STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. J. CHASTAIN & KYE BISHOP ) d/b/a CHASTAIN-BISHOP FARMS, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 95-4226A

   )

   VBJ PACKING, INC., and ) CONTINENTAL CASUALTY COMPANY, )

   )

   Respondents. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings, held a formal hearing in this matter on April 12, 1996, in Arcadia, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: David K. Oaks, Esquire

   DAVID K. OAKS, P.A.

   252 West Marion Avenue Punta Gorda, Florida 33950

   
   

   For Respondent: Mark A. Sessums, Esquire

   VBJ Packing, FROST, O'TOOLE & SAUNDERS, P.A.

   Inc. Post Office Box 2188 Bartow, Florida 33881-2188

   
   

   For Respondent: No Appearance. Continental

   Casualty Co.

   
   

   STATEMENT OF THE ISSUE

   
   

   Has Respondent VBJ Packing, Inc. (Respondent) paid Petitioner, Chastain- Bishop Farms (Petitioner) in full for watermelons represented by Respondent's load numbers 3002 and 3004 purchased from Petitioner during the 1995 watermelon season?

   
   

   PRELIMINARY STATEMENT

   
   

   By a Complaint filed with the Bureau of License and Bond, Florida Department of Agriculture and Consumer Services (Department) on June 9, 1995, Petitioner seeks payment of an alleged balance due on watermelons (melons) sold and delivered to Respondent by Petitioner on May 8 & 9, 1995. Subsequently, Petitioner filed an amendment to the Complaint with the Department. Respondent filed an answer and an amended answer to the amended complaint denying the

   alleged balance due. By letter dated August 23, 1995, the Department referred the matter to the Division for the assignment of a Hearing Officer and the conduct of a hearing.

   
   

   At the hearing, Petitioner presented the testimony of Thomas J. Chastain, Patrick Kye Bishop and Robert Allen. Petitioner's exhibits one and two were received as evidence. Respondent presented the testimony of Robert Allen and Eddie Idlette. Respondent's exhibits one, two, four through six, eight and nine were received as evidence. Respondent's exhibits three and seven were received as evidence with the exception of that portion of each exhibit titled USDA Inspection Certificate - K-147721-5, which was rejected.

   
   

   There was no transcript of the proceeding filed with the Division. The parties timely filed their Proposed Recommended Orders. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

   
   

   1. At all times pertinent to this proceeding, Petitioner was a "producer" of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes. Watermelons come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes.

      
      

   2. At all times pertinent to this proceeding, Respondent was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Respondent was issued license number 8887 by the Department which is supported by Bond Number 137743741 in the amount of $75,000 written by Respondent Continental Casualty Company (Continental), as surety, with an inception date of January 1, 1995, and an expiration date of December 31, 1995.

      
      

   3. The Complaint was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes.

      
      

   4. Sometime during the week prior to Monday, May 8, 1995, Petitioner and Respondent entered into a verbal agreement which contained the following terms:

      (a) Petitioner would sell Respondent a semi-trailer load of medium size melons of good quality to be harvested and loaded by Petitioner onto a semi-trailer furnished by Respondent; (b) Respondent would have the right and opportunity to inspect the melons before or during loading; (c) Respondent would pay Petitioner fifteen cents ($0.15) per pound for the melons loaded onto the trailer; (d) upon delivery at Petitioner's farm, the melons became Respondent's property and Petitioner had no further obligation to Respondent concerning the melons; and

      (e) settlement was to be made by Respondent within a reasonable time.

      
      

   5. Subsequent to the above agreement, Petitioner sold and Respondent bought, a second semi-trailer load of melons to be delivered under the same terms and conditions as agreed in the above verbal agreement.

      
      

   6. On Friday, May 5, 1995, Respondent's agent, Robert Allen and T. J. Chastain, a partner in Chastain-Bishop Farms, had a disagreement concerning Eddie Idlette, Respondent's inspector, being on the Petitioner's farm. Because of an incident in the past involving Idlette and Petitioner, Chastain did not want Idlette on Petitioner's farm and made this known to Allen. As result of

      this disagreement, Idlette left the Petitioner's farm and was not present on Monday or Tuesday, May 8 & 9, 1995, to inspect the two loads of melons.

      
      

   7. Allen testified that Chastain also excluded him from Petitioner's farm at this time, and that Chastain told him that neither he nor Idlette needed to be present during the loading of the melons because Chastain "would stand behind the loads". However, the more credible evidence shows that Chastain did not prevent Allen from inspecting the melons on Monday or Tuesday, May 8 & 9, 1995, or tell Allen that he "would stand behind the loads". Furthermore, there is credible evidence to show that Allen was present at Petitioner's farm on Monday and Tuesday, May 8 & 9, 1995, and he either inspected, or had the opportunity to inspect, the two loads of melons, notwithstanding Allen's testimony or Respondent's exhibit 6 to the contrary.

      
      

   8. Petitioner did not advise Respondent, at any time pertinent to the sale of the melons, that Petitioner would give Respondent "full market protection" on the melons. Furthermore, Petitioner did not agree, at any time pertinent to the sale of the melons, for Respondent to handle the melons "on account" for Petitioner. The more credible evidence supports Petitioner's contention that the melons were purchased by Respondent with title to the melons passing to Respondent upon delivery at Petitioner's farm, subject to inspection or the opportunity to inspect before loading and delivery.

      
      

   9. On Monday, May 8, 1995, Petitioner loaded Respondent's first semi- trailer with a State of Georgia tag number CX9379, with 2,280 medium size Sangria melons of good quality weighing 46,800 pounds and identified as Respondent's load number 3002. Respondent accepted load 3002 for shipment to its customer. Using the agreed upon price of fifteen cents ($0.15) per pound times 46,800 pounds, the Respondent owed Petitioner $7,020.00 for load number 3002.

      
      

   10. On Tuesday, May 9, 1995, Petitioner loaded Respondent's second semi- trailer with a State of New Jersey tag number TAB4020, with 2,331 medium size Sangria melons of good quality weighing 46,620 pounds and identified as Respondent's load number 3004. Respondent accepted load 3004 for shipment to its customer. Using the agreed upon price of fifteen cents ($0.15) per pound times 46,620 pounds, the Respondent owed Petitioner $6,9993.00 for load number 3004.

       
       

   11. The combined total amount owed to Petitioner by Respondent for load numbers 3002 and 3004 was $14,013.00.

       
       

   12. Respondent shipped load 3002 to E. W. Kean Co, Inc. (Kean). Upon receiving load 3002, Kean allegedly found problems with the melons. Respondent allowed Kean to handled the melons on account for Respondent. Kean sold the melons for $6,804.05 or 14.5 cents per pound. After Kean's deduction for handling, Kean paid Respondent $6,112.05 or 13.02 cents per pound. In accounting to Petitioner, Respondent made further deductions for handling and freight, and offered Petitioner $3,641.24 or 7.8 cents per pound for the melons on load 3002.

       
       

   13. Respondent shipped load 3004 to Mada Fruit Sales (Mada). Upon receiving load 3004, Mada allegedly found problems with the melons. By letter dated June 8, 1995 (Respondent's exhibit 4), Mada grudgingly agreed to pay the freight plus 10 cents per pound for the melons. Mada paid Respondent $4,662.00 for load 3004, and after Respondent deducted its commission of $466.20, offered Petitioner $4,195.80 or nine cents per pound for the melons on load 3004.

   14. By check number 18922 dated May 28, 1995, Respondent paid Petitioner

       $7,760.08. Respondent contends that this amount was offered to Kye Bishop in full settlement for loads 3002 and 3004, and that after Bishop consulted with Chastain, Bishop on behalf of Petitioner, accepted this amount in full settlement for loads 3002 and 3004. Bishop contends that he turned down the

       $7,760.08 as settlement in full but took the $7,760.08 as partial payment and proceeded to file a complaint with the Department against Respondent's bond for the difference. There is nothing written on the check to indicate that by accepting and cashing the check Petitioner acknowledged that it was payment in full for load numbers 3002 and 3004. The more credible evidence shows that Bishop did not accept the check in the amount of $7,760.08 as payment in full for loads 3002 and 3004 but only as partial payment, notwithstanding the testimony of Allen to the contrary.

       
       

   15. There was an assessment charge of $62.72 which Petitioner agrees that it owes and should be deducted from any monies owed to Petitioner by Respondent.

       
       

   16. Initially, Respondent owed Petitioner $14,013.00. However, substracting the partial payment of $7,760.08 and the assessment of $62.72 from the $14,013.00 leaves a balance owed Petitioner by Respondent of $6,190.20

       
       

       CONCLUSIONS OF LAW

       
       

   17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings pursuant to Sections 120.57(1) and 604.21(6), Florida Statutes.

       
       

   18. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981). The parties agree that there was a verbal agreement but disagree as to the terms of that verbal agreement. Furthermore, Respondent contends that subsequent to entering into the verbal agreement Petitioner agreed to alter the terms of that verbal agreement. Therefore, the Petitioner must prove by a preponderance of the evidence that the terms of the verbal agreement are as stated by Petitioner and that Respondent has defaulted on the agreement by failing to pay Petitioner the full amount due under the verbal agreement. Thereafter, the Respondent has the burden of presenting evidence that Petitioner, by its action or by agreement, altered the terms of the verbal agreement. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, et al., (21 Florida Law Weekly S142, March 29, 1996). Petitioner has met its burden by establishing that the terms of the verbal were as stated by the Petitioner and that Respondent has defaulted on the agreement by failing to pay Petitioner the full amount for Petitioner's melons under the terms of the that agreement. Respondent has failed to meet its burden to prove that Petitioner, by its action or by agreement, altered any of the terms of the verbal agreement.

       
       

   19. However, assuming arguendo, as Respondent contends, that the agreement provided for Respondent to handle Petitioner's melons "on account" and that Petitioner had agreed to give Respondent "full market protection" on the melons, there is insufficient evidence to establish facts to show that the melons, upon reaching their destination, were not in conformance with the agreement as to quality, condition or size causing a reduction in the price originally agreed upon, or that the melon market had declined to the point of requiring a reduction in the price originally agreed upon. The only evidence as to the

grade, classification, condition, quality, or market price of the melons upon arrival at their destination was purely hearsay.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order granting the Petitioner relief by ordering Respondent VBJ Packing, Inc. to pay Petitioner the sum of $6,190.20.

RECOMMENDED this 23rd day of May, 1996, at Tallahassee, Florida.

WILLIAM R. CAVE, 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 23rd day of May, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4226A

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner's Proposed Findings of Fact.

1. Proposed findings of fact 1(a) through 1(i) are adopted in substance as modified in Findings of Fact 1 through 16.

Respondent VBJ Packing, Inc's Proposed Findings of Fact.

1. Proposed finding of fact 1 is covered in the Conclusion of Law.

2. Proposed finding of fact 2 is adopted in substance as modified in Findings of Fact 1 through 16.

3. Proposed finding of fact 3, 6, 7 and 8 10, are not supported by evidence in the record.

4. As to proposed finding of fact 4, Petitioner and Respondent VBJ Packing, Inc. agreed that Petitioner would sell and Respondent would pay $0.15 per pound for medium size melons. Otherwise proposed finding of fact is not supported by evidence in the record. See Findings of Fact 4, 7 and 8.

5. As to proposed finding of fact 5, Respondent sold the loads. Otherwise proposed finding of fact 5 is not supported by evidence in the record.

Respondent Continental elected not to file any proposed findings of fact.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

and Consumer Services

508 Mayo Building

Lakeland, Florida 32399-0800

David K. Oaks, Esquire David Oaks, P.A.

252 W. Marion Avenue

Punta Gorda, Florida 33950

Mark A. Sessums, Esquire

Frost, O'Toole & Saunders, P.A. Post Office Box 2188

Bartow, Florida 33831-2188

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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: 95-004226

Orders for Case No: 95-004226