vs. ) CASE NO. 77-1614A
Respondent. )
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on November 9, 1977, at Ft. Lauderdale, Florida.
For Respondent: Alan J. Levy
By Complaint filed February 28, 1977, Six L's Packing Company, Inc. (Complainant) seeks recovery of $1,778 from Van Buren County Fruit Exchange of Florida, Inc. (Respondent). The Complainant alleges that 508 cartons of #1 grade cucumbers were sold to Respondent and payment has not been made. At the hearing eight witnesses testified and seven exhibits were admitted into evidence.
On November 18, 1976, Van Buren County Fruit Exchange of Florida, Inc. (Respondent) received an order from the Great A & P Tea Company for 1000 cartons of #1 cucumbers for shipment to Chicago. Respondent, who did not have the cucumbers on hand, called other growers and located 508 cartons at Six L's Packing Company, Inc. at Naples, Florida which were invoiced to Van Buren on November 20, 1976, (Exhibit 1) at the price of $1,778.
Prior to these cucumbers being delivered to Respondent Six L's had the cucumbers inspected by the Florida Department of Agriculture (Exhibit 2). The inspection report showed the 508 cartons to be within tolerance and there was no decay. Notes of the inspections were available at the hearing and showed the cucumbers to be well within the 10 percent tolerance allowed. The inspection report further stated "Meets Canadian Import Requirements."
Only cucumbers destined for Canada require inspection. It is very rare to have inspections made on cucumbers not so destined. The 508 cartons of cucumbers picked up from Six L's at Naples on November 20, 1976, were in cartons with Six L's Packing Company printed on the cartons. The only cucumbers in Six L's Packing house on November 20, 1976, were those invoiced to Van Buren.
At the time the inspection was made the truck with which they could be picked up had not arrived and the inspection report noted that "Applicant's agent states stock to be loaded on trailer License No. 10L-1131 Fla." The number of the trailer was added when the trailer arrived and the license number became known. Although there was some testimony to the contrary, this procedure of completing the inspection by inserting the license number of the trailer when it is not present with the inspector, after the inspector leaves is common practice.
Upon leaving Six L's Packing house the refrigerated trailer proceeded to Wauchula where two additional shipments were added to the trailer. 111 cartons were obtained from Vegetable Pack and 137 cartons from MoBo Enterprises, Inc. The former were labeled "Veg-Pac, Inc., Wauchula, Fla." and the latter "MoBo Enterprises, Inc., Wauchula, Fla." On all 756 cartons ultimately shipped to A & P in Chicago was also printed "Selected Cucumbers, 24, Produce of USA."
The 756 cartons of cucumbers arrived in Chicago on the morning of November 23, 1976, and were rejected by A & P as not being in grade. An inspection of the entire load was conducted at 2:35 p.m., November 23, 1976, by Inspector Edwards (Exhibit 4). This inspection report stated "Grade defects range in most samples from 4 percent to 38 percent, in some none, average 20 percent, consisting of cuts, scars, misshapen, old insect damage, and mosaic." Condition was "generally fresh and firm. Average less than 1 percent decay."
Upon receipt of the results of the initial inspection Van Buren, knowing that the cucumbers came from three producers, requested the cucumbers be separated by label and reinspected.
At 9:00 a.m. on November 24, 1976, Inspector Edwards inspected 508 cartons of cucumbers remaining in trailer (Exhibit 3). These cartons were labeled "MoBo Enterprises, Inc., Wauchula, Fla." or "Six L's Packing Company, Hollywood, Fla." With each also printed "Selected cucumbers, 24, Produce of USA." Grade defects again reported to "range in most samples from 13 percent to
38 percent, in some none, average 19 percent consisting of cuts, scars, misshapen, old insect damage, and mosaic." Condition reported was "generally fresh and firm. Average less than 1 percent decay."
When Van Buren notified the sellers of the inspection reports MoBo and Veg-Pac accepted the information and made arrangements to have their cucumbers disposed of. Six L's, on the other hand, insisted that the cucumbers from its packing house were in grade as shown by the inspection report on date of shipment and refused to accept any responsibility for the rejected cucumbers.
On November 24, 1976, Van Buren turned the 508 cartons of cucumbers over to general commission merchants, Gridley, Maxon & Co., for disposal. Apparently, these were the cucumbers remaining on the truck after MoBo's and Veg-Pac's cucumbers had been removed. However Exhibit 3, as noted above, shows
these 508 cartons to be printed "MoBo Enterprises" or "Six L's Packing Company".
A few of these 508 cartons were sold at the market price of $4.50--
$5.00 per carton with the majority of prices ranging downward to 25 per carton
and the remaining 116 cartons being dumped on December 13, 1976, (Exhibit 5).
U.S.D.A. Dumping Certificate No. 32884, dated December 18, 1976,(Exhibit 6) shows 116 cartons of cucumbers identified as "24 Selected Cucumbers, Six L's Packing Company, Hollywood, Fla., Produce of USA" were inspected that date and their condition was found to be "generally decayed" and with no commercial value.
The net received from Gridley, Maxon & Co. for the 508 cartons after their commission was deducted was $6.47.
To date the carrier has not been paid and claims $355.60 shipping charges. However this claim is not a part of these proceedings and no evidence was received regarding liability for this debt.
Transportation or refrigeration difficulties with this shipment did not occur and could not contribute to the cucumbers being rejected. Furthermore, the results of the inspections conducted in Naples and Chicago cannot be reconciled if the same cartons were inspected at both places. The grade defects of scars, mosaic, old insect damage and misshape could not occur during transit from Naples to Chicago.
No witness could offer a reasonable hypothesis upon which the inspection reports can be reconciled or explained.
CONCLUSIONS OF LAW
These proceedings were brought pursuant to the provisions of Section
604.21 F.S., which provides generally that, upon receipt by the Department of Agriculture of a complaint by a producer against a licensed dealer, the complaint shall be investigated and a hearing may be held at the conclusion of which the findings will be reported and the department will issue an order. Thereafter:
"(3) If the department's order is not satisfied within the time aforesaid [15 days], the producer may maintain a civil action against the licensee and his surety setting forth briefly in the complaint in said civil action the causes for which damages are complained. In any such suit, if the party who was successful before the department finally prevails, he shall be allowed court costs and a reasonable attorney's fee. . ."
The facts in this case are largely undisputed. Six L's sold some 500 cartons of cucumbers to Van Buren for $1,778 for resale to A & P in Chicago. These cucumbers were picked up in Naples and, contrary to the normal procedure, were inspected before pick up and were found to be well within grade tolerance. Approximately 250 additional cartons of cucumbers from a different location were added to the trailer in which Six L's cucumbers had been loaded. These cucumbers had not been inspected. Upon arrival of these 750 cartons of cucumbers in Chicago some three days later, the cucumbers were inspected and found not to be within grade tolerances. Defects observed at the Chicago inspection could not have occurred in transit. As a result of the Thanksgiving holidays serious efforts to sell the rejected cucumbers were delayed and when finally sold the amount received barely exceeded the commission paid.
No inspection report was presented which included only the cucumbers procured from Six L's except the inspection report made on November 20, 1976, at Naples. All of the inspection reports from Chicago contained other producers than Six L's except the Dumping Report which resulted from an inspection of the decayed cucumbers some three weeks after arrival in Chicago. This report is not relevant to show that Six L's cucumbers were not in grade upon arrival in Chicago.
Although inferences were made that the cucumbers shipped were other than those inspected at Naples there was evidence that no other cucumbers were present at Six L's Packing house on November 20, 1977, when the 508 cartons of cucumbers were picked up.
A more rational explanation of the irreconcilable differences in the inspection reports of November 20 and 23, 1976, is that the November 20, 197'6 inspection report included only Six L's cucumbers while the November 23 and 24, 1976, inspection reports included the other cucumbers produced by Veg-Pac and MoBo. Even after the latter two producers' cucumbers were supposed to have been removed from the trailer the inspection report still listed Six L's and MoBo's cartons as included in the 508 cartons inspected.
It is perhaps significant that the same inspector was involved in the inspection of the 750-odd cartons on November 23, 1976, and of the remaining 500-odd cartons the following morning after 250 cartons had been removed. The same terms were used on both inspection reports to describe the grade defects.
On the first inspection made November 23, 1976, the grade defects "ranged from 4 to 38 percent, in some none, average 20 percent" while the report the following morning states "grade defects range from 13 to 38,in some none, average 19 percent."
From the foregoing it is concluded that the cucumbers sold by Six L's to Van Buren were in grade when sold and no inspection report was presented at destination of only those cucumbers in cartons imprinted with Six L's label to show otherwise. Accordingly, the inspections made in Chicago do not rebut the evidence that cucumbers sold to Van Buren were in grade at the time of delivery. Six L's Packing Company is entitled to recover the invoice price of $1,778 from Van Buren County Fruit Exchange of Florida, Inc. It is therefore
Recommended that Six L's Packing Company, Inc. recover the selling price of
$1,778 from Van Buren County Fruit Exchange of Florida, Inc. for the 508 cartons of cucumbers sold by the former to the latter on November 20, 1976.
DONE and ENTERED this 30th day of November, 1977, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Alan J. Levy, Esquire Post Office Box 1029
Mr. L. Earl Peterson, Chief Bureau of License & Bond Division of Marketing Department of Agriculture Mayo Building
