15-001198 Mark Olivenbaum, D/B/A Amr Groves, Inc. vs. Reiter Citrus, Inc., And Auto Owners Insurance Co., As Surety Status: Closed Recommended Order on Tuesday, June 9, 2015.

Summary: Seller met its burden of proving that $11,650 is the amount owed by buyer for purchae of oranges.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK OLIVENBAUM, d/b/a AMR

GROVES, INC.,

Petitioner,

vs. Case No. 15 - 119 8

REITER CITRUS, INC., AND AUTO

OWNERS INSURANCE CO., AS SURETY,

Respondents.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

in Bartow, Florida, on May 13, 2015, before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Mark Steven O livenbaum, pro se

AMR Groves, Inc.

17290 Commonwealth Avenue, North

Polk City, Florida 33868

For Respondent: Bradley Reiter, pro se

Reiter Citrus, Inc.

1848 Woodpoint Drive

Winter Haven, Florida 33882

STATEMENT OF THE ISSUE

What amount, if any, is owed by Reiter Citrus, Inc. , to Mark

Olivenbaum, d/b/a AMR Groves, Inc., for oranges purchased pursuant

to contract entered by the parties on November 5, 2014 .

PRELIMINARY STATEMENT

Mark Olivenbaum, d/b/a AMR Groves, Inc. (Petitioner) , filed

with the Department of Agriculture and Consumer Services a Grower

Complaint against Reiter Citrus, Incorporated (Respondent). The

Grower Co mplaint alleges that Respondent owes Petitioner $11,600

for Sunburst, Orlando, and tangelo variety oranges (collectively

referred to as oranges) sold by Petitioner to Respondent pursuant

to contract entered by the parties on or about November 5, 2014.

Res pondent claims that it was not obligated to perform under the

contract because the oranges were damaged as a result of citrus

greening.

On or about March 9, 2015, this matter was referred to the

Division of Administrative Hearings (DOAH) for a disputed - fac t

hearing which, as previously noted, was held on May 13, 2015.

At the hearing, Mr. Mark Olivenbaum and Mrs. Kristin

Olivenbaum testified on behalf of Petitioner. Mr. Bradley Reiter

was the only witness to testify on behalf of Respondent.

Petitioner's Exhibits 1, 5, and 7 through 9 were admitted into

evidence. Respondent's Exhibits 1 and 2 were also admitted into

evidence.

A t ranscript of the disputed - fact hearing was not filed in

this matter. Petitioner filed a Proposed Recommended Order, and

the sa me was considered in the preparation of this Recommended

Order.

FINDING S OF FACT

1. A "dealer in agricultural products" is defined as a

person, partnership, corporation, or other business entity,

"engaged within this state in the business of purchasing,

r eceiving, or soliciting agricultural products from the

producer . . . for resale or processing for sale."

§ 604.15(2), Fla. Stat. (2014). 1/ Respondent is licensed as a

dealer in agricultural products.

2. Petitioner is a "producer" for purposes of secti ons

604.15 through 604.34, Florida Statutes. See § 604.15(9), Fla.

Stat. (defining "producer" as "any producer of agricultural

products produced in the state").

3. On November 5, 2014, Petitioner and Respondent entered

into a written contract for the pu rchase of oranges from

PetitionerÓs grove. The written contract provides that the

Sunburst variety fruit would be purchased for $16.00 Ðper on tree

box.Ñ The written contract is silent as to the purchase price of

the tangelos and the Orlando variety oran ges. As for the price

of these items, the parties verbally agreed to a price of $4.00

per box. The verbal and written contracts are collectively

referred to as the Ðcontract.Ñ

4. Petitioner is an experienced producer of agricultural

products. Accordin g to Petitioner, the fruit at issue was

essentially ready for picking when the parties entered into their

contract on November 5, 2014. PetitionerÓs testimony as to the

maturity of his fruit is supported by information from the

Horticultural Sciences Depa rtment, University of Florida/IFAS

Extension (HS168), which states that Sunburst tangerines will, in

most years, Ðreach maturity by mid - November and will remain

acceptable through late December.Ñ

5. Respondent, prior to entering into the contract with

Pe titioner, inspected the oranges in PetitionerÓs grove.

Respondent approved the oranges for purchase.

6. Within days of signing the contract, Petitioner spoke

with Respondent about a schedule for the picking of the oranges.

Respondent was non - committal as to an exact time - frame for

picking the oranges but did inform Petitioner that he would send

someone to PetitionerÓs grove to pick the oranges Ðwithin a few

days.Ñ After a few days had passed, and the oranges remained

unpicked, Petitioner again contacte d Respondent and like before,

Respondent told Petitioner that someone would be out to pick the

oranges Ðwithin a few days.Ñ This pattern between Petitioner and

Respondent continued for several weeks and at no time did

Respondent arrange to have the orange s picked from PetitionerÓs

grove.

7. The testimony from the final hearing establishes that

Respondent intended to purchase PetitionerÓs fruit and then re -

sell the fruit to other buyers. However, Respondent was unable

to find a buyer for the fruit that h e was contractually obligated

to purchase from Petitioner because, according to Respondent,

Ðthe fruit was too small to pack due to citrus greening.Ñ

Respondent claims that his contract with Petitioner provides that

Respondent was obligated to purchase Pe titionerÓs oranges only if

Respondent found a buyer for the oranges. Contrary to

RespondentÓs testimony, a review of the contract reveals no such

contingency.

8. Respondent claims that he is relieved of his obligation

to perform under the contract becau se the oranges were

compromised due to citrus greening. Specifically, Respondent

cites to the ÐHAZARDSÑ provision of the contract which provides,

in part, that Ðin the event said fruit shall become damaged by

cold, hail, fire, windstorm or other hazard, [ Respondent] shall

have the right to terminate th[e] contract.Ñ Respondent claims

that citrus greening is a condition that falls within the Ðother

hazardÑ provision of the contract. RespondentÓs reliance on this

contractual provision is misplaced because, as previously noted,

Respondent was well aware of the condition of the oranges when he

entered into the contract with Petitioner for the purchase of the

same. The credible evidence establishes that there was not a

material change in the condition of the oranges from the time of

the execution of the contract to the time when the oranges should

have been picked by Respondent.

9. Because Respondent did not pick any oranges from

PetitionerÓs grove, Petitioner, in calculating his losses

resulting from Respon dentÓs non - performance, reasonably

determined that Respondent, had he met his contractual

obligations, would have picked 700 boxes of Sunburst tangerines

and 100 boxes (combined) of the Orlando and tangelo fruit.

Petitioner, in quantifying his likely crop yield for the oranges

covered by the contract with Respondent, utilized results from

previous crop yields as well as a general assessment of the state

of his grove in November and December 2014.

CONCLUSIONS OF LAW

10. DOAH has jurisdiction over the parti es to and subject

matter of this proceeding. §§ 120.569, 120.57(1), and 604.21(6),

Fla. Stat.

11. The Florida Department of Agriculture and Consumer

Services is the state agency responsible for licensing dealers in

agricultural products and investigating and taking action on

complaints against such dealers. §§ 604.15 through 604. 34, Fla.

Stat.

12. The definition of "agricultural products" includes "the

natural products of the . . . farm, nursery, grove, orchard,

vineyard, [and] garden . . . produced in the State."

§ 604.15(1), Fla. Stat. The oranges grown by Petitioner in his

grove are "agricultural products" within the meaning of section

604.15(1).

13. The complainant in a proceeding initiated pursuant to

section 604.21(1) has the burden of proving by a preponderance of

the evidence entitlement to the amounts sought to be recovered.

14. Petitioner has satisfied its burden of proof. As set

forth in the Findings of Fact, Respondent owes Petitioner $11,600

((700 boxes x $16.00 = $11,200) (100 boxes x $4.00 = $400)) for

the fruit at issue. 2/

15. Section 604.21(1)(a) provides in part that "[b]efore a

complaint can be processed, the complainant must provide the

department with a $50.00 filing fee" that shall be reimbursed to

the complainant "[i]n the event the complainant is successful in

proving the claim." Having prevailed in this matter, Petitioner

is entitled to recoup its filing fee from Respondent.

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 that Reiter Citrus,

Inc. , is indebted to Mark Olivenbaum, d/b/a AMR Groves, Inc., in

the amount of $11,650 (includes filing fee).

DONE AND ENTERED this 9th day of June , 2 015 , in Tallahassee,

Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Fili ng (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of June , 2015 .

ENDNOTE S

1/ All subsequent references to Florida Statutes will be to 2014,

unless otherwise indicated.

2/ Respondent c laims that PetitionerÓs recovery is limited by the

liquidated damages provision of the contract. This provision

provides that Ð[i]t is further expressly understood that if for

any reason the fruit is not picked or taken by [Respondent], that

amount of the advance payment shall be forfeited to [Petitioner]

as sole liquidated damages hereunder, except as agreed in other

paragraphs of this contract.Ñ Because the damages resulting from

RespondentÓs breach of the contract are Ðreadily ascertainable,Ñ

coupled w ith the fact that there is no evidence that Respondent

gave Petitioner an advance payment towards the purchase of the

oranges, the liquidated damages provision in the instant contract

is not enforceable. See Lefemine v. Baron , 573 So. 2d 326 (Fla.

1991); Hutchison v. Tompkins , 259 So. 2d 129 (Fla. 1972); Hyman

v. Cohen , 73 So. 2d 393 (Fla. 1954).

COPIES FURNISHED:

Auto Owner's Insurance Company

1330 Havendale Boulevard

Winter Haven, Florida 33881

Mark Steven Olivenbaum

Mark Olivenbaum, d/b/a AMR Grov es, Inc.

17290 Commonwealth Avenue, North

Polk City, Florida 33868

(eServed)

Bradley Reiter

Reiter Citrus, Inc.

1848 Woodpoint Drive

Winter Haven, Florida 33882

Paul J. Pagano , Bureau Chief

Bureau of Mediation and Enforcement

Department of Agriculture

and Consumer Services

Rhodes Building, R - 3

2005 Apalachee Parkway

Tallahassee, Florida 32399 - 6500

(eServed)

Honorable Adam Putnam

Commissioner of Agriculture

Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Fl orida 32399 - 08 1 0

Lorena Holley, General Counsel

Department of Agriculture

and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 08 0 0

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.