STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KROME AVENUE BEAN GROWERS, INC., ) d/b/a KROME AVENUE BEAN SALES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2862A

)

WEIS-BUY SERVICES, INC. and ) AETNA CASUALTY & SURETY COMPANY )

OF MARYLAND, 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 January 8, 1996, by video with the Hearing Officer being in Tallahassee, Florida, and the parties, witnesses, and court reporter being in Miami, Florida.

APPEARANCES

For Petitioner: Mark Underwood, Vice President

Krome Avenue Bean Growers, Inc. d/b/a Krome Avenue Bean Sales Post Office Box 343536

Florida City, Florida 33034

For Respondent, Hank Douglas Weis-Buy: Denise Hagan

Weis-Buy Services, Inc.

6225 Presidential Court, Suite D Fort Myers, Florida 33919

For Respondent,

Aetna: No Appearance

STATEMENT OF THE ISSUE

Whether Respondents are indebted to Petitioner for 35 boxes of beans sold by Petitioner to Respondent, Weis-Buy Services, Inc., and, if so, the amount of the indebtedness.

PRELIMINARY STATEMENT

On January 5, 1995, Petitioner sold to Respondent, Weis-Buy Services, Inc.,

35 boxes of beans for the sum of $999.25. The beans were loaded on Weis-Buy's truck on the date of purchase. When the beans were inspected in Columbus, Ohio, on January 9, 1995, a federal inspector found the beans to be damaged as a

result of freezing. Based on that inspection, the beans were dumped.

Petitioner contends that it is entitled to be compensated because the beans were not damaged when Weis-Buy took delivery by truck. Petitioner asserts that any freeze damage would have occurred after the beans were loaded on the truck, either in the truck or on a loading dock after delivery. Respondent Weis-Buy denies that it is responsible for the freeze damage and points that other produce transported with the beans did not suffer freeze damage.

At the formal hearing, Mark A. Underwood testified on behalf of the Petitioner and presented two exhibits, a copy of the invoice and a copy of the federal inspection report. Both exhibits were admitted into evidence. Hank Douglas and Denise Hagan, both employees of Respondent Weis-Buy, testified on behalf of their employer. No exhibits were offered on behalf of the Respondents. Respondent Aetna did not appear and was not represented at the formal hearing.

No transcript of the proceedings has been filed. Neither party filed a post-hearing submittal.

FINDINGS OF FACT

1. Respondent, Weis-Buy Services, Inc., is a dealer in agricultural products licensed by the Florida Department of Agriculture and Consumer Services. Respondent, Aetna Casualty & Surety Company of Maryland acts as surety for Weis-Buy.

   
   

2. On January 5, 1995, Mark A. Underwood, Vice President of the Petitioner, sold to Respondent, Weis-Buy Services, Inc., 35 boxes of beans. This sale was the result of the order placed by Hank Douglas, a duly authorized employee of Weis-Buy. The price agreed to by the Petitioner and Weis-Buy was

   $28.55 per box, for a total purchase price of $999.25.

   
   

3. The beans sold by Petitioner to Weis-Buy had been purchased by Petitioner from another grower, Suncoast Farms.

   
   

4. There was no written contract between Petitioner and Suncoast or between Petitioner and Weis-Buy.

   
   

5. Weis-Buy took delivery of the beans at Petitioner's dock in Homestead, Florida, on January 5, 1995.

   
   

6. The beans were loaded into a refrigerated truck in the employ of Weis- Buy on January 5, 1995. From Homestead, the truck drove to Belle Glade, Florida, a trip of approximately 3.5 hours. In Belle Glade, the truck picked up a load of radishes. The truck then went to Immokalee, Florida, where it picked up a quantity of squash. The following day, the truck picked up a load of cherry tomatoes.

   
   

7. On January 9, 1995, the beans were inspected by a federal inspector in Columbus, Ohio. 1/ The inspector noted on his inspection report that the beans showed evidence of freeze damage that was ". . . so located as to indicate freezing injury occurred after packing but not at present location". The inspection report noted that the beans were to be dumped.

   
   

8. The parties disagree as to when the freeze damage to the beans occurred. Because Weis-Buy believes that the freeze damage occurred before it took delivery of the beans, it has refused to pay Petitioner for the 35 boxes of

   beans. The reason Weis-Buy believes that the freeze damage occurred before the beans were loaded onto the truck is because the other vegetables that were transported by the refrigerated truck were not damaged.

   
   

9. Partly because the beans had been purchased from another grower, Mr. Underwood inspected the beans immediately prior to their being loaded onto Weis- Buy's truck. Based on his testimony, it is found that there was no freeze damage to the beans when they were loaded on Weis-Buy's truck on January 5, 1995. It is found that the freeze damage to the beans revealed by the federal inspection on January 9, 1995, occurred after the beans had been delivered to Weis-Buy. Consequently, it is concluded that Petitioner fulfilled its obligations under the verbal contract and is entitled to be paid the sum of

   $999.25.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

11. A "dealer in agricultural products" is defined in Section 604.15(1), Florida Statutes, as follows:

    
    

    1. ny person, whether itinerant or domiciled within this state, engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer or his agent or representative for resale or processing for sale; acting as an agent for such producer in the sale of agricultural products for the account of the producer on a net return basis; or acting as a negotiating broker between the producer or his agent or representative and the buyer.

       
       

       At all times material hereto, Respondent Weis-Buy was a "dealer in agricultural products," as defined in Section 604.15(1), Florida Statutes.

       
       

12. In accordance with Section 604.18, Florida Statutes, a "dealer in agricultural products," must be licensed by the Department to transact business in the State of Florida. A surety bond or certificate of deposit in the amount of at leas $3,000 is required as a condition of licensure. See, Section 604.20(1), Florida Statutes. Respondent Aetna served as Weis-Buy's surety.

    
    

13. Beans are "agricultural products" as defined in Section 604.15(3), Florida Statutes.

    
    

14. Section 604.21, Florida Statutes, provides the complaint procedure against a dealer in agricultural commodities and its surety that was followed by Petitioner in this proceeding. In the instant case, Petitioners timely filed a complaint against Weis-Buy and against Aetna, its surety.

    
    

15. A formal hearing on the complaint must be conducted if there are disputed issues of material fact.

    
    

16. The complainant has the burden of proving the allegations of the complaint by a preponderance of the evidence. See Florida Department of

    Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974). If the Department determines that the complainant has met his burden of proof, it must "enter its order adjudicating the amount of indebtedness due to be paid by the dealer to the complainant," which order is "final upon issuance." See, Section 604.21(4), (5) and (6), Florida Statutes.

    
    

17. If payment is not made within 15 days after the issuance of the Department's order, the Department must, "in instances involving bonds, call upon the surety company to pay over to the [D]epartment out of the bond posted by the surety for such dealer or, in instances involving certificates of deposit, call upon the financial institution issuing such certificate to pay over to the [D]epartment out of the certificate under the conditions of the assignment or agreement, the amount called for in the order of the [D]epartment" and, upon receiving such payment, the Department must distribute the proceeds to the complainant. Section 604.21(7) and (8), Florida Statutes.

    
    

18. Petitioner has established that Weis-Buy is indebted to it in the amount of $999.25 for the 35 boxes of beans at issue in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture

and Consumer Services that adopts the findings of fact and conclusions contained herein, that finds Respondent Weis-Buy Services, Inc., is indebted to Petitioners in the amount of $999.25, directs Weis-Buy Services, Inc., to make payment to Petitioner in the amount of $999.25 within 15 days following the issuance of the order, and provides that if payment in full of this $999.25 indebtedness is not timely made, the Department will seek recovery from the Aetna Casualty & Surety Company of Maryland, as Weis-Buy's surety.

DONE AND ENTERED this 16th day of February, 1996, 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 16th day of February 1996.

ENDNOTE

1/ Pursuant to Section 92.20, Florida Statutes, a federally issued inspection report relating to the grade, classification, quality, or condition of agricultural products is to be accepted as prima facie evidence as to the true grade, classification, condition or quality of the agricultural product at the time of the inspection.

COPIES FURNISHED:

Mark A. Underwood, Vice President Krome Avenue Bean Growers, Inc.

Post Office Box 343536 Florida City, Florida 33034

Mr. Hank Douglas Ms. Denise Hagan

Weis-Buy Services, Inc.

6225 Presidential Court, Suite D Fort Myers, Florida 33919

Aetna Casualty & Surety Company Legal Department

151 Farmington Avenue Hartford, Connecticut 06156

Richard Tritschler, Esquire Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

Brenda D. Hyatt, Chief Department of Agriculture Bureau of License and Bond Mayo Building, Room 508

Tallahassee, Florida 32399-0800

Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10

Tallahassee, Florida 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 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: 95-002862

Orders for Case No: 95-002862