03-004704 Putnal Groves vs. The Citrus Store And Fidelity &Amp; Deposit Company Of Maryland Status: Closed Recommended Order on Thursday, June 3, 2004.

Summary: Respondent refused to pay for citrus per terms of written contract at $6.35 per box. The Division of Administrative Hearings lacks jurisdiction to consider the alleged "affirmative defense" under Chapter 120, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PUTNAL GROVES, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4704

)

THE CITRUS STORE AND FIDELITY & )

DEPOSIT COMPANY OF MARYLAND, )

)

Respondents. )

)

REC OMMENDED ORDER

Pursuant to notice and in accordance with Sections 120.569

and 120.57(1), Florida Statutes (2003), this cause came on for

formal hearing before Fred L. Buckine, the designated

Administrative Law Judge of the Division of Administrative

Heari ngs, on February 10, 2004, in Sarasota, Florida.

APPEARANCES

For Petitioner: Russ Putnal, pro se

Putnal Groves

10755 Russ Road

Myakka City, Florida 34251

For Respondent The Citrus Store:

Richard S. Pipkin, Esquire

Fletcher & Pipkin

559 South Commerce Avenue

Sebring, Florida 33870

For Respondent Fidelity & Deposit Company of Maryland:

(No appearance)

STATEMENT OF THE ISSUES

Whether Respondent, Donnie Selph, d/b/a The Citrus Store

and D & D Citrus (Donnie Selph), failed to pay amounts owning to

Petitioner for citrus fruit harvested from Petitioner's groves,

as set forth in the Co mplaint dated October 13, 2003, and, if

so, the amount Petitioner is entitled to recover.

PRELIMINARY STATEMENT

On October 13, 2003, Petitioner, Russ Putnal, d/b/a Putnal

Groves (Russ Putnal), filed a Complaint with the Department of

Agriculture and Consum er Services (Department), alleging that

Donnie Selph failed and refused to pay for 11,251 boxes of late -

season Valencia oranges harvested from Russ Putnal's groves

located in Manatee and Sarasota Counties, Florida, during the

May 7, 2003, through June 9, 2 003, citrus season pursuant to a

written contract between the parties. Russ Putnal claimed that

he and Donnie Selph entered into a written contract January 29,

2003, for 10,000 mid - season oranges and 40,000 late - season

Valencia oranges, estimated to be al l of Russ Putnal's 2002 - 2003

production for those two varieties of citrus fruit. Payments

were made to Petitioner by The Citrus Store and by D & D Citrus, 1

for mid - season citrus fruit harvested. No payment was tendered

for the 11,251 boxes of late - season Valencia oranges harvested

from Russ Putnal's groves. Russ Putnal attached to his

Complaint copies of the contract, statements from Donnie Selph,

and delivery trip tickets evidencing the following accounting:

Total Purchase Price

[Valencia oranges]: $71,443.85

Less Harvesting,

Mutual, Taxes, etc.: $2,373.57

Less Amount

Received: $5,000.00

Net Amount or Claim

(Balance Now Due): $64,070.28

Respondent, Fidelity & Deposit Company of Maryland, was named in

the Complaint as s urety for Donnie Selph.

On or about November 21, 2003, Donnie Selph, d/b/a The

Citrus Store, 3365 U.S. Highway 17 North, Bowling Green, Florida

33834, licensed as a dealer in citrus fruit under License

Number 756, supported by Surety Bond Number LPM814257 3, for

$30,000, written by Fidelity & Deposit Company of Maryland,

inception October 14, 2002, during the 2002 - 2003 citrus shipping

season, filed an answer denying that the claim is valid. By

affidavit, Donnie Selph filed the following answer to the

Compl aint:

1. As to Item 12, respondent would say

that he entered into an agreement [written

contract] with the complainant to pick

40,000 boxes of Valencia oranges. The price

to be paid thereon was $6.35 per box. In

the two to three year time period prece ding

said contract, all of the complainant's

fruit had been boxed and not juiced.

Therefore, there was no historical basis for

the respondent to be aware of the pound

solids per box that would be yielded from

the fruit. Respondent relied on the

complaina nt's assertions that the pound

solids would be 6.8 to 7.0 pounds per 90 -

pound box. This was an affirmative

representation by the complainant, upon

which the Respondent relied to his

detriment. When the fruit was picked, the

average pound was 5.9 pounds s olid per box.

The respondent would assert an affirmative

defense, against the claim of the claimant,

of fraudulent misrepresentation.

2. As to item 13, a term of the purchase

is [sic] other, and is $6.35 per box.

3. As to item 14, purchase was mad e by

Donnie Selph, d/b/a The Citrus Store.

Purchase was made by other; other being by

contract.

4. As to item 15, in support of this

answer, attached hereto is documentary

evidence.

5. Respondent, Donnie Selph, d/b/a The

Citrus Store.

On December 12, 2003, Russ Putnal's Complaint, the Answer

of Respondent, Supplemental Exhibits for Respondent's Response,

and the Agency referral were referred to the Division of

Administrative Hearings, where it was assigned to an

Administrative Law Judge and set fo r hearing.

On January 7, 2004, the Notice of Hearing, scheduling the

final hearing for February 10, 2004, in Sarasota, Florida, and

the Order of Pre - hearing Instructions were entered.

On January 29, 2003, a notice of appearance,

Witness/Exhibit list, and r eply by Russ Putnal to the Initial

Order were filed.

At the formal hearing, Russ Putnal testified on his own

behalf and presented four exhibits (P - 1 through P - 4) that were

accepted into evidence. Donnie Selph testified on his own

behalf and presented one exhibit (R - 1) that was accepted into

evidence.

The hearing was recorded and transcribed. The Transcript

of the hearing was filed on February 27, 2004. On March 12,

2004, Donnie Selph filed a Memorandum of Law and Proposed Order

that were given careful co nsideration in the preparation of this

Recommended Order. In lieu of a proposed recommended order,

Russ Putnal elected to give a summation of his claim at the

close of hearing that was given careful consideration in the

preparation of this Recommended Ord er.

FINDINGS OF FACT

Based upon observation of the witnesses and their demeanor

while testifying; stipulations by the parties; documentary

materials received in evidence; evidentiary rulings made

pursuant to Sections 120.569 and 120.57, Florida Statutes

(2 003); and the entire record of this proceeding, the following

relevant and material findings of fact are determined:

1. At all times material to this proceeding Russ Putnal

was a "producer of citrus fruit" and owner of Putnal Groves

located at 10755 Russ Road, Myakka City, Florida. A producer of

citrus is one that grows citrus in this state for market.

2. At all times material to this proceeding, Donnie Selph

was a "Florida - licensed [License Number 756] citrus fruit

dealer" operating within the Departmen t's regulatory

jurisdiction. Donnie Selph admitted that he is owner of and

does business under the names of The Citrus Store and D & D

Citrus.

3. On October 13, 2002, Donnie Selph entered into a

written contract with Russ Putnal under which Donnie Selph

agreed to harvest 10,000 boxes of mid - season oranges on or

before June 1, 2003. Donnie Selph agreed to pay $4.35 per box

for the mid - season oranges and agreed to pay $6.35 per box for

the late - season (grove production) Valencia oranges harvested

from Russ Putnal's groves.

4. The form contract, dated January 29, 2003, entered into

by Donnie Selph and Russ Putnal contained the following terms

and conditions:

[T]he Grower, for and in consideration of

the payment this date received and to be

received as her ein provided, has agreed and

do by these presents agree to sell to the

Buyer all citrus fruits, of merchantable

quality at the time of picking, from the

grove or groves hereinafter mentioned. The

price to be paid to the Grower by the Buyer

for said fruit per standard field crate by

volume or weight [" weight " was circled] at

election of buyer on the trees , for all

fruit of merchantable quality at the time of

picking, shall be as follows:

Oranges, mids, 10,000 boxes (or production),

$4.35 [per] box

Valenci a Oranges, 40,000 boxes (or

production), $6.35 [per] box

The term "merchantable" as used herein

shall be defined as that standard of quality

required by the United States Department of

Agriculture for interstate shipment in

fresh/juiced [" juiced " was ci rcled] fruit

form. . . .

* * *

It is agreed that the advance payment

hereby receipted for is to be deducted from

said payment as follows:

As fruit is harvested, $12,000.00, ck# 6318

* * *

Note: Less all state taxes owned by Grower .

Mutual YES[ P ] NO[ ]

A bond or certificate of deposit posted

with the Florida Department of Agriculture

and Consumer Services does not necessarily

ensure full payment of claims for any

nonperformance under this contract. . . .

(emphasis added)

5. The undisputed evidence established that Donnie Selph

harvested mid - season oranges from Russ Putnal's groves and paid

Russ Putnal for those mid - season oranges harvested per the terms

of the written contract. According to Russ Putnal, the contract

was for mid - season oran ges "which are basically a pineapple

variety." "Mid - season juice oranges and Valencia oranges are

late -- late - season oranges. The mids were all paid for -- the

balance is on the Valencia oranges."

6. The undisputed evidence also established that in the

con tract hereinabove Donnie Selph also agreed to harvest

40,000 boxes (or production) of late - season Valencia oranges and

agreed to pay $6.35 per box for the Valencia oranges harvested

from Russ Putnal's groves.

7. The undisputed evidence likewise establish ed that

Donnie Selph harvested 11,251 boxes of Valencia oranges pursuant

to terms of the written contract with Russ Putnal. During the

harvesting of the Valencia oranges, Donnie Selph raised no

objection or complaints with Russ Putnal regarding the qualit y

or quantity of late - season Valencia oranges that were harvested.

The parties recalled discussing one load that was "light,"

meaning the average weight per box was less than the average

weight per box of the other loads of Valencia oranges picked

from th e same grove. According to the evidence presented, it is

not uncommon in the citrus business to have a few "light" loads

when picking 11,251 boxes of fruit. Donnie Selph is obligated

to pay Russ Putnal for the 11,251 boxes of Valencia oranges

harvested f rom Russ Putnal's groves and sold for processing.

The net payment due and owning Russ Putnal Groves is computed as

follows:

Total Purchase Price

[Valencia oranges]: $71,443.85

Less Harvesting,

Mutual, Taxes, etc.: $2,373.57

Less Amount Received

[on September 30, 2003]: $5,000.00 [2]

Net Amount or Claim

[Balance Due]: $64,070.28

8. Donnie Selph did not pay Russ Putnal for the 11,251

boxes of Valencia oranges harvested from Russ Putnal's groves.

Russ Put nal made repeated demands upon Donnie Selph for the past

due amount of $64,070.28, and Donnie Selph refused and failed to

pay Russ Putnal the past due amount of $64,070.28. This debt of

$64,070.28 was due and owing on October 1, 2003, the date Donnie

Selp h made his last payment of $5,000 to Russ Putnal.

9. Regarding this contractual transaction, Russ Putnal

testified:

I regret that we all have to be here for

this, and I've put it off as long as I could

and tried every way I knew to avoid coming

to this, but basically -- or in simple terms

Donnie Selph, Donnie Selph Fruit Company and

I had a contract, a written contract for

mid - season and late - season oranges for last

year (2002/2003). Basically, it hadn't been

paid and it's my understanding the bond is

fo r situations of this nature. And I

realize the bond is less than half of what's

owed, but I think if Donnie had the money

he'd pay me. We're all in -- the citrus

industry is in some serious throws so I'm

just trying to get what I can to try and

keep my b ills paid.

10. Donnie Selph admitted entering into a written contract

with Russ Putnal. Both men acknowledged their experience in the

business of selling and buying citrus fruit and doing business

with each other over the years. Russ Putnal is a season ed

producer of fruit and well versed in the business of selling his

fruit to citrus dealers. Donnie Selph is a seasoned purchaser

and dealer of citrus fruit, having been in the business for over

20 years, and well versed in the business of buying fruit fr om

citrus fruit producers and selling fruit to plants and other

outlets.

11. Donnie Selph set the stage of this transaction by

first testifying that he is in the business of "buying and

selling [fruit], by contract, to the concentration plants."

Regard ing the sale of Russ Putnal's Valencia oranges, he

testified that "based on $1.10 a pound what I got out of [the

sale of] Putnal's fruit and taking out the costs I forwarded [to

Russ Putnal] what was left up to the point of where we're at now

[ i.e. $64,070 .28]." Donnie Selph's refusal to pay Russ Putnal

for the Valencia oranges, "because I received only $1.10 per

pound," does not relieve him of his contractual obligations to

pay $6.35 per box for the Valencia oranges harvested.

12. At the conclusion of th e hearing and in lieu of

submitting a proposed recommended order, Russ Putnal elected to

make the following summation of his case that has been

considered:

We have a simple contract and a simple

problem where fruit was contracted for,

harvested, marketed a nd not paid for by the

specifics of the contract. We have a bond

in place to cover these discrepancies. The

bond is only $30,000; the amount owed is

some $64,000 plus. The defense has pretty

much put up a smokescreen off the subject of

the contract. Th e focusing in on pound

solids and there's nothing in the contract

about pound solids. The contract is simply

in weight boxes.

13. Donnie Selph's first defense, to the debt claimed in

the Complaint, was oral modification of the written contract.

Donnie Selph's evidence to support his oral modification defense

consisted solely of his recollection, "Mr. Putnal agreed with me

that the contract price to be paid would be based on pound solid

[unknown at the time of entering the contract]." Donnie Selph

testi fied that he and Russ Putnal discussed, and agreed, that

the encircled word "juiced" on the written contract meant that

he would pay Russ Putnal at the price Donnie Selph received when

he sold the Valencia oranges "as juiced." Russ Putnal

emphatically den ied making the alleged oral modification of the

written contract of $6.35 per box for his Valencia oranges.

Russ Putnal insisted that throughout this entire episode with

Donnie Selph the written contract called for "weight boxes."

14. In his post - hearin g Memorandum of Law, Donnie Selph

admitted entering into a written contract with Russ Putnal, but

raised as a defense to payment of the debt Russ Putnal "is going

against the bond of The Citrus Store." Donnie Selph argued that

Russ Putnal offered no evide nce of entering into a written

contract with The Citrus Store or personally with Donnie Selph.

Donnie Selph's argument is without a foundation in fact and law

in this proceeding and is, therefore, rejected.

15. Donnie Selph's second defense, a claim of " detrimental

reliance on fraudulent statements made by Russ Putnal," is

without foundation in fact. Russ Putnal adamantly denied making

a verbal agreement with Donnie Selph that he would accept as

payment for his Valencia oranges some amount Donnie Selph m ay

receive when, and if, he sold the Valencia oranges to processing

plants as "juiced" rather than by "pound per box." This defense

to the contractual debt obligation is without foundation in fact

or law in this proceeding and is likewise rejected.

16. T he documentary evidence presented by Russ Putnal in

support of his demand for payment is uncontroverted. The

majority of the documents submitted by Russ Putnal reflected

that the fruit described therein was harvested from Russ

Putnal's groves in Manatee C ounty. Likewise, the documents from

the processing plants reflected that the fruit from Russ

Putnal's Manatee County groves averaged a "pound solids per box

weight of 6.03676 pound[s] per box."

17. The undisputed evidence established that Donnie Selph

pi cked 11,251 boxes of Valencia oranges from Russ Putnal's

grove. The agreed contract price for each box of Valencia

oranges picked was $6.35 per box.

18. Likewise, the undisputed evidence established Donnie

Selph entered into a written contract with Russ Putnal to

purchase a specific citrus fruit (Valencia oranges) at a

specific price ($6.35) per box. The evidence established that

Donnie Selph picked Russ Putnal's Valencia oranges, sold those

Valencia oranges, and failed and refused to pay Russ Putnal the

agreed contracted price of $6.35 per box for his Valencia

oranges.

19. The evidence of record demonstrated clearly that

Donnie Selph is indebted to Russ Putnal for the net sum of

$64,070.28 due and owing as of October 1, 2003. This

outstanding debt is c omputed from the gross sum of $71,443.85,

less: harvesting, mutual, and taxes for a subtotal of

$2,373.57, and less $5,000.00 money paid and received from

Donnie Selph.

20. The uncontroverted evidence establishes that Donnie

Selph was, at the times mater ial to this proceeding, a Florida -

licensed and bonded citrus fruit dealer and that, as of

October 1, 2003, Donnie Selph harvested 11,521 boxes of Valencia

oranges from Putnal Groves. Russ Putnal timely filed a

complaint alleging that Donnie Selph failed to promptly pay its

indebtedness to Russ Putnal for the Valencia oranges harvested

pursuant the contract. Russ Putnal is, therefore, entitled to

payment of the principal amount of $64,070.28 plus pre - judgment

interest. Based on the date of the last payme nt made by Donnie

Selph to Russ Putnal, pre - hearing interest would run from

October 1, 2003.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.57(1) and 120.569, Florida Statutes (2003).

22. Chapter 601, Florida Statutes, is known as "The

Florida Citrus Code of 1949." § 601.01, Fla. Stat. (2002).

"Citrus fruit" is defined in Section 601.03(7), Florida

Statutes:

"Citrus fruit" means all varieties and

regulated hybrids of citrus fruit and also

means processed citrus products containing

20 percent or more citrus fruit or citrus

fruit juice, but, for the purposes of this

chapter, shall not mean limes, lemons,

marmalade, jellies, preserves, candies, or

cit rus hybrids for which no specific

standards have been established by the

Department of Citrus;

23. The term "oranges" is defined in Subsection

601.03(25), Florida Statutes, to mean the fruit Citrus

Sinensis Osbeck , commonly called sweet oranges.

24. Sec tion 601.03(29), Florida Statutes, defines

"producer" as any person growing or producing citrus in this

state for market. Russ Putnal is a "citrus fruit producer"

under this definition.

25. In Section 601.03(8), Florida Statutes, the term

"Citrus Dealer" means

any consignor, commission merchant,

consignment shipper, cash buyer, broker,

association, cooperative association,

express or gift fruit shipper, or person who

in any manner makes or attempts to make

money or other thing of value on citrus

fruit in any manner whatsoever, other than

of growing or producing citrus fruit, but

the term shall not include retail

establishments whose sales are direct to

consumers and not for resale or persons or

firms trading solely in citrus futures

contracts on a regulat ed commodity exchange.

Donnie Selph is a "citrus fruit dealer" under this definition.

26. Citrus fruit dealers are required to be licensed by

the Department in order to transact business in Florida.

§ 601.55(1), Fla. Stat. As a condition of obtaining a license,

such dealers are required to provide a cash bond or a

certificate of deposit or a surety bond in an amount to be

determined by the Department "for the use and benefit of every

producer and of every citrus fruit dealer with whom the dealer

deals in the purchase, handling, sale, and accounting of

purchases and sales of citrus fruits." § 601.61(3), Fla. Stat.

Pursuant to the statute, Donnie Selph is a licensed citrus fruit

dealer and has posted a surety bond for $30,000.

27. Section 601.65, Flori da Statutes, provides that:

[I]f any licensed citrus fruit dealer

violates any provision of this chapter, such

dealer shall be liable to the person

allegedly injured thereby for the full

amount of damages sustained in consequence

of such violation. Such liability may be

enforced either by proceeding in an

administrative action to and before the

Department of Agriculture and pursuing such

action to its ultimate termination if

desired or by filing of a judicial suit at

law in a court of competent jurisdict ion;

however, in such court suit the bond of such

citrus fruit dealer theretofore posted with

the Department of Agriculture pursuant to s.

601.61 shall not be amenable or subject to

any judgment or other legal process issuing

out of or from such court in c onnection with

such law suit, whether cash bond or surety

company bond, but such bonds shall be

amenable to and enforceable only by and

through administrative proceedings before

the Department of Agriculture, it being the

intent and purpose of the Legislat ure that

such citrus dealer's bond so posted with the

Department of Agriculture shall be

applicable and liable only for the payment

of claims duly adjudicated by order of the

Department of Agriculture and the

determination of such adjudicated claim if

and in the event such order is appealed by

any aggrieved party to the administrative

proceeding.

28. Section 601.64(4), Florida Statutes, defines as an

"unlawful act" by a citrus fruit dealer the failure to pay

promptly and fully, as promised, for any citrus fruit which is

the subject of a transaction relating to the purchase and sale

of such goods.

29. The failure and refusal by Donnie Selph to pay

promptly and fully, as promised by the terms of the written

contract, is an "unlawful act" as defined by the ab ove statute.

30. Any person may file a complaint with the Department,

alleging violations of the provisions of Chapter 601, Florida

Statutes, by a citrus fruit dealer. § 601.66(1), Fla. Stat.

Russ Putnal, alleging violation of Chapter 601, Florida

Statu tes, by Donnie Selph, filed the Complaint with the

Department.

31. The Department is charged with the responsibilities of

determining whether the allegations of the Complaint have been

established and adjudicating the amount of indebtedness or

damages owe d by the citrus fruit dealer. If the complaining

party proves its case, the Department shall "fix a reasonable

time within which said indebtedness shall be paid by the [citrus

fruit] dealer." § 601.66(5), Fla. Stat. Thereafter, if the

dealer does not pa y within the time specified by the Department,

the Department shall obtain payment of the damages from the

dealer's surety company, up to the amount of the bond. The

Department, if it decides to pay the proceeds to the original

complainant, has authority to order an increase in the original

bond of the dealer as would be justified under all the

circumstances so as to protect other possible claimants and to

exercise all powers otherwise confided in Chapter 601, Florida

Statutes, to enforce the posting of bo nd increases. See §§

601.66(5) and (6), Fla. Stat.

32. Russ Putnal bore the burden of proving the allegations

in his Complaint against Donnie Selph by a preponderance of the

evidence. See Florida Department of Transportation v. J.W.C.

Co., Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Florida

Department of Health and Rehabilitative Services v. Career

Service Commission , 289 So. 2d 412, 415 (Fla. 4th DCA 1974);

§ 120.57(1)(j), Fla. Stat. However, even though Russ Putnal has

the ultimate burden of provi ng the truth of the claim, once he

has made a prima facie case of entitlement to recover from

Donnie Selph, Donnie Selph has the obligation to come forward

with evidence to refute Russ Putnal's entitlement. See J.W.C. ,

396 So. 2d at 787.

33. Russ Putnal carried its burden of proving that Donnie

Selph has failed and refused to pay, as agreed, "[T]he price

. . . for said fruit per standard field crate by volume or

weight [" weight " was circled] . . . for all fruit of

merchantable quality at the time of pick ing (40,000 boxes) . . .

as follows Valencia Oranges, (40,000 boxes) at $6.35 per box."

The unpaid balance of $64,070.28 is, thus, uncontroverted.

34. Russ Putnal has clearly proven by the evidence of

record that Donnie Selph entered into a written contra ct for the

purchase of Russ Putnal's citrus fruit (entire production of

Valencia oranges) at $6.35 per box.

35. Russ Putnal has likewise proven by evidence of record

that Donnie Selph harvested 11,521 boxes of Valencia oranges

from his citrus grove.

36. Russ Putnal has proven by the undisputed evidence of

record that repeated demands for payment made upon Donnie Selph

were ignored, and Donnie Selph failed to pay money owed Russ

Putnal for his citrus fruit harvested and sold by Donnie Selph.

37. The evide nce of record demonstrated that Donnie Selph

willfully and intentionally breached the terms and conditions of

the written contract for purchase of Russ Putnal's citrus fruit

by Donnie Selph's refusal and failure to pay Russ Putnal for his

citrus fruit whic h was harvested and sold by Donnie Selph.

38. T he claim of Russ Putnal is based in contract; see

Florida Fruit Sales, Inc. v. Kingfisher Groves , 343 So. 2d 840

(Fla. 2d DCA 1976). Russ Putnal is entitled to pre - judgment

interest if the Department determi nes that Donnie Selph is

indebted to Russ Putnal, to be calculated on the amount of the

indebtedness from the date payment was due until the Department

enters its final order. See Celotex Corp. v. Buildex, Inc. , 476

So. 2d 294, 295 (Fla. 3d DCA 1985)("The settled law is that

where a disputed contractual claim becomes liquidated . . . as

to the amounts recoverable, interest should be awarded from the

date payment was due."); Cooper v. Alford , 477 So. 2d 31

(Fla. 1st DCA 1985)("In an action ex contractu , in terest runs

from the date a liquidated debt is due. This is so even if

there exists an honest dispute as to whether the debt was in

fact due. Once it is finally determined the debt was due, the

person to whom it was owed is entitled to payment of the

pri ncipal plus interest from the due date. . . . The purpose in

awarding such interest is to compensate a party for deprivation

of property.").

39. The evidence establishes that there was a written

contract governing the dealings between Russ Putnal and Don nie

Selph. The contract does not contain a pre - judgment interest

rate clause; therefore, the amount of pre - judgment interest

payable to Russ Putnal is the statutory rate specified in

Section 55.03, Florida Statutes. See § 687.01, Fla. Stat.

RECOMMENDATIO N

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 ordering Respondent,

Donnie Selph, d/b/a The Citrus Store and d/b/a D & D Citrus, to

pay to Pe titioner, Russ Putnal, d/b/a Putnal Groves, the sum of

$64,070.28, together with pre - judgment interest calculated by

the Department pursuant to Section 55.03, Florida Statutes, from

October 1, 2003, until paid.

DONE AND ENTERED this 3rd day of June, 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

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of June, 2004.

ENDNOTE

1/ Russ Putnal received payments from both The Citrus Store and

from D & D Citrus totaling $5,000.00 on or before September 30,

2003 .

COPIES FURNISHED :

Brenda D. Hyatt, Bureau Chief

Department of Agriculture and

Consumer Services

500 Third Street, Northwest

Post Office Box 1072

Winter Haven, Florida 32399 - 0800

Kathy Alves

Fidelity & Deposit Company of Maryland

Post Office Box 8 7

Baltimore, Maryland 21203

Russ Putnal

Putnal Groves

10755 Russ Road

Myakka City, Florida 34251

Richard S. Pipkin, Esquire

Fletcher & Pipkin

559 South Commerce Avenue

Sebring, Florida 33870

Richard Ditschler, General Counsel

Department of Agricu lture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

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 exceptio ns

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.