STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBIN SHIVER, )

)

Petitioner, )

)

vs. ) Case No. 85-2827A

)

A. J. SALES COMPANY and HARTFORD ) INSURANCE COMPANY OF THE SOUTHEAST, )

)

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 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

P. O. 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 13, 1985.

In support of the allegation, Petitioner testified on his own behalf and presented the testimony of Vera Shiver and Bill Lamb. Petitioner offered no exhibits. Respondent presented the testimony of Carl Boyles and Robin Shiver. Respondent's Exhibits

1 and 2 were received into evidence. On January 27, 1986, Respondent Sales took the deposition of William C. Summers which was late filed as agreed.

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, Petitioner was a producer 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. 4103 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 12, 1985, Respondent Sales, acting through its agent William C. Summers (Summers), contracted with Petitioner to purchase several loads of watermelons which were to be loaded by Petitioner on trucks furnished by Respondent Sales at Petitioner's watermelon field.

   
   

6. Summers acting as Respondent Sales' agent had the authority to purchase, inspect, accept and pay for the watermelons.

   
   

7. Petitioner agreed with Summers to load "field run" watermelons that were not "too big" or not "too small". Respondent did not request that the load be small, medium or large. Small being watermelons ranging in size from 11 to 17 pounds medium being watermelons ranging in size from 17 to 24 pounds and large being watermelons ranging in size from 24 to 40 pounds. Although Petitioner did not agree to furnish any specific grade of watermelon, the evidence shows that it was understood by Petitioner that Summers was contracting for "good

   quality" watermelons. On the second load Summers instructed the Petitioner to eliminate the large watermelons and this was done while harvesting and packing.

   
   

8. The agreed upon price per pound of watermelons was $0.03 and the total price of each load of watermelons was to be determined by multiplying the price per pound by the net weight of each load of watermelons. The net weight of the load of watermelons in dispute was 46,260 pounds which when multiplied by

   $0.03 per pound equals a total price of $1,386.90 which Respondent Sales has refused to pay.

   
   

9. Under the agreement it was Petitioner's responsibility to harvest and pack the watermelons on the trailer in accordance with Summers instructions but at Petitioner's expense, and it was Summers' responsibility to inspect the watermelons as to size and quality during the harvesting and packing and to reject any watermelons not conforming as to size and quality under the agreement. Upon the watermelons being loaded, inspected, accepted and weighed, the sale was to be final and Petitioner was to receive payment with title and risk of loss passing to Respondent Sales at point of shipment.

   
   

10. Although Petitioner loaded approximately 2 1/2 loads of watermelons for Respondent Sales, only the last load or the second full load, which Petitioner started loading on June 12, 1985 and finished loading on June 13, 1985, is in dispute.

    
    

11. On June 13, 1985, Summers issued a check on the account of Respondent Sales for payment of the 2 full loads of watermelons, which included payment for the load in dispute, but later that same day demanded that Petitioner return the check or Summers would stop payment on the check. Petitioner returned the check and was later paid for the first load but Respondent Sales has refused to pay for second load alleging that the quality of the watermelons did not conform to the agreement. There was no problem as to the size of the watermelons.

    
    

12. Respondent Sales, after Summers accepted and issued the check for the watermelons in dispute, decided to make payment of the watermelons contingent on acceptance at destination rather than acceptance by Summers at the point of shipment as agreed earlier and refused to pay Petitioner for the watermelons in dispute because allegedly they had not been accepted at their destination. When advised of this change, Petitioner refused to sell any more watermelons to Respondent Sales.

    
    

13. Although Respondent's exhibit 1 and 2 show that a load of watermelons loaded by Petitioner was federally inspected on June 17, 1985 at its destination, the evidence is insufficient to

    prove that the load of watermelons in dispute was inspected on June 17, 1985. In any event, only the condition of the watermelons was reported on the inspection report and no determination made by the inspector as to size, quality or grade, and there was no evidence to show that the condition of the watermelons at their destination would result in the watermelons failing to conform to the agreement; i.e., good quality.

    
    

14. The watermelons were culled in the field during harvesting, at the trailer during packing and were additionally culled by Summers during the packing while he was present.

    
    

15. Summers was not present full time while the watermelons were being harvested and loaded but was present on several occasions for periods up to 20 or 30 minutes for a total time of approximately 1 1/2 hours. Summers was allowed to inspect the watermelons in the field before harvesting and during harvesting and, in addition to the culling of the watermelon during harvesting and loading by Petitioner, Summers was allowed to cull, while he was present during loading. The evidence is sufficient to show that Summers had ample opportunity to inspect the watermelons and that he did inspect and accept the load of watermelons in dispute at point of shipment.

    
    

16. The testimony of Petitioner and Bill Lamb that the watermelons in dispute were of the size and quality to conform to the agreement when loaded on the trailer on June 12 and 13, 1985 was credible.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. 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.

    
    

19. The Petitioner, 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 13, 1985.

    
    

20. The evidence is clear that Petitioner sold and delivered to Respondent Sales on June 13, 1985 one (1) trailer load of watermelons with a net weight of 46,260 pounds at 50.03 per pound for a total amount of $1,386.90 which Respondent Sales has refused to pay.

    
    

21. The evidence shows that when the watermelons were loaded on June 13, 1985 that they were in the condition and of the quality and size, purchased by Respondent Sales and that William C. Summers, an employee of Respondent Sales authorized to purchase and accept the watermelons, inspected and accepted the watermelons on June 13, 1985 at the place of shipment.

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 $1,386.90. 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 14th 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 14th 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

Robin C. Shiver Route 3, Box 248

Mayo, Florida 32066

Carl Boyles

A. J. Sales Company

P. O. Box 7798

Orlando, Florida 32854

Hartford Insurance Company of the Southeast

200 East Robinson Street Orlando, Florida 32801

Docket for Case No: 85-002827

Orders for Case No: 85-002827