14-003092 Img Citrus, Inc. vs. Sunny Fresh Citrus Export And Sales Co., Llc, And Hartford Insurance Company, As Surety Status: Closed Recommended Order on Tuesday, October 28, 2014.

Summary: Petitioner cannot recover on its citrus complaint because the complaint was untimely.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IMG CITRUS, INC.,

Petitioner,

vs. Case No. 14 - 3 092

SUNNY FRESH CITRUS EXPORT AND

SALES CO., LLC, AND HARTFORD

INSURANCE COMPANY, AS SURETY,

Respondents.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A.

Schwartz for final hearing by video teleconference on

September 19, 2014, with sites at Port St. Lucie and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Matt Kastensm idt, pro se

IMG Citrus, Inc.

2600 45th Street

Vero Beach, Florida 32967

For Respondent: Kelly Marinaro, pro se

Sunny Fresh Citrus Export

and Sales Co., LLC

2101 Fifteenth Avenue

Vero Beach, Florida 32960

For Respondent Hartford Insurance Company, as surety :

(No appearance)

STATEMENT OF THE ISSUE

Whether Petitioner, IMG Citrus, Inc. (ÐPetitionerÑ) , is

entitled to recover the sum of $40, 075.6 5 , as alleged in the

Amended Complaint.

PRELIMINARY STATEMENT

This case commenced with the filing of a citrus ÐComplaint

FormÑ by Petitioner with the Department of Agriculture and

Consumer Services (ÐDepartmentÑ) , on May 1, 2014 . In its initial

complaint, Petitioner sought to recover the sum of $41,179.50.

On June 4, 2014, Petitioner filed an Amended Complaint with

the Department, seeking to recover the sum of $40,075.65.

Subsequently, Respondent, Sunny Fresh Citrus Export and Sales

Co., LLC (ÐRespondentÑ) , f iled its a nswer with the Department.

On July 2, 2014, the Department referred this matter to the

Division of Administrative Hearings (ÐDOAHÑ), pursuant to

s ection 601.66, Florida Statutes (2013) , 1/ to assign an

Adminis trative Law Judge to conduct the final hearing.

On July 11 , 2014, the undersigned issued a Notice of Hearing

by Video Teleconference (ÐNoticeÑ), setting this matter for final

hearing on September 19, 2014. At the final hearing, Petitioner

presented the testimony of Matt Kastensmidt and Melanie Ressler,

and PetitionerÓs Exhibits 1 through 7 were received into

evidence. Respondent presented the testimony of Robert Marinaro

and Melanie Ressler, and RespondentÓs Exhibits 1 through 6 were

received into evide nce.

The final hearing was recorded, but no transcript was filed.

At the conclusion of the final hearing, the parties agreed that

their proposed recommended orders would be filed by October 10,

2014. Petitioner and Respondent timely filed proposed

reco mmended orders, which were given consideration in the

preparation of this Recommended Order.

FINDING S OF FACT

1. Petitioner sold Respondent g rapefruits, oranges , and

tangerines following the 2012 - 2013 citrus season. The citrus was

shipped by Petitioner t o Respondent in April - May 2013, and the

sales were evidenced by numerous invoices between the parties.

2. Petitioner contacted Respondent on various occasions to

request payment on the outstanding invoices, to no avail. On

June 30, 2013, Respondent wro te to Petitioner apologizing for

Ðfalling in arrears . Ñ At that time, Respondent indicated it

would make partial payments, without prejudice, as frequently as

possible .

3. On September 7 , 2013, Respondent again wrote to

Petitioner, acknowledging , at tha t time, an outstanding balance

of $43,543.40 . Respondent requested that Petitioner allow it to

enter into a promissory note for $43,543.40 , with monthly

payments of $800.00 per month for 54 months , and one final

balloon payment at the end of the term to s atisfy the outstanding

amount due. Respondent also offered a bagging machine as

security for th e proposed promissory note . Petitioner rejected

RespondentÓs offer . Contrary to RespondentÓs contention, no

settlement agreement was reached between the parti es.

4. At hearing, the parties agreed that there is no dispute

as to the amount sought by Petitioner in the Amended Complaint :

$40,075.65. This amount reflects some partial payments made by

Respondent on the outstanding invoices after the filing of th e

initial complaint . Respondent does not deny its failure to pay

the outstanding invoices. Respondent does not dispute that the

product he received w as of acceptable quality.

5. RespondentÓs principal argument is that PetitionerÓs

claim is untimely b ecause the complaint w as not filed with the

Department prior to May 1, 2014 , as required by section 601.66,

Florida Statutes .

6 . The evidence adduced at hearing demonstrates that

PetitionerÓs complaint was shipped by Petitioner to the

Department via federal express overnight delivery on April 30,

2014 . The federal express package containing the complaint was

not received by the Department until May 1, 2014. The complaint

was not filed with the Department until May 1, 2014, when it was

received by th e Department. Because the complaint was not filed

with the Department before May 1, 2014 , it is untimely.

7 . At hearing, Petitioner attempted to defend its late

filing by contending that the April 30, 2014, shipping date of

the federal express package to Respondent is the correct filing

date -- not May 1, 2014 , when the federal express package

containing the complaint was received by the Department . In

support of PetitionerÓs position, Mr. Kastensmidt testified ,

based on hearsay, that he was told by an uni dentified employee of

the Department , on some unidentified occasion, that the federal

express shipping date is what counts, not the date the complaint

is actually received by the Department.

8 . No one on behalf of the Department testified at the

hearing. Furthermore, Petitioner did not identify the person who

allegedly made the statement or when the statement was made. The

purported statement by an unidentified Department employee, on

some unidentified date, is rejected as hearsay and unpersuasive.

CONCL USIONS OF LAW

9 . DOAH has jurisdiction over the parties to and the

subject matter of this proceeding pursuant to sections 120.569

and 120.57(1), Florida Statutes (2014) .

1 0 . Section 601.66(1), Florida Statutes, provides, in

pertinent part:

(1) Any pe rson may complain of any violation

of this chapter by any citrus fruit dealer

during any shipping season by filing of a

written complaint with the Department of

Agriculture at any time before May 1 of the

year immediately after the end of such

shipping sea son. Such complaint shall

briefly state the facts, and the Department

of Agriculture shall thereupon, if the facts

alleged prima facie warrant such action,

forward true copies of such complaint to the

dealer in question and also to the surety

company on t he dealerÓs bond. The dealer at

such time shall be called upon, within a

reasonable time to be prescribed by the

Department of Agriculture, either to satisfy

the complaint or to answer the complaint in

writing, either admitting or denying the

liability.

1 1 . Section 601.66(1) clearly and un ambiguously requires

that a complaint, such as the one in the instant case, be filed

with the Department Ðat any time before May 1 of the year

immediately after the end of such shipping season.Ñ The statute

does not say filed ÐonÑ May 1, or provide any indication that the

Legislature intended anything other than what it said Î - that the

complaint be filed Ð at any time before May 1 of the year

immediately after the end of such shipping season.Ñ

1 2 . Moreover, the stat ute does not contain any language

indicating t hat the shipping date of a complaint by federal

express is deemed the filing date with the Department, even if

the complaint is not received by the Department until later. Had

the Legislature chosen to require citrus complaints be filed ÐbyÑ

or ÐonÑ May 1 of the year immediately after the end of such

shipping season , it would have said so. Had the Legislature

intended that the shipping date of a federal express package

containing a citrus complaint control the date the complaint is

actually received by the Department, the Legislature would have

said so. It did not. Accordi ngly, the complaint is untimely and

should be dismissed .

13. PetitionerÓs argument at hearing that its complaint

should be deemed timel y filed based on the purported statement of

an unidentified employee of the Department , on an unspecified

date, is presumably based on the doctrine of equitable tolling.

Under the doctrine of equitable tolling, a late - filed complaint

should be accepted as timely filed Ð when the plaintiff has been

mislead or lulled into inaction, has in some extraordinary way

been prevented from asserting his rights, or has timely asserted

his rights mistakenly in the wrong forum.Ñ Machules v. DepÓt of

Admin. , 523 So. 2d 1 132, 1134 (Fla. 1998).

14. In the present case, Petitioner f ailed to present

persuasive evidence that it was mislead or lulled into inaction,

was in some extraordinary way prevented from asserting its

rights, or timely asserted its rights in the wrong f orum.

Rather, Petitioner merely testified , based on hearsay, that it

was told by some unidentified person from the Department , on some

unidentified date , that the shipping date is what counts.

Petitioner failed to demonstrate that it is entitled to rely on

the doctrine of equitable tolling to avoid the deadline to file

its complaint before May 1. 2 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that PetitionerÓs Amended Complaint be

dismissed as untimel y.

DONE AND ENTERED this 28 th day of October , 2014 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, 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 28 th day of October , 2014 .

ENDNOTE S

1 / References to Florida Statu t es are to the 2013 versio n, unless

otherwise indicated.

2/ Notably , section 604.21(1)(a) , Florida Statutes, applicable to

complaints involving non - citrus agricultural products, provides

that:

(1)(a) Any person, partnership, corporation,

or other business entity claiming to b e

damaged by any breach of the conditions of a

bond or certificate of deposit assignment or

agreement given by a dealer in agricultural

products may enter complaint thereof against

the dealer and against the surety company, if

any, to the department, which complaint shall

be a written statement of the facts

constituting the complaint. Such complaint

shall be filed within 6 months from the date

of sale in instances involving direct sales

or from the date on which the agricultural

product was received by the dealer in

agricultural products, as agent, to be sold

for the producer . . . . Ñ

Unlike section 601.66(1), however, section 604.21(1)(b), Florida

Statutes, allows for the shipping date of a federally expressed

complaint to constitute the date of filing of the complaint.

Section 60 4 . 21 (1) (b) provides that :

(1)(b) To be considered timely filed, a

complaint together with any required

affidavits or notarizations must be received

by the department within 6 months after the

date of sale by electronic transmi ssion,

facsimile, regular mail, certified mail, or

private delivery service. If the complaint

is sent by a service other than electronic

mail or facsimile, the mailing shall be

postmarked or dated on or before the 6 - month

deadline to be accepted as timely filed.

The instant case is governed by section 60 1 . 66(1) , no t

section 604.21 (1) (b) .

COPIES FURNISHED:

Mandy L. Medders, Bureau Chief

Department of Agriculture and

Consumer Services

Bureau of Agricultural Dealer's Licenses

The Mayo Building, M - 38

Tal lahassee, Florida 32399 - 0800

(eServed)

Bobbi Ann Basarich

Sunny Fresh Citrus Export

and Sales Co., LLC

4911 Myrtle Drive

Fort Pierce, Florida 34982

Hartford Fire Insurance Company

1 Hartford Plaza

Hartford, Connecticut 06155

M att Kastensmidt

IMG C itrus, Inc.

2600 45th Street

Vero Beach, Florida 32967

Kelly Marinaro

Sunny Fresh Citrus Export

and Sales Co., LLC

2101 Fifteen th Avenue

Vero Beach, Florida 32960

Arthur C. Fulmer, Esquire

Fulmer and Fulmer, P.A.

1960 East Edgewood Drive

Lakeland, Fl orida 33813

(eServed)

Melanie Ressler

IMG Citrus, Inc.

2600 45th Street

Vero Beach, Florida 32967

(eServed)

Lorena Holley, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

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 SUBMIT EXCEPTIONS

All parties have the right to submit w ritten 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.