STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARGILL, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-2923A

)

POMPANO EGGS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a public hearing was held in the above-styled case on January 12, 1984, at Plant City, Florida.

APPEARANCES

For Petitioner: Edna M. Hill, Manager

Cargill, Inc. Route 5, Box 2795

Plant City, Florida 33566

For Respondent: Joseph Litowich

548 Northeast 28th Court Pompano Beach, Florida 33064

By Complaint dated July 11, 1983, Cargill, Inc., Petitioner, seeks reimbursement in the amount of $15,487.81 from Pompano Eggs, Inc., Respondent, or its bonding company as payment for eggs shipped to Respondent. In Answer dated August 19, 1983, to the Complaint Respondent acknowledged indebtedness of

$13,090.04 to Cargill but contests the difference of $2,397.77.

At the hearing Respondent presented an Amended Answer in which it contends the eggs in question were not produced in Florida and are therefore not covered by the bond; that Cargill overcharged Respondent $.04 per dozen, thereby reducing the amount owed by $10,499.48; and that because Cargill shipped bad eggs to Respondent the latter lost its customer base and all of the debt should be forgiven.

At the hearing, Edna Hill and Cliff Hewitt testified on behalf of Petitioner, and Joe Litowich testified on behalf of Respondent. Seven exhibits were admitted into evidence, including late-filed Exhibit 7.

FINDINGS OF FACT

1. During the period March-May, 1983, Petitioner shipped eggs to Respondent at invoice price of $31,062.53 for which payment in the amount of

   $15,448.82 was received, leaving a balance due of $15,487.81 (Exhibit 1).

2. No evidence was submitted that the eggs sold to Respondent from Petitioner's facility at Balm, Florida, were not produced in Florida.

   
   

3. Petitioner agreed to reduce the amount due by $177 on Invoice 1741 dated 4/21/83 because 20 cases of large Grade A eggs were not on invoice submitted to Respondent.

   
   

4. Respondent withdrew the allegation in the amended Answer respecting the

   $.04 overcharge per dozen after producing no evidence to substantiate this claim.

   
   

5. Respondent's primary claim is that in June and July of 1983 it returned eggs to Petitioner for which Respondent had paid because these eggs were bad and that Respondent should have been granted credit totaling $2,397.77 for these eggs. Petitioner acknowledged that Respondent had returned some eggs but claimed these eggs were in different cartons than in which shipped, that they had been held by Respondent for some time before they were returned, and that credit was not given for eggs returned under those circumstances.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings.

   
   

7. Petitioner has the burden of proof in these proceedings. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Upon submitting invoices for eggs shipped to Respondent and checks showing the amounts paid by Respondent, Petitioner met that burden and shifted to Respondent the burden of going forward with the evidence to show wherein the Petitioner's records are wrong. But for the stipulation by Petitioner regarding Invoice 1741, Respondent has failed to submit credible evidence to rebut the evidence submitted by Petitioner.

From the foregoing it is concluded that Pompano Eggs, Inc. owes Cargill, Inc., $15,487.81 less $177.00, or $15,310.81, for eggs shipped to Pompano Eggs during the period March-May, 1983. It is

RECOMMENDED that the Commissioner of Agriculture enter a Final Order directing Pompano Eggs, Inc., to pay Cargill, Inc., $15,310.81 within a time certain from that order and if Pompano Eggs fails to make this payment that the bond posted by Pompano Eggs be forfeited.

ENTERED this 24th day of January, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1984.

COPIES FURNISHED:

Edna M. Hill, Manager Cargill, Inc.

Route 5, Box 2795

Plant City, Florida 33566

Joseph Litowich

548 Northeast 28th Court Pompano Beach, Florida 33064

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Robert A. Chastain, Esquire General Counsel

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32301

Florida Farm Bureau Post Office Box 730

Gainesville, Florida 32602

Docket for Case No: 83-002923

Orders for Case No: 83-002923