STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES L. SHACKELFORD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3363A

)

1. L. WADSWORTH and LAWYERS ) SURETY CORPORATION, )

   )

   Respondents. )

   )

   
   

   RECOMMENDED ORDER

   
   

   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 7, 1984, at Tampa, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Charles L. Shackelford, pro se

   Post Office Box 1420 Wauchula, Florida 33873

   
   

   For Respondent: Doyle L. Wadsworth, pro so

   2110 Ramblewood Lane

   Brandon, Florida 33511

   
   

   By Complaint dated June 25, 1984, Charles L. Shackelford, Petitioner, seeks to recover $619 from D. L. Wadsworth, Respondent, alleged to be owed to Petitioner as a result of a watermelon sale to Respondent on June 2, 1984. As grounds therefor it is alleged that Petitioner was quoted a price of four cents per pound for his watermelons but was paid only three and one-half cents per pound. The difference is the $619 alleged to be owed.

   
   

   At the hearing Petitioner called two witnesses, including himself, Respondent testified in his own behalf, and two exhibits were admitted into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. D. L. Wadsworth buys watermelons in the field and sells them to parties to whom the melons are delivered. In 1984 he agreed to buy melons from Charles Shackelford. In conducting his business Wadsworth is not an agent for the grower nor does he act as broker between the grower and the person who ultimately takes delivery of the melons.

      
      

   2. There was obviously a misunderstanding on the part of Petitioner as to the exact role played by Wadsworth in his buying of watermelons. Shackelford testified that Wadsworth agreed to handle his watermelon crop for the 1984 harvest. Wadsworth, on the other hand, does not buy fields but only "loads" on

      a daily basis. The harvesting of the watermelons is done by an agent of the grower, not by Respondent. Respondent buys the melons which he loads and ships out.

      
      

   3. On June 1, 1984, Respondent bought two loads of melons from Petitioner for which he paid four cents per pound. This is the same price Wadsworth paid to other growers from whom he purchased melons on June 1. On June 2, 1984, Respondent bought three loads of watermelons from Petitioner. Petitioner testified that he asked Respondent on June 2 what melons were bringing and was told four cents per pound. Wadsworth denies quoting a price to Shackelford but acknowledges that even if melons were bringing four cents a pound in New York he could not pay four cents per pound in Wauchula and ship them to New York without losing money on every watermelon he bought.

      
      

   4. Petitioner also testified that Respondent ceased handling his melons after June 2, 1984, that Respondent told him he was sick and was going back to Brandon and that he (Respondent) was not going to handle any more watermelons. Respondent denied that he was sick during this period or that he could not be contacted. Respondent paid his motel bill in Wauchula on June 9, 1984.

      
      

   5. On June 5, 1984, Respondent gave Petitioner his check for the watermelons he had purchased and an invoice (Exhibit 1) which showed the price for one load on June 1 at four cents per pound and three loads on June 2 at three and a half cents per pound. Respondent did not receive any complaint from Petitioner until the Complaint that is the basis of this hearing was filed.

      
      

   6. To support his testimony that he paid all growers the same price for watermelons purchased, Respondent submitted a list of those growers from whom he bought watermelons on May 31 through June 3 showing that he paid four cents per pound on the first two days of that period and three and a half cents per pound the last two days (Exhibit 2).

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

      
      

   8. In administrative proceedings, as in court proceedings, the burden of proof is upon the party asserting the affirmative. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Accordingly, Petitioner has the burden of proving, by a preponderance of the evidence, that he was quoted a price of four cents per pound by Respondent but was paid only three and a half cents per pound. This burden, Petitioner has not met. At best the evidence is in equipoise with nothing to tip the scales in favor of Petitioner. If anything, the evidence that Respondent paid all growers three and a half cents per pound for watermelons he purchased on June 2 tends to corroborate Respondent's testimony that he did not quote a price of four cents per pound for those melons to Petitioner.

From the foregoing it is concluded that Petitioner has failed to prove, by a preponderance of the evidence, that D. L. Wadsworth quoted him a price of four cents per pound for the watermelons he purchased on June 2, 1984, and for which he later paid Petitioner three and a half cents per pound. It is

RECOMMENDED that a Final Order be entered dismissing Charles Shackelford's complaint that be was underpaid $619 by D. L. Wadsworth for watermelons purchased by the later on June 2, 1984.

ENTERED this 15th day of November, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1984.

COPIES FURNISHED:

Charles L. Shackelford Post Office Box 1420 Wauchula, Florida 33878

D. L. Wadsworth

2110 Ramblewood Lane

Brandon, Florida 33511

Lawyers Surety Corporation Post Office Box 19320 Orlando, Florida 32814

Robert A. Chastain, Esquire Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

Glenn A. Bissett

Bureau of License and Bond Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, Florida 32301

Honorable Doyle A. Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-003363

Orders for Case No: 84-003363