The Issue Did Respondent Williams fail to make an accounting for and payment to Petitioner for the proceeds of agricultural products purchased by Ray Gene Williams d/b/a Williams Produce Company?
Findings Of Fact Petitioner Six L's grows watermelons in Collier County, Florida. It is therefore a producer of agricultural products in the State of Florida. Respondent Ray Gene Williams d/b/a Williams Produce Company is a dealer in agricultural products who engages in business in Florida. Respondent Hartford Accident and Indemnity Company is the surety for a bond posted by Respondent Williams to insure compliance with Section 604.20, Florida Statutes (1979). On May 26, 1980, Six L's sold 46,700 pounds of field run, crimson sweet, watermelons to Respondent Williams at a price of 5 1/2 cents per pound for a total cost of $2,568.50. The sale was negotiated between Mr. Charles Weisinger, a salesman for Six L's, and Mr. Larry DiMaria. Mr. DiMaria at that time was a purchasing agent for Respondent Williams. They agreed that the sale would be F.O.B. at Immokalee, Florida. On May 26, 1980 a truck under contract to Respondent Williams was loaded with 46,700 pounds of crimson sweet field run watermelons from the farm of Petitioner Six L's. The weight was verified by the Immokalee State Farmer's Market at 6:59 p.m., May 26, 1980. At that time Mr. DiMaria inspected the watermelons and accepted them on behalf of Respondent Williams. On the following day, May 27, 1980, Mr. DiMaria made payment for the watermelons by issuing check #465 drawn on the account of Williams Farms in the amount of $2,568.50, payable to Six L's Packing Company. Before Six L's could collect on the check, payment was stopped by Respondent Williams, and no payment for the watermelons has since been made by either Respondent. The final hearing in this case was initially noticed for December 4, 1980. At the request of Respondent Williams and with the agreement of Six L's it was continued to a later date. The final hearing was rescheduled for May 11, 1981 in Fort Myers, Florida at 10:00 a.m. At that time neither Respondent made an appearance. In order to give them time to appear the hearing was recessed until 10:30 a.m. At that time it resumed and was concluded at 11:30 a.m. with still no appearance by either Respondent. To the knowledge of the undersigned no attempt was made by the Respondents to request a continuance or otherwise explain their failure to appear.
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 finding Ray Gene Williams d/b/a Williams Produce Company indebted to Six L's Packing Company, Inc. in the amount of $2,568.50. DONE and RECOMMENDED this 12th day of June, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981.
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 The issue is whether Respondent, Mo-Bo Enterprises, Inc., or its surety is indebted to Classie Sales, Inc. for agricultural products sold to Mo-Bo Enterprises.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence, the following relevant findings of fact are determined: Petitioner, Classie Sales, Inc., is a producer of agricultural products in Florida. Products which it produces include cucumbers, peppers, squash, and eggplant. Respondent, Mo-Bo Enterprises, is a dealer of agricultural products in the normal course of its business activities. Respondent, Mo-Bo Enterprises, is licensed by the Florida Department of Agriculture and Consumer Services and is bonded by Co-Respondent, Armor Insurance Company. Petitioner sold cucumbers, peppers, squash, and eggplant to Respondent, Mo-Bo Enterprises, between the period November 12, 1994 and December 23, 1994. Respondent was given a shipping manifest and sent an invoice for each shipment of agricultural products it ordered and received from Petitioner. The invoice stated that payment in full was due within 21 days of the invoice date and that "thereafter 1 percent additional for each 30 day period or portion thereof." Petitioner sent nineteen (19) invoices to Respondent, Mo-Bo Enterprises, during the time relevant to these proceedings. Each invoice represented the price and quantity of the products which was agreed to by Petitioner and Mo-Bo Enterprises. As of the date of the formal hearing, Respondent, Mo-Bo Enterprises, had paid two (2) of the nineteen (19) invoices it received from the Petitioner. The invoices for cucumbers sold on November 14, 1994, and September 14, 1994, in the amount of $2400.00 and $4613.50, respectively, were paid in full. The total amount paid to Petitioner by Respondent was $7013.50. The total amount invoiced by Petitioner to Mo-Bo Enterprises for agricultural products sold and shipped to Mo-Bo Enterprises, and which remain unpaid, is $66,053.00. In addition to this amount, in accordance with the terms stated on the invoices, Respondent owes Petitioner 1 percent of the amount of each invoice for each 30 day period or portion thereof that the balance remains unpaid. Despite repeated demands by Petitioner, and promises by Respondent, Mo- Bo Enterprises, to pay the outstanding balance, Mo-Bo Enterprises has not paid seventeen (17) invoices which total $66,053.00. As of the date of the formal hearing, this amount remains due and owing and unpaid.
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 requiring Respondent, Mo-Bo Enterprises, Inc., or its surety, Co- Respondent, Armor Insurance Company, to pay Petitioner $66,053.00 plus an additional 1 percent of each invoice amount for each 30 day period or portion thereof that the payment remains outstanding. DONE and ENTERED this 17th day of October, 1995, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 17th day of October, 1995. COPIES FURNISHED: Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Mo-Bo Enterprises, Inc. P.O. Box 1899 Pompano Beach, FL 33061 Mark J. Albrechta, Esquire Legal Department Armor Insurance Company P.O. Box 15250 Tampa, FL 33684-5250 John Tipton Classie Sales, Inc. P.O. Box 1787 Bradenton, FL 34206 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, FL 32399-0800 Charles Barnard, Esquire 200 SE 6th Street Ste. 205 Ft. Lauderdale, Florida 33301
The Issue The issue is whether Smallwood Design Group/Smallwood Landscape, Inc. (Respondent), and its surety, Hartford Fire Insurance Company, owe funds to American Farms, LLC, (Petitioner) for the sale of agricultural products.
Findings Of Fact At all times material to this case, the Petitioner was a licensed agricultural producer in the State of Florida. At all times material to this case, the Respondent was a licensed agricultural dealer in the State of Florida. From May 30 through October 27, 2006, the Respondent purchased agricultural products, specifically foliage plants, from the Petitioner. All charges for the plants sold by the Petitioner to the Respondent were billed on invoices that were sent to the Respondent by the Petitioner. The quantities and prices of the delivered plants were clearly identified on the invoices. The Respondent has failed to pay invoices totaling $11,777.18 that were sent by the Petitioner to the Respondent. There is no evidence that any of the charges were disputed by the Respondent at the time the sales were invoiced. There is no evidence that any of the plants sold by the Petitioner to the Respondent were unsatisfactory in terms of price or quality. As required by law, the Respondent had in place an Agricultural Products Dealer Bond dated December 9, 2005. The bond was executed by Joann Smallwood as "principal" for the Respondent. The bond was effective for one year and included the time period relevant to this proceeding. In correspondence filed during the course of this proceeding, the Respondent asserted that Joann Smallwood sold the business to another owner during the time relevant to this proceeding. The evidence established that at all times material to this case, Joann Smallwood acted as the owner/manager of the business. The plants sold by the Petitioner to the Respondent were picked up by trucks with Smallwood logos and signage. There was no evidence that the Petitioner was ever advised during the time the Respondent was purchasing plants from the Petitioner that Joann Smallwood had sold the business or that the Respondent would not be liable for payment of products purchased from the Petitioner.
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 directing that the Respondent pay the total of $11,777.18 to the Petitioner (plus the filing fee paid by the Petitioner to the DACS) and establishing such other procedures as are necessary to provide for satisfaction of the debt. DONE AND ENTERED this 3rd day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 3rd day of August, 2007.
Findings Of Fact Robert J. Walsh and Company, Inc. has been in the business of selling agricultural products since 1962. It is a "dealer in agricultural products" as defined in s. 604.15(1), Florida Statutes (1985). It is not a "producer" as defined in s. 604.15(5), Florida Statutes (1985). Walsh's modus operandi which it has used for many years is to have its salesmen call on landscapers, nurseries and other customers for trees, plants and other agricultural products to determine their needs. These salesmen have the prices of products and their availability from producers and the salesmen take orders from these purchasers. This order is sent to the producer who delivers the product to the purchaser and sends Walsh a copy of the delivery ticket. Walsh bills the customer for the product delivered and the producer bills Walsh for the consumer-cost of the product less a 20-25 percent discount from which Walsh derives its profit from the sale. The producer relies solely on Walsh for payment for the product it produces and delivers to the customer. Walsh has no authority to sell the product at a price other than that set by the producer. In any event, the producer bills Walsh for the product delivered at the producer's established price less the discount it gives Walsh for acting as intermediary in the sale. If products are damaged in transit, the producer's driver will make any necessary adjustment with the customer or return the damaged plant for replacement by the producer. Walsh does not represent the grower if such a situation develops. Similarly, if the product is rejected by the purchaser for not meeting quality standards, that issue is resolved between the grower and the customer without input from Walsh. Whatever agreement is reached between the grower and the customer is reflected on the invoice signed by the customer and forwarded to Walsh who has the responsibility of collecting from the customer. The grower bills Walsh for the cost of the product less Walsh's commission. The sales forming the bases for the complaints filed by Walsh with Respondent involve sales to Paul Pent, d/b/a Paul Pent Landscape Company, Dean Pent and J & W Landscape. On January 31, 1985, Walsh sold Pent three laurel oaks grown by Stewart Tree Service for a total price of $467.46 including sales tax (Ex. 2). On March 27, 1985, Walsh sold various trees and plants grown by Goochland Nurseries to J & W Landscape for a total price of $403.98 (Ex. 3). On April 22, 1985, Walsh sold two live oaks grown by Stewart Tree Service to Pent Landscape Company for a total price of $336.00 (Ex. 4). On July 3, 1985, Walsh sold various plants grown by Goochland Nurseries to J & W Landscape for a total price of $564.96 (Ex. 5). On all of these sales the producers billed Walsh for the product and were paid by Walsh. Walsh billed the customers who did not pay and Walsh filed the complaints (Ex. 8, 9 and 10), denied by Respondent on grounds Walsh was not an agent or representative of the producers. In 1976, Petitioner filed a complaint against the bond of the Ernest Corporation, a licensed dealer in agricultural products and received $5,589.20 from Respondent who recovered from the bonding company. In the complaint Walsh alleged that it was agent for Southeast Growers, Inc., selling their nursery stock throughout Florida. Respondent's witnesses could not recall what additional evidence they saw to conclude that Walsh was, in fact, an agent for the producer. However, these witnesses all testified that had they then believed Walsh was solely responsible to the producer for payment for the products sold they would not have concluded Walsh was the agent or representative of the producer. The bond on which Petitioner is attempting to recover provides that if the principal "shall faithfully and truly account for and make payment to producers, their agents or representatives, as required by Sections 604.15 - 604.30, Florida Statutes, that this obligation to be void, otherwise to remain in full force and effect." (Ex. 11 and 12)
Conclusions The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Section 604.21, Florida Statutes (1985) provides in pertinent part: Any person claiming himself to be damaged by any breach of the conditions of a bond or certificate of deposit, assignment or agreement given by a licensed dealer in agricultural products as herein before provided may enter complaints thereof against the dealer and against the surety, if any, to the department, which complaint shall be a written statement of the facts constituting the complaint. Section 604.15(1) , Florida Statutes (1985) provides: "Dealers in agricultural products" means any person, whether itinerant or domiciled within this state, engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer or his agent or representative for resale or processing for sale; acting as an agent for such producer in the sale of agricultural products for the account of the producer on a net return basis; or acting as a negotiating broker between the producer or his agent or representative and the buyer. (emphasis supplied) One of the complexities of this case which leads to some confusion is the fact that both Pent and Walsh were dealers in agricultural products as above defined. Walsh fits into the category of a person claiming himself to be damaged by a breach of any condition of the bond of Pent. However, he has the burden of showing that he is a person covered by the bond. According to the terms of the bond, coverage is provided only for "producers, their agents or representatives." Walsh is clearly not a producer in this case but claims coverage as an agent or representative. In construing "agent" or "representative" the legislative intent should be considered. The purpose of these provisions of the statute requiring licensing and bonding of dealers in agricultural products, as expressed in Section 604.151, Florida Statutes, is to protect producers from economic harm. Economic harm sustained by an agent or representative is imputed back to the principals, which in this case are the producers. An agency may be defined as a contract either expressed or implied upon a consideration, or a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in the former's name or on his account, and by which the latter assumes to do the business and render an account of it. 2 Fl. Jur. 2d "Agency," Section 1. Here, Walsh was selling agricultural products on its own account, which products it was purchasing from the producers. The producer sold its product to Walsh and delivered it to the address Walsh indicated. The customer receipted for the product and the producer billed Walsh for the total cost, including transportation, to the ultimate buyer, less the 20-25 percent commission Walsh received. Walsh paid the producer and billed the customer. Whether or not Walsh collected from the customer had no bearing on the debt Walsh owed the producer for the product. It could be said that the producer was the agent for Walsh in delivering the product to the user. Even though Walsh never had actual possession of the product the sale to Walsh was complete when the producer delivered the product to the user. The entire transaction clearly is a buy-and-sell operation by Walsh and not Walsh acting as an agent for the producer. The fact that Walsh sells the producer's product does not make Walsh the agent or representative of the producer, when the producer holds only Walsh responsible to pay for the product. Nor was Walsh a representative of the producers. Representative is defined in Webster's New Collegiate Dictionary (1977 Ed.) as: "standing or acting for another esp. through delegated authority." Walsh had no delegation of authority to act for the producer. Walsh had no authority to modify the price, settle disputes, or any other function normally performed by a representative. The above interpretation of those having standing to file a complaint against a dealer in agricultural products is the same interpretation of the applicable statutory provisions that is made by Respondent. As stated in Natelson v. Dept. of Insurance, 454 So.2d 31 (Fl 1st DCA 1984): Agencies are afforded a wide discretion in the interpretation of a statute which it [sic] administers and will not be overturned on appeal unless clearly erroneous. The reviewing court will defer to any interpretation within the range of possible interpretations. (citations omitted). This interpretation limiting recovery on an agricultural bond to producers and their agents or representatives is certainly within the range of possible interpretations, especially considering the purpose of these statutory provisions to be the protection of the economic well being of the producer. From the foregoing, it is concluded that Robert J. Walsh & Company, Inc. was not the agent or representative of Goochland Nurseries and Stewart Tree Service and does not have standing to file a complaint against Dean Pent, d/b/a Pent Landscape Company, and Paul Pent, d/b/a Paul Pent Landscape Company, and their surety, Transamerica Insurance Company.
Recommendation It is recommended that a Final Order be entered dismissing the petition as contained in Petitioner's letter dated March 24, 1986. ENTERED this 14th day of July 1986 in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July 1986. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building, Room 513 Tallahassee, Florida 32301 Thomas M. Egan, Esquire Phillip Kuhn, Esquire Post Office Box 7323 Winter Haven, Florida 33883 Ronnie H. Weaver, Esquire Mayo Building, Room 513 Tallahassee, Florida 32301 Mr. Joe W. Right Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301
Findings Of Fact The Petitioners and the Respondents had a contractual agreement, whereby the Respondents agreed to purchase watermelons from the Petitioners during the 1978 harvest season. The Petitioners were to be compensated for their watermelons by the pound as the melons crossed the scales during loading of the melons onto trucks. The actual price fluctuated based upon the market conditions. The Respondents' employees were responsible for picking and loading the melons. Pete Potenza was in charge of the loading operation for the Respondents. Mr. Potenza advised the Respondents that the price for the watermelons would be two and one-half cents per pound for the medium watermelons and three cents per pound for large ones. At the agreed price, the Petitioners would have been entitled to compensation of $1,197.75 for one load of watermelons, and $1,083.50 for another load. The Respondents compensated them $958.20 and $866.80 for the respective loads. The price paid by the Respondents was less than had been agreed upon. The Petitioners are entitled to $217.50 additional compensation for the first load, and $239.55 additional compensation for the second load. The Petitioners are entitled to total additional compensation in the amount of $457.05. There was no dispute as to the quality of the Petitioners' melons. The Respondents picked several loads of melons from the Petitioners subsequent to those which were disputed. Mr. Potenza advised the Petitioners that they would receive additional compensation, but they have not. The Respondents are licensed with the Department of Agriculture and Consumer Services as an agricultural commodity dealer. The Respondents have filed a $20,000.00 bond with the Department.
Recommendation Based upon 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 finding that the Petitioners are entitled to $457.05 in additional compensation for agricultural goods which they sold to the Respondents and requiring the Respondents to pay this sum to the Petitioners. DONE and ENTERED this 20th day of February, 1979, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert A. Chastain, Esq. General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, FL 32304 William F. York, Esq. GILMAN, MCLAUGHLIN & HANRAHAN Ten Post Office Square Boston, MA 02109 J. Victor Africano, Esq. P. O. Box 1450 Live Oak, FL 32060 Joseph Pellegrino, President A. Pellegrino & Sons, Inc. 24 New England Produce Center Chelsea, MA 02150 E. G. Musleh, Esq. P. O. Box 924 Ocala, FL 32670
The Issue Whether Respondent is indebted to Petitioners for agricultural products and, if so, in what amount?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties Petitioners are producers and sellers of tomatoes. They own and operate Sunfresh Farms in Florida City, Florida. Respondent is a dealer in agricultural products. The Controversy The instant case involves two separate transactions involving the sale of tomatoes pursuant to verbal agreements between Petitioners (as the sellers) and Respondent (as the buyer). Both transactions occurred in January of 1995. The First Transaction (Petitioners' Invoice Number 5270) Under the terms of the first of these two verbal agreements (First Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 96 boxes of cherry tomatoes for $12.65 a box (which was the market price at the time). In accordance with the terms of the First Agreement, Petitioners delivered 96 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 23, 1995. Respondent accepted the delivery. Respondent sold these 96 boxes of cherry tomatoes to a local produce house, which subsequently sold the tomatoes to another local produce house. The tomatoes were eventually sold to a company in Grand Rapids, Michigan. On January 28, 1995, five days after Petitioners had delivered the 96 boxes of cherry tomatoes to Respondent, the tomatoes were inspected in Grand Rapids, Michigan. According to the inspection certificate, the inspection revealed: "Decay (3 to 28 percent)(mostly early, some advanced stages);" "Checksum;" and "Average approximately 85 percent light red to red." Petitioners have yet to be paid any of $1,214.40 Respondent owes them (under the terms of the First Agreement) for the 96 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the agreement. The Second Transaction (Petitioners' Invoice Number 5299) Under the terms of the second verbal agreement at issue in the instant case (Second Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 132 boxes of ("no grade") cherry tomatoes for $12.65 a box. In accordance with the terms of the Second Agreement, Petitioners delivered 132 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 27, 1995. Respondent accepted the delivery. Respondent sold 84 of these 132 boxes of cherry tomatoes to a Florida produce house, which subsequently sold the tomatoes to a company in Houston, Texas. These 84 boxes of cherry tomatoes were inspected in Houston, Texas, on January 31, 1995, four days after Petitioners had delivered them to Respondent. The defects found during the inspection were noted on the inspection certificate. Petitioners have yet to be paid in full for the 132 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the Second Agreement. Respondent tendered payment (in the form of a check) in the amount of $811.20, but Petitioners refused to accept such payment because it did not represent the full amount ($1,669.80) Respondent owed them (under the terms of the Second Agreement) for these cherry tomatoes. (Although they have not endorsed or cashed the check, Petitioners are still holding it in their possession.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that Respondent is indebted to Petitioners in the amount of $2,884.20, (2) directing Respondent to make payment to Petitioners in the amount of $2,884.20 within 15 days following the issuance of the order, (3) indicating that the $811.20 check that was previously tendered to Petitioners by Respondent (and is still in Petitioners' possession) will be considered partial payment of this $2,884.20 indebtedness, if Respondent advises Petitioners, in writing, that it desires the check to be used for such purpose and if it provides Petitioners written assurance that the check is still a valid negotiable instrument; and (4) announcing that if payment in full of this $2,884.20 indebtedness is not timely made, the Department will seek recovery from the Farm Bureau, Respondent's surety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1996.
Findings Of Fact C & W Sales, Inc., was licensed as a dealer in agricultural products under license No. 1367 and was so licensed at all times here relevant. At the time of the incorporation of C & W Sales, Inc., Henry T. Watson was listed as an officer (President) and director of the company. The company was run by Philip A. Roberts, the brother-in-law of Watson. Roberts applied on behalf of C & W Sales, Inc., to FFB for an agriculture bond in the amount of $20,000 for the period 5/19/79 until 5/19/80 (Exhibit 1) . As a condition for issuing this bond FFB required and obtained a general agreement of indemnity from Roberts and Watson and their wives (Exhibit 2) which was executed on 2 May 1979. In addition to agreeing to save Florida Farm Bureau harmless from all claims arising out of the bond paragraph 14 provided: That this indemnity is continuing and will apply to any and all bonds, as provided in the opening paragraph of this Agreement which the Company may have executed or procured the execution of from time to time, and over an indefinite period of years; however, any Indemnitor may by written notice to the Company at its Home Office, Gainesville, Florida disavow his liability as to bond(s) which may be executed by the Company subsequent to fifteen days after receipt by the Company of such notice. Agriculture bond (Exhibit 4) was issued on 5/19/79 for one year and upon expiration on 5/19/80 the bond was renewed for an additional period of one year (Exhibit 5). Subsequent to the expiration of the 1979-80 bond (Exhibit 4) and reissuance of the 1980-81 bond (Exhibit 5) but within the prescribed time for submitting a claim against the agriculture dealer and his bond, John T. Brantley, Jr., filed a claim against C & W Sales in the amount of $8,317.05 for payment owed on a transaction which occurred during the 1979-80 period. When C & W Sales failed to pay or respond to the Commissioner of Agriculture's demands for payment, claim was made on the 1979-80 bond and FFB remitted to the Commissioner of Agriculture a check for the Brantley claim (Exhibit 6). Around February 1980 Watson became disenchanted with Roberts' running of C & W Sales, Inc. and wanted out. He told Roberts to get someone to buy his (Watson) stock and to get his name out of the company. Roberts said he would. Watson never advised FFB that he would no longer be an indemnitor under the bond. During the period covered by the bond year beginning 5/19/80 claims against C & W Sales, Inc., were submitted to the Commissioner of Agriculture by Henry L. Watson in the amount of $32,326.50; Hugh D. Martin in the amount of $1,932.80; Jesse J. Wilson in the amount of $1,490.00; John T. Brantley, Jr., in the amount of $15,024.40; and Philip Dean and Willie Bass in the amount of $4,919.13, for a total of $55,692.83. The Commissioner of Agriculture notified C & W Sales of these claims and advised them of the opportunity to contest the validity of the claims. No response was received from C & W Sales and Roberts appears to have departed the area to parts unknown. An order demanding payment was submitted to C & W Sales and when payment of these claims was not made, FFB, as surety on the bond, was notified by the department of its surety on the bond, was notified by the department of its obligation under the bond and a demand for payment of $20,000 to the department was made. There is no dispute regarding the accuracy or validly of the claims against C & W Sales contained in Finding 7 above. Nor does FFB contest its liability under the agriculture bond it issued for the 1980-81 bond year. However, FFB claimed an equitable setoff for the percentage of the $20,000 that would go to Watson. This setoff is claimed by virtue of Watson's indemnity agreement. By the stipulation the parties have agreed that the FFB is entitled to the pro rata share of the $20,000 to Watson.
The Issue Whether or not the Respondent failed to remit to Petitioner a payment for nursery products received.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings: Petitioner, Gramling Nursery, Inc. (Gramling), is a wholesale nursery (producer) which sells landscape plants and other nursery products from its facility located at 3402 South Redman Parkway, Plant City, Florida. Respondent, Landscape & Water Amenities, Inc. (LWA or Respondent), is a landscaper which maintains its principle office at 2453 South Third Street, Jacksonville Beach, Florida. During times material, LWA was the holder of agricultural bond number 06827 issued through American States Insurance Company in the amount of $10,000.00. Respondent, American States, is a surety company securing payments to producers of agricultural products supplied to LWA. On May 9, 1989, LWA submitted an application for credit to Petitioner. Petitioner approved LWA's credit application and issued a charge account with the following terms: All bills are due when the material is delivered and become past due the 10th of the month following the date of purchase. Delinquent accounts are subject to one and one-half percent per month (18% annually) service charge. Should any collection procedures become necessary, all costs, including reasonable attorney fees, are borne by the customer and venue will be in Hillsborough County. It is a condition of your account [that] you maintain an agricultural bond as required by state law and the bond amount will set your credit limit. On July 13 and July 28, 1989, Petitioner sold to LWA nursery plants on invoice numbers 24796 and 24834 in the respective amounts of $4,038.07 and $140.23, for the total sum of $4,178.30. Petitioner made at least six telephone calls in an effort to collect the payment for the nursery plants which it delivered to LWA and these efforts were all unsuccessful. By letter dated October 19, 1989, Petitioner forwarded, by certified mail, return receipt requested, a demand letter to Frank Timmons, president of LWA, for full payment of $4,397.81 to be received by October 27, 1989. Petitioner advised LWA that in the event that payment was not received, Petitioner would file against LWA's agricultural bond and take other necessary legal action to collect the debt. By letter dated November 21, 1989, Petitioner received a letter from Michael J. Marees, Esquire, which was addressed to all creditors of Landscape and Water Amenities, Inc., advising that his law firm had been retained to assist LWA "in winding up its affairs and conducting a voluntary liquidation of its remaining assets." In attempting to liquidate the remaining assets, to the extent that funds were reportedly available, attorney Marees made an across the board distribution of ten percent of the outstanding debt owed by LWA to all of its creditors. In this regard, Petitioner received a check in the amount of $439.78. By letter dated January 29, 1990, Petitioner advised LWA that the above-referred payment was applied to LWA's account in the form of interest ($401.82) and principal ($37.96) leaving a balance due on that date of $4,141.34. Petitioner received no further communiques from either LWA or American States.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Agriculture and Consumer Services, Bureau of License and Bond, issue a Final Order finding that Respondent, Landscape & Water Amenities, Inc., owes Petitioner the sum of $4,141.34, plus interest accruing at the rate of one and one-half percent per month from January 29, 1990. In the event Respondent LWA fails to pay this sum the Respondent surety shall be required to pay that amount from its agricultural bond pursuant to Section 604.21(8), Florida Statutes. DONE and ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1990. Copies furnished: Hugh M. Gramling, President Gramling Nursery, Inc. 3402 South Redman Parkway Plant City, Florida 33566 Clinton H. Coulter, Jr., Esquire Senior Attorney Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Frank Timmons Landscape & Water Amenities, Inc. 10445 Atlantic Boulevard Jacksonville, Florida 32225-6723 American State Insurance Company 500 North Third Street Indianapolis, Indiana 46204 Mallory E. Horne, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Doyle E. Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810
