The Issue The issue is whether the claims of $98,935.20 and $19,147.70, filed by Petitioner under the Agricultural Bond and License Law, are valid. §§ 604.15 - 604.34, Fla. Stat. (2008).
Findings Of Fact At all material times, Petitioner has been a producer of agricultural products located in Plant City, Florida. At all material times, American Growers has been a dealer in agricultural products. Respondent Lincoln General Insurance Company, as surety, issued a bond to American Growers, as principal. American Growers is licensed by the Department of Agriculture and Consumer Services ("DACS"). Between December 16, 2008, and February 4, 2009, Petitioner sold strawberries to American Growers, each sale being accompanied by a Passing and Bill of Lading. Petitioner sent an Invoice for each shipment, and payment was due in full following receipt of the Invoice. Partial payments have been made on some of the invoices, and as of the date of this Recommended Order, the amount that remains unpaid by American Growers to Petitioner is $117,982.90, comprising: Invoice No. Invoice Date Amount Balance Due 103894 12/16/08 $7,419.00 $1,296.00 103952 12/22/08 $18,370.80 $1,944.00 103953 12/23/08 $3,123.60 $648.00 193955 12/26/08 $8,164.80 $1,728.00 103984 12/28/08 $28,764.40 $28,764.40 104076 12/31/08 $17,236.80 $17,236.80 104077 1/5/09 $17,658.00 $17,658.00 104189 1/5/09 $1,320.90 $1,320.90 104386 1/20/09 $16,480.80 $16,480.80 104517 1/29/09 $17,449.20 $17,449.20 104496 2/4/09 $13,456.80 $13,456.80 TOTAL $117,982.90
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 requiring Respondent, American Growers, Inc., and/or its surety, Respondent, Lincoln General Insurance Company, to pay Petitioner, Crown Harvest Produce Sales, LLC, the total amount of $117,982.90. DONE AND ENTERED this 18th day of May, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture and Consumer Services The Capital, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, Mail Station 38 Tallahassee, Florida 32399-0800 Glenn Thomason, President American Growers, Inc. 14888 Horseshoe Trace Wellington, Florida 33414 Katy Koestner Esquivel, Esquire Meuers Law Firm, P.L. 5395 Park Central Court Naples, Florida 34109 Renee Herder Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Boulevard, Suite 155 Tampa, Florida 33634 Glenn C. Thomason, Registered Agent American Growers, Inc. Post Office Box 1207 Loxahatchee, Florida 33470
The Issue The issues presented are whether Respondent, George Mason Citrus, Inc. (Mason), owes Petitioner $10,000 for citrus fruit that Mason purchased from Petitioner and, if so, whether the surety is liable for any deficiency in payment from Mason.
Findings Of Fact Petitioner is a Florida corporation licensed by the Department as a “citrus fruit dealer,” within the meaning of Subsection 601.03(8), Florida Statutes (2005) (dealer).1 The business address for Petitioner is 1103 Southeast Lakeview Drive, Sebring, Florida 33870. Mason is a Florida corporation licensed by the Department as a citrus fruit dealer. The business address for Mason is 140 Holmes Avenue, Lake Placid, Florida 33852. Western is the surety for Mason pursuant to bond number 42292005 issued in the amount of $100,000 (the bond). The term of the bond is August 1, 2004, through July 31, 2005. Petitioner conducts business in Highlands County, Florida, as a dealer and as a “broker” defined in Subsection 601.03(3). In relevant part, Petitioner purchases white grapefruit (grapefruit) for resale to others, including Mason. Mason conducts business in Highlands County as either an “agent,” “broker,” or “handler” defined in Subsections 601.03(2), (3), and (23). On January 31, 2003, Mason contracted with Petitioner to purchase grapefruit from Petitioner pursuant to Fruit Contract number 03-307 (the contract). Mason drafted the contract. The terms of the contract require Petitioner to sell grapefruit to Mason for the 2003, 2004, and 2005 “crop years.” The 2003 crop year began in the fall of 2002 and ended at the conclusion of the spring harvest in 2003. The 2004 and 2005 crop years began in the fall of 2003 and 2004 and ended in the spring of 2004 and 2005, respectively. Only the 2005 crop year is at issue in this proceeding. The contract required Petitioner to deliver grapefruit to a person designated by Mason. Mason designated Peace River Citrus Products, Inc. (Peace River), in Arcadia, Florida, for delivery of the grapefruit at issue. Mason was required by the terms of a Participation Agreement with Peace River to deliver 30,000 boxes of grapefruit to Peace River during the 2005 crop year. In an effort to satisfy its obligation to Peace River, Mason entered into the contract with Petitioner for an amount of grapefruit described in the contract as an “Approximate Number of Boxes” that ranged between 12,000 and 14,000. Petitioner delivered only 2,128 boxes of grapefruit to Peace River. The production of grapefruit was significantly decreased by three hurricanes that impacted the area during the 2005 crop year. The parties agree that Mason owed Petitioner $19,070.03 for the delivered boxes of grapefruit. The amount due included a portion of the rise in value over the base purchase price in the contract caused by increases due to market conditions and participation pay out after the parties executed the contract (the rise).2 On or about October 26, 2005, Mason mailed Petitioner a check for $9,070.03. The transmittal letter for the check explained the difference between the payment of $9,070.03 and the amount due of $19,070.03. Mason deducted $10,000 from the $19,070.03 due Petitioner, in part, to cover the cost of grapefruit Mason purchased from other dealers or growers to make up the deficiency in grapefruit delivered by Petitioner (cover). The $10,000 sum also includes interest Mason claims for the cost of cover and Mason's claim for lost profits. Petitioner claims that Mason is not entitled to deduct lost profits and interest from the amount due Petitioner. If Mason were entitled to deduct interest, Petitioner alleges that Mason calculated the interest incorrectly. The larger issue between the parties is whether Mason is entitled to deduct cover charges from the amount due Petitioner. If Mason were not entitled to cover the deficiency in delivered boxes of grapefruit, Mason would not be entitled to interest on the cost of cover and lost profits attributable to the deficiency. The parties agree that resolution of the issue of whether Mason is entitled to cover the deficiency in delivered boxes of grapefruit turns on a determination of whether the contract was a box contract or a production contract. A box contract generally requires a selling dealer such as Petitioner to deliver a specific number of boxes, regardless of the source of grapefruit, and industry practice permits the purchasing dealer to cover any deficiency. A production contract generally requires the selling dealer to deliver an amount of grapefruit produced by a specific source, and industry practice does not permit the purchasing dealer to cover any deficiency. The contract is an ambiguous written agreement. The contract expressly provides that it is a "Fruit Purchase Contract" and a "delivered in" contract but contains no provision that it is either a box or production contract. The contract is silent with respect to the right to cover. Relevant terms in the contract evidence both a box contract and a production contract. Like the typical box contract, the contract between Mason and Petitioner prescribes a number of boxes, specifically no less than 12,000, that are to be delivered pursuant to the contract. However, the typical box contract does not identify the number of boxes to be delivered as "Approximate No. of Boxes" that ranges between 12,000 and 14,000 boxes. Unlike a production contract, the contract does not identify a specific grove as the source of the required grapefruit. Best practice in the industry calls for a production contract to designate the grove by name as well as the number of acres and blocks. However, industry practice does not require a production contract to identify a specific grove as the source of grapefruit. In practice, Mason treated another contract that Mason drafted with a party other than Petitioner as a production contract even though the contract did not identify a specific grove as the source of grapefruit. The absence of a force majure clause in the contract may evidence either type of contract.3 A box contract typically requires the selling dealer to deliver the agreed boxes of grapefruit regardless of weather events, unless stated otherwise in the contract. However, the absence of such a clause may also be consistent with a production contract because "acts of God" are inherent in a production contract. Such acts, including hurricanes, necessarily limit grapefruit production, and a production contract obligates the selling dealer to deliver only the amount of grapefruit produced. The contract between Petitioner and Mason did not contain a penalty provision for failure to deliver the prescribed boxes of grapefruit (box penalty). The absence of a box penalty in the contract evidences a production contract. The contract identifies Petitioner as the "Grower." A grower typically enters into a production contract. A box contract does not limit the source of grapefruit to be delivered, and the selling dealer in a box contract may obtain grapefruit from anywhere in the state. The contract between Petitioner and Mason limits the source of grapefruit to grapefruit grown in Highlands County, Florida. Mason knew that Petitioner sold only grapefruit from groves in Highlands County, Florida, identified in the record as the Clagget Taylor groves. During the 2003 and 2004 crop years, Petitioner sold only grapefruit from the Clagget Taylor groves. Mason received trip tickets and other documentation related to the delivery of no less than 24,000 boxes of grapefruit, all from the Clagget Taylor groves. The boxes of grapefruit delivered during the 2005 crop year came only from the Clagget Taylor groves. Mason received documentation showing the grapefruit came from the Clagget Taylor groves. Ambiguous written agreements are required by judicial decisions discussed in the Conclusions of Law to be construed against the person who drafted the agreement. Mason drafted an ambiguous agreement with Petitioner. The agreement must be construed against Mason as a production contract. Mason owes Petitioner $10,000 for the delivered grapefruit during the 2005 crop year. The terms of the bond make Western liable for any deficiency in payment from Mason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order directing Mason to pay $10,000 to Petitioner, and, in accordance with Subsections 601.61 and 601.65, requiring Western to pay over to the Department any deficiency in payment by Mason. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2007.
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 in this case is whether Petitioners sold nursery plant materials to Respondent U.S. Lawns of Orlando, Inc. for which the latter did not pay.
Findings Of Fact On May 24, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 460 Juniper plants, for $731.40 including tax. The plants were picked up by U.S. Lawns employee Mark Rosetta. U.S. Lawns of Orlando, Inc. does not dispute the validity of the claim arising out of the May 24 sale. However, U.S. Lawns has never paid for these plant materials. On June 6, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 40 Juniper plants and 50 grass plants for $166.95 including tax. These plants were picked up by Jeffrey Miller, who was an employee of U.S. Lawns. U.S. Lawns disputes the validity of the June 6 sale. However, the owner of U.S. Lawns, Glen Jaffee, never responded to numerous telephone calls from Pen Smith of Jon's Nursery, Inc. concerning the unpaid invoices. Nor did anyone respond to a certified demand letter that Mr. Smith mailed to U.S. Lawns on August 29, 1990, or the numerous monthly statements reflecting the unpaid balances. An officer and employee of U.S. Lawns of Orlando, Inc., Pat Oyler, had ordered the plant materials by telephone from Jon's Nursery, Inc. Mr. Oyler had previously ordered plant materials on behalf of U.S. Lawns from Jon's Nursery, which had always been paid. On two occasions subsequent to the sales in question, Mr. Oyler ordered plant materials from Jon's Nursery, Inc. on behalf of U.S. Lawns, but paid for them with his personal check, and Mr. Smith told him that he would need, in such cases, to order the plants in his name. On May 31, 1990, Concepts in Greenery, Inc. sold U.S. Lawns ten 15-gallon crepe myrtles for $318 including tax. These items were picked up by Jeffrey Miller driving a U.S. Lawns truck. These plant materials had been ordered by Mr. Oyler of U.S. Lawns. Concepts in Greenery, Inc. had also previously done business with U.S. Lawns and been paid. In a sale which had taken place on March 25, 1990, Mr Oyler had ordered about $400 worth of plant materials on behalf of U.S. Lawns. Additionally, in its application for credit with Concepts in Greenery, Inc. dated April 11, 1988, Mr. Jaffee, as president of U.S. Lawns of Orlando, Inc., had certified that Mr. Oyler was vice president of U.S. Lawns of Orlando, Inc. Repeated telephone calls and monthly statements from Concepts in Greenery, Inc. to U.S. Lawns of Orlando, Inc., as well as a certified letter dated September 19, 1990, to Mr. Jaffee, were unsuccessful in obtaining any response whatsoever from the latter company. Spring Hill Nursery, Inc. made several sales of a variety of plant materials to U S. Lawns of Orlando, Inc. Including tax, these sales were as follows: March 13, 1990, for $131.18; March 26, 1990, for $544.05; April 5, 1990, for $12.24; April 6, 1990, for $90.10; April 17, 1990, for $593.60; April 18, 1990, for $55.65; and April 27, 1990, for $92.75. An eighth invoice dated June 4, 1990, for $581.15 has been excluded because it bears the names of Oyler Construction Company, Inc., Bentley Green, and Pat Oyler as the persons invoiced and nowhere mentions U.S. Lawns. The total of the seven sales to U.S. Lawns is $1519.57. Spring Hill Nursery, Inc. repeatedly tried to contact Mr. Jaffee and U.S. Lawns, including by letter dated August 27, 1990, but never received any response to its demand for payment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring U.S. Lawns of Orlando, Inc. to pay the above-indicated sums to the respective parties. DONE AND ENTERED this 9th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1991. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel Department of Agriculture 515 Mayo Building Tallahassee, FL 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Pen Smith, Sales Manager Jon's Nursery, Inc. 24546 Nursery Way Eustis, FL 32726 Charles Brown, Nursery Manager Concepts in Greenery, Inc. 16366 Old Cheney Highway Orlando, FL 32833 David Rubright, President Spring Hill Nursery, Inc. 1921 Hill Drive Apopka, FL 32703 Glen Jaffee 612 Bryn Mawr Orlando, FL 32804 Bankers Insurance Company 10051 5th Street North St. Petersburg, FL 33702
The Issue The issue is whether Respondent owes Petitioner $13,853.00 for failure to harvest Petitioner's 2004 Valencia orange crop, as alleged in the Complaint.
Findings Of Fact Petitioner, Lionel LaGrow, is a resident of Highlands County, Florida. Respondent, Chapman Fruit Company, Inc. (hereinafter "Respondent" or "Chapman"), is a Florida corporation with its principal place of business in Hardee County, Florida. Chapman is a duly licensed fruit buyer in the State of Florida and is owned by Ray Chapman (hereinafter referred to as "Mr. Chapman"). Mr. LaGrow owns and operates a 26-acre grove in Highlands County, Florida. At all times relevant to this proceeding, Mr. LaGrow's grove contained varieties of citrus referred to as "Earlies," "Mids," and "Valencias." The Earlies and Mids varieties are picked early in each fruit season and the Valencias are picked late in each fruit season. At all times relevant to this proceeding Reggie Cooper (hereinafter referred to as "Mr. Cooper") was an employee of Chapman. Mr. Cooper was authorized by Chapman to enter into binding agreements and to make arrangements for and supervise the picking and hauling of Mr. LaGrow's citrus. Mr. LaGrow and Chapman entered into a Pick and Haul Contract (hereinafter referred to as "Contract") dated November 9, 2001, by which Mr. LaGrow agreed to sell, and Chapman agreed to purchase, fruit grown on the 26-acre tract located in Highlands County, Florida, for shipping seasons 2001-2002, 2002-2003, and 2003-2004. The Contract did not provide prices within the Agreement itself for picking and hauling the fruit. The parties verbally agreed to prices for picking and hauling at the time of each year's harvest. The Contract, as written, was a "Delivered-In" Contract, meaning that Mr. LaGrow retained the right to arrange for picking and hauling the fruit at any time during the term of the Contract. Mr. Cooper made arrangements for and supervised the picking and hauling of Mr. LaGrow's citrus. After the citrus was picked, Chapman provided Mr. LaGrow statements that accurately and fairly account for all fruit harvested by Chapman's contracted harvester. The statements showed the gross income, the costs of picking and hauling, as well as other expenses, and the net income to Mr. LaGrow. The parties followed the procedure described in paragraph 7, beginning in November 2001 of the 2001-2002 citrus shipping season through the harvesting of the Earlies and Mids in the 2003-2004 fruit season. There were 3,531 boxes of Earlies and Mids harvested by Chapman's contractor in November 2001 for the 2001-2002 citrus shipping season from the LaGrow property. When multiplied by the total pounds of solids (19,881.16), a gross purchase price of $15,904.93 resulted. Picking and hauling in the amount of $2.00 per box was deducted leaving $8,180.86 payable to Mr. LaGrow. Chapman tendered a check in the amount of $8,180.86 to Mr. LaGrow. There were 3,103 boxes of Valencias harvested by Chapman's contractor in March 2002 for the 2001-2002 citrus shipping season from the LaGrow property. When multiplied by the total pounds of solids (21,085.57), a gross purchase price of $20,031.29 resulted. Picking and hauling in the amount of $2.20 per box was deducted leaving $13,134.87 payable to Mr. LaGrow. Chapman tendered a check in the amount of $13,134.87 to Mr. LaGrow. There were 1,785 boxes of Earlies and Mids harvested by Chapman's contractor in the 2002-2003 citrus shipping season from the LaGrow property. When multiplied by the total pounds of solids (11,063.98), a gross purchase price of $10,068.22 resulted. Picking and hauling in the amount of $2.86 per box was deducted leaving $4,628.44 payable to Mr. LaGrow. Chapman tendered a check in the amount of $4,628.44 to Mr. LaGrow. There were 1,594 boxes of Valencias harvested by Chapman's contractor in the 2002-2003 citrus shipping season from the LaGrow property. When multiplied by the total pounds of solids (10,582.23), a gross purchase price of $10,053.12 resulted. Picking and hauling in the amount of $2.77 per box was deducted leaving $5,601.87 payable to Mr. LaGrow. Chapman tendered a check in the amount of $5,601.87 to Mr. LaGrow. There were 316 boxes of Earlies and Mids harvested by Chapman's contractor in the 2003-2004 citrus shipping season by Chapman's contractor from the LaGrow property. When multiplied by the total pounds of solids (1,847.46), a gross purchase price of $1,385.59 resulted. Picking and hauling in the amount of $3.55 per box was deducted leaving $252.57 payable to Mr. LaGrow. Chapman tendered a check in the amount of $252.57 to Mr. LaGrow. There were no problems or disputes between Chapman and Mr. LaGrow regarding the harvesting of the citrus until the 2003-2004 Valencia crop was to be picked. All harvesting of Mr. LaGrow's fruit during the Contract period was performed by Chapman's contracted harvester. There was no fruit harvested from the LaGrow property by any one other than Chapman's contracted harvester during the Contract period. During the Contract period there was a steady decline in production from the LaGrow grove property. From the first year of the Contract to the second year of the Contract there was a nearly 51 percent reduction in the number of net boxes harvested. From the second year of the Contract to the third year of the Contract, with respect to the Earlies and Mids, there was an 82.3 percent reduction in the number of net boxes harvested. There were an insufficient number of boxes of Valencia oranges on the LaGrow property available for harvest in 2004. Had Chapman harvested, or arranged to harvest the 2004 Valencia crop, once picking and hauling charges were applied, a negative balance owed would have resulted. Mr. Cooper, on behalf of Chapman, made multiple attempts to arrange for harvesting of the 2004 Valencia crop, including, but not limited to, contacting M.E. Stephens, IV, who declined to harvest the fruit based on the quantity available for harvest. For the same reason, other harvesters advised Mr. Cooper that they could not harvest the LaGrow 2004 Valencia crop. Though unsuccessful, Mr. Cooper's efforts to have the crop harvested were reasonable under the circumstances. Mr. Cooper never told Mr. LaGrow that because of the quantity of the Valencia oranges in 2004, he was unable to find a contractor to harvest the fruit. Although it became apparent that Mr. Cooper had not arranged for the Valencia oranges to be harvested, Mr. LaGrow never contacted Mr. Chapman or Mr. Cooper. Under the subject Contract, Mr. LaGrow could harvest or make arrangements to have the Valencia oranges harvested. However, Mr. LaGrow failed to take steps in 2004 to have the Valencia oranges harvested and sold. Mr. LaGrow's Complaint contends that Chapman owes him $13,853.00 for failing to harvest and sell the Valencia oranges in the 2004 season. In Petitioner's Proposed Recommended Order, he seeks $9,586.50 in "damages."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Commissioner of Agriculture enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 7th day of November, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 November, 2007.
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $39,167.58 for mangoes grown by Petitioner and picked and sold by Respondent southeast
Findings Of Fact Petitioner Marcus D. Alston d/b/a Alston Groves is a grower of mangoes in Goulds, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the mangoes, then takes them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the mangoes pays Southeast after receipt of the mangoes, Southeast ascertain's what prices were paid for the mangoes and then calculates its costs and pays the grower the difference. Between June 24 and August 9, 1988, Southeast sold 3,861.2 bushels of mangoes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's mangoes sold by Southeast. Petitioner disputes Southeast's calculations as to the price which Southeast received for the mangoes, the percentage of the mangoes sold by Southeast which "graded out" for sale, and the amount of picking and inspection fees charged by Southeast. Although Petitioner claims he had a verbal contract whereby Southeast agreed to pay him a flat rate of $20 per bushel minus picking charges, his Complaint seeks payment based on prices ranging from $6 to $20 per bushel which he also alleges were the market prices quoted to him by Southeast. At final hearing, Petitioner took the position that he is not seeking reimbursement of $20 per bushel but for only the lesser per bushel prices. No competent, substantial evidence was offered to prove that the prices Southeast received for the mangoes were higher than those reflected in Southeast's records. Petitioner claims that 100% of each picking was high quality, saleable fruit. No competent, substantial evidence was offered to justify Petitioner's selection of 100% for all pickings. The 100% figure selected by Petitioner allows for no differences in the amount of marketable mangoes from each picking, and there is no evidence to support the proposition that no matter when during the season the mangoes were picked exactly 100% of them were marketable as top grade mangoes. Further, during final hearing, Petitioner testified regarding his low cull rate, thereby admitting he knew that his mangoes were not 100% marketable. Although Southeast's records erroneously reflect inspection fees paid by Southeast to be deducted by Southeast from the sale price of the mangoes, no inspection fees were actually paid by Southeast, and Southeast has not deducted any inspection fees from Petitioner's account in calculating the net amounts to be paid to Petitioner by Southeast. The parties have stipulated that Southeast is not entitled to deduct picking fees for those batches of mangoes which Petitioner picked himself and delivered to Southeast. Southeast's records reflect that no picking fees were charged to Petitioner for the mangoes grown by Petitioner and sold by Southeast relating to 19 of the 48 tickets at issue in this proceeding. As to the mangoes reflected in 13 additional tickets, at the conclusion of the final hearing the parties requested and were afforded additional time to jointly review the actual picking tickets (not offered in evidence) for the name of the picker on each ticket to ascertain if the picker was a member of Petitioner's crew, thereby entitling Southeast to no picking fee, or a member of Southeast's crew, thereby entitling Southeast to collect a picking fee. The parties were to then file a statement regarding which additional batches of mangoes were picked by Petitioner's own employees. The parties have failed to do so, and Petitioner offered no evidence regarding this point on which a Finding of Fact can be made. Southeast's accounting sheet contains a column entitled "Net Actual" which sets forth the figures Southeast claims it owes Petitioner for the mangoes represented by each picking ticket. The total for that column equals $35,874.68, the total figure which Southeast claims it owes Petitioner. Southeast has paid Petitioner a total of $28,888.51 for his mangoes. Therefore, Southeast owes Petitioner the additional amount of $6,986.17.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Marcus D. Alston d/b/a Alston Groves in the amount of $6,986.17 and that such monies should be paid to him within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31 day of January, 1990. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31 day of January, 1990. COPIES FURNISHED: Cliff Willis Florida Farm Bureau Mutual Insurance Company 1850 Old Dixie Highway Homestead, Florida 33033 Don Reynolds c/o Aaron Thomas, Inc. 11010 North Kendall Drive, Suite 200 Miami, Florida 33176 Marcus D. Alston Alston Groves 14100 Southwest 232nd Street Goulds, Florida 33110 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue Whether Respondent, Debruyn Produce Co. owes Petitioner, Florida Farm Management Inc. the sum of $4,846.00 for watermelons shipped by Petitioner and handled by Respondent as Petitioner's agent during the period from May 30, 1989 through July 5, 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant fact are found: At all times material to this proceeding, Petitioner, Florida Farm Management, Inc. was a "producer" of agricultural products in the state of Florida as that term is defined in Section 605.15(5), Florida Statutes. At all times material to this proceeding, Respondent, Debruyn Produce Co. was a licensed "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes. Respondent was issued license number 596 by the Department, and bonded by Peerless Insurance Company (Peerless) for the sum of $47,000.00, bond number R2-27-13, with an effective date of November 13, 1988 and a termination date of November 13, 1989. At all times material to this proceeding, Debruyn was authorized to do business in the state of Florida. Around the last week of April, 1989, Petitioner and Respondent orally agreed, among other things, for Petitioner to produce certain quantities of Mickey Lee Watermelons and for Respondent to market those watermelons. This oral agreement was reduced to writing, executed by the Respondent and sent to Petitioner to execute. Petitioner, after making certain changes in the agreement and initialing those changes, executed the agreement and returned it to the Respondent. It is not clear if Respondent agreed to the change since they were not initialed by Respondent. However, the parties appeared to operate under this agreement as modified by Petitioner. Under the agreement, Respondent was to advance monies for harvesting and packing, furnish containers and labels for packing and agreed to pay certain chemical bills. Petitioner was to reimburse any monies advanced by the Respondent for (a) harvesting or packing; (b) containers and labels and; (c) chemicals, from the proceeds of the sale of watermelons. Any balance owed Petitioner for watermelons was to be paid within 30 days. Additionally, Respondent was to receive a commission of 8% of net FOB, except 30 cent maximum on sales of less than $6.25 per carton and 40 cents per carton for melons delivered on contract to National Grocers Co. The relationship of the parties was to be that of producer and sales agent. Before entering into the agreement with Respondent, Petitioner had agreed to furnish National Grocers Co. four shipments of melons totalling 8,000 cartons. Respondent agreed to service that agreement. Although Petitioner's accounts receivable ledger shows a credit of $6,007.13 for chemicals paid for by Respondent, the parties agreed that only $3,684.68 was expended by Respondent for chemicals and that Respondent should receive credit for that amount. The parties agree that Respondent advanced a total of $18,960.00 for harvesting and packing and the Respondent should be given credit for this amount. The parties agree that Respondent paid to Petitioner the sum of $12,439.32 and the Respondent should be given credit for this amount. Cartons and pads for packing the melons were shipped on two occasions and the total sum paid by Respondent for those cartons and pads was $17,225.00. The cartons were printed with the logo of Respondent on one side and the logo of Petitioner on the other side. Petitioner agrees that the number of cartons and pads used by him came to $12,463.78 and the Respondent should be given credit for that amount. All cartons and pads in the sum of $17,255.00 were delivered to Petitioner's farm. The amount in dispute for the remainder of the carton is $4,762.22. The Respondent was responsible under the agreement to furnish cartons and pads (containers). Respondent ordered the cartons and pads after determining from Petitioner the number needed. There were two orders for cartons and pads placed and delivered. There was an over supply of cartons and pads delivered to Petitioner. This over supply was the result of a miscommunication between Petitioner and Respondent as to the amount of cartons and pads needed. Petitioner agrees that all of the cartons and pads were delivered to his farm but that he was unable to protect these cartons and pads from the weather. However, Petitioner advised Respondent that the remainder of the carton and pads could be picked up at his farm. Respondent contended that he was denied access to the farm and was unable to pick up the remainder of the cartons and pads and, therefore, they were ruined by exposure to the weather. While there may have been times when Respondent attempted to retrieve the carton and Petitioner was unavailable, there is insufficient evidence to show that Respondent was intentionally denied access to Petitioner's farm to retrieve the cartons. Clearly, the ordering, purchasing and storing of the cartons and pads was a joint effort and both Petitioner and Respondent bear that responsibility. Therefore, the Petitioner is responsible for one-half of the difference between the total cost of the cartons ($17,225.00) and the amount used by Petitioner ($12,462.78) which is $2,381.11 and Respondent should be given credit for this amount. Petitioner's accounts receivable ledger shows that Petitioner shipped melons to Respondent in the amount of $54,715.63, after adjustments for complaints and commission. Respondent's accounts payable ledger shows receiving melons from Petitioner in the amount of $51,483.00, after adjustments for complaints and commission. The difference in the two ledgers in the amount of is accounted for as follows: Invoice No. 210066 - Customer paid $2.00 per carton less on 93 cartons, Petitioner agreed to the reduction. However, Petitioner's account is in error by 9 cents which reduces total amount to $54,715.54. Invoice No. 210067 - Respondent paid for more melons than Petitioner shows were shipped - $39.60. Invoice No. 210068 - difference in calculation of commission $13.32 Invoice No. 2100105 - difference due to Petitioner not agreeing to adjustment in price taken by customer. $2,886.00 Invoice No. 2100239 - difference of $108.04 due to Respondent allowing customer adjustment which Petitioner did not agree to. Invoice No. 2100267 - difference of $210.00 for same reason stated in (e) above. Petitioner should be allowed the difference due to miscalculation of commission in invoice Nos. 210068, 2100134 and 2100160 in the sum of $68.10 since Petitioner's calculation was in accordance with the agreement. There was no dispute as to the condition of melons being as contracted for upon receipt. There was insufficient evidence to establish that the melons shipped under invoice Nos. 2100105, 2100239 and 2100267 by Petitioner were not of the size and number contracted for by the customer. As to invoice Nos. 2100239 and 2100267, the adjustments were made after the fact without contacting Petitioner. As to invoice No. 2100105, the Petitioner shipped the melons to Russo Farms, Inc., Vineland, N.J., as per Respondent's order who then unloaded the melons and reloaded on Russo's truck and shipped to another buyer. It was this buyer's complaint that resulted in Russo demanding an adjustment. Respondent granted such adjustment without approval of the Petitioner. Although Respondent did contact Petitioner in regard to this complaint, Petitioner would not authorize a federal inspection, which he could have, but instead, requested that Respondent obtain an independent verification of the basis of the complaint. Instead of an independent verification of the complaint, Respondent had Russo evaluate the load as to size of melons and number of boxes. No complaint was made as to condition of the melons. Petitioner would not accept Russo's evaluation because based on the total weight of the melons shipped, as indicated by the freight invoice, Russo's evaluation could not have been correct. The only evidence presented by Respondent as to size and number of melon in regard to invoice Nos. 2100105, 2100239 and 2100267 was hearsay unsupported by any substantial competent evidence. Petitioner should be allowed the difference in invoice Nos. 2100105, 2100239 and 2100267 for a sum total of $3,204.00. No adjustment should be made for the differences in invoice No. 210067 other than the 9 cent error made by Petitioner because this amount is not used in Petitioner's calculation of the gross amount due for melons shipped. Therefore, the sum total of all melons sold and shipped is $54,715.63 - 0.09 = $54,715.54. The amount due Petitioner is calculated as follows: Sum total of melons shipped with proper adjustments $54,715.54 Subtract from that the following: Chemicals 3,684.68 Advances 18,960.00 Cost of Cartons $12,462.78 + 2,381.11 14,773.89 Payment 12,439.32 Subtotal of Deductions 49,857.89 Difference and amount owed $4,857.65
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent Debruyn Produce Company, Inc. be ordered to pay the Petitioner Florida Farm Management, Inc. the sum of $4,857.65. It is further RECOMMENDED that if Respondent Debruyn Produce Company, Inc. fails to timely pay Petitioner, Florida Farm Management, Inc. as ordered, the Respondent, Peerless Insurance Company be ordered to pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse the Petitioners in accordance with Section 604.21, Florida Statutes. DONE and ORDERED this 23rd day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner. 1. Not a finding of fact but the issue in this case. 2.-3. Adopted in findings of fact 2 and 4. Adopted in finding of fact 8. Adopted in finding of fact 4. First sentence adopted in finding of fact 7. The balance is not material but see findings of fact 16-23. Not material but see findings of fact 16-23. Rejected as not being supported by substantial competent evidence in the record but see findings of fact 9-14. Adopted but modified in findings of fact 21 and 22. 10(A), 10(C)(1), 10(E), and 10(F) adopted in finding of fact 24. 10(C)(2)(3), 10(d) rejected as not being supported by substantial competent evidence in the record. See findings of fact 5, ,7, 9 - 15. Rulings on Proposed Findings of Fact Submitted by Respondent. 1.-7. Adopted in findings of fact 2, 1, 4, 4, 4, 6, and 7 respectively as modified. Not material. This involved invoice Nos. 210066 and 210067 and adjustment were agreed to be Petitioner and is not part of this dispute. See Petitioner's accounts receivable ledger, Petitioner's Exhibit 1. Adopted in finding of fact 21 as modified. Rejected as not being supported by substantial competent evidence in the record. Not material. This involved invoice No. 2100160 and adjustments were granted by Petitioner and is not part of this dispute. See Petitioner's Exhibit 1. 12.-13.Adopted in finding of fact 21 as modified. Adopted in finding of fact 5, and 9-15 as clarified. Rejected as not supported by substantial competent evidence in the record but see findings of fact 9-15. Adopted in finding of fact 13 as clarified. Adopted in finding of fact 23 as clarified but see findings of fact 9-22.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioners, Mark K. Mast and Kirk E. Mast d/b/a Mast Farm, operate a sixty-acre potato farm on Cracker Swamp Road in or near East Palatka, Florida. The 1991 crop year was the first year in which the two brothers had operated their own farm. This activity was a part-time endeavor since the brothers worked full-time as logging contractors for Georgia Pacific Corporation. Respondent, G & G Sales Corporation, a Minnesota corporation licensed to do business in this state, is a dealer (broker) in agricultural products that purchases potatoes from growers throughout the country for resale to various potato chip companies. Its president and vice-president are Loren R. Girsbirger and George Wilkerson, respectively. As an agricultural dealer, respondent is required to obtain a license from and post a surety bond with the Department of Agriculture and Consumer Affairs (Department). In this case, the bond has been posted by respondent, St. Paul Fire & Marine Insurance Company. The amount of the bond is not of record. In order to start their farming operation, it was necessary for the Mast brothers to secure a loan from the North Florida Production Credit Association. That lending institution had a practice of requiring farmers to secure their loans with contracts for the sale of all or a portion of their crop. That is to say, the lender required a farmer to have a sales contract which equaled the amount of the loan. So that petitioners could meet this requirement, on January 29, 1991, the parties executed a contract wherein petitioners agreed to sell respondent 8,000 bags of Atlantic variety potatoes at an agreed upon price of $5.75 per bag, for a total price of $46,000. The lending institution then agreed to loan petitioners that amount of money. Although the brothers asked that respondent purchase more than 8,000 bags, respondent declined since it had only that contract amount (with chip companies) available. A copy of the contract has been received in evidence as joint exhibit The contract was drafted by respondent and it may be inferred from the evidence that it is a "standard" type of contract used by farmers and dealers in the potato business. The contract contained the following relevant conditions in paragraphs 4, 5 and 6: Buyer assumes that Seller will have sufficient amount of potatoes to cover all contracts, including open market sales. This contract does not restrict these open market sales, but Seller does protect Buyer's amount due. In the event of fire, unauthorized strikes, wars, transportation shortages, Acts of God, or events beyond the control of Seller or Buyer which prevent Seller or Buyer from performance in full or in part of the terms of this agreement, it is agreed that such failure to perform shall not be excused and shall not form the basis for any claim of damage or breach of contract. Seller agrees to seed sufficient acreage to cover the potatoes sold for delivery under this contract and other contracts to all purchasers with whom the Seller has contracted for the delivery of potatoes during the upcoming farm season. If, however, on account of shortages of crops not due to any act within the Seller's control or other causes beyond the control of the Seller, he is unable to deliver the full amount of potatoes called for in this contract, the Buyer will accept a prorated delivery with other buyers of the potatoes covered by similar contracts without any claim for damages against the Seller. Seller will grant Buyer all necessary rights to insure and verify that he is receiving his fair and just pro-rate share. Such rights to include, but not limited to, inspection of all records, books, field reports, shipments, etc. Burden of proof rests with Sellers. Finally, paragraph 11 of the contract provided in part that "the terms of this contract cannot be re-negotiated without the written consent of the Buyer and the Seller." Thus, under the terms of the contract, petitioners were obliged to "have sufficient amount of potatoes to cover all contracts". However, if an Act of God prevented the seller from "deliver(ing) the full amount of potatoes called for in (the) contract", the seller was excused from full performance and could prorate its crop. Under those circumstances, respondent was required to "accept a prorated delivery with other buyers of the potatoes covered by similar contracts." In this case, there were no other buyers of potatoes covered by similar contracts. Finally, except for changes approved in writing by both parties, the terms of the contract could not be changed. Petitioners planted their crop on February 2 and 10, 1991. At that time, the brothers hoped to harvest 16,000 bags of potatoes, or around 267 bags per acre. Although the average yield per acre for Atlantic type potatoes in the area had been between 250 and 270 bags, most growers assume a more conservative yield of around 200 bags per acre to insure that all contractual requirements can be met. Here, however, except for a contract with respondent, petitioners had no other contracts with other dealers or individuals. When the contract was signed in January, the brothers expected to sell the remainder of their crop to other buyers on the open market. In this regard, they entered into an agreement (presumably verbal) with their father, who had co-signed the bank note, to split the net proceeds on all sales over and above that required under the G & G Sales Corporation contract. This latter agreement with the father was not a "similar contract" within the meaning of paragraph 6 of the contract and thus the G & G Sales Corporation contract is found to be the only relevant contract for crop year 1991. On April 23, 1991, a severe thunderstorm swept through a part of Putnam County. The storm was accompanied by high winds and hail and followed a path which ran through the potato farm belt in East Palatka. The Circle S farm, which lies about one-half mile from petitioner's farm, was "devastated" by the storm. Petitioners' farm received high winds, heavy rains and some hail. The extent of damage caused by the storm to petitioners' farm is in dispute, but it is agreed that the storm diminished the size of the crop. As it turned out, petitioners dug only 8,802 bags of potatoes, which still exceeded the amount required under their only contract. After the storm struck, Mark Mast immediately contacted Wilkerson by telephone and advised him that the farm had been hit with hail and asked that Wilkerson and Girsbirger survey the damage. On April 24, 1991, Wilkerson and Girsbirger visited the farm and found it "very wet" and muddy but the leaves on the plants still intact. This level of damage was generally corroborated by various other witnesses. Although the above conditions were present at that time, it was still impossible then for anyone to forecast exactly how the storm impacted the volume and quality of petitioners' crop. Most potato farmers purchase crop insurance prior to each farming season. A farmer has the option of purchasing either 50%, 65% or 75% coverage, although 65% coverage is the most common. This means that a farmer must lose at least 50%, 35% or 25% of his crop due to weather or insects in order to file a claim. The amount of insurance is based on a function of the percent of crop the farmer wishes to insure times the value per hundred weight of the crop. For first year farmers, such as petitioners, the Federal Crop Insurance Corporation (FCIC) establishes a designated yield per acre which is based on FCIC's estimate, albeit conservative, of what the average yield should be. In the case of petitioners, who purchased 65% coverage, the FCIC (and insurer) set a designated yield of 184 bags per acre which meant petitioner would have a crop approximating 184 hundred weight per acre. Although petitioners had a crop insurance policy in 1991, they did not file a claim after the April 23 storm since they failed to meet the threshold requirements for coverage. Indeed, the local crop insurance agent visited the farm shortly after the storm and verified there was not enough damage to file a claim. However, he noted that there was excessive water for a few days and some of the leaves on the vines had holes caused by the hail. Between May 4 and 18, 1991, petitioners sold respondent nine loads of potatoes totaling 4,101 bags at a price of $5.75 per bag. During the period from April 30, 1991, through May 18, 1991, they sold ten other loads on the open market to two other buyers. The open market sales totaled 4,701.2 bags. Because potato prices had dramatically increased after the contract was executed, nine of these latter loads were sold at an open market price of $19 per bag while one was sold at a price of $18.50 per bag, for a total of $88,806. Petitioners contend respondent agreed that the above ten loads could be sold on the open market and thus it should not be heard now to complain that it was shorted on the contract. In this regard, the evidence shows that after the storm, which is the time period relevant to this contention, Wilkerson told Mark Mast that he had no problem with petitioners selling any extra potatoes on the open market as long as respondent received its 8,000 bags. Girsbirger also advised the Masts that it was okay to sell ten loads of potatoes on the open market if production was 200 bags per acre. However, he cautioned them to sell no more than four loads on the open market if the yield fell to 180 to 185 bags per acre since the remainder would be necessary to meet the terms of the contract. Thus, it is found that respondent did not agree to the sale of the ten loads on the open market if total production did not exceed 8,000 bags. Around May 3, 1991, Mark Mast approached Wilkerson and asked if respondent would renegotiate the contract price upward. Wilkerson declined to do so. On May 6, Mast sent Wilkerson a notice by registered mail advising him that due to the crop loss, which he estimated to be one-third of the crop, he intended to adjust the contract pursuant to paragraph 6 of the contract and supply only two-thirds of the 8,000 bags. This unilateral offer to modify the contract was never accepted by respondent, and in any event, petitioners failed to supply the amount offered in their May 6 letter. In all, respondent received only 51.3% of its contracted amount of 8,000 bags. Petitioners allocated respondent this amount on the theory they had originally planned to sell one-half of their total anticipated crop of 16,000 bags to respondent, that one-half of the anticipated crop was lost in the storm, and thus respondent should receive only one-half of the remaining crop, or around 4,000 bags. At hearing, petitioners defended this decision by treating the April 23 storm as an Act of God within the meaning of paragraph 6 of the contract. However, reliance on this provision was inappropriate since, despite the effects of the storm, petitioners could still deliver the full amount of potatoes called for in the contract. The testimony is in conflict as to whether petitioners offered respondent more than 4,101 bags during the harvest season. At various times, respondent was offered several "extra" loads at the market price of $19 per bag but declined since it still wanted the contract honored. According to petitioners, they were ready to load a truck on two occasions but respondent failed to send a truck. Respondent denies this assertion. In addition, petitioners claim that a truck arrived late one Sunday afternoon when their farm equipment was inoperable and thus they could not load any potatoes. Conversely, Wilkerson contended that Mark telephoned him on several occasions and told him not to send a truck because Mark was loading for "another contract". Accordingly, it is found that petitioners offered respondent only the 4,101 bags at the contract price but that additional loads were offered at the substantially higher open market price. After receiving the 4,101 bags, respondent presented petitioners a check dated June 17, 1991, in the amount of $4,777.92 as full payment for the 4,101 bags of potatoes. The check carried the notation "The undersigned, upon cashing check, accepts payment in full for attached invoices, with no recourse." It was never cashed by petitioners. Attached to the check was an invoice which calculated the $4,777.92 in the following manner. Respondent first calculated $23,598 by multiplying 4,101 bags times $5.75 per bag and then subtracted $82.08 for "Not Pat dues", an amount not explained but nonetheless unchallenged by petitioners. It then deducted $19,038 from that total for a net amount due of $4,777.92. The latter deduction of $19,038 represented a set-off for damages incurred by respondent in having to buy potatoes elsewhere by virtue of petitioners failing to supply the contracted amount of potatoes. It was calculated by assuming that petitioners would supply 2/3 (or 68%) of its commitment, or 5,440 bags. 1/ Since only 4,104 bags were delivered, this amounted to a shortage of 1,336 bags. Respondent represented, without contradiction, that it had to replace this shortage at the same price which petitioners received for non-contract sales on the open market. Respondent assumed that petitioners sold their potatoes at an open market price of $20, or $14.25 more than the contract price. Thus, it deducted 1,336 x $14.25, or $19,038 from the final payment. In actuality, petitioners sold the bulk of those potatoes at a price of $19 per bag. Thus, respondent's set-off should have been $17,702 rather than $19,038. This amount of set-off ($17,702) is deemed to be reasonable and should be subtracted from the amount owed by respondent to petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring respondent to pay petitioners $5,813.92 within thirty days of date of final order. Otherwise, the surety should be required to pay that amount. DONE and ENTERED this 21st day of May, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1992. 1/ For purposes of determining damages, respondent decided that petitioners were entitled to some relief under the contract due to the storm. Accordingly, respondent assumed that it would receive only two-thirds of the contract requirement. APPENDIX Petitioners: 1. Covered in the preliminary statement. 2. Accepted in finding of fact 2. 3-4. Accepted in finding of fact 1. 5. Accepted in finding of fact 2. 6. Accepted in finding of fact 3. 7-8. Accepted in finding of fact 4. 9. Accepted in finding of fact 3. 10. Accepted in finding of fact 5. Accepted in findings of fact 1 and 5. Accepted in finding of fact 6. 13-14. Accepted in finding of fact 7. Accepted in finding of fact 8. Rejected as being unnecessary. Partially accepted in finding of fact 10. The remainder has been rejected as being contrary to the more persuasive evidence. Partially accepted in findings of fact 11 and 12. Accepted in finding of fact 11. Accepted in finding of fact 9. 21-22. Accepted in finding of fact 14. Accepted in finding of fact 6. Rejected as being contrary to more persuasive evidence. Partially accepted in finding of fact 6 but this finding does not excuse performance under the contract. See finding of fact 12. Respondent: * Partially accepted in finding of fact 14. The remainder is covered in the preliminary statement. Accepted in finding of fact 1. Accepted in findings of fact 2 and 3. Accepted in finding of fact 4. Accepted in findings of fact 3 and 5. 6-8. Accepted in finding of fact 7. 9-10. Accepted in finding of fact 10. Accepted in finding of fact 7. Accepted in finding of fact 9. Accepted in finding of fact 14. * Respondent G & G Sales Corporation filed thirteen unnumbered paragraphs containing proposed findings of fact. The paragraphs have been numbered 1-13 by the undersigned for the purpose of making these rulings. COPIES FURNISHED: Joe C. Miller, II P. O. Box 803 Palatka, Florida 32178-0803 Ronald W. Brown, Esquire 66 Cuna Street, Suite B St. Augustine, Florida 32084 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Chief Bureau of License & Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Charles T. Shad, Esquire 601 Blackstone Building East Bay & Market Street Jacksonville, Florida 32202 (on behalf of St. Paul Fire and Marine Insurance Co.) Richard A. Tritschler, Esquire Department of Agriculture & Consumer Affairs The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether Respondents are indebted to Petitioner for agricultural products and, if so, the amount of the indebtedness.
Findings Of Fact Petitioner delivered to Respondent, Fresh Pick Farms, Inc., (Fresh Pick) a total of 932 bushels of green beans on November 21 and 22, 1992. These beans were delivered and received with the agreement that Fresh Pick would attempt to sell the beans on a consignment basis in the wholesale market. At the times pertinent to this proceeding, communication in South Florida was limited because of the aftermath of Hurricane Andrew. Telephone lines were down, packing houses and storage facilities had been destroyed, and many businesses were not operating. The packer that Petitioner customarily used was out of business. Fresh Pick was operating out of temporary facilities. Lewis Walker, the president of Fresh Pick, had inspected Petitioner's beans on November 18, 1992. Mr. Walker advised Petitioner to have his beans harvested no later than November 20, 1992. This advice was based on the condition of the beans, on the fact that there was a great deal of rain in the area, and the fact that markets slow down and prices drop as Thanksgiving approaches. The beans delivered to Fresh Pick on November 21 and 22, 1992, were damaged due to the wet weather. These beans were of such poor quality that they could not be sold given the marketing conditions. Fresh Pick made every reasonable effort to find a market for Petitioner's beans without success. After it became apparent to Fresh Pick that it would be unable to sell Petitioner's beans, employees of Fresh Pick made efforts to locate Petitioner, explain to him why the beans could not be sold, and ask him for instructions. Petitioner could not be located despite good faith efforts by Fresh Pick employees to do so. Rather than dump the unsold beans, Fresh Pick gave the beans to a charity referred to as Food Share. The disposition of the beans was consistent with industry practices in South Florida.
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 in this case dismissing the Petitioner's complaint and denying the relief requested by the Petitioner. DONE AND ENTERED this 28th day of December, 1993, 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 28th day of December, 1993. COPIES FURNISHED: Mr. Harvey Johnson 538 Northwest 13th Street Florida City, Florida 33304 J. James Donnellan, III, Esquire 1900 Brickell Avenue Miami, Florida 33129 Legal Department Florida Farm Bureau Mutual Insurance Company 5700 Southwest 34th Street Gainesville, Florida 32608 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue This case arises from a complaint filed by Jay Nelson and Ernest Leclercq, d/b/a Sun Coast Farms, in which it is asserted that H. M. Shield, Inc., is indebted to the Complainants in the amount of $7,266.20 for agricultural products sold to the Respondent. At the hearing the representative for the Complainant stated that most of the matters asserted in the complaint had been resolved by settlement, but that six items remained in dispute and that the total amount remaining in dispute was $1,041.20. Ms. Ernst testified as a witness for the Complainant and also offered several documents as exhibits, which documents were marked as a composite exhibit and received in evidence.
Findings Of Fact Based on the testimony of the witness and on the exhibits offered and received in evidence, I make the following findings of fact: On February 23, 1984, the Complainant sold agricultural products consisting of Snap Beans, Wax Beans, and Zukes (Lot No. 1116) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $327.00 on this sale. On March 8, 1984, the Complainant sold agricultural products consisting of Snap Beans and Wax Beans (Lot No. 1294) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $184.20 on this sale. On March 8, 1984, the Complainant sold agricultural products consisting of Wax Beans (Lot No. 1295) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $184.20 on this sale. On March 19, 1984, the Complainant sold agricultural products consisting of Snap Beans and Zukes (Lot No. 1453) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $202.50 on this sale. On March 19, 1984, the Complainant sold agricultural products consisting of Snap Beans and Zukes (Lot No. 1454) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $110.00 on this sale. On March 19, 1984, the Complainant sold agricultural products consisting of Snap Beans and Zukes (Lot No. 1457) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $202.50. The total amount owed for agricultural products by the Respondent to the Complainant, which amount was unpaid as of the time of the hearing, is $1,401.20.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be entered directing H. M. Shield, Inc., to pay Jay Nelson and Ernest Leclercq, d/b/a Sun Coast Farms, the amount of $1,401.20 for the agricultural products described in the findings of fact, above. In the event the Respondent fails to make such payment within 15 days of the Final Order, it is recommended that the surety be required to pay pursuant to the bond. DONE and ORDERED this 6th day of June, 1985, at Tallahassee, Florida. Hearings Hearings MICHAEL M. PARRISH Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 6th day of June, 1985. COPIES FURNISHED: Jay Nelson & Ernest Leclercq d/b/a Sun Coast Farms P.O. Box 3064 Florida City, Florida 33034 H. M. Shield, Inc. Room 82 State Farmer's Market Pompano Beach, Florida 33060 Hartford Insurance Company of the Southeast 200 East Robinson Street Orlando, Florida 32801 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
