Judges: WILLIAM R. CAVE
Agency: Department of Agriculture and Consumer Services
Latest Update: Jun. 16, 1986
Summary: Parties verbally agreed for sale of melons. Melons loaded were of condition and quality contracted for, and Respondent or its insurer must pay balance due.
85-2824.PDF
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOBBY, SR., BOBBY, JR., JOHN, ) DAVID, and JEFF MCDANIEL, d/b/a ) MCDANIEL FARM, )
)
Petitioner, )
)
vs. ) CASE NO. 85-2824A
) GROWERS MARKETING SERVICE, INC., ) and COMMERCIAL UNION INSURANCE ) COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice; the Division of Administrative Hearings, by its duly designated Hearing Officer, William
R. Cave held a public hearing in the above-styled case on February 13, 1986 in LaBelle Florida.
APPEARANCES
For Petitioner: James D. Sloan, Esquire
Post Office Drawer 1820 LaBelle Florida 33935
For Respondent: Mr. Craig Massey, Esquire
Post Office Box 2787 Lakeland, Florida 33806-2787
No appearance for Commercial Union Insurance Company. By complaint filed with the Bureau of License and
Bond, Florida Department of Agriculture and Consumer Services (Department) on June 24, 1985, and submitted to the Division of Administrative Hearings on August 22, 1985 for hearing, Petitioner seeks payment of a balance due on watermelons sold and delivered to Respondent Growers
Marketing Services, Inc. (GMS) between April 29, 1985 and May 3, 1985.
In support of the allegations, Petitioners presented the testimony of Robert E. McDaniel Sr., Robert E. McDaniel, Jr., Jack Hudson and Jennings W. Starling.
Petitioners' Exhibits No. 1 and 2* were received into evidence.
Respondent presented the testimony of Broward F. Stanford, William Clyde Wehr, Preston McCloud and William
Ward, Jr. Respondent's Exhibit No. 1 was received into evidence.
Thomas F. Martino, employed by the Department was called as a witness by the Hearing Officer.
The parties submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral testimony and documentary evidence adduced at the hearing, the following relevant facts are found:
At all times pertinent to this proceeding, Petitioners were producers of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983).
At all times pertinent to this proceeding, Respondent GMS was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license no. 936 by the Department and bonded by Commercial Union Insurance Company (Commercial) in the sum of $50,000.00 - Bond No. CZ 7117346.
At all times pertinent to this proceeding, Respondent Commercial was authorized to do business in the State of Florida.
The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983).
Prior to Petitioners selling or delivering any watermelons (melons) to Respondent GMS, Petitioners and Respondent GMS entered into a verbal contract whereby: (a) Petitioners would harvest and load their melons on trucks furnished by Respondent GMS at Petitioners' farm; (b) the loading, grading and inspection, if any, was to be supervised by, and the responsibility of Respondent GMS or its agent; (c) the melons were to be U.S. No. 1 grade; (d) the melons were purchased F.O.B. Petitioner's farm subject to acceptance by Respondent GMS, with title and risk of loss passing to Respondent GMS at point of shipment (See Transcript Page 95 lines 5-7); (e) the price was left open subject to Petitioners being paid the market price for the melons at place of shipment on the day of shipment as determined by Respondent GMS less one (1) or two (2) cent sales charge, depending on the price; and requiring Respondent GMS to notify Petitioners on a daily basis of that price and; (f) the settlement was to be made by Respondent GMS within a reasonable time after the sale of the melons by Respondent GMS.
Respondent GMS was not acting as Petitioners agent in the sale of the melons for the account of the Petitioners on a net return basis nor was it acting as a negotiating broker between the Petitioners and the buyers. Respondent GMS did not make the type of accounting to Petitioners as required by Section 604.22, Florida Statutes had it been their agent.
Although Respondent GMS purchased over twenty (20) loads of melons from the Petitioners, there are only ten
(10) loads of melons in dispute and they are represented by track report numbers 536 dated April 29, 1985, 534 dated April 30, 1985, 2363 and 537, dated May 1, 1985, 2379, 2386 and 538 dated May 2, 1985, and 2385, 2412 and 2387 dated May 3, 1985.
Jennings W. Starling (Starling) was the agent of Respondent GMS responsible for loading; grading- inspecting and accepting and approving the loads of melons for shipment that Respondent GMS was purchasing from Petitioners during the 1985 melon season.
Petitioners and Starling were both aware that some of the melons had hollow hearth a conditions if known, would cause the melons to be rejected. Aware of this
condition in the melons, Starling allowed Petitioners to load the melons on the truck furnished by Respondent GMS. Starling rejected from 20 percent to 40 percent of the melons harvested and brought in from Petitioners' fields before accepting and approving a load for shipment.
Starling accepted and approved for shipment all ten (10) of the disputed loads of melons.
On a daily basis, Robert E. McDaniel, Sr., one of the Petitioners, would contact the office of Respondent GMS in Lakeland Florida to obtain the price being paid that day by Respondent GMS to Petitioners but was not always successful, however, he would within a day or two obtain the price for a particular day. Robert E. McDaniel did obtain the price to be paid by Respondent GMS for the ten
(10) disputed loads and informed his son Robert E. McDaniel, Jr. of those prices. The prices quoted to Robert
E. McDaniel, Sr. by Respondent GMS on the ten (10) disputed loads were 12 cents, 10 cents, 8 cents, 8 cents, 8 cents, 8 cents, 8 cents, 7 cents, 7 cents, and 7 cents on tract reports number 536, 534, 2363, 537, 2379, 2386, 538, 2385, 2412 and 2387, respectively. No written record of their prices was produced at the hearing but the testimony of Robert E. McDaniel Sr. concerning these prices was the most credible evidence presented.
After the melons were shipped, sometimes as much as one week after, a track report was given to Robert E. McDaniel Jr. by Starling for initialing. Sometimes a price would be indicated on the track report but this price was based on selling price at point of destination and not the market price at point of shipment. Also, the letters "H.H." would also appear on the track report which, according to the testimony of Starling, indicated hollow heart but the evidence was insufficient to prove that Starling had rejected these loads for shipment because of a hollow heart condition in the melons.
The loads in question were paid for by Respondent GMS based on a price at point of destination under its drafts no. 831912 and 851311. The amount in dispute is as follows:
DATE | TRACK | NET | AMOUNT | AMOUNT |
SHIPPED | REPORT | WEIGHT | PAID | DUE |
| 4/29/85 | 536 | 43,140 | $3,019.80 |
$5,176.80 |
|
|
|
|
| 4/30/85 | 534 | 44,070 | 3,084.90 |
4,407.00 |
|
|
|
|
| 5/1/85 | 2,363 | 47,620 | 983.40 |
3,809.60 |
|
|
|
|
| 5/1/85 | 537 | 39,900 | 2,417.80 |
3,192.00 |
|
|
|
|
| 5/2/85 | 2,379 | 43,780 | 3,064.60 |
3,502.40 |
|
|
|
|
| 5/2/85 | 2,386 | 43,220 | 2,161.00 |
3,457.60 |
|
|
|
|
| 5/2/85 | 538 | 34,527 | 2,416.47 |
2,761.68 |
|
|
|
|
| 5/3/85 | 2,385 | 45,380 | 2,722.80 |
3,176.60 |
|
|
|
|
| 5/3/85 | 2,412 | 47,100 | 2,166.60 |
3,297.00 |
|
|
|
|
| 5/3/85 | 2,387 | 43,640 | 2,585.80 |
3,054.80 |
|
|
|
|
$35,835.48
$11,212.31
TOTAL AMOUNT $24,623.17 TOTAL DIFFERENCE
The ten (10) disputed loads of melons were not state or federally inspected at point of shipment but was inspected and accepted as to quality and condition by Starling as agent for Respondent GMS. The evidence was insufficient to prove that the ten (10) disputed loads of melons were rejected or the price reduced due to the quality or condition of the melons at destination. The inspection reports are hearsay evidence that is not supported by other substantial competent evidence.
The more credible evidence is that when the ten
(10) disputed loads of melons were loaded they were of the quality and condition (U.S. No. 1 Grade) contracted for by Respondent GMS at the price quoted over the phone.
Respondent GMS has refused to pay Petitioner the balance owed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter off this proceeding.
Respondent GMS was a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes (1983) and, as such, was required to be licensed by the Department pursuant to Section 604.17, Florida Statutes (1983), and, as a requirement of licensing, had to show the Department evidence of a surety bond or a certificate of deposit in accordance with Section 604.20, Florida Statutes (1983) and Rule 5H-1.01, Florida Administrative Code. Respondent GMS was properly and sufficiently bonded by Respondent Commercial for the sum of $50,000.00.
The petitioners, a "producer" of agricultural products as defined by Section 604.15(5); Florida Statutes (1983) filed a timely complaint against Respondent GMS and its surety, Respondent Commercial in accordance with Section 604.21, Florida Statutes (1983) alleging, among other things, that Respondent GMS had refused to pay for "agricultural products" as defined by Section 604.15(3), Florida Statutes (1983) sold and delivered to Respondent Commercial on April 29, 30, 1986 and May 1, 2, 3, 1986.
The evidence is clear that Petitioners sold and delivered to Respondent GMS ten (10) loads of melons between April 29, 1985 and May 3, 1985 for a total price of
$35,835.48 of which Respondent GMS has paid $24,623.17 leaving a balance of $11,212.31 which Respondent GMS has refused to pay.
The evidence shows that when the watermelons were loaded they were in the condition and of the quality contracted for by Respondent GMS and that Starling, an agent of Respondent GMS authorized to purchase and accept the watermelons, inspected and accepted the watermelons at the place of shipment.
Respondent GMS contends that it was acting as agent for Petitioners in the sale of the melons for the account of the Petitioners on a net return basis but then admits that the verbal contract was F.O.B. point of shipment. This is contradictory. Therefore, Respondent GMS was not the agent for Petitioners.
RECOMMENDATION
Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent GMS be ordered to pay to the Petitioners the sum of $11.212.31.
It is further RECOMMENDED that if Respondent GMS fails to timely pay the Petitioners as ordered, then Respondent Commercial be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioners in accordance with Section 604.21, Florida Statutes (1983).
Respectfully submitted and entered this 13th day of June, 1986, in Tallahassee, Leon County, Florida.
Hearings
Hearings
WILLIAM R. CAVE
Hearing Officer
Division of Administrative
The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
FILED with the Clerk of the Division of Administrative
this 13th day of June, 1986.
ENDNOTES
*Although transcript does not list Petitioner's Exhibit No.
2 it was received into evidence on Page 49 lines 23-25 and Page 50 lines 1-4.
APPENDIX TO RECOMMENDED ORDER IN CASE NO.85-2824A
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.
Rulings on Proposed Findings of Fact
Submitted by the Petitioner
1.(a-d) Adopted in Finding of Fact 5 but clarified to show that harvesting was the responsibility of Petitioner and that the price to be received was market price on day of shipment less 1 cent per pound sales charge.
2.(e) Rejected as not being one of the terms of the verbal contract but otherwise adopted in Finding of Fact 5 with the exception of the load represented by track report No. 536.
Adopted in Finding of Fact 5.
Adopted in Findings of Fact 5, 8 and 9.
Adopted in Finding of Fact 6.
Adopted in Finding of Fact 12.
Rulings on Proposed Findings of Fact Submitted by the Respondent
Adopted in Findings of Fact 1 and 2.
The first sentence of the introductory phrase of paragraph 2 is rejected as immaterial and irrelevant. The second sentence of the introductory phrase of paragraph 2 is rejected as not being supported by substantial competent evidence. With the exception of the language in subparagraph 2c concerning settlement as soon as possible, subparagraphs 2b and 2c are rejected as not being terms of the verbal contract. However, although subparagraphs 2b and 2c may chronologically set out the sequence of events as they happened, there is no substantial competent evidence to prove that the price stated in the ticket was the market price at the point of shipment on the day of shipment or that Starling had rejected the load prior to shipment due to a problem with hollow heart or that the price was to be on a "net return basis."
Rejected as not supported by substantial competent evidence.
The fourth sentence of paragraph 4 is rejected as not being supported by substantial competent evidence. The remaining portion of paragraph 4 is rejected as being argument; however, the language in the second sentence concerning how Petitioners obtained the market price is adopted in Finding of Fact 10 but clarified.
Adopted in Findings of Fact 9 and 11 but clarified.
Rejected as being argument but see Finding of Fact
10.
The first sentence of paragraph 7 is adopted in Finding of Fact 12 but clarified. The balance of paragraph
7 was not an issue and is rejected as immaterial and irrelevant.
Rejected as immaterial and irrelevant.
That portion of paragraph 9 wherein it states that Starling continually advised Petitioners of the inability to grade out hollow hearts is rejected as not supported by substantial competent evidence. The balance of paragraph 9 is adopted in Finding of Fact 9 but clarified.
Rejected as immaterial and irrelevant.
Rejected as immaterial and irrelevant.
COPIES FURNISHED:
Doyle Conner, Commissioner Department of Agriculture and
Consumer Services The Capitol
Tallahassee, Florida 32301
Robert Chastain General Counsel Department of Agriculture and
Consumer Services
Mayo Building; Room 513 Tallahassee, Florida 32301
Ron Weaver, Esquire Department of Agriculture and
Consumer Services Mayo Building
Tallahassee, Florida 32301
Joe W. Kight Chief
Bureau of License and Bond Department of Agriculture and
Consumer Services
James D. Sloan, Esquire Post Office Drawer 1820 LaBelle, Florida 33935
M. Craig Massey, Esquire Post Office Box 2787
Lakeland, Florida 33806-2787
Commercial Union Insurance Company One Beacon Street
Boston, Massachusetts 02108
===========================================================
======
AGENCY FINAL ORDER
===========================================================
======
STATE OF FLORIDA
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
BOBBY MCDANIEL, SR., BOBBY MCDANIEL, JR., JOHN DAVID MCDANIEL and JEFF MCDANIEL, d/b/a MCDANIEL FARM,
Petitioners,
vs. CASE NO. 85-2824A
GROWERS MARKETING SERVICE, INC. and COMMERCIAL UNION INSURANCE COMPANY,
Respondents.
/
FINAL ORDER
On June 13, 1986 the hearing officer in the above- styled case submitted his recommended order to me for final agency action. A copy of that recommended order is attached as Exhibit A. Pursuant to Section 120.57(1)(b)8, Florida Statutes, and Rule 28-5.404, Florida Administrative Code, all parties were allowed twenty days in which to submit written exceptions to the recommended order.
Respondent Growers Marketing Service, Inc. (hereinafter referred to as GMS) submitted timely exceptions, a copy of which is attached as Exhibit B.
BACKGROUND
Petitioners are producers of watermelons. The respondent GMS is a licensed dealer in agricultural products.
The petitioners and respondent had a verbal arrangement whereby the petitioners were to harvest and load their melons at petitioners' farm on trucks furnished by respondent. The loading, grading and inspection were to be supervised by and the responsibility of the respondent. The melons were to be U.S. No. 1 grade.
The melons were purchased f.o.b. petitioners' farm with title and risk of loss passing to respondent at point of shipment. The price was left open subject to petitioners being paid the market price for the melons at the place of shipment less one or two cents sales charge, depending on the price. The respondent was to notify petitioners on a daily basis of the price obtained and settlement was to be made within a reasonable time after the sale of the melons by the respondent.
There are ten loads of melons in dispute. A substantial portion of the ten loads were afflicted with "hollow heart" a defect that materially affects the grade and therefore the value of the melons. Respondent GMS paid petitioners on the basis of the price respondent received for the ten loads less certain charges and commissions.
Petitioners contend that they are entitled to a different (higher) return based on market value of the melons at the time the melons were loaded by respondent at petitioners' fields. Two of the loads were inspected by United States Department of Agriculture inspectors and were found to contain a percentage of hollow heart and therefore were not
U.S. No. 1 grade.
The petitioners were paid $24,623.17 by the respondent GMS. Petitioners claim that the total market price for these shipments was $35,835.48 and contend that the sum of
$11,212.31 is due.
The issue at the hearing was whether the respondent GMS was obligated to pay the petitioners an additional
$11,212.31.
The hearing officer recommended that the final order require the respondent GMS to pay to petitioners the sum of
$11,212.31.
RULINGS ON EXCEPTIONS
The first exception claims the hearing officer erred in not accepting in full the proposed findings of fact and conclusions of law sought by the respondent GMS. I find that the hearing officer adopted some of the findings and rejected others and in each instance where the findings of fact and conclusions were rejected, appropriate explanation was given as to the reason. Exception Number 1 is rejected.
Exception Number 2 challenging the hearing officer's finding that evidence supports a sale by petitioners of
U.S. No. 1 grade watermelons to the respondent f.o.b. origin based on market price.
Respondent GMS contends that there is in effect no market price f.o.b. but that the price is determined by what is received for the shipment at the point of destination. Respondent further contends that evidence was such that the melons were hollow heart and could not be
U.S. No. 1 grade.
In reviewing all the testimony I find that there is considerable confusion as to exactly the agreement between the parties. However, the hearing officer heard the testimony, observed the witnesses and as trier of the fact, determined which evidence was deemed most credible.
Exception Number 2 is rejected.
Respondent's Exception Number 3 challenges the hearing officer's finding of fact (paragraph 5) contending there is not competent substantial evidence to support a finding. I find that there is competent substantial evidence and Exception Number 3 is rejected.
The respondent GMS contends that the entire shipment was not U.S. No. 1 grade and was known to everyone to be a shipment containing a large percentage of hollow heart and further challenges the finding that there was no market price since the shipment contained hollow heart and the market price would be what you could get for a shipment that was not U.S. No. 1 grade.
The evidence on these issues is less than precise and in many instances confusing. However, there is evidence from which the hearing officer could conclude that the ten shipments in question were accepted by the respondent as
No. 1 grade. This is true with the exception of two
of the shipments represented by track report numbers 2363 and 2386. Each of these shipments was inspected by the United States Department of Agriculture and found to contain a percentage of hollow heart to the extent that they were not U.S. No. 1 grade. The hearing officer rejected this evidence as being hearsay. However, the documents reflecting this inspection Were admitted into evidence without objection and the hearing officer was in error in rejecting this evidence. The evidence shows that because of the two shipments of inferior grade melons, that
$4,122.80 should be deducted from the $11,212.31 that the hearing officer recommended be paid by the respondent GMS to the petitioners.
Accordingly, having considered the recommended order, respondent's exceptions, the transcript of the record, and the exhibits filed as evidence, it is
ORDERED that:
With the exception of the modification set forth above, the hearing officer's findings of fact and conclusions of law are hereby adopted as final agency action in this matter.
That respondent GMS pay to the petitioners the amount of $7,089.51 within 15 days after this order becomes final. This order is final and effective on the date filed with the clerk of the department. In the event the respondent GMS fails to timely pay the petitioners, the respondent Commercial Union Insurance Company shall pay said sum to the Department as required by Section 604.21, Florida Statutes, and the Department shall accordingly reimburse the petitioners.
Any party affected by this order has the right to seek judicial review of the order pursuant to Section 120.68, Florida Statutes. Any party may file a notice of appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, Room 515, Mayo Building, Tallahassee, Florida 32399- 0800, and file a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The notice of appeal must be filed within thirty (30) days from the date this order is filed with the Clerk of the Department.
DONE AND ORDERED at Tallahassee, Florida this 8th day of April, 1987.
DOYLE CONNER, COMMISSIONER
Department of Agriculture and Consumer Services
COPIES TO:
Clerk's Office
Department of Agriculture and Consumer Services
Room 515, Mayo Building Tallahassee, Florida 32399-0800
Harry Lewis Michaels Senior Attorney
Department of Agriculture and Consumer Services
Room 513, Mayo Building Tallahassee, Florida 32399-0800
Ted Helms, Chief
Bureau of License and Bond Department of Agriculture and
Consumer Services Mayo Building
Tallahassee, Florida 32399-0800
Bobby McDaniel, Sr., Bobby McDaniel, Jr., John David McDaniel and
Jeff McDaniel d/b/a McDaniel Farm Star Route, Box 60
Clewiston, Florida 33440
James D. Sloan Attorney at Law
Post Office Drawer 1820 LaBelle, Florida 33935 Attorney for Petitioners
M. Craig Massey Attorney at Law
Post Office Box 2787
Lakeland, Florida 33806-2787
Attorney for Growers Marketing Service, Inc.
Growers Marketing Service, Inc. Post Office Box 2595
Lakeland, Florida 33806
Commercial Union Insurance Company One Beacon Street
Boston, Massachusetts 02108
Docket for Case No: 85-002824
Orders for Case No: 85-002824
| Issue Date |
Document |
Summary |
|
Apr. 08, 1987 |
Agency Final Order
|
|
|
Jun. 16, 1986 |
Recommended Order
|
Parties verbally agreed for sale of melons. Melons loaded were of condition and quality contracted for, and Respondent or its insurer must pay balance due.
|
