STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVE SHIVER and JODY SULLIVAN, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2825A

)

1. J. SALES COMPANY and HARTFORD ) INSURANCE COMPANY OF THE )

   SOUTHEAST, )

   )

   Respondent, )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above-styled case on January 20, 1986 in Mayo, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Terry McDavid, Esquire

   200 North Marion Street Lake City, Florida 32055

   
   

   For Respondent: Carl Boyles

   Qualified Representative Post Office Box 7798 Orlando, Florida 32854

   
   

   No appearance for Hartford Insurance Company of the Southeast.

   
   

   By complaint filed with the Bureau of License and Bond, Florida Department of Agriculture and Consumer Service (Department) on June 25, 1985, and submitted to the Division of Administrative Hearings on August 22, 1985 for hearing Petitioner seeks payment of a balance due on watermelons sold and delivered to Respondent A. J. Sales Company (Sales) on June 11, 1985.

   In support of the allegation, Petitioners testified on their own behalf and presented the testimony of Bill Gamble.

   Petitioner's Exhibit 1 was received into evidence. Respondent Sales presented the testimony of Carl Boyles but introduced no exhibits. Joe Kight, Department representative was called by the undersigned. On January 27, 1986 Respondent Sales took the deposition of William C. Summers for late filing in accordance with instructions from the undersigned.

   
   

   At the time of the hearing it was brought to the attention of the undersigned that the style of the case was incorrect in that Petitioner Jody Shiver should have been Petitioner Jody Sullivan. The error was noted and the style corrected to reflect the correct name as Petitioner Jody Sullivan.

   
   

   Neither Petitioner nor Respondents submitted posthearing proposed findings of fact and conclusions of law as allowed by Section 120.57(1)(b)(4), Florida Statutes (Supp. 1984).

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing and at the subsequent deposition, the following facts are found:

   
   

   1. At all times pertinent to this proceeding, Petitioners were producers of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983).

      
      

   2. At all times pertinent to this proceeding, Respondent Sales was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 207 by the Department and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $20,000 - Bond No. RN 4429948.

      
      

   3. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida.

      
      

   4. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983).

      
      

   5. On June 11, 1985 Respondent Sales, through its agent William C. Summers (Summers), contracted with Petitioners to load several loads of watermelons on trucks furnished by Respondent Sales at Petitioners' watermelon field.

   6. Petitioner agreed with Summers to load a good quality watermelon ranging in weight from seventeen (17) pounds and up, with an occasional watermelon weighing less than seventeen (17) pounds. The price agreed upon was $0.03 per pound with the sale being final upon loading, weighing and acceptance by Summers.

      
      

   7. Before loading any watermelons, Summers along with Petitioners Shivers inspected the field of watermelons for size and quality and to estimate how many watermelons were available for shipment.

      
      

   8. On June 11, 1985 Petitioners began loading the first load of watermelons the only load in dispute, in accordance with the agreement. Summers was present on several occasions, for periods of approximately thirty (30) minutes each time, during the time of loading and on occasions would instruct Petitioner Sullivan who was packing, to put watermelons, both large and small which Sullivan had rejected, back on the truck for shipment. Petitioner finished loading the first load of watermelons on June 11, 1985 which was weighed and accepted and paid for by Summers on June 12, 1985. The net weight was 43,260 pounds for a total amount of

      $1,297.80.

      
      

   9. On June 12, 1985, Summers issued a check jointly to Petitioners on Respondent Sales' checking account which Summers signed for the sum of $1,297.80 but later "stopped for payment" on this check and Respondent Sales has since refused to pay Petitioners this amount.

      
      

   10. Although Sullivan advised Summers that a range in weight of 17 pounds and up was too wide for a load of watermelons to be classified as medium, Summers advised Sullivan to load watermelons weighing 17 pounds and up.

       
       

   11. After Petitioners started loading the second load, Summers instructed Sullivan to only pack watermelons ranging in weight from 17 to 24 pounds which Sullivan did and Petitioners were paid for this second load without incident.

       
       

   12. The evidence was insufficient to prove that the watermelons in question had been rejected at destination due to the wide range of weights or for any other reason.

13, The evidence is clear that Summers was acting for Respondent Sales and had authority to purchase and accept the watermelons in dispute.

1. The only reason Respondent Sales' refused to pay was the alleged nonconformance as to size.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding.

   
   

3. Respondent Sales was a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes (1983) and, as such was required to be licensed by the Department pursuant to Section 604.17, Florida Statutes (1983), and, as a requirement of licensing, had to show the Department evidence of a surety bond or a certificate of deposit in accordance with Section 604.20, Florida Statutes (1983) and Rule 5H-1.01, Florida Administrative Code. Respondent Sales was properly and sufficiently bonded by Respondent Hartford for the sum of $20,000.00.

   
   

4. The Petitioners, a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes (1983) filed a timely complaint against Respondent Sales and its surety, Respondent Hartford in accordance with Section 604.21, Florida Statutes (1983) alleging, among other things, that Respondent Sales had refused to pay for "agricultural products" as defined by Section 604.15(3), Florida Statutes (1983) sold and delivered to Respondent Sales on June 11, 1985.

   
   

5. The evidence is clear that Petitioner sold and delivered to Respondent Sales on June 11, 1985 one (1) trailer load of watermelons weighing of 43,260 pounds at $0.03 per pound for a total amount of $1,297.80 which Respondent Sales has refused to pay.

   
   

6. The evidence is also clear that the agreement between Respondent Sales and Petitioners on the first load of watermelons, the ones in dispute, was for Petitioners to furnish Respondent Sales with watermelons ranging in size from 17 pounds and up with an occasional smaller watermelon. The evidence shows that William

C. Summers, an employee of Respondent Sales authorized to purchase and accept the watermelons, inspected and accepted the load of watermelons in dispute at the place of shipment with knowledge that the size range was from 17 pounds and up with an occasional smaller watermelon.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Sales be ordered to pay to the Petitioners the sum of $1,297.80. It is further RECOMMENDED that if Respondent Sales fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983).

Respectfully submitted and entered this 13th day of March, 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 13th day of March 1986.

COPIES FURNISHED:

Doyle Conner, Commissioner Department of Agriculture and

Consumer Services The Capitol

Tallahassee, Florida 32301

Robert Chastain, General Counsel Department of Agriculture and

Consumer Services

Mayo Building, Room 513 Tallahassee, Florida 32301

Ron Weaver, Esquire Department of Agriculture and

Consumer Services Mayo Building

Terry McDavid, Esquire

200 North Marion Street Lake City, Florida 32055

Steve Shiver and Jody Sullivan Route 1, 8ox 474

Mayo, Florida 32066

A. J. Sales Company Post Office Box 7798 Orlando, Florida 32854

Hartford Insurance Company of the Southeast

200 East Robinson Street Orlando, Florida 32801

Docket for Case No: 85-002825

Orders for Case No: 85-002825