STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KYE BISHOP, d/b/a BISHOP FARMS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4851A

) GROWERS MARKETING SERVICES, ) INC. and PREFERRED NATIONAL ) INSURANCE CO., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Arcadia, Florida, on January 6, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Kye Bishop, pro se

145 North Osceola Arcadia, Florida 33821

For Respondent Attorney Arthur C. Fulmer Growers Marketing 1960 E. Edgewood Drive Services, Inc.: Lakeland, Florida 33806

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to additional payment for a shipment of watermelons that he delivered to Respondent in May, 1993.

PRELIMINARY STATEMENT

By Complaint dated June 24, 1993, Petitioner alleged that

Respondent owed him $3773.50 for the unpaid portion of a shipment of watermelons that Petitioner sold to Respondent on May 6, 1993.

By Supplemental Answer, Respondent denied the material allegations of the Complaint and alleged that Respondent had taken the watermelons from Petitioner in order to sell them for whatever Respondent could get for them because the watermelons were in distressed condition.

At the hearing, Petitioner called one witness and offered into evidence no exhibits. Respondent called four witnesses and offered into evidence eight exhibits. All exhibits were admitted.

Neither party ordered a transcript. At the conclusion of the hearing, each party waived the right to file a proposed recommended order.

FINDINGS OF FACT

1. Growers Marketing Services, Inc. (Respondent) is a broker of watermelons and other agricultural produce. Preferred National Insurance Company, Inc. is the surety for Respondent.

   
   

2. Petitioner has grown watermelons for about six years. In 1993, as in past years, Petitioner sold watermelons to Respondent and other brokers.

   
   

3. Late on the afternoon of May 5, 1993, and continuing past darkness, Petitioner loaded a trailer full of watermelons for C & C, which is another agricultural broker to which Petitioner sells watermelons. Because Petitioner lacks sufficient lighting at the place of loading, the crew could not sufficiently determine the quality of the watermelons that they were loading. Many misshapen and substandard watermelons were loaded, but the trailer was not quite full. The conformance of the shipment, which was supposed to be all large watermelons, suffered further when a C&C representative told Petitioner to complete the load with smaller melons. Petitioner did so.

   
   

4. The C & C shipment was taken to the scales, weighed, and trucked that night to Miami, where the recipient rejected the shipment due to poor quality and small size. On the morning of May 6, Petitioner learned that C & C was returning the shipment to him and would not pay for it.

   
   

5. A field representative of Respondent learned of the rejected shipment and offered to try to sell it for whatever he could. Petitioner agreed. When the melons returned to the area on May 6, they were immediately taken to Respondent's packing house in Plant City.

   
   

6. The packer immediately recognized that the melons were quite distressed. Misshapen, flat, and leaking, the melons needed to be sold fast. The packer so informed representatives of Respondent, who directed the packer to place the melons in large bins, rather than boxes, so they could be more easily marketed. A representative of Respondent immediately informed Petitioner of this development, and he said that they should get whatever they could for the melons.

   
   

7. Respondent called a customer in Jacksonville, explained the situation, and agreed to sell them on consignment to the customer. The customer successfully remarketed a large number of the melons and, on May 25, 1993, remitted to Respondent a check in the amount of $5000, representing full payment for the melons.

   
   

8. Respondent deducted from the $5000 its normal binning charge of $1260 and its normal sales charge of $420, leaving $3320. After a small mandatory deduction for National Watermelon Promotion Board, Respondent remitted to Petitioner, by draft dated June 10, 1993, the net of $3311.60.

   
   

9. With the above-described payment, Petitioner has been paid in full for the watermelons.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

11. Petitioner has failed to prove that he sold the watermelons unconditionally to Respondent on May 6, 1993. The proof fails for two reasons. Petitioner claims that he sold the shipment to C & C on the same unconditional basis and for the same premium price as he later sold the same melons to Respondent. However, Petitioner agreed to take back the rejected shipment and try to market it to or through Respondent. If the shipment were no longer his problem, there is no reason why Petitioner would do more than have the two brokers negotiate directly.

    
    

12. Second, Petitioner fails to explain why Respondent would pay premium price, sight unseen, for a load that had already been rejected and subject to shipment over hundreds of miles. Such an arrangement would impose upon Respondent an inordinate amount of risk for which, given the premium price that Petitioner claims that Respondent agreed to pay, Respondent would have received no reward (i.e., through a discounted price). This is highly unlikely.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the Complaint.

ENTERED on January 10, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

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 on January 10, 1994.

COPIES FURNISHED:

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

Richard Tritschler, General Counsel Department of Agriculture

The Capitol, PL-10 Tallahassee, FL 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

508 Mayo Building Tallahassee, FL 32399-0800

Kye Bishop, pro se

145 N. Osceola Arcadia, FL 33821

Arthur C. Fulmer

P.O. Box 2958 Lakeland, FL 33806

Preferred National Insurance

P.O. Box 40-7003

Ft. Lauderdale, FL 33340-7003

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. 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: 93-004851

Orders for Case No: 93-004851