Findings Of Fact On August 6, 1986, an indemnity bond was executed between RAINMAKER as principal and FIDELITY as surety. The effective dates of the bond were from October 21, 1986, to October 20, 1987. The bond was required under Sections 604.15-604.30, Florida Statutes, in order for RAINMAKER to become licensed as a dealer in agricultural products in Florida. The purpose of the bond is to secure the faithful accounting for a payment to producers or their agents or representatives of the proceeds of all agricultural products handled or purchased by RAINMAKER. The Petitioner, SHAN-RON, is a corporation whose address is 276 Cypress Street, La Belle, Florida. Its purpose is to conduct business by finding buyers for sod located on acreage owned by various cattle ranchers in Lee County, Florida. This practice is commonly known as "bird dogging" in the agricultural trade. The way the business is conducted is as follows: SHAN-RON is contracted by sod installers to whom it sells sod in specific quantities for a fixed price. Once the oral agreement is made, SHAN-RON tells the sod installer where a sod field is located. At this point in the business transaction, the sod installer sends independent truck drivers to the designated sod field. If the sod installer is unable to locate truckers, he telephones a SHAN-RON field foreman. The foreman, as a courtesy, will check to see if any of the independent truckers currently as the sod field can haul a load for the sod installer. Once a trucker is located, employees from SHAN-RON mow the grass, cut the sod, and load it onto pallets owned by SHAN-RON. The truck is loaded with pallets by SHAN-RON employees and the driver is given two copies of the load ticket, one for him and one for the sod installer. The driver delivers the sod and pallets to the address placed upon the load tickets. Upon delivery, the driver has the responsibility to deliver the load ticket to the business office of the sod installer. If he does not deliver the ticket, he does not get paid for hauling the sod. Employees of the sod installer are usually at the delivery site. The sod is laid and the empty pallets are returned to the sod field by the truckers. Every Friday, a representative of SHAN-RON personally delivers a weekly bill to the sod installer in order to collect is owed. When the money is collected, the funds are divided between the rancher whose sod was sold and SHAN-RON. The accountability system used within the sod industry leaves room for a high margin of error at various stages. The SHAN-RON employees occasionally short pallet loads or two layers of sod. The truck drivers occasionally misnamed the sod installer to whom the sod is to be delivered. The truck drivers also occasionally do not take empty pallets under their control back to SHAN-RON. They sell the pallets and pocket the money. The sod installer is financially responsible for the pallet costs. RAINMAKER is a corporation whose address is Post Office Box 7385, Ft. Myers, Florida. The company is primarily in the business of installing sod. It transacted business with SHAN-RON between November 11, 1986, and January 8, 1987. At the time of these transactions, RAINMAKER was licensed as a dealer in agricultural products supported by surety bond number 974 52 23 in the amount of $13,500.00. SHAN-RON, through testimony and the introduction of its business records, proved a prima facie case that RAINMAKER owes $12,964.00 for the purchase of sod between November 11, 1986, and January 8, 1987. Both parties Stipulated that $4,000.00 has been paid on the balance of the account which should be deducted from the balance owed SHAN-RON. In rebuttal to SHAN-RON's presentation, RAINMAKER presented testimony and a business record summary which revealed that six invoices were improperly charged, against its account in the amount of $1,260.00. The record summary was based upon a comparison of load tickets against production records during the time period involved. In addition, RAINMAKER's records reveal that the two drivers, Stormy and Fred Bower, were not paid for delivering the sod to RAINMAKER under the load ticket presentation to the sod installer which was previously described as an accounting method within the business. Because RAINMAKER set forth the issue of delivery discrepancies in its answer to the complaint and competent evidence was presented, $1,260.00 should be deducted from the `balance owed. SHAN-RON presented testimony that it is customary for the company to spray the sod for pest control. RAINMAKER received defective sod from SHAN-RON which contained "Creeping Charlie" weeds during the time of the deliveries in dispute. SHAN-RON was timely notified of the problem, and toad RAINMAKER to have the sod sprayed. A copy of the invoice for $300.00 was sent to SHAN-RON and has not been paid. Although the issue was not raised in RAINMAKER's answer to the complaint, it is properly before the Hearing Officer because of RAINMAKER's timely notification and cure of the defect in the product. The $300.00 should be deducted from the amount owed. Testimony relating to possible sod shortages was rejected as no evidence was presented that shortages occurred in the orders for which SHAN-RON seeks payment. The customary procedure In the sod business for handling credits for shortages requires the buyer to notify the seller within a responsible length of time of the shortages. Such notification did not take place as to the orders in dispute. The amount owed to SHAN-RON by RAINMAKER is $7,404.00. It is officially noticed that SHAN-RON's complaint was originally filed with the department on June 19, 1987, within nine months from the date of sale.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Agriculture enter a final order requiring the Respondent RAINMAKER to make payment to the petitioner SHAN-RON in the amount of $7,404.00. In the event that RAINMAKER does not comply with the department's order within fifteen days from the date it final, FIDELITY should be ordered to provide payment and the conditions and provisions of the bond furnished to RAINMAKER. DONE and ENTERED this 12th day of April, 1988, in Tallahassee, Florida. VERONICA E. DONNELLY 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 12th day of April, 1987. COPIES FURNISHED: Clinton H. Coutler, JR., Esquire Department of Agriculture Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of License and Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 Shan Ron Sod, Inc. 276 Cypress Street LaBELLE, FLORIDA 33935 Rainmaker Sod, Inc. 2290 Bruner Lane, South East Fort Myers, Florida 33912 Fidelity & Deposit Company of Maryland Post Office Box 1227 Baltimore, Maryland 21203 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain General Counsel Department of Agriculture Mayo Building, Room 513 Tallahassee, Florida 32399-0800
The Issue The issue in this case is whether the Respondent, R & R Sod Contractors, Inc., owes the Petitioner for sod purchased from the Petitioner and, if so, the amount presently owed.
Findings Of Fact The Petitioner is in the business of raising and selling sod in the State of Florida. During the past few years, R & R has been a frequent customer of the Petitioner and has purchased large amounts of sod from the Petitioner. Prior to April of 1998, R & R had a credit account with the Petitioner. The terms of the credit agreement included the following: "In the event the account becomes delinquent, and will be referred to a licensed collection agency or an attorney, Customer agrees to pay all costs and expenses of collection including reasonable attorney's fees, court costs, and costs incurred on appeal." During April of 1998, R & R's account with the Petitioner became delinquent. The Petitioner referred the delinquent account to an attorney. The attorney filed a lawsuit against R & R and also filed a complaint with the Department to collect the delinquency by asserting a claim against the bond posted by R & R. The 1998 account delinquencies were resolved in December of 1998, when the Department issued a check to the Petitioner in the amount of $48,431.00. That check paid the full amount of all unpaid invoices from the Petitioner to R & R as of December of 1998. In the process of collecting the $48,431.00 debt from R & R during 1998, the Petitioner incurred costs and attorney's fees in the amount of $1,644.00. These costs and attorney's fees were in addition to the $48,431.00 debt that was paid by the check from the Department. In January of 1999, the Petitioner again began to sell sod to R & R, but only on a cash basis. In the latter part of February of 1999, R & R bought approximately $2,500.00 of sod from the Petitioner which they paid for with a $2,500.00 cashier's check payable to the Petitioner. Although the cashier's check was given to the Petitioner by R & R, the face of the cashier's check identified the remitter as "Ely Sod, Inc." 3/ At the time the Petitioner received the $2,500.00 cashier's check described above, the Petitioner had an unsatisfied judgment against Ely Sod, Inc. When the cashier's check first went through the Petitioner's bookkeeping system, it was treated as a payment by Ely Sod, Inc., to the Petitioner, and was applied to reduce the amount of the judgment owed by Ely Sod, Inc. Consequently, none of the $2,500.00 cashier's check was initially applied towards the amounts owed by R & R. The misapplication of the proceeds of the $2,500.00 cashier's check discussed above apparently produced a great deal of confusion between the Petitioner and R & R regarding the status of R & R's account with the Petitioner. In this regard the Petitioner was especially concerned about the fact that R & R, which was supposed to be on a "cash only" basis, appeared to be $2,500.00 in arrears in its payments to the Petitioner. During the course of resolving the issue of the misapplied cashier's check, the Petitioner became aware of the fact that R & R had never paid the Petitioner's costs and attorney's fees related to the 1998 litigation. Ultimately, it was agreed between the attorneys representing the Petitioner and R & R that the proceeds of the $2,500.00 cashier's check should be applied to pay the costs and attorneys fees in the amount of $1,644.00 incurred by the Petitioner in the 1998 litigation, and that the balance of $856.00 would be paid to R & R or would be applied to any outstanding debts of R & R. Consistent with the agreement, $1,644.00 was applied to pay the Petitioner's costs and attorneys fees, and $856.00 was applied towards the unpaid amounts owed by R & R for sod purchased from the Petitioner Review of the invoices, payments, and accounts between the Petitioner and R & R reveals that, after the agreed application of funds described in paragraph 7, above, R & R still owes the Petitioner the amount of $1,844.00 for sod purchased from the Petitioner. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that R & R is indebted to the Petitioner in the amount of $1,844.00; (2) directing R & R to make payment to the Petitioner in the amount of $1,844.00 within 15 days following the issuance of the order; and (3) announcing that if payment in full of this $1,844.00 indebtedness is not timely made, the Department will seek recovery from ICNA, R & R's surety. DONE AND ENTERED this 7th day of April, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2000.
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Oglesby Nursery, Inc., is a commercial nursery providing a variety of landscape agricultural products. The principal office for Petitioner is located at 3714 SW 52nd Avenues Hollywood, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highway, Delray Beach, Florida. Respondent, Garden of Eden, is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about August 22, 1986, Garden of Eden ordered and received delivery of $7673.40 worth of agricultural products from Petitioner. This purchase consisted of nine may pan coconuts and thirty green malayans trees. All of the trees were accepted and no issue was made as to their condition. On or about September 2, 1986, Garden of Eden ordered and received delivery of $1190.00 worth of agricultural products from Petitioner. This purchase consisted of seven coconut malayans dwarf trees. All of the trees were accepted and no issue was made as to their condition. The total amount of the agricultural products purchased by Garden of Eden from Petitioner was $8863.40. The total amount Garden of Eden paid on this account was $5000.00. The balance of indebtedness owed by Garden of Eden t o Petitioner for the purchases listed above is $3863.40. Petitioner claims it is due an additional sum of $247.77 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry and since Respondent took delivery of additional products knowing interest on past due accounts to be Petitioner's policy. No written agreement of acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
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
Findings Of Fact From before January 1, 1974, until the time of the final hearing in this matter, petitioner owned a DC-6 airplane, During the calendar year 1974, this airplane was leased to Surinam Air Cargo for approximately a half dozen flights. Petitioner's employees, Messrs. Goodman, Davis and Williams, crewed the airplane back and forth between Miami and Surinam, in accordance with the unwritten agreement between petitioner and Surinam Air Cargo. On some or all of these flights, petitioner transported its own goods as well as Surinam Air Cargo's. The parties stipulated that the purchases listed in schedule B attached to joint exhibit No. 1 were made for the flights back and forth to Surinam. In September of 1975, petitioner entered into agreements with Paul H. Jones & Co., Inc., to lease the DC-6 for approximately four flights, some of which were agreed upon orally; the others were the subject of written agreements. All of the agreements contemplated that petitioner would furnish the airplane crew and petitioner's employees, Messrs. Goodman, Davis and Wright, did in fact operate the DC-6 while it was leased to Paul H. Jones & Co., Inc. Miami International Hatcheries, Inc. (MIH) deals in hatching eggs. CWT Farms of Gainesville, Georgia, is a principal supplier of eggs to MIH and has been for some time. Until the fall of 1975, MIH regularly shipped eggs it received from CWT Farms to Kingston, Jamaica, using the facilities of Pan American Airways or Air Jamaica, which are common carriers. On October 13, 1975, however, petitioner entered into a contract with CWT Farms, which was evidenced by two writings, joint exhibits Nos. 2 and 3. Joint exhibit No. 2 sets up a "proposed flight schedule every Monday and Thursday," requires petitioner "to arrange and pay for cargo insurance" and specifies the manner and amount of CWT Farms' payment to petitioner; payments (covering "all operational costs") vary with the weight of the cargo and are "due and payable at the completion of each flight." Joint exhibit No. 4 is a writing evidencing an extension of the original agreement to a date beyond December 31, 1976. Joint exhibit 3 contains, inter alia, a provision which recites "that the person responsible for the operational control of this aircraft during the term of this lease shall be CWT Farms." The provisions of joint exhibits Nos. 3 and 4 notwithstanding, there was from the beginning a clear understanding between Mr. Goodman, on behalf of petitioner, and Raymond H. Burch, on behalf of CWT Farms, that petitioner would hire the crew and that it was petitioner's "responsibility to take care of the crew and to fly the plane." Petitioner's exhibit No. 5, p. 12. Petitioner's employees, ordinarily Messrs. Goodman, Davis and Wright, did in fact fly the DC-6 twice a week from Miami to Kingston, Jamaica, and back. These employees looked for payment of their salaries to petitioner rather than to CWT Farms or to any predecessor lessee. Occasionally, petitioner transported to Jamaica goods belonging to firms other than CWT Farms, but petitioner did not transport its own cargo on the flights to Jamaica. In aviation jargon, a dry lease is an agreement, analogous to a bareboat charter in maritime law, under which the lessee of aircraft undertakes to furnish the crew and gasoline, takes responsibility for maintenance and pays a pro-rata fee for engine time. A wet lease, in contrast, is an agreement under which the lessor furnishes the crew and gasoline and takes responsibility for maintenance; there is no provision for engine time and no penalty for a failed engine. The Federal Aviation Administration imposes more stringent safety regulations on wet lessors of aircraft than on dry lessors. In February of 1977, the Federal Aviation Administration began an investigation of petitioner which resulted in the filing of a complaint against petitioner and others on April 15, 1977, in the United States District Court for the Southern District of Florida. United States of America v. Kimex, Inc., et al., No. 77-1267-CIV-JE. This proceeding eventuated in a stipulation of dismissal in which petitioner agreed to a civil penalty (partially suspended) of thirty thousand dollars ($30,000.00) and admitted that, under the agreement with CWT Farms, it had "engaged in the carriage of property for compensation or hire in air commerce as a private carrier" and that the leases to CWT Farms "were 'wet leases'." During the period of the lease between petitioner and CWT Farms, MIH was normally in debt to CWT Farms because MIH did not pay in advance for the eggs it received from CWT Farms. At CWT Farms' behest, MIH paid petitioner moneys due petitioner from CWT Farms, in partial discharge of MIH's own obligations to CWT Farms. A practice developed under which MIH drew and delivered four checks to petitioner's employees before each flight, which, in the aggregate, constituted CWT Farms' payment to petitioner for the preceding flight. H. Goodman was the payee on one check, in the amount of one hundred seventy-five dollars ($175.00), C. Wright was the payee on one check in the amount of one hundred fifty dollars ($150.00), R. Davis was the payee on one check, in the amount of one hundred twenty-five dollars ($125.00). These checks also operated to discharge part of petitioner's salary obligations to these employees. Kimex, Inc. was the payee on the fourth check, the amount of which varied, depending on the weight of the cargo petitioner had transported on the previous flight. In calculating the amount of the fourth check, the amount CWT Farms owed petitioner was first computed, and four hundred fifty dollars ($450.00) was then subtracted. Before each flight, MIH delivered eggs in cases, which weighed fifty-two (52) pounds each, to a freight loading company at Miami International Airport. Because MIH kept track of the number of cases it delivered, it was a simple matter to compute CWT Farms' obligation to petitioner, as specified in the lease, viz., "16 per pound for the minimum weight of 26,000 pounds to 30,000 pounds and 15 per pound from 30,001 pounds to 32,000 pounds." Joint exhibit 2. From this figure was subtracted the sum of the checks drawn in favor of petitioner's employees. This procedure obtained until some time after December 31, 1976. By the time of the hearing, however, petitioner's employees were paid with weekly pay checks which petitioner itself drew in their favor; and petitioner received lease payment checks which were not reduced by four hundred fifty dollars ($450.00). Before the change to the practice in effect at the time of the hearing, MIH caused Internal Revenue Service Forms 1099 to be prepared to reflect the total MIH payments to petitioner's employees for each year involved. Petitioner prepared W-2 Forms to reflect the salary moneys it paid to its employees directly for each year involved.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent reduce its proposed assessment to four percent of the total dollar cost of the items listed on schedule B attached to the notice of proposed assessment, together with applicable penalties and interest, if any. DONE and ENTERED this 22nd day of December, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraphs one, two, four through thirteen, fifteen and sixteen of petitioner's proposed findings of fact have been adopted, in substance. Paragraph three of petitioner's proposed findings of fact recites that petitioner's lease to Jones & Co. was oral whereas the evidence was that the agreements with Jones & Co. with respect to some of the flights were reduced to writing. Paragraph fourteen of petitioner's proposed findings of fact has been adopted, in substance, assuming that "direction or control" is intended to mean responsibility or authority for navigation of the aircraft. Paragraph one of respondent's proposed findings of fact has been rejected as unsupported by or contrary to the evidence. Petitioner employs Messrs. Goodman, Davis and Wright, Miss Goodman and several mechanics. Mr. Goodman, Mr. Davis and Miss Goodman are petitioner's corporate officers. Petitioner's stockholders are Mr. Davis, Mr. and Mrs. Goodman. The evidence did not establish who petitioner's directors are. Although the evidence showed that petitioner owned a DC-6 airplane based in Miami, it was not proven that petitioner had no other assets. Paragraph two of respondent's proposed findings of fact has been adopted in substance, insofar as relevant, except that there was no evidence that petitioner was exporting its own goods on the flights made pursuant to its agreements with Paul H. Jones & Co. Paragraphs three, four, five and six of respondent's proposed findings of fact have been adopted in substance, insofar as relevant. The final paragraph of respondent's proposed findings of fact lacks support in the evidence. For a given flight, CWT Farms would owe petitioner at least the agreed price for shipping 26,000 pounds of eggs, regardless of how few eggs were in fact shipped. On a given flight, CWT Farms could ship up to 32,000 pounds, but, if CWT Farms shipped less, petitioner sometimes transported eggs for other firms. The semiweekly flight schedule was set by mutual agreement between petitioner and CWT Farms. COPIES FURNISHED: Mr. Norman S. Segall, Esquire Suite 607, 100 Biscayne Tower 100 North Biscayne Boulevard Miami, Florida 33132 Mr. Michael A. Rubin, Esquire Suite 4-B 420 South Dixie Highway Coral Gables, Florida 33146 Mr. Edwin J. Stacker, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32304
Conclusions THIS CAUSE, arising under Florida’s “Agricultural License and Bond Law” (Sections 604.15-604.34), Florida Statutes, came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On October 21, 2008, the Petitioner, Ricky A. Branch, III, a producer of agricultural products as defined by Section 604.15(9), Florida Statutes, timely filed an administrative claim pursuant to Section 604.21, Florida Statutes, to collect $31,296.18 for eggplants they sold to Respondent, a licensed dealer in agricultural products. Respondent’s license for the time in question was supported by a surety bond required by Section 604.20, Florida Statutes, written by Fidelity and Deposit Company of Maryland in the amount of $100,000. On January 7, 2009, a Notice of Filing of ‘an Amended Claim was mailed to Respondent and Co-Respondent. On January 27, 2009, the Respondent filed an ANSWER OF RESPONDENT with attachments wherein they denied the claim as being valid, admitted no indebtedness and requested a hearing. Therefore, this matter was referred to the Division of Administrative Hearings (DOAH) for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. An administrative hearing was scheduled in this matter for April 17, 2009. Attached to the NOTICE OF HEARING was an ORDER OF PRE-HEARING INSTRUCTIONS with instructions for the parties to follow prior to and at the hearing. On March 30, 2009, the Respondent filed a ' MOTION TO CONTINUE FINAL HEARING. The Administrative Law Judge (“Judge”) issued an ORDER GRANTING CONTINUANCE (“Order”) on April 3, 2009. In the Judge’s Order, he asked the parties to confer and advise him on the status of the matter among other things. An ORDER RE-SCHEDULING. HEARING was issued on April 16, 2009 and a new hearing date was set for June 9, 2009. Prior to the hearing, on June 5, 2009, the Respondent filed a RESPONDENT’S MOTION TO DISMISS claiming their efforts to contact the Claimant have been futile. Additionally, Respondent asserts that Claimant failed to comply with the ORDER GRANTING CONTINUANCE, the ORDER RE-SCHEDULING HEARING and the ORDER OF PRE-HEARING INSTRUCTIONS issued by DOAH. For the aforesaid reasons, the Respondent feels the Claimant’s claim should be denied and the claim dismissed with prejudice. On June 16, 2009, the Judge issued a RECOMMENDED ORDER OF DISMISSAL, a copy of which is attached hereto as EXHIBIT “A”, to which neither party filed written exceptions with this Department. . Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is ORDERED: Based on the fact that the Claimant failed to appear at the final hearing with DOAH on June 9, 2009 and failed to meet his burden of proof in presenting evidence in support of his claim, the Department adopts the Judge’s RECOMMENDED ORDER OF DISMISSAL. The Department hereby dismisses the captioned claim and the file is closed without further action. Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to Section 120.68, Florida Statutes (2002) and Rule 9.110, Florida Rules of Appellate Procedure (2003). Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5" Floor, Mayo Building, Tallahassee, FL 32399-0800. A copy of the petition for review or notice of appeal, accompanied by the filing fees prescribed by law must also be filed with the appropriate District Court of Appeal within thirty (30) days of the date this Final Ondet yas filed with the Agency Clerk. DONE AND ORDERED this77_ day of , 2009. ES H. BRONSON TERRY/L. RHODES Assi Commissioner of Agriculture Ke Filed with Agency Clerk this? _ day of , 2009. (pL Vb AM Agency Clerk COPIES FURNISHED TO: Judge Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Certified Receipt No. 7160 3901 9848 2604 4626) Mr. Gary Wishnatzki, Registered Agent Wishnatzki, Inc., d/b/a Wishnatzki Farms 100 Stearn Avenue Plant City, FL 33566 (Certified Receipt No. 7160 3901 9848 2605 1259) Mr. Ricky A. Branch, IIT Post Office Box 42 Webster, FL 33597 (Certified Receipt No. 7160 3901 9848 2605 1266) Ms. Kathy Alves, Claims Specialist Fidelity & Deposit Company of Maryland Post Office Box 87 , Baltimore, MD 21203-0087 (Certified Receipt No. 7160 3901 9848 2605 1273) (Claim No. 6380046897) Thomas F. Munro, Esquire FOLEY & LARDNER LLP 100 North Tampa Street, Suite 2700 Tampa, FL 33602 (Certified Receipt No. 7160 3901 9848 2605 1280) . Mr. Bedford Wilder General Counsel Staff Mayo Building, M-11 Tallahassee, Florida 32399-0800 Ms. Stephenie Butscher and Mr. Mark Moritz, Field Representatives
The Issue The issue is whether Respondent, Akers Holdings, LLC, and its surety, Fidelity and Deposit Company of Maryland, are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner operates a nursery supply company that produces trees, plants, and other landscaping supplies at a location in Bunnell, Florida. Respondent is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Respondent was a landscape distribution company and a licensed dealer in agricultural products supported by a surety bond provided by Fidelity and Deposit Company of Maryland. This matter arose over an Agent Complaint filed by Petitioner on March 23, 2005, in which it alleged that Respondent owed $136,942.49, based upon numerous invoices for nursery goods delivered to various job sites where Respondent was providing landscaping services. Respondent Akers Holdings, LLC, by its agent or employee, R. Dean Akers, signed a Promissory Note on March 23, 2005, in the amount of $137,445.47 plus ten percent simple interest per annum. Under the note, Respondent agreed to repay its outstanding debt to Petitioner at the rate of $12,083.64 per month, commencing March 15, 2005, until paid in full. Respondent made payments under the note as follows: Date of Payment Amount Paid Check No. 3/15/2005 $12,083.64 13536 4/15/2005 12,097.81 1360 5/13/2005 12,090.51 13657 6/14/2005 12,129.37 1372 7/29/2005 12,103.41 13782 The payment dated 7/29/2005 was received by Petitioner on August 8, 2005. No subsequent payments were made by Respondent, Akers Holdings, LLC, after that date. At the time of hearing, based upon the evidence presented by Petitioner, the amount due to Petitioner under the Promissory Note was $81,655.81, and the amount due to Petitioner on open account was $30,734.58. Respondent, Akers Holdings, LLC, offered no excuse for its nonpayment of either the Promissory Note or the open account with Petitioner. Accordingly, Respondent Akers Holdings, LLC, or its surety, Fidelity and Deposit Company of Maryland, owe Petitioner $81,655.81 on the Promissory Note and $30,734.58 on open account, for a total amount owed of $112,390.39.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent, or its surety, to pay Petitioner $112,390.39 for unpaid invoices. DONE AND ENTERED this 26th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2006. COPIES FURNISHED: Kathy Alves Fidelity & Deposit Company of Maryland Post Office Box 87 Baltimore, Maryland 21203 R. Dean Akers Akers Holdings, LLC 5006 20th Avenue, South Tampa, Florida 33619 Donald M. DuMond Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Christopher E. Green, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Division of Marketing 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Department of Agriculture and Consumer Services Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether Respondents are indebted to Petitioner for 35 boxes of beans sold by Petitioner to Respondent, Weis-Buy Services, Inc., and, if so, the amount of the indebtedness.
Findings Of Fact Respondent, Weis-Buy Services, Inc., is a dealer in agricultural products licensed by the Florida Department of Agriculture and Consumer Services. Respondent, Aetna Casualty & Surety Company of Maryland acts as surety for Weis-Buy. On January 5, 1995, Mark A. Underwood, Vice President of the Petitioner, sold to Respondent, Weis-Buy Services, Inc., 35 boxes of beans. This sale was the result of the order placed by Hank Douglas, a duly authorized employee of Weis-Buy. The price agreed to by the Petitioner and Weis-Buy was $28.55 per box, for a total purchase price of $999.25. The beans sold by Petitioner to Weis-Buy had been purchased by Petitioner from another grower, Suncoast Farms. There was no written contract between Petitioner and Suncoast or between Petitioner and Weis-Buy. Weis-Buy took delivery of the beans at Petitioner's dock in Homestead, Florida, on January 5, 1995. The beans were loaded into a refrigerated truck in the employ of Weis- Buy on January 5, 1995. From Homestead, the truck drove to Belle Glade, Florida, a trip of approximately 3.5 hours. In Belle Glade, the truck picked up a load of radishes. The truck then went to Immokalee, Florida, where it picked up a quantity of squash. The following day, the truck picked up a load of cherry tomatoes. On January 9, 1995, the beans were inspected by a federal inspector in Columbus, Ohio. 1/ The inspector noted on his inspection report that the beans showed evidence of freeze damage that was ". . . so located as to indicate freezing injury occurred after packing but not at present location". The inspection report noted that the beans were to be dumped. The parties disagree as to when the freeze damage to the beans occurred. Because Weis-Buy believes that the freeze damage occurred before it took delivery of the beans, it has refused to pay Petitioner for the 35 boxes of beans. The reason Weis-Buy believes that the freeze damage occurred before the beans were loaded onto the truck is because the other vegetables that were transported by the refrigerated truck were not damaged. Partly because the beans had been purchased from another grower, Mr. Underwood inspected the beans immediately prior to their being loaded onto Weis- Buy's truck. Based on his testimony, it is found that there was no freeze damage to the beans when they were loaded on Weis-Buy's truck on January 5, 1995. It is found that the freeze damage to the beans revealed by the federal inspection on January 9, 1995, occurred after the beans had been delivered to Weis-Buy. Consequently, it is concluded that Petitioner fulfilled its obligations under the verbal contract and is entitled to be paid the sum of $999.25.
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, that finds Respondent Weis-Buy Services, Inc., is indebted to Petitioners in the amount of $999.25, directs Weis-Buy Services, Inc., to make payment to Petitioner in the amount of $999.25 within 15 days following the issuance of the order, and provides that if payment in full of this $999.25 indebtedness is not timely made, the Department will seek recovery from the Aetna Casualty & Surety Company of Maryland, as Weis-Buy's surety. DONE AND ENTERED this 16th day of February, 1996, 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 16th day of February 1996.
Findings Of Fact The Petitioner, Berry Investment Group, d/b/a The Berry Ranch, among other things, grows and sells sod. Full Circle Service, Inc., is a landscaping business that was a customer of the Petitioner. Aetna Casualty & Surety Company is the surety for Full Circle to secure the faithful accounting for and payment to producers such as the Petitioner for agricultural products purchased by Full Circle. 1/ During 1986, Full Circle did business with the Petitioner on a running account. Full Circle would order the delivery of sod for installation at different Full Circle jobs. The Petitioner would invoice each delivery separately. During 1986, the Petitioner delivered $4073.40 worth of sod to Full Circle's San Marino Bay in Tampa and Barnett Bank job in Ft. Myers. (In addition, $854.60 for trucking fees and $246.40 of tax was invoiced on these deliveries.) This sod was of acceptable quality 2/ , yet Full Circle has not paid for this sod. Also during 1986, the Petitioner delivered sod to Full Circle for installation at another job in Ft. Myers called Iona Lakes. Full Circle paid the Petitioner over $19,000 for this sod. When the sod was not acceptable to Full Circle's customer, Full Circle replaced much of the sod and claims this and other consequential and incidental damages relating to the Iona Lakes job should be set off against, and therefore completely extinguished, the Petitioner's San Marino Bay and Barnett Bank claims.
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 adjudicating that $4073.40 is the amount of the indebtedness owed to the plaintiff under its Amended Complaint and ordering Full Circle Service, Inc., to pay the indebtedness or, if it is not paid within 15 days after the final order is issued, ordering Aetna Casualty & Surety Company to pay it. RECOMMENDED this 5th day of January, 1988 in Tallahassee, Florida. J. LAWRENCE JOHNSON 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 5th day of January, 1987.
The Issue Whether the Petitioner's complaint that Respondent is indebted to Petitioner in the amount of $4,149.40 for two loads of melons, shipped on June 22, 1977, is valid. Respondent appeared at the hearing without counsel. After being advised of his rights in an administrative proceeding under Chapter 120, Florida Statutes, he acknowledged that he understood such rights and did not desire representation by legal counsel.
Findings Of Fact Petitioner Malvin Ford of Labelle, Florida and Respondent Charles L. Warren, Adel, Georgia are dealers in agricultural products. Pursuant to a telephonic agreement, Petitioner sold two truck loads of watermelons to Respondent which were shipped from Branford, Florida to Baltimore, Maryland on June 22, 1977. One load consisted of 43,680 pounds of melons and was shipped for cost plus freight in the total amount of $2,009.28. The other load weighed 45,220 pounds and was billed at $2,140.12, which included a charge of $60.00 for four "drops" along the way. Petitioner paid the grower of the melons, Hal Walker, and also the carrier. On June 27, 1977, he invoiced Respondent in the above amounts. The invoice stated "terms: net 10 days." (Testimony of Ford, Petitioner's Composite Exhibits 1, 5, 6) Petitioner did not receive payment for the produce from the Respondent and therefore proceeded to file a complaint with the Department of Agriculture and Consumer Services on December 8, 1977. Respondent thereafter issued a check to Petitioner on February 24, 1978, in the amount of $890.10. A statement attached to the check reflected that the amount represented the sum owing to Petitioner in the amount of $4,149.40, less $3,259.30 which apparently represented a setoff of sums owed Respondent by Petitioner for two transactions in the amounts of $1,625.30 and $1,634.00. Petitioner returned the check to Respondent by letter of March 1, 1978, in which he stated that he did not owe any outstanding indebtedness to Respondent. (Petitioner's Exhibits 2 - 4) Although Respondent conceded in his testimony at the hearing that he was indebted to Petitioner for the two loads of melons shipped on June 22, 1977, he claimed that in two separate 1974 transactions involving another two truck loads of melons Petitioner had not paid him in the total amount of $3,259.30. However, Respondent produced no documentary evidence concerning these transactions other than an unsworn statement of Frank Koza of Oliver, Pennsylvania, stating that he had received a load of watermelons weighing 47,803 pounds on August 13, 1974, from Petitioner and that he had paid Petitioner for the load. Petitioner testified that this dispute arose at a time when he and Respondent both had offices in Virginia and Respondent asked him how to get rid of a load of melons that he had been unable to sell on the Pennsylvania Turnpike. Petitioner says that he told him to contact Koza who had two fruit stands in Pennsylvania, and that that was his only connection with the transaction. He denied receiving any payment from Koza for the load. Respondent, on the other hand, testified that Petitioner had promised to sell the load for him and make arrangements for the driver hired by the Respondent to reach Koza's place of business. Respondent further testified that he turned over the delivery tickets from the load to Petitioner, but did not send an invoice for the amount because he had dealt many times with Petitioner in the past and that it was a question of trusting him to account for the proceeds from the load. He further testified that he talked to Petitioner several days after the transaction and Ford told him that he had never received a settlement for the load from Koza. Respondent testified that the other transaction occurred on June 28, 1974, when, pursuant to a telephonic agreement with Petitioner, Respondent shipped a load of melons from Georgia to a firm in Baltimore, Maryland and that thereafter Respondent provided Petitioner with delivery tickets on the load signed by the receiver of the goods. No documentary evidence was submitted in connection with this alleged transaction and Petitioner denied any knowledge of it. In view of the above conflicting evidence and the lack of writings to support the claimed oral agreements, it is found that Respondent has failed to establish by preponderance of the evidence that Petitioner is indebted to him on either of the purported 1974 transactions. The Koza statement which was purportedly signed on March 22, 1978, is hearsay and insufficient alone to support a finding that the facts contained therein are true and correct. It cannot serve as supplementary evidence to Respondent's testimony concerning the transaction because Respondent has no personal knowledge that payment for the goods was made by Koza to Petitioner. (Testimony of Ford, Warren, Respondent's Exhibit 1)
Recommendation That the Department of Agriculture and Consumer Services enter a Final Order requiring Respondent to pay Petitioner the sum of $4,149.40, as claimed. DONE and ENTERED this 12th day of June, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Harrell, II, Esquire Post Office Box 865 Labelle, Florida 33935 Charles L. Warren Warren Produce Farms 801 South Gordon Post Office Box 305 Adel, Georgia 31620 Robert A. Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
