STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM SPENCER & RONNIE )

SPENCER, d/b/a SPENCER )

FARMS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7367A

) MO-BO ENTERPRISES, INC. and ) LAWYERS SURETY CORPORATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to Notice, this matter was heard by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings on May 19, 1992 in Gainesville, Florida.

APPEARANCES

For Petitioner: Rodney W. Smith, Esquire

Smith & Fletcher, P.A.

P.O. Box 628

Alachua, Florida 32615

For Respondent: William Robert Leonard, Esquire

633 S. Andrews Avenue, Ste. 402 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

Whether Mo-Bo contracted to buy Spencer's peppers at the following price per box based upon size: $18 for large, $13 for medium, or $7 for small?

PRELIMINARY STATEMENT

The Petitioner testified regarding the agreement for sale of his peppers to Respondent. Several of Respondent's employees testified concerning the transaction. The controversy is whether the contract price quoted by Respondent's employee was $18 for large, $13 for medium, and $7 for small peppers as alleged by Petitioner, or $18 for extra large, $13 for large, and $7 for medium peppers as asserted by Respondent.

The contract for sale was not reduced to writing. The Respondent was purchasing, not handling, the peppers. There was no dispute about the number and grade of the peppers. The market prices for the various peppers were stated in the Federal-State Market News for May 24, 28, 29 and 30, 1991. Both parties agree to the accuracy of these reports.

Petitioner filed a timely claim with the Department of Agriculture which forwarded the matter to the Division of Administrative Hearings to conduct the formal hearing. The Respondent submitted a proposed order which was read and considered. Appendix A states which findings were adopted, and which were rejected and why.

FINDINGS OF FACT

1. On May 27, 1991, Ronnie Spenser called Rick Moore at approximately 10:00 a.m. Mr. Spenser had already had a crew picking peppers for delivery to Respondent's packing house since early that morning. Mr. Spenser asked Mr. Moore for a quote on peppers.

   
   

2. A controversy exists about the quote Mr. Moore gave Mr. Spenser. However, they both agree that Mr. Moore quoted the amounts of $18, $13, $7, and it was understood that the quote was the price for which Respondent would purchase the peppers.

   
   

3. Mr. Moore testified the market was unstable in peppers, and, upon the advise of his superiors, he quoted Mr. Spenser a price per box of $18 for extra large peppers, $13 for large peppers, and $7 for medium peppers.

   
   

4. Mr. Spenser testified that Mr. Moore quoted the price per box as $18 for large peppers, $13 for medium peppers, and $7 for small peppers.

   
   

5. Both men agree that the same thing occurred on the following day, May 28, 1991.

   
   

6. The Respondent paid Mr. Spenser $14 for large peppers, $7 for medium peppers, and $5 for small peppers.

   
   

7. There was no written contract for the transaction. There is no dispute about the quantity or the quality of the peppers.

   
   

8. The market prices for May 27, 1991, as reported May 28, 1991, were as follows:

   
   

   Extra Large $22-25, Mostly $25

   Large $18-20

   Medium $12-14.25

   Mostly $14

   Small $8-10

   
   

9. The market prices for May 28, 1991, as reported on May 29, 1991, were as follows:

   
   

   Extra large	$20-25.25
   Mostly	$22-25
   Large	$16-20.25
   Mostly	$18-20
   Medium	$12-14.25
   Small	$8-10.25

   
   

10. The market reports for May 24 and May 30, 1991 indicate a relatively stable market. On May 24, 1991 the prices were exactly the same as May 28,

    1991. Not until May 30, 1991 did the prices for extra large, large and medium peppers dropped about $2.00 per box.

    
    

11. Although the Respondent asserts it did not quote a price for small peppers, it bought the small peppers from Petitioner.

    
    

12. Extra large peppers are a specialty item, and generally are quoted separately.

    
    

13. The prices to which Mr. Spenser testified were closer to the market prices than those alleged to have been quoted by Mr. Moore:

    
    

    	Spenser	Market Report	Moore
    Extra large		$22	$18
    Large	$18	$18	$13
    Medium	$13	$12	$ 7
    Small	$ 7	$ 8

    
    

14. The market price is FOB shipping point, and the cost for Respondent to process is $.50-$1.00 per box.

    
    

15. The prices paid by Respondent were as follows for the peppers it purchased from Petitioner:

    
    

    Large	$14	x 883 boxes = $12,362
    Medium	$ 7	x 1541 boxes = $10,787
    Small	$ 5	x 759 boxes = $ 3,795

    
    

16. The difference in what was paid and what is claimed per size of pepper

    is:
    	Large	4 x	883 =	$3,532
    	Medium	6 x	1541 =	$9,246
    	Small	2 x	759 =	$1,518
    				$14,296

    
    

17. Farmers keep up with the prices of produce. It is highly unlikely that Petitioner would have agreed to sell his peppers at $5, $6, $2 less per size of pepper than the going market price.

    
    

18. There is substantial and competent evidence to find that the contracted price for the peppers was $18/box for large peppers, $13/box for medium peppers, and $7/box for small peppers, and Petitioner has a valid claim in the amount of $14,296.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter pursuant to Chapter 604 and Chapter 120, Florida Statutes.

    
    

20. The Petitioner alleges that Respondent contracted verbally to purchase his crop of peppers on May 27 and 28, 1991 for $18/box for large peppers,

    $13/box for medium peppers, and $7/box for small peppers. These prices are very close to the market price. It is unlikely that Petitioner would have sold his peppers for $5, $6, and $2 respectively less than the prevailing market price.

    The prices allegedly quoted by Mr. Moore are not supported by the market price quotations.

    
    

21. It is concluded that Petitioner and Respondent contracted to sell and buy the Petitioner's peppers for $18/box for large peppers, $13/box for medium peppers, and $7/box for small peppers, and has a valid claim in the amount of

$14,296 against the Respondent's agricultural bond pursuant to Chapter 604.15- 604.30, Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact, the Hearing Officer recommends that the Department of Agriculture enter its order substantiating the Petitioner's claim of $14,296 and awarding the amount of the claim from Respondent's agricultural bond.

DONE and ORDERED this 30th day of June, 1992, in Tallahassee, Florida.

STEPHEN F. DEAN,

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1992.

APPENDIX

The Respondent submitted a proposed finding which was read and considered.

The following paragraphs were adopted, or rejected for the reasons stated: Paragraphs

1.Stated in detail paragraph 15. The peppers were sold by "size" which relates to how many will fill a standard box.

3, 4, 5, 6.Irrelevant

7.The market reports for May 24, 28, 29 and 30, 1991 were introduced. 8.To the extent that Mo-Bo asserts this; the statement is correct. The Petitioner's assertion was found more credible.

1. Paragraph 6.

2. Irrelevant, however, if so why was the price for extra large peppers quoted to him.

11.Irrelevant. 12.Irrelevant.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agricutlure The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Rodney W. Smith, Esquire Smith & Fletcher, P.A.

P.O. Box 628

Alachua, Florida 32615

William Robert Leonard, Esquire Ste. 402, 633 S. Andrews Avenue Ft. Lauderdale, Florida 33308

Lawyers Surety Corporation Legal Department

1025 S. Semoran, Suite 1085 Winter Park, Florida 32792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-007367

Orders for Case No: 91-007367