the price per pound. Taking into account these corrections, total revenue was $4,855, and the total expenses of Growers Marketing Services were $1,613. Growers Marketing Services owed Woods $3,242 on transaction 3549, and paid him $1,690. GMS still owes Woods $1,552. Transaction 3556: On June 13, 1991, Growers Marketing Services received 32,898 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Services sold 2,086 pounds of these watermelons for 12 cents a pound on transaction 1622. Growers Marketing Services sold 2,096 pounds of these watermelons at 10 cents a pound realizing $210 on transaction 1575. Growers Marketing Services sold 1,983 pounds of these watermelons at 10 cents a pound realizing $198 in transaction 1647. Growers Marketing Services' settlement for transaction 3556 is attached to this Order and reflects an original price for these melons of 4 cents per pound; however, Growers Marketing Services sold 1,029 of these watermelons at 11.6 cents a pound in transaction 1613. The settlement statement, a copy of which is attached, is corrected to reflect the sales price of 11.6 cents a pound, and the resulting change in the monies received from $41.16 to $119. GMS sold 2086 pounds of melon for 12 cents per pound realizing $250 on transaction 1622. GMS sold 3,841 pounds of watermelons for 10 cents per pound realizing $384 on transaction 1707. Growers Marketing Services sold 21,862 of these watermelons at 7 cents a pound realizing $1,530 on transaction 1627. The total received by Growers Marketing Services was $2,691 less expenses of $1,952. Growers Marketing Services owed Willie J. Woods $739, and paid him $662 on transaction 3556. GMS still owes Woods $77. Transaction number 3557: On June 14, 1991, Growers Marketing Services received 20,013 pounds of watermelons from Willie J. Woods on this transactions. Subsequently, Growers Marketing Services sold 9,214 watermelons at 12 cents a pound on transaction 1616. Growers Marketing Services 3,418 pounds of watermelons at 3 cents a pound in transaction 1669. Growers Marketing Services sold three bins of watermelons weighing 3,525 pounds at 16.5 cents a pound and an additional 3,852 pounds of watermelons at 16.5 cents a pound in transaction 1530. This is a total of 16,162 pounds of watermelons. The Growers Marketing Service's settlement statement, which is attached, is corrected to show the correct number of pounds sold and the correct amounts of money received by Growers Marketing Service. Growers Marketing Service received a total of $3,301.50 for the sell of these watermelons. Concerning the expenses shown by Growers Marketing Service, the number of pounds handled is adjusted to show that 16,162 pounds was handled. In addition, the 4 cent packing charge for 16,484 pounds of watermelons is deleted since these melons were not packed in cartons but in bins. In addition, the 1.5 cent price adjustment for 3,525 pounds of watermelons handled in transaction 1530 is in the recomputation of the price. The corrected expense total is $254. Growers Marketing Service owes Willie J. Woods $3,048 on transaction 3557. GMS paid Woods $643; however, it still owes Woods $2,405. The total of the sums still owed Mr. Woods by GMS is $32,999.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the parties be notified of these findings, and GMS permitted the opportunity to pay to Willie J. Woods $32,999 within 30 days, and if GMS fails to settle with Mr. Woods, Mr. Woods should be permitted to obtain settlement from the Respondent's bond in the amount of $32,999, or to the limits of the bond. DONE and ENTERED this 29th day of July, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 29th day of July, 1992. COPIES FURNISHED: Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-1550 Willie J. Woods 1022 Piercewood Point Brooksville, Florida 34602 W. R. Ward, Jr., President Growers Marketing Srevice, Inc. Post Office Box 2595 Lakeland, Florida 33806 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact For more than 20 years, petitioner has worked as a state employee in law enforcement or as a teacher of persons' training for law enforcement work. From November of 1955 until September of 1976, he was employed as a special agent by the Florida Sheriffs' Bureau. From October of 1965 to March of 1972, he taught at Florida State University, first as an instructor in criminology, then as an assistant professor. On March 20, 1972, petitioner began working for respondent, in its Division of Animal Industry, as an agricultural investigator supervisor in the livestock theft program. Six months later petitioner attained career service status in this position, which has position number 0959. Position number 0959 is the only position within the single agency class of agricultural investigator supervisor. During the 1976 legislative session, and even before the session began, at committee hearings conducted in the course of the appropriations process, there was talk of abolishing the livestock theft program, a proposal which respondent's personnel resisted to the extent practicable. Although petitioner's name was never mentioned in these deliberations, on at least one occasion a legislator made specific reference to abolishing the position of agricultural investigator supervisor. After passage of the appropriations bill by the 1976 legislature, the Hon. Jack D. Gordon, Chairman, Senate Committee on Ways and Means, and the Hon. Edmond M. Fortune, Chairman, House Committee on Appropriations, wrote a letter to the Hon. J. H. Williams, Lieutenant Governor and Secretary of Administration, and the Hon. Ernest Ellison, Auditor General, to which they attached "computerized program component work papers for . . . use in development of the agencies' approved operating budgets for 1976-77." Respondent's Exhibit No. 1. The fourth item on the attachment reads, as follows: REDUCTION IN LIVESTOCK THEFT PROGRAM AGRICULTURAL INVESTIGATOR SPECIALIST; AGRICULTURAL INVESTIGATORS At no time has there been a position within respondent department called "agricultural investigator specialist." Notwithstanding the use of the title "agricultural investigator specialist," the legislature intended to abolish the position of "agricultural investigator supervisor." Mr. C. Douglas Shelby, now assistant director of administration for respondent, was respondent's personnel officer in June of 1976; the Hon. Doyle Conner, head of respondent, had delegated to Mr. Shelby authority to deal with personnel matters generally. When the appropriations bill passed, Mr. Shelby and Jerry Gullo, a training manager for respondent, began work on implementing the legislation. After considering Emergency Rule 22 AER 76-1, which took effect on June 15, 1976, Mr. Gullo drafted a letter to petitioner for Mr. Shelby's signature, dated June 16, 1976, notifying petitioner that his job would no longer exist as of the close of business on June 30, 1976. The letter was mailed on June 16, 1976; petitioner received notice of the letter's arrival on June 17, 1976, but actually saw it and read it for the first time on June 18, 1976. A copy of the letter was admitted in evidence as respondent's exhibit No. 5. In part, the letter advised petitioner that "you have the right to request a demotion to a class in which you previously held permanent status or reassignment in a class in which you held permanent status in lieu of layoff . . ." On receipt of the letter dated June 16, 1976, petitioner drafted a letter requesting reassignment or demotion, but when, on June 21, 1976, Mr. Gullo told petitioner that there would be no possibility of reassignment or demotion under Emergency Rule 22 AER 76-1, because, said Mr. Gullo, petitioner had not attained career service status in any class other than that of agricultural investigator supervisor, petitioner decided there would be no point in submitting the letter he had drafted and did not do so. Also on June 21, 1976, official notice of the abolition of respondents position number 0959 was mailed by respondent to Mr. Kennison. (Respondent's exhibit No. 3) Petitioner had no further discussion with respondent's personnel about the layoff before he left respondent's employ. On June 30, 1976, Lieutenant Governor William, acting as Secretary of Administration, and in response to a letter from Mr. Shelby, which was received in evidence as respondent's exhibit No. 3, approved "[s]tatewide within the Division of Animal Industry," respondent's exhibit No. 4, as the competitive area for purposes of Emergency Rule 22 AER 76-1. Id. On July 1, 1976, petitioner was out of a job, despite the good work he had done in the livestock theft program and his many years of state employment. Petitioner filed a timely appeal with the Career Service Commission. Respondent notified the State Personnel Director of the layoff by letter dated July 12, 1976, which came in evidence as respondent's exhibit No. 2. STATEMENT REQUIRED BY STUCKEY'S OF EASTMAN, GEORGIA v. DEPARTMENT OF TRANSPORTATION, 340 So.2d 119 (Fla. 1st DCA 1976) Respondent submitted no proposed findings of fact. Paragraphs two, three, and five through twelve of petitioner's proposed findings of fact have been adopted, in substance. Paragraph one of petitioner's proposed fact findings has been adopted, in substance, assuming "at all times material hereto" is intended to mean from September 21, 1972, until June 30, 1976, or some portion of that time period. Paragraph four of petitioner's proposed fact findings has been adopted, in substance, except for the reference to respondent's exhibit No. 3, which is a copy of a letter from Mr. Shelby to Mr. Kennison, dated June 21, 1976. Paragraphs thirteen and fourteen of petitioner's proposed fact findings accurately reflect the evidence, but are irrelevant to resolution of the dispute.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's layoff of petitioner be upheld. That petitioner be deemed to have made timely request for demotion or reassignment to a position in a class (other than agricultural investigator supervisor) in which he has held permanent career service status, if any there be. That respondent pay petitioner two weeks' pay at the hourly rate petitioner was earning at the time of the layoff. DONE and ENTERED this 20th day of June, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay Hendrickson, Esquire 836 East Lafayette Street Tallahassee, Florida 32301 Robert A. Chastain, Esquire Room 513, Mayo Building Tallahassee, Florida 32304 Conley M. Kennison Attn: Mrs. Dorothy Roberts Career Service Commission Department of Administration Room 530 Carlton Building Tallahassee, Florida 32304
