Judges: WILLIAM R. CAVE
Agency: Department of Agriculture and Consumer Services
Latest Update: Feb. 24, 1986
Summary: Upon arrival, Respondent claimed some watermelons were nonconforming so he adjusted invoice price. Respondent had no basis, nor gave notice. Respondent must pay balance.
85-2826.PDF
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT HANSHAW AND BRUCE HANSHAW, ) d/b/a HANSHAW SALES, )
)
Petitioners, )
)
vs. ) CASE NO. 85-2826A
) TONY PAGANO AND SONS, INC., AND ) SENTRY INDEMNITY COMPANY, )
)
Respondents. )
)
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 7, 1986 in LaBelle, Florida.
APPEARANCES
For Petitioner: Robert Hanshaw, Partner
Hanshaw Sales
Post Office Box 996 LaBelle, Florida 33935
For Respondent: Tony Pagano, President
Tony Pagano and Sons, Inc.
62 Brooklyn Terminal Market Brooklyn, New York 12236
By complaint filed with Division of Administrative Hearings on August 22, 1985 but filed with the Bureau of License and Bond Florida Department of Agriculture and Consumer Services (Department) on June 28, 1985, Petitioner seeks payment of a balance due it on watermelons sold and delivered to Respondent Tony Pagano and Sons, Inc. (Pagano) on April 19 and 20, 1985.
In support of the allegation Petitioner presented the testimony of Robert Hanshaw and Bonnie Hanshaw.
Petitioner's Exhibits 1-5 were received into evidence. Respondent presented the testimony of Tony Pagano and Buddy Sessions. Respondent's Exhibits 1-3 were received into evidence. Tom Martino was called as a witness by the undersigned.
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 hearings the following facts are found:
At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983).
At all times pertinent to this proceedings Respondent Pagano was a licensed dealer in agricultural products as defined by Section 604.15(1); Florida Statutes (1983), issued license no. 1624 by the Departments and bonded by Sentry Indemnity Company (Sentry) in the sum of
$29,000.00 - Bond No. 88-04453-01.
At all times pertinent to this proceeding, Respondent Sentry was authorized to do business in the State of Florida.
The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983).
Petitioner sold several loads of watermelons to Respondent Pagano during the 1985 watermelon season but only three (3) loads are in disputed and they are: (a) 1 load of Crimson Sweet Watermelons loaded from Barron Farm No. 3 on April 19, 1985, weighing 46,180 pounds and billed on Petitioner's invoice, No. 24-2264 at $0.274 per pound for a total invoice price of $12,653.32; (b) 1 load of Crimson Sweet Watermelons loaded from Barron Farm No. 3 on
April 19, 1985, weighing 44,920 pounds and billed on Petitioner's invoice, No. 24-2265 at $0.274 per pound for a total invoice price of $12,308.08; and (c) 1 load of Grey Watermelons loaded from Barron Farms No. 2 on April 20, 1985, weighing 41,620 pounds and billed on Petitioner's invoice No. 24-2298 at $0.274 per pound for a total invoice price of $11,403.88. Each truck was weighed before and after loading on the date loaded to determine the net weight of watermelons. There was no evidence presented that this net weight was incorrect.
Although the price included the cost of delivery to Respondent Pagano at 62 Brooklyn Terminal Market, Brooklyn, New York, the more credible evidence shows that the agreement between Petitioner and Respondent Pagano was that title and risk of loss passed to Respondent Pagano on shipments with all remedies and rights for Petitioner's breach reserved to Respondent Pagano.
When each of the three (3) loads arrived at their destinations the total pounds to be paid for, either at the agreed upon price or at a reduced price; was adjusted downward. On each of the loads there were some watermelons paid for at a reduced price because of alleged bruising which together with the reduction in total pounds and a deduction for "protect advance", caused a reduction in the total invoice price as follows:
INVOICE NO. ORIGINAL PRICE ADJUSTED PRICE DIFFERENCE
24-2264 | $12,653.32 | $11,397.39 | $1,255.93 |
24-2265 | 12,308.08 | 8,667.84 | 3,640.24 |
24-2298 | 11,403.88 | 10,478.50 | 925.38 |
TOTAL: | 36,365.28 | 30,543.73 | 5,821.55 |
There was no federal or state inspection performed at the time the watermelons were loaded or after arrival at their destination.
The more credible evidence shows that petitioner was not advised of the condition of the watermelons before the adjustment was made to allow petitioner an opportunity to ask for an inspection or give any other instruction with regards to the watermelons.
Petitioner sold and shipped to different buyers, five (5) loads of Crimson Sweet Watermelons and two (2)
loads of mixed watermelons from Barron Farms Nos. 2 and 3 on April 19, 1985 which were received without any incident of loss due to bruising or otherwise.
Petitioner sold and shipped to different buyers five (5) loads of Grey watermelons from Barron Farm No. 2 and three (3) loads of Crimson Sweet Watermelons from Barron Farms Nos. 2 and 3 on April 20, 1985 which were received without any incident of loss due to bruising or otherwise.
Petitioner made adjustments in the amount of freight owed on all three (3) loads due to differences in weight at point of shipment and weight at destination and for the weight of watermelons rejected. On invoice No. 24- 2265 the freight was reduced from $1,976.48 to $1,651.20 which included a reduction for 5,120 pounds of rejected watermelons at $4.40 per hundred weight plus $100.00 protect advanced on invoice No. 24-2298 the freight was reduced from $1,831.28 to $1,704.00 which includes a reduction for 620 pounds of watermelons due to difference in weight at point of shipping and weight at destinations plus $100.00 protect advanced and on invoice No. 24-2264 the freight was reduced from $2,031.92 to $1,847.88 which includes a reduction for 1910 pounds of watermelons rejected or difference in shipping and receiving weights plus $100.00 protect advance. The total difference in freight on all three loads is $636.60.
On May 12 and 29, 1985, Respondent Pagano paid Petitioner the total sum of $30,543.73 leaving a balance owed on the three (3) loads of $5;82l.55 which Respondent Pagano has refused to pay.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.
Respondents Pagano 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 Pagano was properly and sufficiently bonded by Respondent, Sentry for the sum of $29,000.00.
The Petitioner a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes (1983) filed a timely complaint against Respondent Pagano and its surety, Respondent Sentry in accordance with Section 604.21, Florida Statutes (1983) alleging, among other things, that Respondent Pagano had refused to pay for "agricultural products" as defined by Section 604.15 (3), Florida Statutes (1983) sold and delivered to Respondent Pagano on April 19 and 20, 1985.
The evidence is clear that Petitioner sold and delivered to Respondent Pagano on April 19 and 20, 1985 three (3) loads of watermelons with a combined weight of 132,720 pounds at $0.275 per pound for a total amount of
$36,365.28 and that on May 12 and 29, 1985, Respondent Pagano paid Petitioner the sum of $30,543.73 leaving a balance of $5,821.55 which Respondent Pagano has refused to pay.
The evidence shows that when the watermelons were loaded on April 19 and 20, 1985 that they were in the conditions and of the size, purchased by Respondent Pagano. There was no evidence of bruising or other type damage to the watermelons when loaded on April 19 and 20, 1985. The evidence was insufficient to prove any damage to the watermelons due to bruising upon their arrival at the destination and, therefore, there was no basis for rejecting any portion of any load or to adjust the price of any portion of any load. Section 672.601, Florida Statutes. But, assuming arguendo that some of the watermelons were nonconforming there was no seasonably" notification by the Respondent to the Petitioner of such nonconformance as required by Section 672.602.(1), Florida Statutes which would have allowed Petitioner the opportunity to instruct Respondent in regard to the nonconforming watermelons as provided for in Section 672.603, Florida Statutes. The evidence was equally insufficient to show any basis for a reduction in the total invoice price of any of the three (3) loads due to a difference in shipping weight and receiving weight.
RECOMMENDATION
Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Pagano be ordered to pay to the Petitioner the sum of $5,821.55 with the Petitioner being held responsible for any freight due as a result of this recommendation. It is further RECOMMENDED that if Respondent Pagano fails to timely pay the Petitioner as ordered, then Respondent Sentry 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 24th day of February, 1985, in Tallahassee, Leon County, Florida.
Hearings
Hearings 1985.
WILLIAM R. CAVE
Hearing Officer
Division of Administrative
The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative
this 24th day of February,
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
F. J. Manuel, Jr., Esquire Post Office Box 3626 Orlando, Florida 32802
Robert Hanshaw and Bruce Hanshaw
Post Office Box 996 LaBelle, Florida 33935
Ron Weaver, Esquire Department of Agriculture and
Consumer Services Mayo Building
Tallahassee, Florida 32301
Joe W. Kight, Chief License and Bond
Room 418, Mayo Building Tallahassee, Florida 32301
Tony Pagano & Sons, Inc.
62 Brooklyn Terminal Market Brooklyn, New York 11236
Docket for Case No: 85-002826
Orders for Case No: 85-002826
| Issue Date |
Document |
Summary |
|
Jun. 06, 1986 |
Agency Final Order
|
|
|
Feb. 24, 1986 |
Recommended Order
|
Upon arrival, Respondent claimed some watermelons were nonconforming so he adjusted invoice price. Respondent had no basis, nor gave notice. Respondent must pay balance.
|
