STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARVEY JOHNSON, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2156A

)

FRESH PICK FARMS, INC., and )

FLORIDA FARM BUREAU MUTUAL ) INSURANCE COMPANY, as Surety, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on November 19, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Harvey Johnson, pro se

538 Northwest 13th Street Florida City, Florida 33304

For Respondent, J. James Donnellan, III, Esquire Fresh Pick 1900 Brickell Avenue

Farms, Inc.: Miami, Florida 33129

For Respondent, Farm Bureau Mutual Insurance

Company: No Appearance

STATEMENT OF THE ISSUES

Whether Respondents are indebted to Petitioner for agricultural products and, if so, the amount of the indebtedness.

PRELIMINARY STATEMENT

Petitioner timely filed a complaint against Respondent, Fresh Pick Farms, Inc. and its surety, Farm Bureau Mutual Insurance Company, pursuant to the provisions of Section 604.21, Florida Statutes. Petitioner asserts that Respondent, Fresh Pick Farms, Inc., is indebted to him because Fresh Pick has not paid for beans grown by Petitioner and received by Fresh Pick for sale on a consignment basis. Florida Farm Bureau Mutual Insurance Company is Fresh Pick's surety. Respondents timely disputed the Petitioner's claims, and this proceeding followed.

At the formal hearing, Petitioner testified on his own behalf and introduced two exhibits, each of which was accepted into evidence. Respondent, Fresh Pick Farms, Inc., called three witnesses and introduced three exhibits, each of which was accepted into evidence.

No transcript of the proceedings has been filed. The post-hearing submittal filed by Petitioner, in the form of a statement addressed "to whom it may concern" and filed December 2, 1993, contains argument that is contrary to the conclusions reached in this proceeding. To the extent that this statement is construed to contain proposed findings of fact, those proposed findings are rejected as being contrary to the findings made or as being unnecessary to the conclusions reached. The proposed findings of fact submitted by Respondent, Fresh Pick Farms, Inc., are adopted in material part by the Recommended Order.

FINDINGS OF FACT

1. Petitioner delivered to Respondent, Fresh Pick Farms, Inc., (Fresh Pick) a total of 932 bushels of green beans on November 21 and 22, 1992. These beans were delivered and received with the agreement that Fresh Pick would attempt to sell the beans on a consignment basis in the wholesale market.

   
   

2. At the times pertinent to this proceeding, communication in South Florida was limited because of the aftermath of Hurricane Andrew. Telephone lines were down, packing houses and storage facilities had been destroyed, and many businesses were not operating. The packer that Petitioner customarily used was out of business. Fresh Pick was operating out of temporary facilities.

   
   

3. Lewis Walker, the president of Fresh Pick, had inspected Petitioner's beans on November 18, 1992. Mr. Walker advised Petitioner to have his beans harvested no later than November 20, 1992. This advice was based on the condition of the beans, on the fact that there was a great deal of rain in the area, and the fact that markets slow down and prices drop as Thanksgiving approaches.

   
   

4. The beans delivered to Fresh Pick on November 21 and 22, 1992, were damaged due to the wet weather. These beans were of such poor quality that they could not be sold given the marketing conditions. Fresh Pick made every reasonable effort to find a market for Petitioner's beans without success.

   
   

5. After it became apparent to Fresh Pick that it would be unable to sell Petitioner's beans, employees of Fresh Pick made efforts to locate Petitioner, explain to him why the beans could not be sold, and ask him for instructions. Petitioner could not be located despite good faith efforts by Fresh Pick employees to do so.

   
   

6. Rather than dump the unsold beans, Fresh Pick gave the beans to a charity referred to as Food Share. The disposition of the beans was consistent with industry practices in South Florida.

   
   

   CONCLUSIONS OF LAW

   
   

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

8. Petitioner was a producer of green beans in Dade County, Florida, during 1992. Green beans are "agricultural products" within the meaning of Section 604.15(3), Florida Statutes.

   
   

9. Respondent, Fresh Pick Farms, Inc., was a licensed dealer in agricultural products during 1992.

   
   

10. Section 604.21, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. Any person claiming himself to be damaged by any breach of a[n] . . . agreement given by a licensed dealer in agricultural products . . . may enter complaint thereof against the dealer and against the surety, if any, to the [D]epartment, which complaint shall be a written statement of the facts constituting the complaint.

       * * *

       (6) Any party whose material interest is affected by a proceeding pursuant to this section shall be granted a hearing upon request. Such hearing shall be conducted pursuant to chapter 120. The order of the department, when issued pursuant to the recommended order of a hearing officer, shall be final upon issuance.

       
       

11. The Department referred to in Section 604.21, Florida Statutes, is the Department of Agriculture and Consumer Services. See, Section 604.15(2), Florida Statutes.

    
    

12. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the relief he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

13. The Petitioner in this case has failed to meet his burden of proof. To the contrary, the greater weight of the evidence establishes that Fresh Pick made every reasonable effort to sell Petitioner's beans, that it was unable to do so, and that it disposed of the beans in accordance with industry practice after unsuccessfully attempting to locate the Petitioner. It is concluded that neither Respondent is indebted to the Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter

a Final Order in this case dismissing the Petitioner's complaint and denying the

relief requested by the Petitioner.

DONE AND ENTERED this 28th day of December, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 28th day of December, 1993.

COPIES FURNISHED:

Mr. Harvey Johnson

538 Northwest 13th Street Florida City, Florida 33304

J. James Donnellan, III, Esquire 1900 Brickell Avenue

Miami, Florida 33129

Legal Department

Florida Farm Bureau Mutual Insurance Company

5700 Southwest 34th Street Gainesville, Florida 32608

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

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

508 Mayo Building

Tallahassee, Florida 32399-0800

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 ten days in which to submit written exceptions. Some agencies allow a larger period within 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: 93-002156

Orders for Case No: 93-002156