Judges: WILLIAM R. CAVE
Agency: Department of Agriculture and Consumer Services
Latest Update: Apr. 15, 1986
Summary: Respondent refused to pay for watermelons that Petitioner harvested, loaded, and shipped. No evidence that Petitioner breached contract. Respondent or insurer must pay balance due.
85-3924.PDF
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RAIFORD DUNN, )
)
Petitioner, )
)
vs. ) CASE NO. 85-3924A
)
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. Cave, 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 Bond, 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 5, 12, 18 and 19, 1985.
In support of the allegation, Petitioner testified on his own behalf and presented the testimony of Hugh Coachman and Joe W. Kight. Petitioner's Exhibit 2 was received into evidence.
Respondent testified on his own behalf and Respondent's Exhibits 1, 2, 3 and 5 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:
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 Rentz 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 Respondent Nationwide in the sum of $14,000 - Bond No. LP 505 761 0004.
At all times pertinent to this proceeding, Respondent Nationwide 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).
Petitioner harvested, loaded and shipped sixteen (16) loads of watermelons to various receivers on instruction from Respondent Rentz during the 1985 watermelon season but only four
(4) loads were in dispute on the date of the hearing with a claim of $3,807.98. 1/
Petitioner in previous watermelon seasons loaded and shipped watermelons for Respondent Rentz and on all occasions, including the 1985 season, had been paid for the watermelons either in cash by Respondent Rentz or by check drawn on Respondent Rentz's account.
The invoicing of all loads of watermelons shipped by Petitioner for Respondent Rentz was done by Respondent Rentz and
payments made by the various receivers were made to Respondent Rentz.
Petitioner's understanding that Respondent Rentz was acting as a buyer and not a broker was credible and supported by Respondent Rentz's actions subsequent to the watermelons being loaded and shipped. 2/
Although Respondent Rentz contended that he was acting as a broker, the more credible evidence shows that Respondent Rentz was acting as a buyer and that risk of loss passed to him upon shipment, with all remedies and rights for Petitioner's breach reserved to him.
For purposes of Sections 604.15-604.30, Florida Statutes, the Department's policy is to consider a person a broker, 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
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding.
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.
The Petitioner, a "producer" of agricultural product as defined by Section 604.15(5), Florida Statutes (1983) filed 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 5, 12, 18 and 19, 1985.
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.
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 fee, 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.
The evidence clearly shows that Respondent Rentz was acting in the capacity of a buyer when he negotiated the sale of Petitioner's watermelons and as a buyer is responsible for payment to Petitioner unless Petitioner can be shown to have breached the contract. There was no evidence that Petitioner breached the contract with Respondent Rentz.
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 $3,807.98. 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 (1983).
Respectfully submitted and entered this 15th 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 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1986.
ENDNOTES
1/ At the time the complaint was filed there were six (6) loads in dispute for a total claim of $7,416.23, but subsequently Respondent Rentz made two (2) partial payments to Petitioner of
$3,398.35 and $209.10, leaving a claim balance of $3,807.98 with only four (4) loads in dispute.
2/ Respondent Rentz continued negotiation with the receivers for payment and received partial payments on the watermelons which were paid to Petitioner prior to the hearing. As late as the day before the hearing, Respondent Rentz received a partial payment. Additionally, Respondent Rentz filed a claim against one (1) of the receivers with the Canadian government for the balance owed from the receiver and this matter was pending at the time of the hearing.
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
Mr. Joe W. Kight, Chief Bureau of License and Bond Department of Agriculture and
Consumer Services Mayo Building
Tallahassee, Florida 32301
Mr. Ronald Rentz Route 1, Box 3510 Havana, Florida
Raiford Dunn
P. O. Box 333
Coleman, Florida 34255
Lawrence J. Marchbanks, Esquire
P. O. Box 879
Wildwood, Florida 32785
Nationwide Mutual Insurance Company Attention: Robert Brand, Esquire Post Office Box 1781
Gainesville, Florida 32602
Robert D. Stinson, Esquire
P. O. Box 1739
Tallahassee, Florida 32302
Docket for Case No: 85-003924
Orders for Case No: 85-003924
| Issue Date |
Document |
Summary |
|
Jul. 07, 1986 |
Agency Final Order
|
|
|
Apr. 15, 1986 |
Recommended Order
|
Respondent refused to pay for watermelons that Petitioner harvested, loaded, and shipped. No evidence that Petitioner breached contract. Respondent or insurer must pay balance due.
|
