13-002841 Maria Rodriguez vs. Unity Groves Corporation Status: Closed Recommended Order on Thursday, October 10, 2013.

Summary: Buyer of peppers obligated to pay seller agreed upon purchase price as indicated on delivery receipts because it accepted seller's tender of peppers and did not timely revoke its acceptance or timely notify seller of any alleged nonconformity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA RODRIGUEZ ,

Petitioner ,

vs. Case No. 13 - 2841

UNITY GROVES CORPORATION ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a hearing was cond u cted in this case on

September 25 , 2013, by video tele conference at sites in Miami and

Tallahassee, Florida , before Administrative Law Judge Mary Li

Creasy of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Maria Rodriguez

13260 Southwest 256th Street

Homestead, Florida 33032 - 6821

For Respondent: Louis Carricarte , pro se

Unity Groves Corporation

Suite 532

8770 Sunset Drive

Miami, Florida 33179

STATEMENT OF THE ISSUE

Whether Respondent, Unity Groves Corp oration (Unity Groves) ,

owes Petitioner , Maria Rodriguez, $1,321.00 for peppers purchased

from Petitioner in March 2013 .

PRELIMINARY STATEMENT

I n May 2013, Peti tioner filed a C omplaint against Unity

Groves with the Department of Agriculture and Consumer Services

(Department). The C omplaint alleged that Unity Groves owed

Petitioner $ 1,321.00 for a variety of peppers delivered to Unity

Groves in March 2013. The D epartment did not begin proces sing

the Complaint until June 2013 when it received a n Amended

Complaint. The amount sought by Petitioner in the Amended

Complaint i s $1,371.00, the remaining amount owed for the peppers

purchased by Unity Groves on March 22 and 25, 2013, plus the

$50.00 filing fee for the Complaint .

The Department advised Unity Groves of the Amended Complaint

through a letter and a Notice dated June 28 , 2013. The lette r

and Notice were also sent to FCCI Insurance Company (FCCI) , which

is the surety on the bond filed by Unity Groves with the

Department. Unity Groves f iled its A nswer to the Amended

Complaint on July 24 , 2013 , in which it denied the validity of

Petitioner's claims and raised disputed issues of material fact.

On July 26, 2013, t he matter was referred to the Division of

Administrative Hearings (DOAH ) for further proceedings. At the

final hearing, which took place as scheduled on September 25,

2013, Petitioner testif ied on her own behalf and presented the

testimony of Susana Rodri guez and Yulizbeta Rodriguez (daughters

of Petit i oner). Another of Petitioner's daughter s , Days

Rodriguez, served as a Spanish translator for her mother without

objection. Petitioner's Exhibits 1 through 4 were received in

evidence without objection. Lo uis Carricarte (Carricarte) , owner

and p resident of Unity Groves , testified on Unity Groves' behalf ,

and Respondent ' s Exhibits 1 through 4 were received in evidence

without objection.

Neither party ordered a transcript , and no proposed

r ecommended o rders w ere submitted .

FINDING S OF FACT

The Parties

1. Petitioner owns property in the Miami, Florida , area on

which she grows a variety of peppers which she sells to

agricultural retailers.

2. Unity Groves is a family - owned and operated agric ultural

dea ler whic h purchases produce from growers and growing

facilities and resells to vendors across the country.

3 . During Ma rch and May 2013, Petitioner sold peppers

on 14 separate dates to Unity Groves. Unity Groves then resold

the peppers to retail vendors.

4 . Dur ing the brief course of dealings between parties,

Petitioner would either contact Unity Groves and indicate the

type and quantity of peppers she had available to determine

whether Unity Groves needed to fill an order for a vendor or she

would be contacted by an employee of Uni ty Groves to determine

whether P etitioner had peppers available.

5 . The price for Petitioner's peppers would be negotiated

prior to , or at the time of , delivery of the peppers to Unity

Groves. Petitioner primarily negotiated with the receiver for

Unity Groves, Emilio (last name unknown) , or another employee,

Pete (last name unknown) . On ten occasions, Petitioner received

a receipt prepared by Unity Groves at the time of delivery

indicating the quantity of half or full bushels of the particular

type s of pepper s and the agreed upon rate per half or full bushel

that she would be paid.

6 . As demonstrated by the receipts and "Grower Payout"

sheets submitted into evidence by both parties, t he course of

dealings between the parties supports Petitioner 's testimony that

in all but two instances, she in fact received payment in the

amount indicated as the purchase price on the delivery receipts

received from Unity Groves. Unity Groves' contention that the

price indicated on the receipts was me rely a desired "target

price" is rejected because it is contrary to the greater weight

of the evidence.

7 . On the four occasions for which Petitioner received a

receipt with no indication of price, Petitioner was paid in

accordance with her agreement with a Unity Groves ' employee,

Pete , which was reached in a telephone conversation prior to her

delivery of the peppers to Unity Groves.

8 . Petitioner did not submit formal invoices to Unity

Groves because the receipts provided by Unity Groves at the time

of delivery accurately reflected the quantities of peppers sold

by type and price, and she received the indicated price for all

transaction s except for the two instances which are the subject

of this dispute.

9. Petitioner was never informed t hat her product s supplied

to Unity Groves were deteriorating or that the quantity delivered

was rejected because it was more than requested or needed.

10. The Grower Payout sheets reflect that Petitioner

received one duplicate payment in the amount of $130.00 for

pepper s delivered to Unity Groves on March 13, 2013.

The Dispute Giving Rise to This Proceeding

11 . In March 2013, Petitioner received a telephone call

from a Unity Groves ' employee, Dennis (last name unknown), who

requested a pallet of Hungarian W ax peppers an d a pallet of

Anaheim peppers. A pallet for Unity Groves is approximately

120 half bushel boxes of peppers.

12 . Petitioner advised Dennis that she did not think she

could fill such a large order and that her workers could not yet

pick those peppers. Pe titioner told Dennis she would call him

back and let him know how much she had available after picking .

13 . After the peppers were picked, Petitioner contacted

Emilio and advised that she could delive r 78 half bushels of

Hungarian W ax peppers and 84 half bushels of Anaheim peppers.

Emilio confirmed with Dennis that , although Petitioner could not

supply a pallet of each, Unity Groves still wanted those peppers .

P etitioner delivered them to Unity Groves on March 22 , 2013.

Petitioner received receipt 4055 i ndicating delivery of the

peppers and an agreed upon price of $10.00 per half bushel for

the Hungarian W ax peppers and $12.00 per half bushel for the

Anaheim peppers for a total price of $1,788.00.

14 . On March 25, 2013, Petitioner delivered the following

to Unity Groves:

13 half bushels of Finger Hot peppers at

$8.00 per half bushel;

20 bushels of Long Hot at $14.00 per

bushel;

5 half bushels of Banana peppers at $12.00

per half bushel;

10 half bushels of Anahie p eppers at $12

per half bushel.

Petitioner received receipt 4067 from Unity Groves , and the total

price based upon the prices indicated on the receipt for this

delivery was $564.00.

15 . When Petitioner went to Unity Groves on April 14, 2013,

to pick up her check in payment for the Marc h 22 and 25

deliveries, she was given check 11439 in the amount of $1 , 031.00.

She was also provided a "Grower Payout" sheet number 3807

indicating the breakdown by pepper, quantity , and price paid by

Unity Groves for receipt numbers 4055 and 4067 .

16 . Re spondent immediately noticed that the prices paid for

the large delivery of Hungarian W ax and Anaheim peppers was

significantly lower than the agreed upon price as reflected on

receipt 4055. Unity Groves also paid less for four out of five

types of pepper s on receipt 4067 for the March 25 delivery . The

total difference between the total based upon the agreed upon

receipt prices and the amount actually paid by Unity Groves was

$1,321.00.

1 7 . When Petitioner realized the magnitude o f the

discrepancy, she a nd her daughter, Susana Rodriguez, went to

discuss the issue with Carricarte. She inquired why she was paid

$3.00 per unit versus $10.00 for the Hungarian Wax peppers and

$4.00 per unit versus $12.00 for the Anaheim peppers (the prices

reflected on receip t 4055) .

18 . Carricarte told Petiti oner tha t she was paid the price

he received from his customer. He did not believe that Dennis

purchased such a large quantity of peppers and wanted to verify

this with him. Emilio confirmed in the presence of Petition er

and her daughter that Unity Groves, through Dennis , had requested

two pallets of peppers from Petitioner. Dennis was out of the

country and Carrica r t e told Petitioner he would call her after

speaking with Dennis upon his return. Dennis was terminated by

Unity Groves upon his return.

19 . Petitioner met with Carricarte two additional times.

Each time she had one of her daughters present and , at the third

meeting, she brought a representative from the Department .

During these meetings, Carricarte dispu ted that Unity Groves

would order such an unusually large quantity of peppers and that

the price reflected on the receipt was not an agreed upon price

but rather the "target price" Unity Groves hoped to be able to

secure for the grower.

20 . Unity Groves n ever notif ied Petitioner that any of the

peppers received on March 22 and 25, 2013 , were defective or non -

conforming, nor did it seek to revoke acceptance of the peppers

or return t he peppers to Petitioner.

CONCLUSIONS OF LAW

21 . DOAH has jurisdiction ove r the parties to and subject

matter of this proceeding pursuant to sections 120.569,

120.57(1), and 604.21(6) , Fl o r ida Statu t es (2013) . 1/

22 . The Department is the state agency responsible for

licensing dealers in agricultural products and responsible for

investigating and taking action on complaints against such

dealers. See §§ 604.15 - .34, Fla. Stat.

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

person engaged in the business of "purchasing, receiving, or

soliciting agricultural products from the producer . . . for

resale . " See § 604.15 ( 2 ), Fla. S tat . Unity Groves is licensed

as a dealer in agricultural products.

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

natural products of the . . . farm , nursery, g rove, o rchard,

vineyard , [and] garden . . . produced in th e state . . . " See

§ 604.15(1 ), Fla. S tat . The Hungar ian W ax and Anaheim peppe rs

grown by P etitioner on her fa rm and sold to U nity Groves are

agri cultural products under that definition.

25 . Petitioner is a "producer" for purposes of sections

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

S tat . (defining "producer" as "any producer of agricultural

products produced in the state").

26 . Section 604.20(1) requires , as a condition of

licensure , that each d ealer in agricultural product s provide a

surety bond to the D epartment. That statute further provides

that "[s]uch bond . . . s hall be conditioned to secure the

faithful accounting for and payment . . . to producers or their

agents or representatives of t he proceeds of all agricultural

products handled or purchased by such dealer." See also Fla.

Admin. Code R. 5H Î 1.001.

27 . Any person damaged by a breach of the conditions of the

bond provided by a licensed dealer in agricultural products may

file a compl aint with the department against the dealer and/or

the dealer ' s surety. The complaint must be filed within six

months of the date that agricultural products were sold.

See § 604.21(1) (a) , Fla. Stat.

28 . Section 604.21 ( 2 ) through ( 4 ) establishes the

proce dures through which the D epartment investigates complaints

filed by a producer. Should there exist disputed issues of

material fact, a hearing conducted pursuant to chapter 120 ,

Florida St at utes , will be held. § 604.21(6 ), Fl a . S tat .

29 . The complainant in a proceeding initiated pursuant to

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

the evidence the entitlement to the amounts sought to be

recovered. See Fl a. Dep't of Transp. v. J.W.C. Co., Inc. , 396

So. 2d 778, 78 8 - 789 (Fla. 1st D CA 1981). However, even though

the complainant bears the ultimate burden of proving the truth of

the claim, once the complainant has made a prima facie case of

entitlement to recover, the dealer has the obligation to come

forward with evidence to refute t hat entitlement. See id.

30 . The preponderance of the evidence establishes

P etitioner's entitlement to the amount claimed.

31. Although Unity Groves offered testimony regarding the

usual course of dealing with its growers, no testimony was

presented fro m Unity Groves ' employees who were involved in the

purchase of peppers from Petitioner to refute Petitioner's

testimony that the prices on the receipts were agreed upon

prices.

32. Further, the documents offered by both parties and

admitted without object ion support the testimony of Petitioner

that the receipts show the agreed upon prices and the prices

actually paid by Unity Groves to Petitioner except for the

March 22 and 25 deliveries.

33 . The transactions between the parties in this case are

general ly governed by c hapter 672, Florida Statutes, known as the

"Uniform Commercial Code - Sales." See § 672.101, Fla. Stat.

34 . Pursuant to s ection 672.607(1), "[t]he buyer must pay

at the contract rate for any goods accepted."

35 . Secti on 672.606(1) describ es "[w]hat constitutes

acceptance of goods." It provides as follows:

(1) Acceptance of goods occurs when the

buyer:

(a) A fter a reasonable opportunity to

inspect the goods signifies to the seller

that the goods are conforming or that the

buyer will take or retain them in spite of

their nonconformity; or

(b) F ails to make an effective rejection

(s. 672.602(1)), but such acceptance does not

occur until the buyer has had a reasonable

opportunity to inspect them; or

(c) Does any act inconsistent with the

seller's ownership; but if such act is

wrongful as against the seller it is an

acceptance only if ratified by her or him.

36 . According to s ection 672.602(1), a "[r]ejection of

goods must be within a reasonable time after their delivery or

tend er , " and "[i]t is ineffective unless the buyer seasonably

notifies the seller."

37 . "Acceptance of goods by the buyer precludes rejection

of the goods accepted . . . ." § 672.607(2), Fla. Stat.

3 8 . An acceptance, however, may be revoked under certain

c ircumstances. "Revocation of acceptance must occur within a

reasonable time after the buyer discovers or should have

discovered the ground for it and before any substantial change in

condition of the goods which is not caused by their own defects.

It is n ot effective until the buyer notifies the seller of it."

§ 672.608(2), Fla. Stat. "A buyer who so revokes has the same

rights and duties with regard to the goods involved as if she or

he had rejected them." § 672.608(3), Fla. Stat.

39 . "Where a tender has been accepted[,] [t]he buyer must

within a reasonable time after he or she discovers or should have

discovered any breach notify the seller of breach or be barred

from any remedy." § 672.607(3)(a), Fla. Stat.

40 . If such timely notification is given, then, and only

then, may a buyer "deduct all or any part of the damages

resulting from any breach of the contract [by the seller] from

any part of the price still due [the seller] under the same

contract." § 672.717, Fla. Stat.

41 . The record evidence i n the instant case establishes

that Petitioner tendered to Unity Groves , and Unity Groves

accepted, all of the peppers that were the subject of

receipts 4055 and 4067 and that Unity Groves did not timely

revoke its acceptance, nor timely notify Petitioner of any

alleged nonconformity. Moreover, no showing has been made that

the peppers tendered were in fact nonconforming.

42 . Under such circumstances, Unity Groves is obligated to

pay Petitioner the full agreed - upon purchase price for the

peppers at issue ( or the difference between what was paid and the

agreed upon price reflected on the receipts for a total of

$ 1,321.00 ).

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 (1) finding that Unity

Groves is indebted to Petitioner in the amount of $1, 19 1.00 for

the balance due for the peppers it purchased from Petitioner on

March 22 a nd 25, 2013 ($1,321.00, minus $130.00 for the duplicate

payment for the March 13 delivery) ; (2) directing Unity Groves to

make payment to Petitioner in the amount of $1, 24 1.00 ($1, 19 1.00,

plus $50.00 for reimbursement of the filing fee Petitioner paid)

within 15 days following the issuance of the order; and

(3 ) announcing that , if Unity Groves fails to make timely payment

in full, the Department will seek recovery from FCCI, Unity

Groves ' surety .

DONE AND ENTERED this 10th day of October , 2013 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Administrat ive Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

thi s 10th day of October , 2013 .

ENDNOTE

1/ Unless otherwise noted, citations to the Florida Statutes

refer to the 2013 version.

COPIES FURNISHED:

Unity Groves Corporation

13260 Southwest 157th Avenue

Homestead, Florida 33031 - 2059

Maria Rodriguez

1326 0 Southwest 256th Street

Homestead, Florida 33032 - 6821

Louis L. Carricarte

Unity Groves Corporation

Suite 532

8770 Sunset Drive

Miami, Florida 33179

Jim Kiser

FCCI Insurance Company

6300 University Parkway

Sarasota, Florida 34240

Mandy L. Madders, Bu reau Chief

Bureau of Agricultural Dealer's Licenses

Division of Marketing and Development

Mail Stop 38

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

Lorena Holley, General Counsel

Department of Agriculture and

Consumer Services

Mayo Building , Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

Honorable Adam Putnam

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

NOTICE OF RIGHT TO SUB MIT 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.