The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Holmes Nursery & Gardens Associates, LTD., is a wholesale and retail nursery providing a variety of landscape agricultural products. The east coast regional office for Petitioner is located at 1600 SW 20th Street, Fort Lauderdale, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highways Delray Beach, Florida. Respondent, Garden of Eden is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about April 23, 1986, Garden of Eden ordered and received delivery of $1770.00 worth of agricultural products from Petitioner. This purchase consisted of four viburnum odo., five weeping podocarpus and one bottlebrush. On or about April 25, 1986, Garden of Eden ordered and received delivery of $420.00 worth of agricultural products from Petitioner. This purchase consisted of three live oaks. On or about April 28, 1986, Garden of Eden ordered and received delivery of $312.50 worth of agricultural products from Petitioner. This purchase consisted of twenty-five viburnum odo. On or about April 29, 1986, Garden of Eden ordered and received delivery of $520.00 worth of agricultural products from Petitioner. This purchase consisted of four laurel oaks. On or about May 5, 1986, Garden of Eden ordered and received delivery of $1,130.00 worth of agricultural products from Petitioner. This purchase consisted of forty-seven crinum lily and six hundred and twenty-two liriope muscari. On or about May 13, 1986, Garden of Eden ordered and received delivery of $2,943.00 worth of agricultural products from Petitioner. This purchase consisted of seven cattley grava, and six paurotes. On or about May 28, 1986, Garden of Eden ordered and received delivery of $315.00 worth of agricultural products from Petitioner. This purchase consisted of one roebelinii single and one roebelinii double. On or about June 19, 1986, Garden of Eden ordered and received delivery of $300.00 worth of agricultural products from Petitioner. This purchase consisted of one paurotis 5 stem. The total amount of the agricultural products purchased by Garden of Eden was $7,710.50. On August 8, 1986, Garden of Eden paid $1060.00 on the account. On September 24, 1986, another $2500.00 was remitted to Holmes Gardens on this account. The balance of indebtedness owed by Garden of Eden to Holmes Gardens for the purchases listed above is $4,150.00. Petitioner claims it is due an additional sum of $436.04 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry; however, no written agreement or acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
The Issue Whether Respondent owes payment to Petitioner in the amount of $60,748.78 for watermelons sold by Petitioner to Respondent.
Findings Of Fact Between May 18 and June 5, 1990, Petitioner James G. Young sold a total of 40 truckloads of watermelons to Respondent Maddox Brothers Produce, Inc. Petitioner was to have received a price of five cents per pound through May 26, 1990 and four cents per pound through the remainder of the shipping season. Respondent has failed to pay $60,748.78 of the amount owed to Petitioner for such produce. At no time did Petitioner received any complaint that the watermelons were unsatisfactory. Respondent is a licensed agricultural dealer engaged in the business of brokering agricultural products, Florida license #0030. Respondent is subject to regulation by the Department. Respondent has posted a Fireman's Fund Insurance Company surety bond #11141308327 in the amount of $50,000 with the Department. Respondent did not appear at the hearing. No evidence was presented to contradict the testimony of the Petitioner.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that The Florida Department of Agriculture and Consumer Services enter a Final Order requiring Maddox Brothers Produce, Inc., to pay to Petitioner the sum of $60,748.78. DONE and RECOMMENDED this 26th day of April, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of April, 1991. COPIES FURNISHED: The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 James G. Young Route 3 Box 272-A Wildwood, Florida 34758 Patricia M. Harper, President Maddox Brothers Produce, Inc. 2124 Forest Avenue Knoxville, Tennessee 37916 Fireman's Fund Insurance Company Surety Claims Center Post Office Box 193136 San Francisco, Florida 94119-3136
The Issue Whether Respondent Five Brothers Produce Inc. is indebted to Petitioner for agricultural products and, if so, in what amount?
Findings Of Fact Petitioner grows tomatoes on its farm in Dade County. Jack Wishart is in charge of the farm's operations. Five Brothers Produce, Inc., is a dealer in agricultural products. At all times material hereto, Pete Johnson was responsible for buying and selling produce for Five Brothers. He was assisted by Robert Barbare. On Friday, January 19, 1990, Johnson met with Wishart at Petitioner's farm. During their meeting, they discussed the possibility of Five Brothers purchasing all of Petitioner's 6x7 tomatoes. They ultimately entered into a verbal agreement concerning the matter. Under the terms of the agreement, Five Brothers agreed to purchase from Petitioner, and Petitioner agreed to sell to Five Brothers, Petitioner's supply of 6x7 tomatoes, which consisted of 293 packages, for $26.00 a package. At the time, tomatoes were in scarce supply because of the damage that had been done to the South Florida tomato crop by the freeze of the prior month. As a result, the market price for U.S.#1 grade 6x7 tomatoes was $32.00 a package. Wishhart agreed to a lower price for Petitioner's 6x7 tomatoes because they were U.S.#2 grade. The 293 packages of tomatoes were delivered to Five Brothers on the following day, Saturday, January 20, 1990. Johnson had purchased the tomatoes for Five Brothers to resell to a customer in Atlanta, Georgia. Upon inspecting the tomatoes after their arrival at Five Brothers' loading dock in Florida City, Johnson determined that they did not meet the needs of this particular customer because, in Johnson's opinion, they were too ripe to be shipped out of state. Johnson thereupon telephoned Wishart to tell him that the tomatoes were not suitable for his Atlanta customer. Later that same day, January 20, 1990, pursuant to Johnson's instructions, Barbare, Five Brothers' "late night clerk," contacted Wishart and advised him that Five Brothers wanted to return the tomatoes to Petitioner. The gates of Petitioner's farm were closed, and Wishart so informed Barbare. He then asked Barbare to store the tomatoes in Five Brothers' cooler until they could be returned to Petitioner's farm. Barbare agreed to do so. Approximately a day or two later, Barbare again telephoned Wishart. He told Wishart that Five Brothers had found a customer to whom it could sell the tomatoes, which were still in Five Brothers' cooler. Wishart, in response, stated that Petitioner would lower its sale price and "take $20.00," instead of $26.00 as previously agreed, for the tomatoes. 1/ On Monday, January 22, 1990, Five Brothers consummated a deal with Leo Genecco & Sons, Inc., (Genecco) of Rochester, New York, which agreed to purchase the tomatoes from Five Brothers. 2/ The tomatoes were priced "open," that is, the price of the tomatoes was to be established after the sale. Five Brothers ultimately received $3,149.75 ($10.75 a package) for the 293 packages of 6x7 tomatoes it had sold to Genecco. It thereupon sent a check in that amount to Petitioner as payment for these tomatoes. In the transaction at issue in the instant case, Five Brothers was not acting as a broker or agent for Petitioner. It purchased the tomatoes from Petitioner. The sales price was initially $26.00 a package and was later reduced to $20.00 a package. Accordingly, for the 293 packages of tomatoes Petitioner sold Five Brothers, it should have received from Five Bothers $5,860.00, $2,710.25 more than it was paid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Agriculture and Consumer Services enter a final order (1) finding that Five Brothers is indebted to Petitioner in the amount of $2,710.25, (2) directing Five Brothers to make payment to Petitioner in the amount of $2,710.25 within 15 days following the issuance of the order, and (3) announcing that, if such payment is not timely made, the Department will seek recovery from the Florida Farm Bureau Mutual Insurance Co., Five Brother's surety. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March, 1991. 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 18th day of March, 1991. COPIES FURNISHED: Jack Wishart Pine Islands Farms, Inc. Post Office Box 247 Goulds, Florida 33170 Pete Johnson Five Brothers Produce, Inc. Post Office Box 3592 Florida City, Florida 33034 Florida Farm Bureau Mutual Insurance Co. 5700 Southwest 34th Street Gainesville, Florida 32608 Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether A. J. Sales Company owes petitioner $1,712.80 for watermelons loaded on June 18, 1986.
Findings Of Fact Petitioner, Michael C. Jones, is a watermelon grower who resides in Summerfield, Florida. In June of 1986, petitioner arranged to sell his watermelons through Larry Dimaria for four cents a pound. Mr. Dimaria advised petitioner that he would get four cents a pound at the weighing. In his complaint, the petitioner described Mr. Dimaria as his "salesman." At the hearing he stated that Mr. Dimaria was his broker working on commission. Regardless of the characterization, it is clear that Mr. Dimaria was acting as petitioner's agent for the sale of the watermelons in question. Acting on behalf of petitioner, Mr. Dimaria called Carl Boyles, an employee of A. J. Sales Company, to advise that petitioner had watermelons for sale. Mr. Boyles was able to locate a buyer for the watermelons, the Auster Company in Chicago, Illinois. Mr. Boyles then called Mr. Dimaria to inform him of the sale. Mr. Dimaria was specifically advised by Mr. Boyles that the melons would have to be in good condition, meaning that they would pass a USDA inspection, and that petitioner would have to "ride the watermelons in," meaning that petitioner would have to guarantee arrival of the watermelons in good condition in Chicago. In other words, if the melons failed a USDA inspection in Chicago, the Auster Company had the right to reject the watermelons and the risk of the loss would be on petitioner. Petitioner was guaranteed four cents a pound for the watermelons only upon successful delivery. The terms and conditions of the sale were made clear to Mr. Dimaria. Indeed, because A. J. Sales Company had experienced problems with Mr. Dimaria in 1985, which included Mr. Dimaria's misrepresenting the quality of the watermelons he was selling, A. J. Sales Company had determined that the only terms on which it would do business with Mr. Dimaria were that the farmers Mr. Dimaria represented would have to guarantee arrival of the watermelons in good condition and that the farmers would bear the risk of loss if the melons were not in good condition when delivered. Since A. J. Sales Company's representatives do not see the watermelons themselves and could not rely on Mr. DiMaria's representations, A. J. Sales Company felt these terms were necessary to protect its interests. The subject watermelons were shipped to Chicago on June 18, 1986. They were inspected in Chicago on June 20, 1986, by a United States Department of Agriculture inspector. The watermelons failed to grade U.S. No. 1 on account of their condition, which was that the samples averaged 66 percent overmature. Mr. Boyles was advised of the problem with the watermelons on Friday, June 20, the day they were inspected. He attempted to telephone Mr. Dimaria but was unable to reach him. He therefore called the petitioner to advise of the condition of the melons and find out what petitioner wanted done. Petitioner told Mr. Boyles that he knew of no buyer in the area and told Mr. Boyles to do what he could. Mr. Boyles called several people in the Chicago area but could not find anyone who was willing to buy the watermelons. The only possibility was to take the watermelons to a flea market being held on Sunday and sell as many melons as possible directly from the truck. Mr. Boyles was advised that the melons might get $400 or $500 at the flea market, but he knew it would cost $300 to keep the driver in Chicago through Sunday. Therefore, the best return possible from selling the watermelons at the flea market would be $100 or $200. Further, the truck driver advised Mr. Boyles that the melons were popping open and juice was running out the bottom of the truck. Based on all the information that he had, Mr. Boyles determined that the best option was not to add an additional $300 to the freight bill, but simply to tell the truck driver to dump the watermelons. Respondent received a receipt indicating that one load of watermelons, constituting 46 x 2.05 cubic yards, had been dumped at the Inox County, Illinois, landfill and that the charge for dumping had been $94.30. A. J. Sales Company never received any payment for the watermelons in question. A. J. Sales Company invoiced petitioner for the freight charges on the watermelons, but petitioner never paid the invoice. Petitioner never invoiced A. J. Sales Company for the watermelons. What apparently happened in this case is that the petitioner was not fully advised by his agent, Mr. Dimaria, of the terms and conditions of the sale. All negotiations concerning the watermelons were conducted between Mr. Dimaria and Carl Boyles. The petitioner did not talk to any representative of A. J. Sales Company concerning the terms and conditions of the sale. Petitioner's only knowledge of the terms and conditions of the sale came from Mr. Dimaria, and petitioner admitted that he had experienced problems with representations made by Mr. Dimaria on other loads of watermelons he handled for petitioner. On other loads, petitioner was advised by Mr. Dimaria that he would receive a half cent more per pound for the watermelons than he actually got. After the instant dispute, Mr. Dimaria ceased being a broker representing the petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing petitioner's complaint. DONE AND ENTERED this 18th day of February, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1987. APPENDIX TO RECOMMENDED ORDER Respondent's proposed findings of fact: 1-2. Accepted in paragraphs 1 and 2. Accepted in paragraph 9. Accepted in paragraphs 3 and 9. Rejected, not a finding of fact. 6-8. Accepted generally in paragraph 4. Accepted generally in paragraph 3. Accepted generally in paragraph 5. 11-12. Accepted generally in paragraphs 6 and 7. 13-15. Accepted in paragraph 8. Petitioner's proposed findings of fact: Accepted in paragraph 5. Accepted in paragraphs 3 and 9. Accepted in paragraph 9. Rejected in that the watermelons failed to grade USDA 1 due to their condition. Rejected as unnecessary and irrelevant. COPIES FURNISHED: Mr. Michael C. Jones Route 2, Box 26-E Summerfield, Florida 32691 Thomas B. Smith, Esquire McGUIRE, VOORHIS & WELLS, P.A. Two South Orange Plaza Post Office Box 633 Orlando, Florida 32802 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 Robert Chastain, Esquire General Counsel Department of Agriculture 513 Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether Respondent, Landtech Services, Inc., is indebted to Petitioner in the amount of $1,347.07 for the purchase of agricultural products.
Findings Of Fact Petitioner, Holmberg Farms, Inc., is a producer of agricultural products located in Lithia, Florida. Respondent, Landtech Services, Inc. (Landtech), is an agricultural dealer located in Largo, Florida. Respondent, Western Surety Company, is a surety and issued to Respondent, Landtech, a surety bond for the purchase of agricultural products in Florida. On or about April 9, 1993, Respondent, Landtech, purchased from Petitioner, on invoice number T7284, eleven hundred and ten (1,110) six inch honeysuckle ornamental plants for the price of $1,950.55. The terms of the sale between Petitioner and Respondent, Landtech, were C.O.D. at the time of delivery. However, Petitioner's truck driver was unaware of the terms of the sale and therefore, did not collect full payment at the time he delivered the plants to Landtech. Respondent, Landtech, paid Petitioner's driver the sum of $400.00 toward the purchase of the honeysuckle plants leaving a balance due of $1,550.55. On August 20, 1993, Respondent, Landtech, paid to Petitioner the payment of $250.00 of which $203.48 was applied to the balance and $46.50 was applied to interest owed. Petitioner, now claims the balance of $1,347.07. Respondent, Landtech, is indebted to Petitioner in the amount of $1,347.07 as claimed in its complaint. As noted, Respondents, Landtech and Western Surety, did not appear at the hearing to contest or otherwise refute the allegations in the statement of claim.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Agriculture issue its final order requiring that Respondent, Landtech Services, Inc., pay to Petitioner, Holmberg Farms, Inc., the amount of $1347,07, within fifteen (15) days of its Final Order. It is further RECOMMENDED that if Respondent, Landtech, fail to timely remit payment to Petitioner, the Department shall call upon the surety to pay over to the Department, from funds out of the surety certificate, the amount called for in this order. 2/ RECOMMENDED this 3rd day of March, 1995, 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 3rd day of March, 1995.
Findings Of Fact On August 6, 1986, an indemnity bond was executed between RAINMAKER as principal and FIDELITY as surety. The effective dates of the bond were from October 21, 1986, to October 20, 1987. The bond was required under Sections 604.15-604.30, Florida Statutes, in order for RAINMAKER to become licensed as a dealer in agricultural products in Florida. The purpose of the bond is to secure the faithful accounting for a payment to producers or their agents or representatives of the proceeds of all agricultural products handled or purchased by RAINMAKER. The Petitioner, SHAN-RON, is a corporation whose address is 276 Cypress Street, La Belle, Florida. Its purpose is to conduct business by finding buyers for sod located on acreage owned by various cattle ranchers in Lee County, Florida. This practice is commonly known as "bird dogging" in the agricultural trade. The way the business is conducted is as follows: SHAN-RON is contracted by sod installers to whom it sells sod in specific quantities for a fixed price. Once the oral agreement is made, SHAN-RON tells the sod installer where a sod field is located. At this point in the business transaction, the sod installer sends independent truck drivers to the designated sod field. If the sod installer is unable to locate truckers, he telephones a SHAN-RON field foreman. The foreman, as a courtesy, will check to see if any of the independent truckers currently as the sod field can haul a load for the sod installer. Once a trucker is located, employees from SHAN-RON mow the grass, cut the sod, and load it onto pallets owned by SHAN-RON. The truck is loaded with pallets by SHAN-RON employees and the driver is given two copies of the load ticket, one for him and one for the sod installer. The driver delivers the sod and pallets to the address placed upon the load tickets. Upon delivery, the driver has the responsibility to deliver the load ticket to the business office of the sod installer. If he does not deliver the ticket, he does not get paid for hauling the sod. Employees of the sod installer are usually at the delivery site. The sod is laid and the empty pallets are returned to the sod field by the truckers. Every Friday, a representative of SHAN-RON personally delivers a weekly bill to the sod installer in order to collect is owed. When the money is collected, the funds are divided between the rancher whose sod was sold and SHAN-RON. The accountability system used within the sod industry leaves room for a high margin of error at various stages. The SHAN-RON employees occasionally short pallet loads or two layers of sod. The truck drivers occasionally misnamed the sod installer to whom the sod is to be delivered. The truck drivers also occasionally do not take empty pallets under their control back to SHAN-RON. They sell the pallets and pocket the money. The sod installer is financially responsible for the pallet costs. RAINMAKER is a corporation whose address is Post Office Box 7385, Ft. Myers, Florida. The company is primarily in the business of installing sod. It transacted business with SHAN-RON between November 11, 1986, and January 8, 1987. At the time of these transactions, RAINMAKER was licensed as a dealer in agricultural products supported by surety bond number 974 52 23 in the amount of $13,500.00. SHAN-RON, through testimony and the introduction of its business records, proved a prima facie case that RAINMAKER owes $12,964.00 for the purchase of sod between November 11, 1986, and January 8, 1987. Both parties Stipulated that $4,000.00 has been paid on the balance of the account which should be deducted from the balance owed SHAN-RON. In rebuttal to SHAN-RON's presentation, RAINMAKER presented testimony and a business record summary which revealed that six invoices were improperly charged, against its account in the amount of $1,260.00. The record summary was based upon a comparison of load tickets against production records during the time period involved. In addition, RAINMAKER's records reveal that the two drivers, Stormy and Fred Bower, were not paid for delivering the sod to RAINMAKER under the load ticket presentation to the sod installer which was previously described as an accounting method within the business. Because RAINMAKER set forth the issue of delivery discrepancies in its answer to the complaint and competent evidence was presented, $1,260.00 should be deducted from the `balance owed. SHAN-RON presented testimony that it is customary for the company to spray the sod for pest control. RAINMAKER received defective sod from SHAN-RON which contained "Creeping Charlie" weeds during the time of the deliveries in dispute. SHAN-RON was timely notified of the problem, and toad RAINMAKER to have the sod sprayed. A copy of the invoice for $300.00 was sent to SHAN-RON and has not been paid. Although the issue was not raised in RAINMAKER's answer to the complaint, it is properly before the Hearing Officer because of RAINMAKER's timely notification and cure of the defect in the product. The $300.00 should be deducted from the amount owed. Testimony relating to possible sod shortages was rejected as no evidence was presented that shortages occurred in the orders for which SHAN-RON seeks payment. The customary procedure In the sod business for handling credits for shortages requires the buyer to notify the seller within a responsible length of time of the shortages. Such notification did not take place as to the orders in dispute. The amount owed to SHAN-RON by RAINMAKER is $7,404.00. It is officially noticed that SHAN-RON's complaint was originally filed with the department on June 19, 1987, within nine months from the date of sale.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Agriculture enter a final order requiring the Respondent RAINMAKER to make payment to the petitioner SHAN-RON in the amount of $7,404.00. In the event that RAINMAKER does not comply with the department's order within fifteen days from the date it final, FIDELITY should be ordered to provide payment and the conditions and provisions of the bond furnished to RAINMAKER. DONE and ENTERED this 12th day of April, 1988, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1987. COPIES FURNISHED: Clinton H. Coutler, JR., Esquire Department of Agriculture Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of License and Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 Shan Ron Sod, Inc. 276 Cypress Street LaBELLE, FLORIDA 33935 Rainmaker Sod, Inc. 2290 Bruner Lane, South East Fort Myers, Florida 33912 Fidelity & Deposit Company of Maryland Post Office Box 1227 Baltimore, Maryland 21203 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain General Counsel Department of Agriculture Mayo Building, Room 513 Tallahassee, Florida 32399-0800
The Issue 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.
The Issue Whether Respondent, Garrison Irrigation, Inc., failed to pay amounts owing to Petitioner resulting from a verbal contract for four pallets of Bahia sod as set forth in the complaint dated July 20, 2004, and, if so, what amount Petitioner is entitled to recover.
Findings Of Fact Based upon observation of the witness and her demeanor while testifying, the documents received into evidence, and the entire record of this proceeding, the following relevant and material findings of fact are determined: At all times material to this proceeding, Petitioner, C.M. Payne and Son, Inc., was a producer of agricultural products as that term is defined in Subsection 604.15(5), Florida Statutes (2004). At all times material to this proceeding, Respondent, Garrison Irrigation, Inc. (Garrison), was licensed as a dealer in agriculture products as that term is defined in Subsection 604.15(1), Florida Statutes (2004). Respondent was licensed under number 13653, supported by Bond No. 929237754 in the amount of $10,000; written by Respondent, Continental Casualty Company, as Surety (Continental); Inception Date: December 4, 2003; Expiration Date: December 3, 2004; and Execution Date: December 4, 2003. At all times material, Continental is the surety which issued Garrison a surety bond. On January 23, 2004, Petitioner sold 16 pallets of Bahia sod to Garrison and, on Invoice 20027, billed Garrison a total of $599.20 for the 16 pallets of sod. On January 26, 2004, Petitioner sold 32 pallets of Bahia sod to Garrison and, on Invoice 20033, billed Garrison a total of $1,198.40 for the 32 pallets of sod. On January 27, 2004, Petitioner sold 16 pallets of Bahia sod to Garrison and, on Invoice 20039, billed Garrison a total of $599.20 for the 16 pallets of sod. On February 2, 2004, Petitioner sold 16 pallets of Bahia sod to Garrison and, on Invoice 20044, billed Garrison a total of $599.20 for the 16 pallets of sod. The terms of the sale between Petitioner and Garrison were for net payment for products sold within 30 days after the invoice date. Garrison did not appear at the hearing to contest or otherwise refute the charges alleged in Petitioner's complaint. Garrison is indebted to Petitioner in the amount of $2,996.00 for Bahia sod purchases from Petitioner on January 23, 26, and 27, 2004, and February 2, 2004. Garrison has failed to pay Petitioner for the sod purchases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue its final order requiring that Respondent, Garrison Irrigation, Inc., pay to Petitioner, C. M. Payne and Son, Inc., the amount of $2,996.00 for the purchases of Bahia sod from Petitioner on January 23, 26, and 27, 2004, and February 2, 2004. It is further RECOMMENDED that if Respondent, Garrison Irrigation, Inc., fails to comply with the order directing payment, the Department shall call upon the surety, Continental Casualty Company, to pay over to the Department from funds out of the surety certificate, the amount needed to satisfy the indebtedness. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 December, 2004.
