STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUN COAST FARMS OF DADE, INC., )

)

Complainant, )

)

vs. ) Case No. 86-3771A

) C & D FRUIT & VEGETABLE COMPANY, ) INC., and STATE AUTOMOBILE )

MUTUAL INSURANCE COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 27, 1987, at Tampa, Florida.

APPEARANCES

For Complainant: James Fiorica, Esquire

5856 W. Flagler St. Miami, Florida 33144

James B. Joiner pro se entered an appearance as intervenor in support of complaint.

For Respondent Thomas O'Brian, pro se C & D: Post Office Box 898

Bradenton, Florida 33506

Respondent State Automobile Mutual Insurance Company was not represented. By complaint dated June 23, 1986, Sun Coast Farms of Dade Inc.,

Complainant, seeks to recover $1076.75 for 75 crates of green snap beans sold to C & D Fruit and Vegetable Company, Respondent, on March 28, 1986. In answer to the complaint Respondent alleged the snap beans were rejected by the buyer upon arrival in Houston, Texas on April 1, 1986, and an inspection showed damage to the snap beans.

At the hearing Complainant called three witnesses, Respondent called one witness and six exhibits were admitted into evidence. Proposed findings have been submitted by Complainant. Treatment accorded those proposed findings is contained in the appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. On March 27, 1986, C & D Fruit and Vegetable Company Inc., Respondent, by Steve O'Brian part owner, ordered 75 crates of green snap beans from Sun Coast Farms of Dade, Inc., Complainant, to be shipped to a customer in Houston,

   Texas, at a price of $12.35 per bushel. The order and shipment also included crookneck squash, but the squash is not an issue in these proceedings.

   
   

2. No testimony was presented regarding the vehicle that picked up the beans from claimant and delivered them to the customer in Houston. However, claimant included shipping charges of $112.50 in its claim so it is presumed the carrier was the agent of claimant. This is significant because the driver of the carrier signed exhibit six acknowledging receipt of the beans and squash in good condition.

   
   

3. James Joiner harvested 1025 bushels of snap green beans on March 27, 1986 and tendered 480 bushels of these beans to claimant to sell. Joiner is a member of the Homestead Pole Bean Co-op and all of his crates are stamped with his name and Co-op number -35.

   
   

4. Claimant contends that the 75 bushels of beans sold to broker came from these beans received from Joiner; and the invoice (exhibit 6), signed by the driver who picked up the beans, shows Joiner's number (35) and that the beans were in good condition when loaded.

   
   

5. The U.S.D.A. inspection (exhibit 5) dated April l, 1985 shows 75 crates of beans with no distinguishing marks were inspected, found to be fresh and crisp with damage by brown discoloration ranging from 7 to 26 percent. This information was passed to claimant's agent by telephone and claimant's agent requested the buyer work out the problem to salvage as much as possible. The beans deteriorated rapidly and had to dumped with no payment from the buyer.

   
   

6. Other than those 75 crates, none of the 1027 bushels of beans harvested by Joiner on March 27, 1986 experienced any deterioration, leading to the conclusion that Joiners beans were not placed on the truck which delivered 75 crates of beans to Houston, or the U.S.D.A. inspection report is wrong. Had claimant's agent so requested, a second inspection of those beans would have been conducted to verify both the condition of the beans and the markings on the crates.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The burden is on the complainant to establish, by a preponderance of the evidence, the claim made. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Respondent acknowledged ordering

   75 bushels of green beans at a price of $12.35 per bushel based upon the beans being of the grade specified, and the burden shifted to Respondent to show the beans received did not meet those specifications. This was accomplished by the

   U.S.D.A. inspection and this information was immediately passed to claimant's agent. The burden then shifted back to claimant to show that the beans shipped to Houston carried Joiner's markings or otherwise met the required specifications by requesting another inspection. This was not done and the only unbiased testimony presented is the U.S.D.A. inspection report which shows there was no marking on the crates of beans delivered to the buyer in Houston.

   
   

9. From the foregoing it is concluded that claimant has failed to prove, by a preponderance of the evidence, that the 75 bushels of green beans shipped to Houston were from those grown by Joiner or that they were the quality ordered.

It is

RECOMMENDED that the complaint of Sun Coast Farms Inc. for payment of 75 crates of green beans ordered by C & D Fruit and Vegetable Company Inc. be dismissed.

ENTERED this 11th day of June, 1987, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

The Oakland Building Tallahassee, Florida 32301

(904) 488 9675

FILED with the Clerk of the Division of Administrative Hearings this 11th day of June, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3771A

Treatment accorded Complainants proposed findings.

1. Included in Hearing Officer's #7.

2. No evidence presented regarding amount of Respondent's check. Otherwise evidence in Hearing Officer's #5.

3. Included in Hearing Officer's #3.

4. Accepted.

5. Accepted, as testimony of witness.

6. Included in Hearing Officer's #6.

7. Rejected as not supported by competent evidence.

COPIES FURNISHED:

Sun Coast Farms of Dade County, Inc. Post Office Box 3064

Florida City, Florida 33034

C & D Fruit & Vegetable Company, Inc. Post Office Box 898

Bradenton, Florida 33506

State Automobile Mutual Ins. Co.

518 E. Broad Street Columbus, OH 43216

Ted Helms, Chief

Bureau of License and Bond Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, Florida 32301

Robert Chastain General Counsel

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32399-0800

Docket for Case No: 86-003771

Orders for Case No: 86-003771