STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS J. CHASTAIN, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2233A

)

1. J. PRETTYMAN, JR., INC., and ) THE TRAVELERS INDEMNITY COMPANY, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   This matter came on for hearing in Bradenton, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, on February 12, 1980. The parties were represented as follows:

   
   

   APPEARANCES

   
   

   For Petitioner: Archie M. Odom

   Post Office Drawer 1447 Punta Gorda, Florida 33950

   
   

   For Respondent: C. J. Prettyman, Jr.

   Broad Street

   Exmore, Virginia 23350

   
   

   On May 7, 1979, the Petitioner filed a complaint against the Respondent with the Department of Agriculture and Consumer Services for $18,261.50, for failing to properly pay and/or account for monies as required by ss. 604.15 - 604.30, Florida Statutes. The complaint was amended by the Petitioner on September 27, 1979 to exclude brokerage fees due the Respondent in the amount of

   $15,272.65. By excluding the brokerage fees, the actual amount in controversy at the time of filing the amended complaint was $2,988.85.

   
   

   On November 6, 1979, this matter was referred to the Division of Administrative Hearings by the Department.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner, Thomas J. Chastain, is an agricultural producer and packer in Arcadia, Florida. The Respondent, C. J. Prettyman, Jr., Inc., is a agricultural broker doing business in Exmore, Virginia. Pursuant to an oral agreement, the Respondent has acted as a broker for agricultural products shipped to him by the Petitioner. (Testimony of C. J. Prettyman, Jr.).

      
      

   2. The complaint filed against the Respondent alleged a failure to properly package and account for five shipments of cucumbers and/or peppers shipped to the Respondent between November 7, 1978 and December 15, 1978.

   3. The first disputed shipment occurred November 7, 1978, and involved the sale of 750 cartons of cucumbers in the amount of $1,250.00 on invoice number 2775. (Respondent Exhibit 1A). These cucumbers were subsequently sold to Whamco, Inc., and shipped to Minneapolis, Minnesota. (Respondent Exhibit 1B). On November 11, 1978, the cucumbers were inspected by the United States Department of Agriculture in Minneapolis and found to require repacking due to decay which caused a $560.55 deduction from the amount paid Respondent by Whamco and a corresponding deduction in the amount due the Petitioner. (Respondent Exhibit 1C). The amount due the Petitioner from the sale of the cucumbers on invoice number 2775 is $689.45.

      
      

   4. On November 15, 1978, 205 assorted cucumbers were sold by the Petitioner to Wick and Brothers, Inc., a wholesale fruit and produce merchant. (Respondent Exhibit 4). Included in the shipment of cucumbers to Wick were cucumbers belonging to other growers. Wick paid the Petitioner for 300 boxes of cucumbers on November 30, 1978. (Respondent Exhibit 3). The Petitioner, therefore, received payment for 95 boxes of cucumbers owned by another grower for whom the Respondent acted as broker. In order to recoup the monies due the other grower, the Respondent deducted $308.75 from the amount due the Petitioner. (Testimony of Respondent).

      
      

   5. Similarly, Wick purchased 450 boxes of "super cukes" from Petitioner on November 20, 1978. (Respondent Exhibit 6). Wick, however, paid the Petitioner for 700 boxes of cucumbers on December 7, 1978. (Respondent Exhibit 5). Petitioner was thus paid for 250 boxes of cucumbers which were the property of Respondent or another grower. Again to recoup the monies due another grower, the Respondent deducted $562.50 from the amount due the Petitioner. (Testimony of Respondent).

      
      

   6. Respondent invoiced 600 packages of large peppers on December 15, 1979, at a price per unit of $8.00. (Respondent Exhibit 2B). On the same day, the Petitioner sent the Respondent a statement invoicing 600 large peppers at $9.00. (Respondent Exhibit 2). The 600 peppers were sold by the Respondent to Weiss Market for $8.00. (Testimony of Respondent). The $8.00 sale price was based on the prevailing market rate. (Testimony of Respondent).

      
      

   7. Invoice number 2911 was not disputed by the parties at the final hearing.

      
      

      CONCLUSIONS OF LAW

      
      

   8. Pursuant to s. 604.21(4), Florida Statutes, the Department has a duty to determine the amount of indebtedness due to a complainant. The facts as set forth above do not establish an indebtedness in the amount claimed by the Petitioner. Respondent has agreed however, to tender payment in the amount of

$982.09 which represents the difference between the sales and credits owed to the Petitioner and the brokerage fees due the Respondent. (Petitioner Exhibit 1)

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Department enter an Order finding that the Petitioner is due the amount of $982.09 from the sale of these agricultural products by the Respondent.

DONE and ORDERED this 13th day of March, 1980, in Tallahassee, Florida.

SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

L. Earl Peterson, Chief Bureau of License and Bond Division of Marketing

Room 418, Mayo Building Tallahassee, Florida 32301

Mr. Thomas J. Chastain Star Route "A", Box 110

Punta Gorda, Florida 33950

C. J. Prettyman, III Vice President

C. J. Prettyman, Jr., Inc. Broad Street

Exmore, Virginia 23350

The Travelers Indemnity Company One Tower Square

Hartford, Connecticut

Docket for Case No: 79-002233

Orders for Case No: 79-002233