STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BIGHAM HIDE COMPANY, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 85-3922A

)

RONALD RENTZ, d/b/a/ )

R & R BROKERS, and ) NATIONWIDE MUTUAL INSURANCE COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice; the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Caved held a public hearing in the above-styled case on March 6, 1986 in Leesburg, Florida.

APPEARANCES

For Petitioner: Lawrence J. Marchbanks Esquire

Post Office Box 879 Wildwood, Florida 32785

For Respondent: Ronald Rentz Pro Se

Route 1, Box 3510

Havana, Florida 32333

Robert D. Stinson, Esquire filed a Notice of Appearance and other pleadings for Respondent Nationwide Mutual Insurance Company (Nationwide) but did not appear at the hearing.

By complaint filed with the Bureau of License and Bonds Florida Department of Agriculture and Consumer Services, (Department) on October 4, 1985; and submitted to the Division of Administrative Hearings on November 19, 1985 for hearing, Petitioner seeks payment of a balance due on watermelons sold and delivered to Respondent Ronald Rentz, d/b/a R & R Brokers (Rentz) on June 21 and 23, 1985.

In support of the allegation Petitioner presented the testimony of Robert G. Bigham, Raiford F. Dunn, William Graham and Joe W. Kight. Petitioner's Exhibit 1 was received into evidence. Respondent testified on his own behalf and Respondent's Exhibit 1 was 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 proceedings 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 Rentz was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4103 by the Departments and bonded by Respondent Nationwide in the sum of $14,000 - Bond No. LP 505 761 0004.

   
   

3. At all times pertinent to this proceedings Respondent Nationwide 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. On June 21, 1985; Petitioner harvested from his field and loaded on a trucks procured by Respondent Rentz, 2,835 pee wee grey watermelons (watermelons) weighing a total of 43,380 pounds.

   
   

6. On June 21, 1985, Petitioner harvested from his field and loaded on a trucks procured by Petitioner on Respondent Rentz's instructions, 1850 pee wee grey watermelons (watermelons) weighing a total of 43,460 pounds.

   
   

7. The agreed upon price for both loads of watermelons was 2 1/2 cents per pound for a total gross sale price of $2,171.00 of which $353.55 was paid by Respondent Rentz on October 25, 1985 by check no. 290 drawn on the account of Mr. or Mrs. Ronald D. Rentz leaving a balance of $1,817.45. This amount does not include either the $20.00 for lumber added on to the June 21, 1985 invoice

   or the $20.00 added to the complaint for lumber. There was no evidence that the lumber was an agricultural product or that Petitioner produced the lumber charged to Respondent Rentz. Also the price of the lumber was added on and not included in price of the watermelons.

   
   

8. The watermelons were invoiced to Seaway Produce by Petitioner on its invoice showing Ron Rentz as brokers at Respondent Rentz's request.

   
   

9. Petitioner's understanding that Respondent Rentz was acting as buyer and not as a broker was credible and supported by Respondent Rentz's actions subsequent to the watermelons being loaded and shipped.

   
   

10. Although Respondent Rentz contended that he was acting as a brokers the more credible evidence shows that Respondent Rentz was acting as a buyer and that risk of loss passed to him upon shipments with all remedies and rights for Petitioner's breach reserved to him.

    
    

11. There was no official inspection of the watermelons when they were loaded and the evidence presented by Petitioner that the watermelons were of good quality and in good condition when shipped was believable and went unrebutted by Respondent Rentz.

    
    

12. For purposes of Sections 604.15-604.30, Florida statutes; the Department's policy is to consider a person a brokers requiring only a minimum bond ($13,000.00) for licensure when that person does not take title to the product and whose function is to bring buyer and seller together and assist them in negotiating the terms of the contract for sale but not to invoice or collect from the buyer.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to; and the subject matter of, this proceeding.

    
    

14. Respondent Rentz 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 Rentz was properly and sufficiently bonded by Respondent Nationwide for the sum of $14,000.00.

    
    

15. The Petitioner, a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes (1983) filed a timely complaint against Respondent Rentz and his surety, Respondent Nationwide in accordance with Section 604.21, Florida Statutes (1983) alleging, among other things, that Respondent Rentz had refused to pay for "agricultural products" as defined by Section 604.15(3), Florida Statutes (1983) sold and delivered to Respondent Rentz on June 21 and 23. However the lumber charged to Respondent Rentz by Petitioner does not come within the definition of "agricultural product" as defined in Section 604.15(3), Florida Statutes. in any event; the lumber was not produced by Petitioner and the cost of the lumber was not included in the price of the watermelons, as the cost of a box is included in the price of a box of fruit.

    
    

16. Respondent Rentz contends that he was acting as a "broker" while negotiating the terms of the sale between the Petitioner and the buyer and, as such, although required to be licensed as a "dealer in agricultural products", was not responsible to the Petitioner for the payment of the watermelons.

    
    

17. The Legislature has not defined the term "broker" in Section 604.15, Florida Statutes, the definition section; but 12 Am Jur. 2d Broker Section 1 defines broker as "an agent who, for a commission or brokerage feed bargains or carries on negotiations in behalf of his principal as an intermediary between the latter and third persons in transacting business relative to the acquisition of contractual rights, or to the sale or purchase of any form of property; real or personal, the custody of which is not entrusted to him for the purpose of discharging his agency...." The Department's policy for determining whether a licensed dealer is a broker comports with the above definition.

    
    

18. The evidence clearly shows that Respondent Rentz was acting in the capacity of a buyer when he negotiated the sale of the two (2) loads of watermelons in question and as a buyer is responsible for payment to Petitioner unless Petitioner can be shown to have breached the contract. There was sufficient evidence to show that the watermelons were in good condition and good quality when loaded and shipped and no evidence of the Petitioner breaching the contract.

    
    

19. The issue of whether or not Petitioner is entitled to payment for the lumber does not come within the jurisdiction of

this forums therefore, no determination has been made in that regard.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Rentz be ordered to pay to the Petitioner the sum of $1,817.45. It is, further RECOMMENDED that if Respondent Rentz fails to timely pay the Petitioner as ordered, then Respondent Nationwide 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

Respectfully submitted and entered this 14th day of April, 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1986.

COPIES FURNISHED:

Doyle Conner, Commissioner Department of Agriculture and

Consumer Services The Capitol Tallahassee, FL 32301

Robert Chastain General Counsel Department of Agriculture and

Consumer Services Mayo Buildings Room 513 Tallahassee, FL 32301

Ron Weaver, Esq.

Department of Agriculture and Consumer Services

Mayo Building Tallahassee, FL 32301

Mr. Joe W. Kight Chief Bureau of License and Bond

Department of Agriculture and Consumer Services

Mayo Building Tallahassee, FL 32301

Mr. Ronald Rentz Route 1, Box 3510 Havana, FL

Bigham Hide Company, Inc. Post Office Box 188 Coleman, FL 33521

Lawrence J. Marchbanks Esq.

P. O. Box 879 Wildwood, FL 32785

Nationwide Mutual Insurance Company Attention: Robert Brand, Esq.

Post Office Box 1781

Gainesville, FL 32602

Robert D. Stinson

P. O. Box 1739 Tallahassee, FL 32302

Docket for Case No: 85-003922

Orders for Case No: 85-003922