STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEAN HENDRICK, )

)

Petitioner, )

)

vs. ) CASE NO. 92-549A

)

F.H. DICKS, III AND F.H. DICKS, IV ) d/b/a F. H. DICKS COMPANY, and ) SOUTH CAROLINA INSURANCE CO., )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in the above-styled case by Stephen

1. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on September 1, 1992 in Live Oak, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Terry McDavid, Esquire

   128 South Hernando Street Lake City, Florida 32055

   
   

   For Respondent: F. H. Dicks, III

   c/o F. H. Dicks Company

   P.O. Box 175

   Barnwell, South Carolina 29812 STATEMENT OF THE ISSUES

   Did the Respondents meet their financial obligations in purchasing watermelons from the Petitioner under the terms of their agreement for said purchase?

   
   

   PRELIMINARY STATEMENT

   
   

   In 1991, the Petitioner negotiated with Respondents' agent to sell watermelons to the Respondents. Petitioner sold several loads of watermelons to the Respondents and received prompt payment. On June 11, 1991, Petitioner prepared a load of medium or larger melons for the Respondents, but ran out of these melons before the truck was full. The Respondents' agent, who was present, instructed the Petitioner to finish the load with "Pee Wee" size melons. It was agreed that the price for these melons would be 10 per pound.

   On June 18, 1991, the Petitioner sold a load of Mirage watermelons to Respondents under the same terms as the prior loads for 6 per pound. The Respondents did not remit payment for these two loads of melons. When Petitioner called and inquired about these loads, he was advised that one load was "mixed" and the other was taken on consignment and the sale price only covered the transportation costs.

   The Petitioner filed a claim against the Respondents' agricultural bond with the Department of Agriculture pursuant to Ch. 406, Florida Statutes, for the amount due on these two loads. The Department determined that a controversy existed between the parties regarding the material facts surrounding the transactions, and referred the case to the Division of Administrative Hearings. The case was set, noticed, and heard.

   
   

   The Respondent, F. H. Dicks, III, appeared and was qualified to represent his son and his company. The parties were afforded the opportunity to file findings of fact and post hearing briefs. The Petitioner did not file post hearing findings of fact. The Respondent, F. H. Dicks, III, filed a letter, which was read and considered, stating what he felt was an equitable settlement of the dispute.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondents, F. H. Dicks, III; F. H. Dicks, IV; and F. H. Dicks Company, are wholesale dealers in watermelons which they purchase and sell interstate.

      
      

   2. The Respondents' agents during the 1991 melon season in the Lake City area were Harold Harmon and his son, Tommy Harmon. The Harmons had purchased watermelons in the Lake City area for several year prior to 1991, and the Petitioner had sold melons through them to the Respondents for two or three seasons.

      
      

   3. The terms of purchase in these prior transactions had always been Freight on Board (FOB) the purchaser's truck at the seller's field with the farmer bearing the cost of picking.

      
      

   4. The terms of purchase of the melons sold by Petitioner to Respondents prior to the loads in question had been FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking.

      
      

   5. One of the Harmons would inspect the load being purchased during the loading and at the scale when the truck was weighed out. After this inspection, the melons accepted by Harmon were Respondents'.

      
      

   6. Price would vary over the season, but price was agreed upon before the melons were loaded.

      
      

   7. Settlement had always been prompt, and the Harmons enjoyed the confidence of the local farmers.

      
      

   8. On June 11, 1991, Petitioner was unable to fill out a load of regular size melons being sold to Respondent. Tommy Harmon was present and instructed Petitioner to finish the load with Pee Wee (smaller) melons. There were 10,602 pounds of Pee Wee melons loaded which Tommy Harmon agreed to purchase at 10 per pound.

      
      

   9. On June 18, 1991, a load of 49,330 pounds of Mirage melons was loaded for the Respondents. It is controverted by F. H. Dicks whether Harold Harmon was present when these melons were loaded; however, Dicks was uncertain and Harmon testified he could not remember. Petitioner testified Harmon was present, and inspected and accepted the melons under the same terms as all prior loads for a price of 6 per pound. Petitioner's testimony is uncontroverted,

      and there is no indication that the terms for this load were different from the other transactions, that is, FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking.

      
      

   10. Under the terms of sale, FOB purchaser's truck at seller's field, the Respondent bore the costs of transportation and the risk of refusal of the produce. Respondent's recourse was against the purchaser who refused delivery. If there was a problem with the grade, the Respondents also bore the risk of loss on sales which they made and which were rejected.

       
       

   11. The Respondents owe the Petitioner $1,060.20 for the Pee Wee melons, and $2,959.80 for the Mirage melons.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division has jurisdiction over the subject matter and the parties pursuant to Chapter 406 and Chapter 120, Florida Statutes. The hearing was held and this order entered pursuant to Chapter 120.57(1), Florida Statutes.

       
       

   13. While there appears to have been a change in the nature of the relationship between Harmon and Dicks in which the power to contract for purchase was limited, Dicks did not insure that the Petitioner, with whom he had been doing business, was apprised of this fact. Prior to the loads in question, the terms had been FOB the purchaser's truck at the seller's field, and there is no evidence that Harmon altered those terms or that Dicks advised the Petitioner that Harmon did not have the authority to offer those terms with regard to either of the transactions in question.

   14. Section 672.606, Florida Statutes, states: 672.606 What constitutes acceptance of goods.

       1. Acceptance of goods occurs when the buyer:

          1. After a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or

          2. Fails to make an effective rejection (s. 672.602(1)), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or

          3. Does any act inconsistent with the seller's ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.

       2. Acceptance of a part of any commercial unit is acceptance of that entire unit.

          
          

   15. The facts reveal that the Respondents' agent contracted to buy the Petitioner's Pee Wee watermelons for 10 per pound and his Mirage watermelons for 6 per pound FOB purchaser's truck at the Petitioner's field. The purchaser bore the expense of transportation, and the seller the costs of picking and loading. The purchaser assumed the risks of loss in subsequent transactions. The Respondents owe the Petitioner $1,060.20 for the Pee Wee melons and

$2,959.80 for the Mirage melons, or a total of $4,020.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED:

Respondents be given 30 days to settle with the Petitioner in the amount of

$4,020, and the Petitioner be paid $4,020 from Respondents' agricultural bond if the account is not settled.

DONE and ENTERED this 6th day of October, 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 6th day of October, 1992.

COPIES FURNISHED:

Terry McDavid, Esquire

128 South Hernando Street Lake City, FL 32055

F. H. Dicks, III

c/o F. H. Dicks Company

P.O. Box 175 Barnwell, SC 29812

Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810

Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau

of Licensure and Bond

508 Mayo Building Tallahassee, FL 32399-0800

South Carolina Insurance Company Legal Department

1501 Lady Street

Columbia, SC 29202

Victoria I. Freeman

Seibels Bruce Insurance Companies Post Office Box One

Columbia, SC 29202

Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810

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: 92-000549

Orders for Case No: 92-000549