S. FIDELITY & GUARANTY COMPANY, )
Respondents. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing on the above- styled case on February 7, 1989, in Dunnellon, Florida. The issue for determination is whether the Respondent, Jay Nichols, Inc., owes the Petitioner, Carl Hiers the sum of $2,510.00 for watermelons purchased during the 1988 watermelon season in Marion County, Florida.
Jay Nichols, Inc. Qualified Representative Post Office Box 1705 Lakeland, Florida 33801
By Complaint filed with the Bureau of License and Bond, Florida Department of Agriculture and Consumer Services (Department) on August 9, 1988, and submitted to the Division of Administrative Hearings on November 3, 1988, Petitioner seeks payment of an alleged balance due on watermelons sold and delivered to Respondent, Jay Nichols, Inc., by Petitioner on June 24 and 25, 1988.
Petitioner testified on his behalf and presented the testimony of L.L. Hiers, Lewis Penny and George F. Crawford. Petitioner's exhibits 1, 2, 3 and 4 were received into evidence.
Respondent presented the testimony of Chris Turskey but did not present any documentary evidence.
James E. Brooks, Jr., employed by the Department was called as a witness by the Hearing Officer.
This case was consolidated with Case Nos. 88-5632A and 88-5633A for hearing but will be severed for entry of this Recommended Order.
The parties failed to timely submit any posthearing Proposed Findings of Fact and Conclusions of Law.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
At all times pertinent to this proceeding, Petitioner, Carl Hiers was a "producer" of agricultural products in the state Of Florida as defined in Section 604.15(5), Florida Statutes.
At all times pertinent to this proceeding, Respondent, Jay Nichols, Inc. (Nichols) was a licensed "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes, issued license number 1547 by the Department, and bonded by U.S. Fidelity & Guaranty Co. (Fidelity) for the sum of
$50,000.00, bond number 790103-10-115-88-1, with an effective date of March 22, 1988 and a termination date of March 22, 1989.
At all times pertinent to this proceeding, Nichols was authorized to do business in the state of Florida.
Prior to Petitioner selling or delivering any watermelons (melons) to Nichols, Petitioner and Nichols agreed verbally that: (a) Petitioner would sell Nichols melons on a per pound basis at a price to be quoted by Nichols on the day of shipment; (b) Petitioner would harvest and load the melons on a truck furnished by Nichols; (c) a weight ticket with the weight of the truck before and after loading would be furnished to Petitioner; (d) Nichols or its agent in the field would have the authority to reject melons at the place of shipment (loading) which did not meet the quality or grade contracted for by Nichols; (e) the melons were to be of U.S. No. 1 grade and; (f) settlement was to be made within a reasonable time after shipment.
Although Nichols assisted Petitioner in obtaining the crew to harvest and load the melons, Petitioner had authority over the crew and was responsible for paying the crew.
On a daily basis, L.L. Hiers would contact Nichols and obtain the price being paid for melons that day. The price was marked in the field book with the net weight of each load shipped that day.
Nichols contends that the price quoted each day was the general price melons were bringing on the market that day but the price to be paid to the Petitioner was the price Nichols received for the melons at their destination minus a 1 cent per pound commission for Nichols, taking into consideration freight, if any.
Nichols was not acting as Petitioner's agent in the sale of the melons for the account of the Petitioner on a net return basis nor was Nichols acting as a negotiating broker between the Petitioner and the buyer. Nichols did not
make the type of accounting to Petitioner as required by Section 604.22, Florida Statutes, had Nichols been Petitioner's agent.
The prices quoted by Nichols to L.L. Hiers each day was the agreed upon price to be paid for melons shipped that day subject to any adjustment for failure of the melons to meet the quality or grade contracted for by Nichols.
On June 24 and 25, 1988, L.L. Hiers contacted Nichols and was informed that the price to be paid for melons shipped on June 24 and 25, 1988 was 4.5 cents per pound. This price was recorded in the field book with the net weight of each load of melons shipped on June 24 and 25, 1988.
There were 2 loads of melons shipped on June 24, 1988 and 3 loads of melons shipped on June 25,1988 that are in dispute. They are as follows: load nos. 11252, and 11255 weighing 23,530 and 49,450 pounds respectively shipped on June 24, 1988, for which Nichols paid 2 cents per pound and; load nos. 11291, 11292 and 11294, weighing 43,000, 47,070 and 47,150 pounds respectively, shipped on June 25, 1988, for which Nichols paid 4 cents per pound. The total amount in dispute for these 6 loads is $2,510.60.
Nichols contends that the 2 loads of melons shipped on June 24, 1988, were rejected at their destination and paid Petitioner 2 cents per pound. There was insufficient evidence to show that these melons were rejected at their destination or that the price received for the melons at their destination minus the 1 cent per pound commission was less than the agreed upon price of 4.5 cents per pound.
On the 4 loads of melons shipped on June 25, 1988, load nos. 11291, 11292 and 11294, Nichols contends that the melons were below the quality for which he contracted. Nichols failed to present sufficient evidence to support his contention of low quality or that the price received at destination would have resulted in Petitioner receiving less than the agreed upon price of 4.5 cent per pound.
There is no evidence that any of the loads in dispute were federally inspected at their origin or destination.
Nichols has refused to pay Petitioner the amount in dispute on the 6 loads of melons shipped on June 24 and 25, 1988.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
Nichols was a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes, and, as such, was required to be licensed by the Department pursuant to Section 604.17, Florida Statutes, 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, and Rule 5H-1.01, Florida Administrative Code. Nichols was properly and sufficiently bonded by Fidelity for the sum of $50,000.00.
Petitioner, a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes, timely filed a complaint against Nichols and its surety, Fidelity, in accordance with Section 604.21, Florida Statutes,
alleging, among other things that Nichols had refused to pay for "agricultural products" as defined in Section 604.15(3), Florida Statutes, sold and delivered to Nichols on June 25 and 25, 1988.
Petitioner sold and delivered to Nichols 2 loads of melons on June 24, 1988 and 4 loads of melons on June 25, 1988, at an agreed upon price of 4.5 cents per pound and, that Nichols has only paid Petitioner 2 cents per pound for the 2 loads on June 2 1988 and 4 cents per pound for the 4 loads on June 25, 1988, leaving a balance owed of $2,510.60.
Assuming arguendo that the parties had agreed on a price to be determined by subtracting 1 cent per pound commission from the price the melons brought at their destination, there was insufficient evidence to show that the price received for these 6 loads of melons at their destination minus the penny commission resulted in a price less than 4.5 cents per pound, the price quoted on the day of shipment.
