STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAULINE ALLEN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6173A

)

SUNSHINE FRUIT COMPANY, INC., )

and MERITOR SAVINGS, F.A., )

)

Respondents. )

)

RECOMMENDED ORDER

Notice was provided and a formal hearing was conducted in this case pursuant to Section 120.57(1), Florida Statutes. The hearing was held on February 21, 1994, in the Brooksville City Hall Annex, 30 Brooksville Avenue, Brooksville, Florida. Charles C. Adams was Hearing Officer.

APPEARANCES

For Petitioner: Phillip Allen (Personal Representative)

695 North Maylen

Lacanto, Florida 34461

For Respondent: Sunshine Fruit Company, Inc.

Allen Reiter (Personal Representative) 3535 Recker Highway

Winter Haven, Florida 33880

For Respondent: Meritor Savings, F.A. (No Appearance)

STATEMENT OF ISSUES

The issues presented here concern the attempt by Petitioner to recover

$2,367.30 as payment for watermelons sold to Sunshine Fruit Company, Inc. See Sections 604.15 - 604.30, Florida Statutes.

PRELIMINARY STATEMENT

On August 30, 1993, Petitioner filed a complaint with the State of Florida, Department of Agriculture and Consumer Services pursuant to Sections 604.15- 604.30, Florida Statutes, as referred to in the Statement of Issues. On September 22, 1993, the Department gave notice to Respondents that the complaint had been filed. On October 13, 1993, Sunshine Fruit Company responded in opposition to the complaint. On October 22, 1993, Petitioner was advised that Sunshine Fruit Company had opposed the complaint through its answer. On October 22, 1993, the Division of Administrative Hearings was requested to assign a hearing officer to conduct a formal hearing to resolve this controversy. The hearing was conducted on the aforementioned date.

Dale Swain, Bill Hamilton, Charles Gardner, Harry Sam, Jr., Ramona Gardner, Pauline Allen and Phillip Allen testified for Petitioner. Petitioner's Exhibits No. 1 through 5 were admitted. Larry Thompson testified for Respondent Sunshine Fruit Company.

Sunshine Fruit Company has submitted proposed fact finding. Petitioner did not submit a proposed recommended order. The fact finding submitted by Respondent Sunshine Fruit Company has been considered and is addressed in an appendix to the recommended order.

FINDINGS OF FACT

1. In July, 1993, Petitioner was a producer of agricultural products in Florida. That product was watermelons.

   
   

2. At that time Sunshine Fruit Company was a dealer in agricultural products grown in Florida.

   
   

3. Bill Hamilton also produced watermelons in Florida in July, 1993. His field had a common boundary with Petitioner's field. The watermelons taken from Petitioner's field in July, 1993 adjacent to the Hamilton field are at issue here.

   
   

4. Bill Hamilton had done business with Sunshine Fruit Company in 1993 but was unable to meet the July demand which Sunshine Fruit Company had for watermelons.

   
   

5. Hamilton had conducted his business with Allen Reiter as representative for Sunshine Fruit Company. To assist Reiter in obtaining additional watermelons in July that Hamilton could not supply, Hamilton referred Reiter to the Petitioner.

   
   

6. An agreement was made to sell Petitioner's watermelons. The agreement was one in which Phillip Allen, Petitioner's son, served as her representative in the negotiations. In this arrangement the son was entitled to fifty percent of any profits and Petitioner the remaining 50 percent.

   
   

7. The deal Petitioner made was to provide one load of medium melons and one load of large melons to Sunshine Fruit Company.

   
   

8. Allen Reiter sent trucks to pick up the melons from Petitioner's field.

   
   

9. After referring the Petitioner's business to Sunshine Fruit Company, Bill Hamilton observed Allen Reiter cut watermelons that were being delivered to Sunshine Fruit Company to examine the condition of the watermelons. Those watermelons that were being examined were located on a field truck. The field truck was a truck different from the truck that was to be used in transporting the watermelons to market. Hamilton also observed Reiter examining watermelons that were being loaded onto the transport truck.

   
   

10. Hamilton had not experienced significant problems with hollow heart or bruising in the watermelons that he had harvested in the field adjacent to that belonging to the Petitioner in the year 1993.

11. An approach which Hamilton and Petitioner had employed to avoid crop damage to the watermelons was to avoid loading watermelons that had become wet when it rained. Both producers, that is to say Hamilton and the Petitioner, had experienced an occasional slow down in harvesting in July, 1993, because of rain.

    
    

12. Rain delayed the harvesting and loading of the Petitioner's watermelons provided to Sunshine Fruit Company. When the rain shut down the harvesting operation, some of the watermelons had already been picked. Harvested watermelons were put on the field truck before the rain commenced and were covered up with plastic to keep the rain from damaging the watermelons.

    The watermelons that had been picked that morning and placed on the field truck were left on the field truck while it rained hard that afternoon. The load that is being described was finished with watermelons picked the following day.

    
    

13. Charles Gardner who worked for Petitioner in the harvesting operation also saw Allen Reiter cut watermelons that were on the field truck on the first day, the day it rained in the afternoon. Gardner also saw Reiter examine melons on the field truck on the second day.

    
    

14. Phillip Allen and others loaded the two trucks provided by Sunshine Fruit Company and he supervised that operation.

    
    

15. The second load of watermelons was placed on a truck that Phillip Allen and Charles Gardner understood to be Allen Reiter's "personal truck." An individual whose name was not identified at the hearing, whom Gardner and Phillip Allen understood to be "Reiter's personal driver", based upon an introduction made by Allen Reiter, interfered with the attempts by Phillip Allen to discard watermelons of questionable quality that were being loaded onto the transport truck. Phillip Allen told the driver that the questionable watermelons were bad, and the driver said "they are all right". When Phillip Allen would attempt to discard watermelons, this unidentified individual would return the questionable watermelons into the group of watermelons being transported, accompanied by a remark to the effect, "don't worry about it."

    This arrangement was contrary to the more typical arrangement in which the producer would discard what it referred to as the "culls." This caused a considerable number of watermelons to be kept for transport that should have been discarded. In the past the "culls" had been broken in the field or sold as pig feed.

    
    

16. Phillip Allen tried to contact Allen Reiter by telephone after experiencing problems in which the driver insisted that substandard watermelons be packed. Phillip Allen was unable to reach Allen Reiter. Being unsuccessful in this attempt at contact, Phillip Allen deferred to the driver's choice to leave bad watermelons in the load for transport to market. However, Phillip Allen, not the driver, was in charge of the loading of the truck upon which substandard watermelons were being placed. Therefore, to the extent that the substandard watermelons diminished the value of the load, Petitioner must suffer the consequences. Nothing in the record leads to the conclusion that the driver had the authority to act as agent for Sunshine Fruit Company in determining what watermelons were of sufficient quality to be shipped.

    
    

17. The driver mentioned in the previous paragraph stated in the presence of Charles Gardner that he was going home for the weekend and would deliver the watermelons on Monday. This comment was made on the prior Friday. The driver stated in the presence of Phillip Allen that he was going home because of brake problems and was going to wait to deliver the melons until Monday.

18. Larry Thompson was the buyer and field supervisor for Sunshine Fruit Company in the transaction with Petitioner. Because it had been raining for several days, the decision to purchase the watermelons was through an arrangement in which the price would be determined at the time of receipt at the ultimate destination for the produce. There was no written agreement between the parties.

    
    

19. Larry Thompson went to the field on the day after it had rained.

    
    

20. While at the field on the second day Thompson observed the load of large watermelons. Charles Gardner told Larry Thompson that the large watermelons were popping. Larry Thompson told Allen Reiter that Reiter needed to check the large watermelons. Larry Thompson observed watermelons that were split. The watermelons were further observed by cutting the melons to examine them. During these events Thompson told Reiter that Thompson was glad that Sunshine Fruit Company was "riding" the watermelons, meaning waiting to determine the price until delivery at the ultimate destination. Otherwise Sunshine Fruit Company would not have bought the watermelons that were in the questionable condition as Thompson observed them on the second day. Some of these substandard watermelons were observed by Phillip Allen when loading the trailer and in conversation with the unnamed driver.

    
    

21. As expected, this load of watermelons was in poor condition at the place and time that it was delivered. This was confirmed by an inspection that was performed at the place of ultimate delivery. Phillip Allen was made aware of the problem with that load. Phillip Allen told Larry Thompson that he, Phillip Allen, was going to have to contact the Inspector and asked that Thompson provide Allen with a copy of the inspection report. Thompson mailed Allen a copy of the inspection report.

    
    

22. Thompson told Allen that some arrangement would have to be made to gain the best financial outcome with the questionable load of watermelons that could be achieved or that the watermelons would have to be dumped. It was resolved between Thompson and Allen that an individual in Pittsburgh, Pennsylvania, would be responsible for making some disposition with the questionable load of watermelons and this was accomplished by that individual in Pittsburgh, Pennsylvania.

    
    

23. It is unclear who would pay for freight. Concerning the freight costs, Petitioner made no claim at hearing that the freight costs should be borne by Sunshine Fruit Company, and Petitioner and Sunshine Fruit Company failed to prove the amount of freight costs that had been incurred. However, based upon testimony by Dale Swain, a dealer in agricultural products in the region, it is inferred that the custom and practice employed in selling watermelons in 1993, to include watermelons sold by Petitioner to Sunshine Fruit Company, called for the deduction of freight expenses from the price paid for the watermelons.

    
    

24. Watermelons Swain purchased from Petitioner in July 1993 were of acceptable quality.

    
    

25. It was established that the cost of harvesting the subject watermelons would be borne by the producer, Pauline Allen.

    
    

26. Phillip Allen established that the price per pound for both medium and large watermelons was 3.5 .

27. It is undisputed that the load amounting to 41,180 pounds at 3.5 per pound was worth $1,441.30. Nor is there any contention concerning the fact that Sunshine Fruit Company has paid $740 to the Petitioner for the watermelons in question.

    
    

28. At hearing, Petitioner asserted that the second load, the load with problems, weighed at the scales in Florida before the transport in the amount 47,600 pounds. At 3.5 per pound the claimed value was $1,666.00. The at-scale value was not the agreed upon arrangement. The actual amount which was paid for the problem second load as delivered was not established at the hearing, but it can be inferred that the amount is less than $1,666.00 based upon facts that were presented at hearing.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

30. Petitioner is a producer of agricultural products as defined in Section 604.15, Florida Statutes. Sunshine Fruit Company, Inc. is a dealer in agricultural products as defined in that section.

    
    

31. When served with the Petitioner's complaint, Sunshine Fruit Company contested the facts in that complaint and made a timely request for a formal hearing. See Section 604.21, Florida Statutes.

    
    

32. In accordance with Section 604.21, Florida Statutes, Petitioner bears the burden of establishing her claim to the payment of additional funds. As proven, the first load of watermelons sold at 41,180 pounds was worth a gross value of $1,441.30. Sunshine Fruit Company has paid $740.00. It has not been shown that 47,600 pounds of watermelons at 3.5 per pound were delivered in acceptable condition at a value of $1,666.00. Moreover, Petitioner has failed to account for the freight costs that Petitioner is obligated to pay. Under these circumstances Petitioner is not entitled to recover the amount of

$2,367.30 that she claims.

RECOMMENDATION

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

That the Final Order be entered which dismisses the complaint calling for the payment of additional monies in the amount of $2,367.30.

DONE and ENTERED this 18th day of March, 1994, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 18th day of March, 1994.

APPENDIX CASE NO. 93-6173A

The following discussion is given concerning the Respondent Sunshine Fruit Company's findings of fact:

Unnumbered Paragraph 1 is subordinate to facts found with the exception that it is not clear in the record whether both loads are to be paid for within two weeks of passing inspection.

Unnumbered Paragraphs 2 and 3 are not supported by the record. Unnumbered Paragraph 4 constitutes legal argument.

COPIES FURNISHED:

Phillip Allen 695 North Maylen

Lacanto, FL 34461

Allen Reiter

3535 Recker Highway Winter Haven, FL 33880

Richard E. Straughn, Esquire Post Office Box 2295

Winter Haven, FL 33883-2295

Meritor Savings, F.A. Post Office Box 193 Winter Haven, FL 33882

Brenda Hyatt, Chief Department of Agriculture Bureau of Licensure and Bond

508 Mayo Building Tallahassee, FL 32399-0800

Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level 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. 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. id for within two weeks of passing inspection.

Unnumbered Paragraphs 2 and 3 are not supported by the record. Unnumbered Paragraph 4 constitutes legal argument.

COPIES FURNISHED:

Phillip Allen 695 North Maylen

Lacanto, FL 34461

Allen Reiter

3535 Recker Highway Winter Haven, FL 33880

Richard E. Straughn, Esquire Post Office Box 2295

Winter Haven, FL 33883-2295

Meritor Savings, F.A. Post Office Box 193 Winter Haven, FL 33882

Brenda Hyatt, Chief Department of Agriculture Bureau of Licensure and Bond

508 Mayo Building Tallahassee, FL 32399-0800

Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level 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. Some Filed with the Clerk of the

Division of Administrative Hearings this 18th day of March, 1994.

APPENDIX CASE NO. 93-6173A

The following discussion is given concerning the Respondent Sunshine Fruit Company's findings of fact:

Unnumbered Paragraph 1 is subordinate to facts found with the exception that it is not clear in the record whether both loads are to be paid for within two weeks of passing inspection.

Unnumbered Paragraphs 2 and 3 are not supported by the record. Unnumbered Paragraph 4 constitutes legal argument.

COPIES FURNISHED:

Phillip Allen 695 North Maylen

Lacanto, FL 34461

Allen Reiter

3535 Recker Highway Winter Haven, FL 33880

Richard E. Straughn, Esquire Post Office Box 2295

Winter Haven, FL 33883-2295

Meritor Savings, F.A. Post Office Box 193 Winter Haven, FL 33882

Brenda Hyatt, Chief Department of Agriculture Bureau of Licensure and Bond

508 Mayo Building Tallahassee, FL 32399-0800

Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level Tallahassee, FL 32399-0810

Docket for Case No: 93-006173

Orders for Case No: 93-006173