STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MALVIN FORD, d/b/a )

MALVIN FORD PRODUCE, )

)

Petitioner, )

)

vs. ) CASE NO. 78-594A

)

CHARLES L. WARREN, d/b/a )

WARREN PRODUCE FARMS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Labelle, Florida, on May 25, 1978, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: George L. Harrell, II, Esquire

Post Office Box 865 Labelle, Florida 33935

For Respondent: Charles L. Warren

Warren Produce Farms 801 South Gordon Post Office Box 305 Adel, Georgia 31620

ISSUE PRESENTED

Whether the Petitioner's complaint that Respondent is indebted to Petitioner in the amount of $4,149.40 for two loads of melons, shipped on June 22, 1977, is valid.

Respondent appeared at the hearing without counsel. After being advised of his rights in an administrative proceeding under Chapter 120, Florida Statutes, he acknowledged that he understood such rights and did not desire representation by legal counsel.

FINDINGS OF FACT

1. Petitioner Malvin Ford of Labelle, Florida and Respondent Charles L. Warren, Adel, Georgia are dealers in agricultural products. Pursuant to a telephonic agreement, Petitioner sold two truck loads of watermelons to Respondent which were shipped from Branford, Florida to Baltimore, Maryland on June 22, 1977. One load consisted of 43,680 pounds of melons and was shipped for cost plus freight in the total amount of $2,009.28. The other load weighed 45,220 pounds and was billed at $2,140.12, which included a charge of $60.00 for four "drops" along the way. Petitioner paid the grower of the melons, Hal

   Walker, and also the carrier. On June 27, 1977, he invoiced Respondent in the above amounts. The invoice stated "terms: net 10 days." (Testimony of Ford, Petitioner's Composite Exhibits 1, 5, 6)

   
   

2. Petitioner did not receive payment for the produce from the Respondent and therefore proceeded to file a complaint with the Department of Agriculture and Consumer Services on December 8, 1977. Respondent thereafter issued a check to Petitioner on February 24, 1978, in the amount of $890.10. A statement attached to the check reflected that the amount represented the sum owing to Petitioner in the amount of $4,149.40, less $3,259.30 which apparently represented a setoff of sums owed Respondent by Petitioner for two transactions in the amounts of $1,625.30 and $1,634.00. Petitioner returned the check to Respondent by letter of March 1, 1978, in which he stated that he did not owe any outstanding indebtedness to Respondent. (Petitioner's Exhibits 2 - 4)

   
   

3. Although Respondent conceded in his testimony at the hearing that he was indebted to Petitioner for the two loads of melons shipped on June 22, 1977, he claimed that in two separate 1974 transactions involving another two truck loads of melons Petitioner had not paid him in the total amount of $3,259.30. However, Respondent produced no documentary evidence concerning these transactions other than an unsworn statement of Frank Koza of Oliver, Pennsylvania, stating that he had received a load of watermelons weighing 47,803 pounds on August 13, 1974, from Petitioner and that he had paid Petitioner for the load. Petitioner testified that this dispute arose at a time when he and Respondent both had offices in Virginia and Respondent asked him how to get rid of a load of melons that he had been unable to sell on the Pennsylvania Turnpike. Petitioner says that he told him to contact Koza who had two fruit stands in Pennsylvania, and that that was his only connection with the transaction. He denied receiving any payment from Koza for the load. Respondent, on the other hand, testified that Petitioner had promised to sell the load for him and make arrangements for the driver hired by the Respondent to reach Koza's place of business. Respondent further testified that he turned over the delivery tickets from the load to Petitioner, but did not send an invoice for the amount because he had dealt many times with Petitioner in the past and that it was a question of trusting him to account for the proceeds from the load. He further testified that he talked to Petitioner several days after the transaction and Ford told him that he had never received a settlement for the load from Koza.

   
   

4. Respondent testified that the other transaction occurred on June 28, 1974, when, pursuant to a telephonic agreement with Petitioner, Respondent shipped a load of melons from Georgia to a firm in Baltimore, Maryland and that thereafter Respondent provided Petitioner with delivery tickets on the load signed by the receiver of the goods. No documentary evidence was submitted in connection with this alleged transaction and Petitioner denied any knowledge of it.

   
   

5. In view of the above conflicting evidence and the lack of writings to support the claimed oral agreements, it is found that Respondent has failed to establish by preponderance of the evidence that Petitioner is indebted to him on either of the purported 1974 transactions. The Koza statement which was purportedly signed on March 22, 1978, is hearsay and insufficient alone to support a finding that the facts contained therein are true and correct. It cannot serve as supplementary evidence to Respondent's testimony concerning the transaction because Respondent has no personal knowledge that payment for the goods was made by Koza to Petitioner. (Testimony of Ford, Warren, Respondent's Exhibit 1)

   CONCLUSIONS OF LAW

   
   

6. This proceeding arises under Section 604.21, Florida Statutes, which provides generally that any person claiming to be damaged by a breach of conditions of a bond given by a licensed dealer in agricultural products may file a written complaint with the Department of Agriculture and Consumer Services within nine months from the date of the last transaction between the parties. It further provides that the Department shall investigate the matters and may order a hearing on the dispute, after which it enters an order which the defaulting party must either satisfy within 15 days or file a civil judicial action for damages.

   
   

7. Section 604.20 provides that licensed dealers in agricultural products must provide to the Department a surety bond in an appropriate amount conditioned to secure the faithful accounting for and payment to producers, their agents or representatives of the proceeds of all agricultural products handled or sold by such dealer. Although no showing was made at the hearing herein that Respondent is a licensed dealer in agricultural products nor was the bond itself submitted in evidence, no question arose as to these aspects of the matter and the referral letter of the Department of Agriculture and Consumer Services to this Division which asserted that Respondent is so licensed and that such license is supported by a $20,000. bond written by Cotton States Mutual Insurance Company, effective during the period the transactions in question were consummated, is considered sufficient to show the Department's jurisdiction in this matter.

   
   

8. The parties stipulated at the hearing to Respondent's receipt of watermelons as alleged in the complaint and the sole question for consideration is whether the setoff of the alleged 1974 transactions can be validly applied to reduce the balance owed Petitioner by Respondent. As heretofore found, Respondent failed to establish facts sufficient to show Petitioner's connection with those transactions. Further, the statute of frauds provision of the Uniform Commercial Code (Section 672.201, Florida Statutes) provides that a contract for the sale of goods for the price of $500.00 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. No writings of such a nature have been produced by Respondent as to his claim of setoff and, accordingly, setoff is not available by way of defense to Petitioner's claim. Respondent neither provided Petitioner with invoices on the alleged sale nor confirmed the purported contracts by memoranda as required under the statute.

RECOMMENDATION

That the Department of Agriculture and Consumer Services enter a Final Order requiring Respondent to pay Petitioner the sum of $4,149.40, as claimed.

DONE and ENTERED this 12th day of June, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

George L. Harrell, II, Esquire Post Office Box 865

Labelle, Florida 33935

Charles L. Warren Warren Produce Farms 801 South Gordon Post Office Box 305 Adel, Georgia 31620

Robert A. Chastain General Counsel

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32304

Docket for Case No: 78-000594

Orders for Case No: 78-000594