14-000200 Thomas E. Davis, Inc. vs. D. L. Scotto And Company, Inc., D/B/A Tuxedo Fruit Company And T. D. Bank, As Surety Status: Closed Recommended Order on Thursday, April 17, 2014.

Summary: Seller met its burden of proving that $75,451.50 is the amount owed by buyer for oranges purchased pursuant to written contracts.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS E. DAVIS, INC.,

Petitioner,

vs. Case No. 14 - 0200

D. L. SCOTTO AND COMPANY, INC.,

d/b/a TUXEDO FRUIT COMPANY AND

T. D. BANK, AS SURETY,

Respondents.

_______________________________/

RECOMMENDED ORDER

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

in Fort Pierce, Florida, on March 14, 2014, before the Division

of Administrative Hearings by its designated Administrative Law

Judge Linzie F. Bogan.

APPEARANCES

For P etitioner: Thomas E. Davis, pro se

Thomas E. Davis, Inc.

321 Davis Bros. Road

Frostproof, Florida 33843

For Respondent: John Scotto , pro se

Tuxedo Fruit Company

3487 South US 1

Fort Pierce, Florida 34982

For Respondent: Robert A. Goldman, Esquire

( No Appearance )

STATEMENT OF THE ISSUE

What is the amount owed by D. L. Scotto and Company, Inc.,

d/b/a Tuxedo F ruit Company, to Thomas E. Davis, Inc. , for Valencia

oranges purchased in January, April, and May 2013?

PRELIMINARY STATEMENT

Thomas E. Davis, Inc. (Petitioner) filed with the Department

of Agriculture and Consumer Services a Grower Complaint against

D. L . Scotto and Company, Inc., d/b/a Tuxedo Fruit Company

(Respondent). The Grower Complaint, as amended, alleges that

Respondent owes Petitioner $75,451.50 for Valencia oranges sold

by Petitioner to Respondent during the months of January, April,

and May 20 13. Respondent admits that it is indebted to

Petitioner , but contends that the amount owed is less than what

is claimed.

On January 14, 2014, this matter was referred to the Division

of Administrative Hearings (DOAH) for a disputed fact hearing. As

previ ously noted, the hearing was held on March 14, 2014.

At the hearing, Thomas E. Davis and Paula Byrd, his

administrative assistant, testified on behalf of Petitioner.

Mr. John Scotto was the only witness to testify on behalf of

Respondent. Petitioner ' s E xhibits 1 through 4 were admitted into

evidence. Respondent ' s Exhibits 1 through 3 were also admitted

into evidence.

A Transcript of the disputed - fact hearing was filed with DOAH

on March 27, 2014. Each party filed a P roposed R ecommended O rder ,

and the s ame have been 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 purch asing,

receiving, or soliciting agricultural products from the

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

§ 604.15(2), Fla. Stat. (2013). 1/ Respondent is licensed as a

dealer in agricultural products.

2. Petitioner is a " producer " for p urposes of sections

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 " ).

A. Contract #077

3. On January 25, 2013, Petitioner and Respondent entered

into citrus fruit contract #077 wherein Respondent, for the price

of $9.50 per box, agreed to purchase 5 , 000 boxes of Valencia

oranges from Petitioner ' s Cock Pen grove. Petitioner delivered,

and Respondent accepted, 2 , 925 boxes of the promised oranges. To

date, Respondent has only paid Petitioner for 1 , 962 ($9.50 x

1 , 962 = $18,639) boxes of oranges from the Cock Pen grove.

B. Contract #078

4. On January 25, 2013, Petitioner and Respondent entered

into a second citrus fruit contract (#078) wherein Res pondent,

for the price of $9.50 per box, agreed to purchase 4 , 500 boxes of

Valencia oranges from Petitioner ' s Patrick grove. Petitioner

delivered, and Respondent accepted, 2 , 988 boxes of the promised

oranges. To date, Respondent has only paid Petitioner for 792

($9.50 x 792 = $7,524) boxes of oranges from the Patrick grove.

C. Contract #M012

5. On April 25, 2013, Petitioner and Respondent entered

into a third citrus fruit contract (#M012) wherein Respondent,

for the price of $11.00 per box, agreed to purchase 1 , 200 boxes

of Valencia oranges from Petitioner ' s Johnson grove and 1 , 500

boxes of Valencia oranges from Petitioner ' s Allegato grove.

Petitioner delivered, and Respondent accepted, 1 , 161 boxes of the

promised oranges from the Johnson grove and 1 , 296 boxes of

oranges from the Allegato grove. To date, Respondent has not

paid Petitioner for the oranges received from the Johnson and

Allegato groves.

D. Contract #M013

6. On May 2, 2013, Petitioner and Respondent entered into a

fourth citrus fruit contract (#M013) wherein Respondent, for the

price of $11.00 per box, agreed to purchase 1 , 500 boxes of

Valencia oranges from Petitioner ' s Tommy Ann grove. Petitioner

delivered, and Respondent accepted, 1 , 674 boxes of the promised

oranges from the Tommy A nn grove. To date, Respondent has not

paid Petitioner for the oranges received from the Tommy Ann

grove.

E. Respondent ' s defense

7. Each of the citrus fruit contracts at issue provides

that the oranges " must be merchantable for fresh usage at the

time of harvest and delivery. " Respondent claims that

significant quantities of the oranges that were received from

Petitioner were not merchantable for fresh usage at the time of

harvest and delivery.

8. In reviewing the documentary evidence presented by b oth

parties, it is evident that Petitioner ' s oranges were harvested

and delivered to Respondent during the months of January through

May 2013. From this period forward to the date of the final

hearing held herein, Respondent never informed Petitioner that

there was an issue with the merchantability of the oranges.

Instead, whenever Petitioner contacted Respondent about the

status of payment for the oranges, Respondent repeatedly assured

Petitioner that payment was forthcoming. Respondent ' s testimony

rega rding the alleged compromised merchantability of the oranges

that he received from Petitioner is not credible.

CONCLUSIONS OF LAW

9. DOAH has jurisdiction over the parties to and subject

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

Fla. Stat.

10. 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 - 34, Fla. Stat.

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

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

vineyard, [and] garden . . . produced in the S tate . . . . "

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

in his grove and sold to Respondent are " agricultural products "

within the meaning of section 604.15(1).

12. 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.

13. Petitioner has satisfied its burden of p roof . Per the

respective citrus fruit contracts, the total price for the

delivered fruit is $101,614.50 (5 , 913 boxes x $9.50 = $56,173.50

and 4 , 131 boxes x $11.00 = $45,441.00) . In subtracting from the

total price the partial payment that Respondent paid Petitioner

for the fruit received from the Cock Pen and Patrick groves

respectively ($26,163), Respondent owes Petitioner $75,451.50 for

the oranges at issue.

14. 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 Servi ces enter a final order finding that D. L. Scotto

and Company, Inc., d/b/a Tuxedo Fruit Company , is indebted to

Thomas E. Davis, Inc. , in the amount of $75, 501 .50 (includes

filing fee) for the balance due for the oranges it purchased from

Petitioner on Jan uary 25, April 25, and May 2, 2013 .

DONE AND ENTERED this 17th day of April , 2014 , 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 Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of April , 2014 .

ENDNOTE

1/ All subsequent references to Florida Statutes will be to 2013,

unless otherwise indicated.

COPIES FURNISHED:

Thomas E. Davis

Thomas E. Davis, Inc.

321 Davis Bros. Road

Frostproof, Florida 33843

Robert A. Goldman, Esquire

Fox, Wackeen, Dungey, Beard, Bush,

Goldman, Kilbride, Wa ters and McCluskey, LLP

3473 Southeast Willoughby Boulevard

Stuart, Florida 34994

Mandy L. Medders, Bureau Chief

Department of Agriculture and

Consumer Services

Bureau of Agricultural Dealer ' s Licenses

The Mayo Building, M - 38

Tallahassee, Florida 3239 9 - 0800

John Scotto

Tuxedo Fruit Company

3487 South US 1

Fort Pierce, Florida 34982

John Scotto

Tuxedo Fruit Company

Post Office Box 1017

Fort Pierce, Florida 34954

Honorable Adam Putnam

Commissioner of Agriculture

Department of Agriculture and

Cons umer Services

The Capitol, Plaza Leve l 10

Tallahassee, Florida 32399 - 0810

Lorena Holley, General Counsel

Department of Agriculture and

Consumer Services

4 0 7 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 08 0 0

NOTICE OF RIGHT TO SUBMIT EXC EPTIONS

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.