STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM LOVETT, Jr., )

)

Complainant, )

)

vs. ) CASE NO. 84-4304A

)

DOYLE L. WADSWORTH and ) LAWYERS SURETY CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on March 4, 1985, at Bartow, Florida.

APPEARANCES

For Complainant: Robert A. Meade, Jr., Esquire

212 West Palmetto Street Wauchula, Florida 33873

For Respondents: Doyle L. Wadsworth, pro se

2110 Ramblewood Lane

Brandon, Florida 33511

By Complaint dated August 7, 1984, William L. Lovett, Jr., Complainant, seeks recovery against Doyle L. Wadsworth, Respondent, in the amount of $30,000. As grounds therefor it is alleged that Respondent agreed prior to the commencement of the 1984 water melon season to market Complainant's melons, that he marketed Complainant's melons for one or two days, and thereafter refused to market melons for Complainant, as a result of which Complainant lost 20 trailer loads of melons; and, after obtaining someone else to market his melons, Complainant received less from the new broker than he had expected to get from Respondent.

Proposed findings have been submitted by Complainant. To the extent those findings are incorporated herein they are adopted; otherwise, they are rejected as not supported by the evidence, cumulative, or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. In 1983 William Lovett, Jr., Complainant, planted 65 acres of water melons, most of which were bought by Doyle L. Wadsworth, Respondent, either for himself or for William Manis Company. The only entity for which Respondent acted as agent was the Manis Company, for whom he has bought melons as its agent for many years. On behalf of himself or Manis, Respondent, in 1983, purchased melons from Complainant on June 16, 17, 20, 23, 24, 27, and 29. Complainant's

   melons were bought at prices ranging from seven cents to ten cents per pound. The melons were paid for by check signed by Respondent, dated zero to five days after the invoice date, on either Respondent's checking account at the Barnett Bank of Brandon or on Manis Company's account at Sun Bank of Tampa. Total payments to Complainant for these melons were $285,104.25 (Exhibits 2 and 3).

   
   

2. Complainant and Respondent had met shortly before the 1983 water melon season through a mutual friend. Wadsworth agreed to buy water melons from Lovett, not to act as his broker. The grower had the water melons harvested, the buyer provided trucks and trailers to pick up the melons at the field, and the sale occurred when the melons were loaded. Wadsworth testified that he explained to Lovett that he buys melons on a load basis which he has done for many years, that he does not act as a broker to sell the melons, and that once the melons are loaded they are the responsibility of the then-owner, Wadsworth. 1983 was a good year for water melons and Wadwsorth bought nearly all of Lovett's production.

   
   

3. Lovett asked Wadsworth if he would handle his melons if Lovett planted a crop in 1984 and Wadsworth agreed. Wadsworth also told Lovett that he preferred "grays," which Lovett planted. Lovett understood that Wadsworth had agreed to buy all of his water melons except for those Lovett sold independently, and to pay the prevailing prices. Wadsworth had no such understanding. Lovett's primary occupation is doctor of veterinary medicine and he relied on others for harvesting information. For reasons not fully explained at the hearing, the harvesting of Lovett's 1984 crop of water melons was a little late. Accordingly, any further delays resulted in overripe or sunburned water melons.

   
   

4. The first harvesting of Lovett's melons occurred on Saturday, June 2, 1984, and Wadsworth bought 46,480 pounds at 3-1/2 cents per pound on behalf of Manis Company. Harvesting next occurred Monday, June 4, 1984, when Wadsworth bought 40,680 pounds for Manis and just over 100,000 pounds for himself. Payment for these water melons was made June 5, 1984, by a check in the amount of $3,050.60 on the Manis bank and $3,626.70 00 Wadsworth's bank.

   
   

5. During the loading on June 4 a large number of water melons were discarded as culls. This made the task of grading and overseeing the grading much more onerous, and Wadsworth advised Lovett he would not be buying any more water melons from him that season. Lovett came to Wadsworth's motel to persuade him to do otherwise, but without success. Lovett asked Wadsworth if he could refer him to someone else to handle his melons, which request Wadsworth declined.

   
   

6. Lovett subsequently obtained the services of a broker to handle his water melons but the additional delay in getting the crop harvested and the extra brokerage cost he incurred resulted in less income to Lovett than he would have received had Wadsworth bought all of Lovett's melons.

   
   

7. Conflicting evidence was presented regarding the condition of the water melons grown by Lovett in 1984. Lovett's witnesses described the field as the finest ever seen, while Wadsworth testified that recent excess rainfall left part of the field wet, and some vines were wilting. All witnesses agreed that there were a large number of culls discarded from the water melons graded No. 1 on the first harvesting. In view of the recommended disposition of this case, a definitive finding of fact on this issue is unnecessary.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. This complaint was brought under the provisions of Section 604.21, Florida Statutes. Dealers in agricultural products are regulated pursuant to Section 604.15-604.30. Section 604.15 states the regulation of dealers in agricultural products is necessary in the interest of the public welfare because of the speed with which such products move through commerce, because of the difficulty of identification, and that because recovery is impractical, producers are subject to the possibility of economic harm in the event an agricultural product dealer defaults.

   
   

10. Section 604.21 establishes the procedures for providing redress to a producer who claims he was damaged by the default of a licensed dealer. That section provides in pertinent part:

    
    

    Such complaints shall be filed within 9 months from Use date of sale in instances involving direct sales or from the date on which the agricultural product was received by the dealer in agricultural products, as agent, to

    be sold for the producer. (Underlining added.)

    
    

11. Sections 604.15 and 604.21 should be read in para materia not only because they are contained in the same section of the statutes, but also because Section 604.15 gives insight into the legislative intent.

    
    

12. The starting point for interpreting a statute is the language of the statute itself; absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive. Consumer Products Safety Commission v. GTE Sylvania, 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). The legislature is presumed to know the meaning of the cords and to have expressed its intent by use of the words found in the statutes. Thayer v. State, 335 So.2d 815 (Fla. 1976), Florida State Racing Commission v. McLaughlin, 102 So.2d 54 (1958).

    
    

13. The clearly expressed legislative intent in enacting these provisions is to Protect the producer from irresponsible dealers who accept agricultural products as a buyer or as a broker and failed to pay the producer. To ensure against this contingency, the dealers are required to be licensed and bonded. This intent is evident in the underlined portions of Section 604.21 above- quoted. The complaint must be filed within nine months of the date of sale. That connotes a dispute regarding the delivery of agricultural products from a producer to a dealer. Such a dispute is absent here. This complaint involves an alleged breach of contract to buy Complainant's water melons. No sale or brokerage of water melons between claimant and Respondent is involved. Respondent did not "buy" Complainant's water melons and then failed to pay the agreed price. To the contrary, Respondent paid Complainant for all water melons bought from Complainant and there is no dispute respecting those sales.

    
    

14. Complainant's sole contention is that he contracted with Respondent for Respondent to buy all "or nearly all" of Complainant's 1984 water melon crop, that Respondent breached this contract, and that Complainant thereby suffered damages for which he seeks compensation. Section 604.21, Florida Statutes, does not provide a forum in which this allegation can be resolved. No

    direct sales are involved and no agricultural products were received from Complainant by Respondent on which there is a dispute, the resolution of which is provided for in Section 604.21. Accordingly, the Commissioner of Agriculture, and perforce this Hearing Officer, are without jurisdiction to adjudicate the complaint filed in this case.

    
    

15. Although beyond the jurisdiction of this tribunal, it is noted that the "agreement" between Complainant and Respondent lacked mutual assent and understanding of what each would do, and consideration for the obligations to be assumed was not shown during the hearing. Mutual assent being an essential element of a contract, the evidence presented failed to establish the existence of a valid contract. Respondent certainly never intended to obligate himself to buy all of Complainant's water melon, or to even buy any for which he did not have a ready buyer to whom he could resell the water melons. The fact that Respondent bought almost all of Complainant's water melons in 1983, for which he paid by the daily load, does not prove that he agreed to purchase nearly all of Complainant's water melons in 1984. This is so even though Complainant assumed Wadsworth would buy nearly all of his water melons in 1984.

From the foregoing it is concluded that the sole issue raised in this case, viz., whether Lovett and Wadsworth entered into a contract whereby the former agreed to sell and the later agreed to buy, all of the former's water melon crop in 1984, is beyond the jurisdiction of this tribunal as established in Section 604.21, Florida Statutes. It is

RECOMMENDED that a Final Order be issued dismissing the claim of William Lovett, Jr., against Doyle L. Wadwsorth for lack of subject matter jurisdiction.

ENTERED this 25th day of March, 1985, 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 25th day of March, 1985.

COPIES FURNISHED:

Robert A. Meade, Jr., Esquire

212 West Palmetto Street Wauchula, Florida 33873

Doyle L. Wadsworth 2110 Ramblewood Lane

Brandon, Florida 33511

Robert A. Chastain, Esquire Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

Glenn A. Bissett, Chief Bureau of License and Bond Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

Honorable Doyle E. Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Lawyers Surety Corporation Post Office Box 19327

3444 McCrory Place

Orlanda, Florida 32814

Docket for Case No: 84-004304

Orders for Case No: 84-004304