STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. J. CRAWFORD, )

   )

   Petitioner, )

   )

   vs. ) Case No. 85-3557A

   )

   DALE M. SWAIN, )

   d/b/a PALM FRUIT SHOP AND HARTFORD ) INSURANCE COMPANY OF THE SOUTHEAST, )

   )

   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 January 16, 1986 in Bushnell, Florida.

   
   

   APPEARANCES

   For Petitioner: L. J. Crawford, pro se

   Route 3 Box 269

   Lake Butler; Florida 32059

   
   

   For Respondent: Dale M. Swain, pro se

   313 West Seminole Avenue Bushnell, Florida 33513

   
   

   No appearance for Hartford Insurance of the Southeast.

   
   

   By complaint filed with Division of Administrative Hearings on October 15; 1985 but filed with the Bureau of License and Bond; Florida Department of Agriculture and Consumer Services (Department) on August 5, 1985, Petitioner seeks payment of a balance due him on watermelons sold and delivered to Respondent Dale M. Swain, d/b/a Palm Fruit Shop (Swain) on June 26, 1986.

   
   

   In support of the allegation, Petitioner testified on his own behalf and presented-the testimony of Allan Hogan and Alfred Mengerson. Petitioner's Exhibit 1 was received into evidence.

   Respondent testified on his own behalf and presented the testimony of Elton Ray Stone. Respondent's Exhibits 1-11 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).

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

   
   

   1. 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) .

      
      

   2. At all times pertinent to this proceeding, Respondent Swaiff was a licensed dealer in agricultural products as defined by Section 604.15(1); Florida Statutes (1983), issued license No. 1630 by the Department, and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $25,000.00 Bond No. RN 4528454.

      
      

   3. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida.

      
      

   4. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983).

      
      

   5. The record is clear that Respondent Swain agreed to purchase a load of watermelons from Petitioner at an agreed upon price of $0.03 per pound, with payment "due on date of sale", to be loaded on a truck furnished by Respondent Swain through Elton Stone, Inc., a truck broker. Petitioner agreed to harvest and load the truck with a "good quality" or U.S. No. 1 grade watermelons subject to rejection on arrival at their destination if the watermelons were nonconforming for reasons attributable to the Petitioner. No evidence was presented with regard as to what Respondent Swain or Petitioner understood watermelons of "good quality" to mean and, likewise, no evidence was presented to show what standards a load of watermelons had to meet in order to be graded U.S. No. 1.

      
      

   6. Although Respondent Swain contends that he acted only as a sales agent, that is, he arranged the sale of the watermelons and made arrangements for a truck to deliver the watermelons; the evidence shows that the agreement between Petitioner and Respondent Swain was that title and risk of loss passed to Respondent Swain on shipment, with all remedies and rights for Petitioner's breach reserved to Respondent Swain.

      
      

   7. Petitioner sold other loads of watermelons to Respondent

      Swain during the 1985 watermelon season but only one (1) load is in dispute which is a load of watermelons weighing 4,8760 pounds at $0.03 per pound for a total amount of $1;462.80 which Respondent Swain has refused to pay.

      
      

   8. From June 19, 1985 through June 30, 1985, Petitioner harvested and sold nine t9) other loads of watermelons from the same field as the watermelons in dispute were harvested without any loss due to anthractnose rot or otherwise on arrival at their destination.

      
      

   9. The watermelons in dispute were loaded June 26, 1985 on a trailer with license number KY-T37-131 and billed to Charley Brothers Company; New Stanton; Pennsylvania by Respondent Swain's on his Invoice Number 061843 and delivered on June 28, 1985. Charley Brothers Company rejected the load and Respondent Swain called for an inspection which showed some anthractnose rot in the early stages in the front ten (10) feet of trailer with the remaining load showing no decay. The percentage of rot or decay is not-evident from the report since it is somewhat illegible and the inspector who prepared the report did not testify.

10 The evidence was insufficient to prove whether the trailer was vented or not vented.

1. The testimony of those persons present during the loading of the watermelons in dispute was credible and shows that the watermelons were in good condition on June 26; 1985 when they were loaded and that if anthractnose rot was present on the watermelons it was not visible at the time of loading. Neither Respondent Swain nor his representative were present during the harvesting and loading of the watermelons.

   
   

2. The evidence shows that Respondent Swain made numerous telephone calls in regard to this load of watermelons, some of those calls to Petitioner, but the evidence is insufficient to prove the content of those telephone conversations with Petitioner.

   
   

3. The load was put on consignment to Felix and Sons Wholesale by Respondent Swain and he received a check in the sum of $500.00 as payment for the load of watermelons. Respondent Swain paid Elton Stone, Inc. $1,820.94 for freight resulting in a loss of $1,320.94 on the load of watermelons.

   
   

   CONCLUSIONS OF LAW

   
   

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

5. Respondent Swain was a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes, 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-1.0t, Florida Administrative Code. Respondent Swain was properly and sufficiently bonded by Respondent Hartford for the sum of

   $25,000.00.

   
   

6. The Petitioner a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes (1983) filed a timely complaint against Respondent Swain and his surety, Respondent Hartford in accordance with Section 604.21, Florida Statutes (1983) alleging, among other things, that Respondent Swain had refused to pay for "agricultural products" as defined by Section 604.15(3), Florida Statutes (1983) sold and delivered to Respondent Swain on June 26, 1985.

   
   

7. The burden of proof is on the party asserting the affirmative. Balino v. Department of HRS, 348, So. 2d 347 (1 DCA Fla. 1977). The initial burden is on Petitioner to prove that the watermelons in dispute conformed to the agreement between Petitioner and Respondent Swain when loaded on June 26; 1985 and having accomplished that, then the burden of moving forward with the presentation of evidence to prove that the watermelons were nonconforming on arrival at their destination and that such nonconformance was the fault of Petitioner shifted to Respondent Swain. See Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289, So. 2d 412 (4 DCA Fla. 1974); 1 Fla. Jur 2d; Administrative Law; Section 81. Although neither Respondent Swain nor his representative were present when the watermelons were harvested and loaded on June 26; 1985; the testimony of those present during the harvesting and loading was credible and sufficient to prove that the watermelons were in good condition with no apparent decay or indication of anthractnose rot when loaded on June 26; 1985. The evidence shows that Respondent Swain sold the load of watermelons to Charley Brothers Company who rejected the load on arrival. Respondent Swain then requested a federal inspection which was completed on June 28, 1985 that indicated some decay in the front ten (10) feet of the trailer due to anthractnose rot in the early stage; the percentage of decay in the front ten (10) feet is not clear from the report because it is illegible, but the remaining portion of the load showed no decay.

8. Even without evidence as to what constitutes a load of "good quality" watermelons or what constitutes a load of U.S. No.

1 grade watermelons; the rejection of the watermelons by Charley Brothers Company and the subsequent sale at a drastically reduced price coupled with an inspection report that clearly showed the load of watermelons not to be of "good quality" would be sufficient to prove the watermelons to be nonconforming.

However; the information gleaned from the inspection report; there being no testimony from the inspector who prepared the report, falls short of clearly showing the load of watermelons not to be of "good quality" or that the load of watermelons did not meet U.S. No. 1 grade. And, since no evidence was presented as to what constitutes a load of "good quality" watermelons or what constitutes a load of U.S. No. 1 grade watermelons, no comparison could be made to the condition of the watermelons as reported to determine if they were nonconforming on arrival at their destination. Respondent Swain has failed to show that the load of watermelons was nonconforming on arrival at the destination.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law recited herein; it is RECOMMENDED that Respondent Swain be ordered to pay to the Petitioner the sum of $t,494.30. It is further RECOMMENDED that if Respondent Swain fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21; Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983).

Respectfully submitted and entered this 28th day of February, 1986, in Tallahassee; Leon County; Florida.

WILLIAM R. CAVE, 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 28th day of February, 1986.

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, F1orida 32301

L. J. Crawford Route 3, Box 269

Lake Butler, Florida 32059

Ron Weaver, Esquire Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, Florida 32301

Joe W. Kight; Chief License and Bond

Room 418, Mayo Building Tallahassee, Florida 32301

Hartford Insurance Company of the Southeast

200 East Robinson Street Orlando, Florida 32801

Dale M. Swain

d/b/a Palm Fruit Shop

313 West Seminole Avenue Bushnell, Florida 33513

Docket for Case No: 85-003557

Orders for Case No: 85-003557