STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDDIE WOOD, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 85-3547A

)

B B & W FARMS, INC. AND ) FIREMEN'S FUND INSURANCE COMPANY, )

)

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 13, 1986 in Gainesville, Florida.

APPEARANCES

For Petitioner: Freddie Wood, Jr.

Post Office Box 52 Evinston, Florida 32633

For Respondent: Cecil Bagwell

Route 2, Box 855 BB & W Farms Inc.

Cordelle, Georgia 31015

By complaint filed with Division of Administrative Hearings on October 11, 1985 but filed with the Bureau of License and Bond Florida Department of Agriculture and Consumer Service (Department) on July 29, 1985, Petitioner seeks payment of a balance due him on watermelons sold and delivered to Respondent BB & W Farms, Inc. (BB & W) on June 4, 1985.

In support of the allegation, Petitioner testified in his own behalf but presented no exhibits. Respondent presented the testimony of Cecil Bagwell. Respondent's Exhibits 1 and 2 were received into evidence but Respondent's Exhibit 3 was rejected.

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, the following facts are found:

1. At all times pertinent to this proceedings 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 proceedings Respondent BB & W was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 245 by the Department, and bonded by Fireman's Fund Insurance Company (Fireman) in the sum of $15,000 - Bond No. SLR - 4152 897.

   
   

3. At all times pertinent to this proceeding, Respondent Fireman 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. Although Respondent BB & W contends that the watermelons in dispute were purchased through Scotty Luther Produce as were all watermelons purchased by the Respondent BB & W in Florida, the evidence shows that on the load in dispute, Respondent BB & W, through its president Cecil Bagwell was dealing directly with Petitioner when Cecil Bagwell contacted him by telephone to discuss the purchase of the watermelons and in making the necessary arrangements for a truck to pick up and deliver the watermelons to their destination.

   
   

6. The evidence also shows that Scotty Luther of Scotty Luther Produce was not present in the area when the watermelons in dispute were purchased or loaded and was not involved in this transaction.

   
   

7. The agreement between Petitioner and Respondent BB & W was that title and risk of loss passed to Respondent BB & W on shipment, with all remedies and rights for Petitioner's breach reserved to Respondent BB & W.

   
   

8. Petitioner loaded three (3) loads of Charleston Grey Watermelons (grey) to Respondent BB & W on June 3 and 4, 1985 but only one (1) load is in dispute which is a load of grey watermelons loaded on June 4, 1985 on a truck furnished by Respondent BB & W. The net weight of the watermelons was 46,810

   pounds and the agreed upon price was $0.03 per pound for a total price of $1,404.30 which Respondent BB & W has refused to pay.

   
   

9. Petitioner also sold Respondent BB & W two (2) loads of grey watermelons on June 3, 1985 that were harvested from the same field as the watermelons in dispute and shipped: one load to Orlando, Florida; and one (1) load to Atlanta, Georgia without any incident of loss as a result of overmaturity or otherwise.

   
   

10. The watermelons in dispute were not federally or state inspected before or during loading. Although Respondent BB & W contended that the watermelons had been inspected by a federal inspector at their destinations the evidence was insufficient to show that the watermelons in dispute had been inspected or that they were over mature upon arrival at their destination. Likewise the evidence was insufficient to prove that the watermelons in dispute were over mature upon loading.

    
    

11. The record reflects that the watermelons in dispute were loaded in a closed trailer with no apparent ventilation and the refrigeration unit not operating when the trailer departed from Petitioner's farm after loading.

    
    

12. Petitioner received a call from Respondent BB & W's office two (2) days after shipping the watermelons advising him that the watermelons had been "kicked" but it was two (2) more days before he reached Cecil Bagwell to find out that they were "kicked" for being over mature.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Respondent, BB & W 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 BB & W was properly and sufficiently bonded by Respondent, Fireman for the sum of

    $15,000.00.

    
    

15. The Petitioner a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes (1983) filed a

    timely complaint against Respondent BB & W and its surety, Respondent Fireman in accordance with Section 604.21, Florida Statutes (1983) alleging, among other things, that Respondent BB & W had refused to pay for "agricultural products" as defined by Section 604.15(3), Florida Statutes (1983) sold and delivered to Respondent BB & W on June 4, 1985.

    
    

16. The evidence is clear that Petitioner sold and delivered to Respondent BB & W at Petitioner's farm on June 4, 1985 one (1) load of watermelons with a net weight of 46,810 pounds at 00.03 per pound for a total amount of $1,404.30 which Respondent BB & W has refused to pay.

    
    

17. The evidence shows that when the watermelons were loaded on June 4, 1985 that they were in the condition, and of the size, purchased by Respondent BB & W. There was no evidence of overmaturity or other type damage to the watermelons when loaded on June 4, 1985. The evidence was insufficient to prove that the watermelons were over mature upon arrival at their destination and, therefore, there was no basis for rejecting the load or to refuse to pay the price for the load. Section 672.601, Florida Statutes. But, assuming arguendo that the watermelons were nonconforming, i.e., over mature, there was evidence that the over maturity could have been a result of improper handling in transient which was the risk assumed by the Respondent BB & W in the agreement with Petitioner. Sections 672.314 and 672.504, Florida Statutes.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent BB & W be ordered to pay to the Petitioner the sum of $1,404.30. It is further RECOMMENDED that if Respondent BB & W fails to timely pay the Petitioner as ordered, then Respondent Fireman 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 25th day of February, 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 25th day of February, 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

Cecil Bagwell, President BB & W Farms, Inc.

Route 2, Box 855

Cordell, GA 31015

Docket for Case No: 85-003547

Orders for Case No: 85-003547