P. WILSON, )
vs. ) CASE NO. 85-3488A
COUNTRY PRODUCE, INC. and ) FIDELITY AND DEPOSIT COMPANY ) OF MARYLAND, )
Respondents. )
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 January 17, 1986 in St. Augustine, Florida.
For Petitioner: W. P. Wilson, Pro se
St. Augustine, Florida 32084
For Respondent: John Adams, As Qualified Representative Country Produce, Inc.
No appearance for Fidelity and Deposit Company of Maryland. By complaint filed with the Bureau of License and Bond,
(Department) on July l6, 1985, and submitted to the Division of Administrative Hearings on October 7, 1985 for hearing, Petitioner seeks payment of a balance due on potatoes sold and delivered to Respondent Country Produce, Inc. (Country) on May 15, 1985.
In support of the allegation, Petitioner testified on his own behalf and presented the testimony of Tom Wilson. Petitioner's Exhibits 1-6 were received into evidence. Respondent presented the testimony of John Adams. Respondent's Exhibits 1-10 were received into evidence.
Neither Petitioner nor Respondents submitted posthearing proposed findings of fact and conclusions of law as allowed by Section 120.57(1)(b)(4), Florida Statutes (Supp. 1984) .
Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:
At all times pertinent to this proceeding, Petitioner was a producer 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 Country was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license no. 4103 by the Department, and bonded by Fidelity and Deposit Company of Maryland (Fidelity) in the sum of $50,000.00 - Bond No. 6042774(7).
At all times pertinent to this proceeding, Respondent Fidelity 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 (1982).
On May 14, 1985, John Adams, acting as agent for Respondent Country, attempted to purchase bulk, unwashed potatoes of either Sebago or LaChipper variety from Petitioner. Petitioner was unable to furnish either of these varieties in bulk, unwashed but later offered John Adams Atlantic variety potatoes in bulk, unwashed at $5.50 per hundred weight. John Adams agreed to purchase from Petitioner for Respondent Country, two (2) loads of Atlantic variety potatoes in bulk, unwashed at an agreed price of
$5.50 per hundred weight on May 14, 1985 to be loaded on May 15, 1985 on trucks furnished by John Adams for Respondent Country.
On May 15, 1985 Petitioner loaded two (2) trailers license numbers TL 15337 PA and TL 15338 PA, with bulk, unwashed Atlantic potatoes, net weights of 46,900 pounds and 45,360 pounds respectively. The potatoes were billed to Respondent Country on
Petitioner's unnumbered invoice as bulk Atlantic at $5.50 per hundred weight for a total amount of $5,074.30 which Respondent Country has refused to pay.
The potatoes were shipped by Petitioner as instructed by John Adams to Case Bros., Clover Hill Farms, Wayland, New York (Case Bros.), a customer of Respondent Country. Case Bros. ordered Sebago variety from John Adams due to earlier problems experienced with Atlantic variety but John Adams, without advising Case Bros., substituted Atlantic variety. Upon being informed of the substitution, Case Bros. agreed to use the Atlantic variety provided they graded U.S. No. 1. The potatoes arrived at their destination on May 18, 1986, a day later than anticipated without any apparent reason. Case Bros. called for an inspection and requested that the potato samples be washed before inspection. Both loads failed to grade U.S. No. 1 - 3 1/2 inch maximum because of condition.
The potatoes were not state or federally inspected before or during the loading on May 15, 1985, but John Adams did inspect the potatoes on May 15, 1985, and found them to be of good color, firm, and as good a load of potatoes as any round white variety. (Respondent's Exhibit No. 5)
Petitioner's unnumbered billing invoice (Petitioner's Exhibit No. 3) shows both Sebago and LaChipper varieties sold to Respondent Country as U.S. No. 1's while the unnumbered billing invoice and the Petitioner's loading invoice (Petitioner's Exhibit Nos. 1 and 2) do not show Atlantic variety being sold as U.S. No. 1's.
Petitioner's testimony that he agreed to furnish "chip stock" potatoes and not U.S. No. 1's because the potatoes were sold in the bulk and unwashed was credible. Also, credible, considering John Adams presence and inspection of the potatoes on May 15, 1985, was Petitioner's testimony that it was his intent for title and risk of loss of potatoes to pass to Respondent Country without any recourse to Petitioner when the potatoes were loaded on Respondent's truck at point of shipment. The standard for grading "chip stock" is somewhat less than U.S. No. 1. There was no evidence introduced as to what standards the potatoes had to meet to grade U.S. No. 1.
The evidence shows that the agreement between Petitioner and Respondent Country was that Petitioner was to load two (2) trailers with Atlantic variety potatoes in the bulk and unwashed at $5.50 per hundred weight and that title and risk of loss passed
to Country at point of shipment without recourse to Petitioner. The place of shipment to be Petitioner's place of business.
Respondent Country agreed for Case Bros. to handle the potatoes and on or about June 6, 1985 received a check from Case Bros. for $1,753.82 which was unacceptable. The check was returned and a PACA audit was requested which resulted in Respondent Country receiving, in addition to the $1,753.82, another check from Case Bros. for $207.80 for a total of $1,960.82
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Respondent, Country 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 Country was properly and sufficiently bonded by Respondent, Fidelity for the sum of
$50,000.00.
The Petitioner a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes (1983) filed a timely complaint against Respondent Country and its surety, Respondent Fidelity in accordance with Section 604.21, Florida Statutes (1983) alleging, among other things, that Respondent Country had refused to pay for "agricultural products" as defined by Section 604.15(3), Florida Statutes (1983) sold and delivered to Respondent Country on May 15, 1985.
The burden of proof is on the party asserting the affirmative. Balino v. Department of HRS, 348, So2d 347 (1 DCA Fla. 1977). The initial burden is on Petitioner to prove that the potatoes in dispute conformed to the agreement between Petitioner and Respondent Country and were accepted by Respondent Country when loaded on May 15, 1985 and having accomplished that, then the burden of moving forward with the presentation of evidence to prove that the potatoes purchased at place of shipment were subject to inspection and acceptance at destination and that the potatoes in dispute were nonconforming on arrival at their destination and that such nonconformance was the fault of Petitioner shifts to Respondent Country. See Florida Department
of Health and Rehabilitative Services v. Career Service Commission, 289, So2d 412 (4 DCA Fla. 1974); 1 Fla. Jur 2d, Administrative Law, Section 81.
The evidence is clear that Petitioner sold and delivered to Respondent Country on May 15, 1985 two (2) trailer loads of Atlantic potatoes in bulk, unwashed with a combined weight of 92,260 pounds at $5.50 per hundred weight for a total amount of
$5,074.30 which Respondent Country has refused to pay.
The evidence shows that when the potatoes were loaded on May 15, 1985 that they were in the condition and of the quality and size, purchased by Respondent Country and that John Adams, an employee of Respondent Country authorized to purchase and accept the potatoes, inspected and accepted the potatoes on May 15, 1985 at the place of shipment.
Respondent Country has failed to meet its burden to prove that the Petitioner was to furnish U.S. No. 1 grade potatoes or that the potatoes were subject to inspection and acceptance on delivery and, therefore, there was no basis to refuse to pay for the potatoes as agreed. But, assuming arguendo that the potatoes were subject to inspection and acceptance on delivery, the evidence was insufficient to show that the potatoes were nonconforming as "chip stock," the evidence being clear that Petitioner did not contract to furnish a U.S. No. 1 grade potato.
