STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL HIERS and RACHEL HIERS, )

)

Petitioners, )

)

vs. ) CASE NO. 88-5633A

) JAY NICHOLS, INC., and U. S. ) FIDELITY & GUARANTY COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, WILLIAM R. CAVE, on February 7, 1989, in Dunnellon, Florida. The issue for determination is whether the Respondent, Jay Nichols, Inc., owes the Petitioners, Carl Hiers and Rachel Hiers, the sum of $2,982.35 for watermelons purchased during the 1988 watermelon season in Marion County, Florida.

APPEARANCES

For Petitioner: Carl Hiers, Pro Se and Qualified

Representative Route 5, Box 339

Dunnellon, Florida 32630

For Respondent: Steve Nichols, Vice President

Jay Nichols, Inc. 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, Petitioners seek payment of an alleged balance due on watermelons sold and delivered to Respondent, Jay Nichols, Inc., by Petitioners on June 11, 13, 20 and 23, 1988.

Petitioner, Carl Hiers, testified on behalf of the Petitioners and presented the testimony of L. L. Hiers, Lewis Penny and George F. Crawford. Petitioner's exhibits 1, 2, and 3 were received into evidence.

Respondent presented the testimony of Chris Turskey. Respondent's exhibit

1 was received into 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 88-5534A 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, Carl Hiers and Rachel Hiers were "producers" 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 the 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.

   
   

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

   
   

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

   
   

5. Prior to Petitioners selling or delivering any watermelons (melons) to Nichols, Petitioners and Nichols agreed verbally that: (a) Petitioners would sell Nichols melons on a per pound basis at a price to be quoted by Nichols on the day of shipment; (b) Petitioners 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 Petitioners; (d) Nichols or its agent in the field would have the authority to reject melons at the place of shipment (loading) which did not neet the guality 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 Petitioners in obtaining the crew to harvest and load the melons, Petitioners had authority over the crew and was responsible for paying the crew.

   
   

7. 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 a 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. The price to be paid Petitioners was the price Nichols received for the melons at their destination minus 1 cent per pound commission for Nichols, taking into consideration freight, if any.

9. Nichols was not acting as Petitioners' agent in the sale of the melons for the account of the Petitioners on a net return basis nor was Nichols acting as a negotiating broker between the Petitioners and the buyer. Nichols did not make the type of accountiig to Petitioners as required by section 604.22, Florida Statutes, had Nichols been Petitioners' agent.

   
   

10. 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.

    
    

11. On June 11, 1988, L. L. Hiers 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 the load of melons shipped on June 11, 1988. Only a partial load, no. 10896 weighing 11,420 pounds for which Nichols paid 5 cents per pound, is in dispute. The amount in dispute is $114.70.

    
    

12. On June 13, 1988, L. L. Hiers contacted Nichols and was informed that the price to be paid for melons shipped that day was 5 cents per pound. This price was recorded in the field book with the net weight of 3 loads of melons shipped that day that are in dispute. The 3 loads in dispute are as follows:

    (a) Load No. 10906, weighing 48,620 pounds for which Nichols paid 4 cents per pound; (b) Load No. 10904, weighing 50,660 pounds for which Nichols paid 4 cents per pound, and; (c) Load No. 10902, weighing 45,030 pounds for which Nichols paid 4 cents per pound. The amount in dispute is as follows: (a) Load No. 10906, $486.20; (b) Load No. 10904, $253.30; and (c) Load No. 10902, $450.30.

    
    

13. On June 20, 1988, L. L. Hiers contacted Nichols and was informed that the price to be paid for melons shipped that day was 5 cents per pound. This price was recorded in the field book with the weight of 52,250 for which Nichols paid 2 cents per pound. The amount in dispute is $1,567.50.

    
    

14. On June 23, 1988, L. L. Hiers contacted Nichols and was informed that the price to be paid for melons shipped that day was 5.25 cents per pound. This price is 0.25 cent per pound less than that quoted on the same day in Case No. 88-5632A which is apparently due to the variety, Crimson Sweet, as opposed to Charmston Grey, since the average size of the melons shipped that day was within

    4 ounces. This price was recorded in the field book with the load of melons shipped that day weighing 44,140 pounds for which Nichols paid 5 cents per pound. The load in dispute is load no. 11251, and the amount in dispute is

    $110.35.

    
    

15. The total amount in dispute is $2,982.35.

    
    

16. Load no. 11090 was federally inspected and failed to meet U.S. No. 1 grade on account of condition, not quality requirements. Therefore, the price of 2 cents per pound is a reasonable price and within the terms of the verbal contract.

    
    

17. On all other loads, Nichols contends that the quality was low resulting in a lesser price than that agreed upon. However, Nichols failed to present sufficient evidence to support this contention.

    
    

18. Nichols has refused to pay Petitioners the difference between the agreed upon price for load nos. 10896, 10902, 10904, 10906, 11090, and 11251, and the price paid by Nichols as indicated in the settlement sheet. The total difference is $2,982.35. However, subtracting $1,567.50, the difference in load

    no. 11090 that was rejected, from the total differnce results in a net difference of $1,414,85 and the amount owed to Petitioners.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding pursuant to section 120.57(l), Florida Statutes.

    
    

20. 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 requirment 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.

    
    

21. Petitioners, "producers" 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 11, 13, 20, and 23, 1988.

    
    

22. The evidence is clear that Nichols owes Petitioners the difference between the agreed upon price per pound on load nos. 10896, 10902, 10904, 10906 and 11227, and the price paid by Nichols indicated in the settlement sheet for these loads. However, since the melons on load no. 11090 failed to meet the requirements for U.S. No. 1 grade, the Petitioners are not entitled to any difference because the price has been adjusted for quality as allowed by the parties' verbal agreement.

    
    

23. Assuming arquendo that the parties had agreed that the price would be determined by deducting l cent per pound commission from the price received for the nelons at their destination, there was insufficient evidence to show that the price received for loads 10896, 10902, 10904, 10906 and 11251 at their destination, ninus the penny commission resulted in a price less than that quoted on the days of shipment.

RECOMMENDATION

Upon cnsideration of the foregoing Findings of Fact and 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 the Petitioners, Carl Hiers and Rachel Hiers, the sum of $1,414.85. It is further RECOMMENDED that if Respondent, Jay Nichols, Inc., fails to timely pay Petitioners, Carl Hiers and Rachel 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 Petitioners in accordance with Section 604.21, Florida Statutes.

RESPECTFULLY SUBMITTED AND ENTERED this 20th day of March, 1989, in

Tallahassee, Leon County, 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:

Honorable Doyle Conner, Commissioner Mr. Carl Heirs Depaftment of Agriculture and Mrs. Rachel Hiers

Consumer Service Route 5, Box 339

The Capitol Dunnellon, Florida 32630 Tallahassee, Florida 32301

Mallory Horne, Esquire Jay Nichols, Inc. Department of Agriculture and Post Office Box 1705 Consumer Services Lakeland, Florida 33802

513 Mayo Building

Tallahassee, Florida 32399-0800 U.S. Fidelity & Guaranty

Company

Ben H. Pridgeon, Chief Post Office Box 1138

Bureau of License and Bond Baltimore, Maryland Mayo Building 21203

Tallahassee, FL 32399-0800

Docket for Case No: 88-005633

Orders for Case No: 88-005633