16-006841 Emmitt King, Jr., D/B/A Kad Harvesting And Hauling, Llc vs. Delicious Citrus Packing, Llc, And Platte River Insurance Company, As Surety Status: Closed Recommended Order on Monday, March 6, 2017.

Summary: Seller of citrus fruit to a licensed citrus fruit dealer proves he is due sum of $47,210 for sales purchases during the 2015-16 shipping season. Amount due from 2014-15 shipping season is excluded due to untimely claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMMITT KING, JR., d/b/a KAD

HARVESTING AND HAULING, LLC,

Petitioner,

vs. Case No. 16 - 6841

DELICIOUS CITRUS PACKING, LLC,

AND PLATTE RIVER INSURANCE

COMPANY, AS SURETY,

Respondents.

_______________________________/

RECOMMENDED ORDER

On February 13 , 2017 , Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing by videoconference in Port Saint

Lucie and Tallahassee, Florida.

APPEARANCES

For Petitioner: Dwight Johnathan Rhodeback , Esquire

Rooney & Rooney, P.A.

1517 20th Street

Vero Beach, Florida 32960

For Respondent Delicious Citrus Packing, LLC :

Douglas A. Lockwood , Esquire

Straughn & Turner, P.A.

255 Magnolia Avenue Southwest

Post Office Box 2295

Winter Haven, Florida 33880

For Respondent Platte River Insurance Company:

n o a ppearance

STATEMENT OF THE ISSUE S

The issue s are whether Respondent Delicious Citrus Packing,

LLC (Respondent) , as a citrus fruit dealer, has failed to pay

Petitioner for citrus fruit, as required by section 601.64(4),

Florida Statutes; and, if so, the amount that Respondent owes

Petitioner.

PRELIMINARY STATEMENT

By Complaint Form filed September 30, 2016, Petitioner

alleged that Respondent owes it $54,367 for citrus fruit that

Petitioner sold Respondent during the 2015 - 16 season. By

response filed November 14, 2016, Respondent denied the claim as

invalid.

At the hearing , Petitioner called two witnesses and offered

into evidence eight exhibits : Petitioner Exhibits 1 - 8 .

Respondent call ed three witnesses and offered into evidence no

exhibits . All exhibits were admitted into evidence.

Neither party ordered a transcript. Petitioner filed a

proposed recommended order on February 24 , 2017 .

FINDING S OF FACT

1. Respondent holds a Citrus Fruit Dealer's License

number 252, effective August 31, 2015, for the 2015 - 16 season.

The surety is Respondent Platte River Insurance Company.

2. During the 2015 - 16 season, Petitioner picked citrus

fruit from the groves of vari ous third parties and transported

the fruit to Respondent, which cleaned, waxed, and grade d the

fruit prior to selling it to various retailers, primarily, it

seems, in South Florida.

3. During the 2014 - 15 season, Petitioner and Respondent

entered into c ontracts covering their respective rights and

obligations in connection with transactions identical to those

set forth in the preceding paragraph. An example is a contract

dated April 10, 2015, signed by Petitioner and Respondent,

specifying that Petition er would purchase from a named third

party from a named portion of a grove approximately 2000 citrus

fruit for a delivered price of $16 per box with payment due upon

delivery. The contract provides that Petitioner makes no

allowance for fruit not meeting Respondent's specifications

because Respondent had examined and preapproved the fruit on the

tree.

4. The parties did not document their agreement during the

2015 - 16 season, but the conditions were identical , although the

price per box decreased, as set forth below . As was their

practice during the preceding season, prior to the purchase and

delivery by Petitioner, representatives of both companies visited

the grove with the fruit still on the tree, and Respondent's

representative approved the fruit, so , again, the agreement

permitted no allowances for nonconforming fruit.

5. Petitioner produced trip tickets documenting the

delivery of 791 boxes of citrus fruit -- all oranges -- from

September 25, 2015, through October 24, 2015. At this point,

representa tives of Petitioner and Respondent met to discuss the

price of the fruit. Respondent complained that the fruit was too

expensive based on what it could charge its purchasers, so

Petitioner went back to the grove owners and negotiated a

reduction in price.

6. On November 2, 2015, Petitioner agreed to reduce its

price from an undisclosed price per box to $15.50 per box, so as

to reduce the outstanding balance for the 7791 boxes already

delivered to $120,760.50. At that time, Respondent paid

$85,250 .50 , l eaving a balance due of $ 35,510 .

7. The parties promptly resumed their business dealings. A

trip ticket dated November 2, 2015, documented the delivery of

550 boxes, for which the agreed - upon price was the $15.50 that

the parties had set for the previo us deliveries. However, even

this price proved too high for Respondent, so the next two trip

tickets, dated November 3 and 4, 2015, for a total of 1072 boxes ,

were priced at $13.50 per box.

8. At some point, Respondent mad e two payments totaling

$8811, and Respondent processed other fruit for Petitioner,

earning a total credit of $2486 to be applied to the outstanding

balance. These transactions reduced the balanc e to $47,210,

which is the amount that Respondent presently owes Petitioner.

9. The findi ng in the preceding paragraph reduced

Petitioner's claim by $7157. As shown on the invoice dated

April 6, 2016, received into evidence as Petitioner Exhibit 5,

this balance was carried forward from the 2014 - 15 season. As

explained in the Conclusions of Law, this case is limited to the

2015 - 16 season due to the timing of the filing of the Complaint.

10. The findings in the preceding paragraphs discredit the

testimony of Respondent's witnesses as to bad fruit that could

not be sold. First, Respondent bor e the risk of fruit that could

not be sold for any reason, including spoilage. Second,

Respondent did not assert this complaint when it negotiated a new

purchase price on November 2, 2015. Third, Respondent did not

object to the series of invoices that P etitioner submitted to

Respondent, culminating in the April 6 invoice. Fourth, the

testimony of Respondent's owner was vague and confusing, but

twice seemed to confirm the indebtedness.

CONCLUSIONS OF LAW

11 . DOAH has jurisdiction. §§ 120.569 , 120.57(1), and

601.65 , Fla. Stat. (2016 ). Petitioner has the burden of proving

the material allegations by a preponderance of the evidence.

Dep't of Transp. v. J.W.C. Co. Inc. , 396 So. 2d 778 (Fla. 1st DCA

1981); § 120.57(1)(j).

12. Section 601.64(4) provides that it is unlawful for a

citrus fruit dealer " to fail or refuse truly and correctly to

account and make full payment promptly in respect of any such

transaction in any such citrus fruit to the person with whom such

transaction is had, or to fail or refuse on such account to make

full payment of such amounts as may be due thereon ."

13. Section 601.66(1) provides that any person may

complain of a citrus fruit dealer's violation of any provision

of chapter 601 by filing a complaint with the Depart ment of

Agriculture and Consumer Services by May 1 of the year

immediately after the end of the "shipping season."

Section 601.03(36) defines the "shipping season" as August 1

through July 31 of the following year. This means that the

deadline fo r a com plaint for the 2014 - 15 shipping season is

May 1, 2016, and the deadline for a complaint for the 2015 - 16

shipping season is May 1, 2017. Because Petitioner's complaint

was filed on September 30, 2016, it was untimely as to any

alleged violations during th e 2014 - 15 shipping season: this case

thus does not involve the $7157 allegedly due from the 2014 - 15

shipping season.

14. However, Petitioner has proved that, for the 2015 - 16

shipping season, Respondent has violated section 601.64(4) by

failing to pay $47 ,210 to Petitioner for citrus fruit that

Petitioner sold to Respondent.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer

Services enter a final order determining that Respondent has

violated section 601.64(4) by failing to pay Petitioner the sum

of $47,210 for citrus fruit that Petitioner sold to Respondent

during the 2015 - 16 shipping season and fixing a reasonable time

within which Respondent shall pay such sum to Petitioner.

DONE AND ENTERED this 6th day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 6th day of March , 2017 .

COPIES FURNISHED:

W. Alan Parkinson, 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)

Emmitt King, Jr.

KAD Harvesting and Hauling, LLC

850 South 21st Street

Fort Pierce, Florida 34950

Platte River Insurance Company

Attn: Claims Department

Post Office Box 5900

Madison, Wisconsin 53705 - 0900

Douglas A. Lockwood, Esquire

Straughn & Turner, P.A.

255 Magnolia Avenue Southwest

Post Office Box 2295

Winter Haven, Florida 33880

(eServed)

Dwight Johnathan Rhodeback , Esquire

Rooney & Rooney, P.A.

1517 20th Street

Vero Beach, Florida 32960

(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 part ies 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.