STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

L. L. HIERS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5632A

)

JAY NICHOLS, INC., ) and U. S. FIDELITY & ) GUARANTEE 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 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,

1. L. Hiers the sum of $3,419.75 for watermelons purchased during the 1988 watermelon season in Marion County, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Carl Hiers, Qualified representative Route 5, Box 339

   Dunnellon, Florida 32630

   
   

   For Respondent: Steve Nichols, Vice President

   Jay Nichols, Vice President Qualified Representative Post Office Box 1705 Lakeland, Florida 33802

   
   

   For Co-Respondent: No Appearance

   
   

   BACKGROUND

   
   

   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 19, 22 and 23, 1988.

   
   

   Petitioner testified on his behalf and presented the testimony of Lewis Penny and George F. Crawford. Petitioner's exhibits 1, 2, 3, 4, 5, 6 and 7 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. 88-5534A and 88-5633A for hearing but was severed for entry of this Recommended Order.

   
   

   The parties did not submit any posthearing Proposed Findings of Fact and Conclusions of Law.

   
   

   FINDINGS OF FACT

   
   

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

   
   

   1. At all times pertinent to this proceeding, Petitioner, L. L. Hiers was a "producer" of agricultural products in the state of Florida as defined in Section 604.15(5), Florida Statutes.

      
      

   2. 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, 2988 and a termination date of March 22, 1989.

      
      

   3. At all times pertinent to this proceeding, Nichols was authorized to do business in the state of Florida.

      
      

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

      
      

   5. 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 trucks 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.

      
      

   6. 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.

      
      

   7. On a daily basis, Petitioner 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.

      
      

   8. 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 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.

   9. Nichols was not acting at 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.

      
      

   10. The prices quoted by Nichols to Petitioner 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.

       
       

   11. On June 10, 1988, Petitioner contacted Nichols and was informed that the price to be paid for melons shipped that day was 6 cents per pound. This price was recorded in the field book with the net weight of each truckload of melons shipped that day. Petitioner shipped 4 loads of melons on June 10, 1988 but only 3 loads are in dispute, as follows: (a) load no. 10891 weighing 45,830 lbs. for which Nichols paid 3 cents per pound; (b) load no. 10892 weighing 43,950 lbs. for which Nichols paid 5 cents per pound and; (c) load 10893 weighing 47,190 lbs. for which Nichols paid 5 cents per pound.

       
       

   12. On June 22, 1988, Petitioner contacted Nichols and was informed that the price to be paid ford melons shipped that day was 5.25 cents per pound. This price was recorded in the field book with the net weight the loads shipped that day. Only load no. 10174 weighing 44,550 lbs. for which Nichols paid 3 cents per pound is in dispute.

       
       

   13. On June 23, 1988, Petitioner contacted Nichols and was informed that the price to be paid for melons shipped that day was 5.5 cents per pound. This price was recorded in the field book with the net weight of the loads shipped that day. Two loads were shipped, but only load no. 11227 weighing 48,490 pounds for which Nichols paid 5 cents per lbs. is in dispute.

       
       

   14. The differences in the price paid for each load and the agreed upon price are as follows: (a) load no. 10891-$1324.90; (b) load no. 10892-$479.50; (c) load no. 10893-$471.90; (d) load no. 11174-$891.00 and; (c) load no. 11227-

       $242.45. The total amount in dispute is $3,419.75.

       
       

   15. Nichols contends that load no. 10891 was rejected because it failed to pass government inspection due to quality, and that the quality of load nos. 10982, 10893, 1174 and 1122 was poor, resulting in a lower price than the price agreed upon. There was insufficient evidence to support this contention.

       
       

   16. Nichols has refused to pay Petitioner the difference between the agreed upon price for load nos. 10891, 10892, 10893, 11174 and 11227 and the price paid by Nichols as indicated on the settlement sheet. The difference is

       $3,419.75, and is owed to Petitioner by Nichols.

       
       

       CONCLUSIONS OF LAW

       
       

   17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

       
       

   18. Nichols was a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes, an, 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

       mule 5H-1.01, Florida Administrative Code. Nichols was properly and sufficiently bonded by Fidelity for the sum of $50,000.00.

       
       

   19. 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, along 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 10, 22 and 23, 1988.

       
       

   20. Nichols owes Petitioner 3,419.75 for melons sold and delivered to Nichols on June 10, 22 and 23, 1988 which Nichols has refused to pay.

       
       

   21. Assuming arguendo that the parties had agreed that the price would be determined by deducting 1 cent per pound commission from the price received for the melons at their destinations, there was insufficient evidence to show that the price received for the melons at their destination minus the penny commission resulted in a price less than that quoted on the day of shipment.

RECOMMENDATION

Upon consideration of the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that Respondent, Jay Nichols, Inc. be ordered to pay to Petitioner, L. L. Hiers the sum of $3,419.75. It is further RECOMMENDED that if Respondent, Jay Nichols, Inc. fails to timely pay Petitioner, L. L. Hiers as ordered, then Respondent, U.S. Fidelity & Guaranty Co. be ordered to pay the Department as required by section 604.21, Florida Statutes, and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes.

Respectfully submitted and entered this 20th day of March, 1989, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1989.

COPIES FURNISHED:

Carl Hiers, Qualified Representative Route 5, Box 339

Dunnellon, Florida 32630

Steve Nichols, Vice President Jay Nichols, Inc.

Qualified Representative Post Office Box 1705 Lakeland, Florida 33802

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

Mallory Horne, General Counsel Department of Agriculture and Consumer Services

513 Mayo Building

Tallahassee, Florida 32399-0800

Ben Pridgeon, Chief

Bureau of Licensing & Bond Department of Agriculture Lab Complex

Tallahassee, Florida 32399-1650

U.S. Fidelity & Guaranty Co. Post Office Box 1138 Baltimore, MD 21203

Docket for Case No: 88-005632

Orders for Case No: 88-005632