STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DONALD A. DUNN, III, d/b/a )
A. DUNN FARMS, )
)
Petitioner, )
)
vs. ) CASE NO. 85-0054A
) GOLDEN TOUCH CORPORATION, and ) THE AETNA CASUALTY & SURETY ) COMPANY, )
)
Respondents. )
)
RECOMMENDED ORDER
This cause came to be heard on May 17, 1985, in Orlando, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties represented themselves, and Petitioner testified on his own behalf. In addition, Petitioner called his father and grandfather as witnesses and introduced two exhibits. Respondent's President, Joseph Rodriguez, testified and introduced four exhibits. No transcript of the hearing was filed.
Donald A. Dunn, III, d/b/a D. A. Dunn Farms, Petitioner, filed a complaint against Golden Touch Corporation, Respondent, concerning the sale of 121 bags of cabbage on June 9, 1984, in which it is alleged that Respondent's President, Joseph Rodriguez, agreed to provide a truck to pick up the cabbage. The truck allegedly did not show up and the cabbage went bad. Petitioner seeks reimbursement from Respondent in the amount of $172.43.
FINDINGS OF FACT
Joseph Rodriguez, Respondent's President, is a licensed dealer in agricultural products under the provisions of Sections 604.15 to 604.30, Florida Statutes, and acts as a negotiating broker between the producer and
the buyer. Respondent is bonded through Aetna Casualty & Surety Company, co-Respondent in this case, as required by Section 604.19, Florida Statutes.
Respondent acted as broker on thirty sales of Petitioner's cabbage between May 21 and June 7, 1984. On each occasion, Respondent provided Petitioner with a written confirmation of sale which specified the buyer, the place of delivery, the amount of cabbage sold and the terms of the sale, the name of the company supplying the truck to pick up the cabbage and who was supplying the truck. On several occasions, Respondent supplied the truck. However, on all written confirmations provided by Respondent, the following appears:
BROKER ARRANGES TRUCK FOR GROWER FOR CONVENIENCE PURPOSES ONLY.
On June 8, 1984, Respondent contacted Petitioner's salesman, Donald Waters and ordered 150 bags of cabbage to be sold to Harvey Kaiser, Inc. Respondent was acting as a broker in this transaction between the buyer and seller. Respondent contacted Patterson Truck Brokers and ordered a truck to pick up the cabbage at Petitioner's farm on June 9 and make delivery under the terms of the sale. Petitioner could only provide 121 bags of cabbage. Respondent agreed to this lesser amount and was invoiced accordingly by Petitioner on June 9 in the amount of $272.25.
The truck from Patterson Truck Brokers never arrived to pick up the cabbage. Petitioner's father, Donald A. Dunn, Jr., testified that he contacted Joseph Rodriguez on two occasions by telephone to find out where the truck was, and was told that Patterson would be sending it. Rodriguez testified that Patterson Truck Brothers had agreed to provide a truck but when they were unable, he then contacted other trucking companies, as well as other buyers, in an attempt to get a truck on June 9 or 10, or to arrange another sale of Petitioner's cabbage. However, he was not successful and the cabbage went bad.
Although there was no completed sale of this cabbage and therefore he earned no brokerage fee on the transaction, Respondent paid Petitioner one-third of the invoice amount for this cabbage, $86.21, on July 23, 1984, as an act of "good faith" and in recognition of the good business relationship they had. He also informed
Petitioner that Patterson Truck Brothers and Donald Waters had each also agreed to pay one-third and Petitioner should contact them for payment. Petitioner contends that it should be Respondent's responsibility to pay the entire amount still owing, $172.43.
Acting as a broker, Respondent earns no commission for making arrangements to supply a truck for the convenience of the seller. He invoices the buyer, collects the total amount due from the buyer, remits the freight charge to the shipping company, and pays the seller minus his brokerage fee.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings. Section 120.57(1), Florida Statutes. The Department of Agriculture has the authority to adjudicate the amount of indebtedness due to be paid by an agricultural products dealer to a producer. Section 604.21(4), Florida Statutes.
Section 604.21(1), Florida Statutes, provides that any person claiming to be damaged by any breach of an agreement given by a licensed dealer in agricultural products may file a complaint against the dealer with the Department of Agriculture. Petitioner claims that he suffered a loss in the amount of $172.43 due to Respondent's failure to provide a truck to pick up his cabbage on June 9, 1984.
However, there is no evidence that Respondent had a duty to provide a truck on June 9. It is established that he contacted Patterson Truck Brokers repeatedly to try to arrange for a truck, but this was done for the grower "for convenience purposes only" as clearly stated on his written confirmation of sale. Petitioner acknowledges receiving this confirmation on every transaction with Respondent. The uncontroverted evidence also establishes that Respondent receives no fee for arranging shipping for growers. The growers are free to make their own arrangements for shipping if the buyer is not providing a truck to pick up the product.
Both parties agree that it is a common practice for dealers, acting as brokers, to assist the grower by contacting a shipper. When Respondent made those arrangements, his confirmation of sale makes it clear that it was only for the convenience of the growers. There is no evidence that Respondent assumed the duty or responsibility to handle shipping arrangements.
The legislative intent in enacting the statutory provisions relevant to this case is set forth in Section 604.151, Florida Statutes, as follows:
... it is necessary in the interest of the public welfare to regulate agricultural products dealers in this state. However,
restrictions shall be imposed only to the extent necessary to protect the public from significant and discernible harm or damage and not in a manner which will unreasonably affect the competitive market.
To hold dealers in agricultural products who make shipping arrangements for the grower's convenience liable when the shipper does not make a truck available, would unreasonably affect the competitive market in a negative manner. The sale of agricultural products could be hindered if dealers, who bring seller and buyer together acting as a broker, are deemed responsible for shipping, contrary to the express terms of their written confirmation. It has not been demonstrated that such a restriction is necessary to protect the public from significant and discernible harm or damage and therefore to construe the applicable laws to require this result would be contrary to legislative intent as expressed in Section 604.151.
Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture issue a Final Order dismissing the complaint.
DONE and ORDERED this 30th day of May, 1985, in Tallahassee, Florida.
DONALD D. CONN
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 30th day of May, 1985.
COPIES FURNISHED:
Joseph Rodriguez President
Golden Touch Corporation 950 Colorado Avenue
Stuart, FL 33497
The Aetna Casualty & Surety Company
151 Farmington Avenue Hartford, CT 06115
Robert A. Chastain, Esquire Department of Agriculture
and Consumer Services Mayo Building Tallahassee FL 32301
Donald A. Dunn, III Route 2, Box 68
Sanford, FL 32771
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, FL 32301
| Issue Date | Proceedings |
|---|---|
| Jul. 31, 1985 | Final Order filed. |
| May 30, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 30, 1985 | Agency Final Order | |
| May 30, 1985 | Recommended Order | Complaint against Petitioner dismissed because dealers are not responsible for shipping of the agricultural products. |
