STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SPESSARD PUTNAL, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4209A

)

S. J. RIDGDILL, JR., RODNEY ) RIDGDILL and M. G. FORD, d/b/a )

M. G. FORD PRODUCE and LAWYERS ) SURETY CORPORATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held in Tallahassee, Florida, on January 26, 1987, before Mary Clark, Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Spessard Putnal

Route 1, Box 922

Mayo, Florida 32066 (representing himself)

For Respondents: John Jay Watkins, Esquire

190 North Bridge Street Post Office Box 250 LaBelle, Florida 33935

BACKGROUND AND PROCEDURAL MATTERS

On September 10, 1986, Spessard Putnal filed his complaint with the Florida Department of Agriculture and Consumer Services alleging that the Respondents owed him a total of $3,342.00 for two and a half loads of watermelons sold in June 1986. The Respondents answered with a denial of the claim and attached notarized statements and a packet of documents relating to the loads of watermelons. Since the complaint and answer raised material issues of disputed fact, the agency forwarded the file to the Division of Administrative Hearings for conduct of a formal hearing.

By agreement of the parties, because of the distance between their home counties and because neither party is an "agency" for purposes of determining venue under Rule 22I-6.14, F.A.C., the hearing was conducted through speaker phones and a conference call. In the hearing room in Tallahassee, before a speaker phone, were the hearing officer, a court reporter, Spessard Putnal, and Ted Helms and Brenda Hyatt from the Department of Agriculture. Mr. Putnal testified in his own behalf and presented the testimony of three witnesses: Jack Putnal and Kenneth Edwards, who participated by telephone from Mayo, Florida; and John Hull who was in LaBelle, Florida. The Respondents, their attorney and witnesses, Sonya Ridgdill and John Hull, participated through a speaker phone in LaBelle, Florida.

A single exhibit was introduced and admitted into evidence: Respondents' composite Exhibit #1, comprised of M. G. Ford Produce company's business records relating to the watermelon loads, including invoices, bills of lading, inspection reports, and similar items. Petitioner's only objection to the exhibit was that the actual inspectors were not available to explain their reports. This objection was considered when weighing the evidence in question.

At the close of the Petitioner's case in chief the Respondents moved for dismissal of S. J. and Rodney Ridgdill in particular, and dismissal of the complaint in general, for lack of evidence to support the claim. They also renewed their motion to dismiss, made in writing and filed on January 20, 1987, based upon Section 672.201, F.S. The motions were taken under advisement and a ruling is incorporated in this recommended order. The parties have submitted proposed recommended orders and a specific ruling on each proposed finding of fact is included in the attached appendix.

ISSUE

The issue in the proceeding is what amount, if any, is owed by M. G. Ford Produce to Spessard Putnal for two and a half loads of watermelons. A determination of this issue requires a determination of the character of the transaction regarding the watermelons: Was it a "sale", or was it an agreement to "handle" the melons as a broker?

FINDINGS OF FACT

1. Spessard Putnal grows watermelons in Lafayette County and operates out of Mayo, Florida.

   
   

2. M. G. Ford owns M. G. Ford Produce Company, a licensed and bonded brokerage business and the successor to his father's business, Malvin Ford Produce. Both S. J. Ridgdill and Rodney Ridgdill own a fraction of the business. The principal office is in LaBelle, Florida; however, other offices are located temporarily elsewhere, including Mayo, during the various growing seasons.

   
   

3. The watermelons which are the subject of this dispute are described as follows:

   
   

   1. Load number 218

      
      

      This was 44,340 pounds of Charleston Grey watermelons: 28,260 pounds of melons grown by Cory Buchanan from Mayo, and 16,080 pounds of melons grown by Spessard Putnal. The truck left Lafayette County on June 22, 1986, and arrived at A & P Stores in Edison, New Jersey, on June 24, 1986. The load was inspected by an A & P inspector and was rejected for excessive rind rot. The load was then consigned to Eckert Produce, Inc. in Philadelphia on June 25, 1986. Eckert sold the melons for $.75 and $1.00 each, and after deducting its unloading, handling and selling charges ($534.88), paid M. G. Ford Produce $1,057.62. M. G. Ford's accounting to Spessard Putnal and Cory Buchanan which, after deducting freight expense of $1,640.58 and $75.00 handling charge, indicated a net loss of

      $657.96. The loss was apportioned between the two growers according to their share of the load.

      
      

   2. Load number 227

      This was a full load of Spessard Putnal's Charleston Grey melons; 46,070 pounds. It left by truck on June 30, 1986, and was inspected by a U.S. Department of Agriculture inspector in New York on July 3, 1986. Six per cent damage by "transit rubs" was found, and 7 percent decay. The load arrived at Wakefern Foods in Linden, New Jersey, on July 3, 1986, where it was rejected. The load was then consigned to Eckert Produce Company in Philadelphia on July 7, 1986. A few melons sold for $1.25 each; most sold for $1.00 each. After deducting its various charges ($587.74), Eckert paid M. G. Ford Produce

      $1,098.51 for the load. M. G. Ford's accounting to Spessard Putnal showed deductions of $1,773.69 for freight and $75.00 for handling, for a net loss of

      $750.18.

      
      

   3. Load number 228

      
      

      This was 43,890 pounds of Spessard Putnal's Charleston Grey melons. The truck left on July 2, 1986, and the load was inspected in New Jersey for a prospective distributor, Anthony Gangemi, Inc. The U.S. Department of Agriculture inspection form dated July 5, 1986, is stamped "Rejected" with notations of internal rind spots, bruising, bacterial soft rot, and "overripe". The load was consigned to Eckert Produce on July 7, 1986. The melons that were not discarded were sold for $1.00 each. After deducting its charges ($545.55), Eckert paid

      M. G. Ford Produce $1,143.45 for the load. In turn, M. G. Ford deducted freight of $1,645.87 and handling charges of $75.00, and its accounting to Spessard Putnal showed a net loss of $577.42. 1/

      
      

4. The end of the watermelon season in Lafayette County in 1986 was around the Fourth of July. Because of heavy rains and because of the end of the season, M. G. Ford Produce had considerable trouble with rind rot on Charleston Greys by the time they got to the northern markets.

   
   

5. John Hull works for M. G. Ford Produce. He inspects the melons in the field and supervises the loading by contract crews. He thought Spessard Putnal's watermelons looked good and would "ride" (go north and pass inspection and be accepted). He told Putnal that he (Putnal) should be able to get at least $.03 per pound. When the two men called M. G. Ford, who was in North Carolina, he told them that the only way he would take the loads was on a consignment basis and that he would pay $.03 a pound or better if they passed inspections. The melons were loaded and their fate is described in Paragraph 3, above.

   
   

6. Spessard Putnal claims that the agreement was that M.D. Ford bought his melons for $.03 a pound. He says that he never sells his melons on consignment but is paid "when they cross the scale". He said that the reason he wasn't paid immediately in this case was that M. G. Ford was in North Carolina. He admits that on other occasions he was paid by M. G. Ford according to the prices the melons brought "up the road".

   
   

7. Sonya Ridgdill is M. G. Ford's mother and Malvin's widow. She served as bookkeeper, office manager and secretary for Malvin Ford Produce for 15 years and now works with her son's company. She was in the Mayo office when the arrangements were made regarding Mr. Putnal's melons and she could have paid him immediately if that had been the agreement. M. G. Ford Produce both "buys" produce and "handles" (consignment) produce for growers. When the produce is bought, the grower is paid immediately. The company has "handled" melons for both Spessard Putnal and Cory Buchanan. Cory Buchanan did not contest the accounting on his share of load number 218.

8. A negative inspection will not necessarily result in a load being "kicked" (rejected). The market supply and demand also governs whether the load will be sold.

   
   

9. As is common in such transactions, the arrangement between Spessard Putnal and M. G. Ford Produce is not reflected in writing. Nor is there evidence of written or verbal consent from Spessard Putnal to the consignment by

   M. G. Ford to Eckert Produce.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. Sections 120.57(1) and 604.21(6), F.S.

    
    

11. Spessard Putnal is a "producer" and M. G. Ford Produce is a "dealer" in agricultural products, as those terms are defined in section 604.15, F.S. Section 604.21, F.S., provides a procedure for resolution or administrative adjudication of complaints filed with the Florida Department of Agriculture and consumer Services by persons alleged to be damaged by breach of an agreement by a licensed dealer in agricultural products. The complaint is directed against the dealer and his surety. Mr. Putnal's complaint was filed well within the nine-month limit described in section 604.21(1), F.S.

    
    

12. The Ridgdills are proper parties in this proceeding as, even though there was no evidence of their active participation in the transaction, they are admitted part owners of M. G. Ford Produce, a non-incorporated business enterprise.

    
    

13. As Petitioner, Spessard Putnal bears the burden of proving by a preponderance of the evidence that the two and a half loads of watermelons were sold outright to M. G. Ford Produce. This burden was not met and the weight of evidence supports M. G. Ford's contention that Putnal "rode the load"; that is, he assumed the risk for the condition of the melons and for the price they might bring at their destinations. The parties' actions were consistent with that arrangement. If a sale had occurred, Putnal would have been paid immediately.

    
    

14. Since the transaction between Spessard Putnal and M. G. Ford Produce was not a "sale," it is unnecessary to address the applicability of the Uniform Commercial Code, Section 672.201, F.S., raised in Respondents' Motion to Dismiss. That section bars contracts for sale for $500.00 or mare when the contract is not evidenced in writing.

    
    

15. Since the transaction was a brokerage or consignment agreement, the provisions of Section 604.211, F. S. apply:

604.211 Limitation on successive consignments.--

No licensee, while acting as an agent for a producer or in disposing of agricultural products received on consignment from a producer or his agent or representative, shall consign such products to another, use the services of a broker, or receive more than one commission or fee for making the sale thereof, unless by written consent of the producer or consignor. No charges or

costs for acts prohibited by this section may be passed on to the producer or consignor.

There being no evidence of Spessard Putnal's written consent to the subsequent consignment by M. G. Ford to Eckert Produce, the costs and charges deducted from Eckert's proceeds of the sales may not be passed on to the producer. While this results in a substantial reduction of the net losses reflected on the accounting statements described in Findings of Fact Paragraph 3, the freight and M. G. Ford's handling charges still exceed the prices brought by the melons.

RECOMMENDATION

Based upon the foregoing, it is recommended that a Final Order be entered finding that no funds are owed by Respondents to Petitioner for the watermelons in question and dismissing Petitioner's complaint.

DONE AND RECOMMENDED this 25th day of February, 1987, at Tallahassee, Florida.

MARY CLARK, 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 25th day of February, 1987.

ENDNOTE

1/ The details regarding each load are gleaned from the files of M. G. Ford Produce which comprise Respondents' Composite Exhibit #1. Each document was identified by Sonya Ridgdill and she explained each. While the inspectors were not available to testify regarding their findings, the fact that the loads were rejected by their initial prospective buyers was uncontroverted. The ultimate disposition of the loads was also uncontroverted.

APPENDIX

The following constitutes my ruling on each proposed finding of fact submitted by the parties in this case.

PETITIONER'S PROPOSED FINDINGS OF FACT

1. Adopted by implication in findings of fact, Paragraphs #2 and #3.

2 and 3. Adopted by implication in finding of fact, Paragraph #5.

1. Rejected as immaterial.

2. Rejected as contrary to the weight of evidence.

3. Adopted in substance in finding of fact,

   Paragraph #5.

4. Adopted in part in finding of fact, Paragraph #5. However, the agreement to pay $.03 per pound was contingent on an event that did not occur.

5. and 9. Rejected as contrary to the weight of the evidence.

10. The fact of the accounting of the loads is addressed in finding of fact, Paragraph #3; the date is immaterial.

11 and 12. Rejected as contrary to the weight of evidence.

1. Rejected as contrary to the weight of evidence. Sonya Ridgdill was in Mayo.

2. Rejected as immaterial, given the finding that the transaction was a consignment.

3. Adopted in finding of fact, Paragraph #9.

4. Rejected as immaterial.

RESPONDENTS' PROPOSED FINDINGS OF FACT

1. Adopted in finding of fact, Paragraph #1.

2. Adopted in finding of fact, Paragraph #2.

3 and 4. Adopted in substance in finding of fact, Paragraph #4.

5 and 6. Adopted in finding of fact, Paragraph #3(a).

1. Adopted in finding of fact, Paragraph #9.

2. Adopted in finding of fact, Paragraph #5.

9-17. Adopted in substance in finding of fact, Paragraph #3(a).

18. Adopted in finding of fact, Paragraph #3(b). 19-21. Adopted in finding of fact, Paragraph #5.

1. Adopted in finding of fact, Paragraph #3(b

2. Rejected as cumulative.

24-27. Adopted in substance in finding of fact, Paragraph #3(b).

1. Adopted in finding of fact, Paragraph #3(c).

2. Adopted in finding of fact, Paragraph #5. 30-33. Adopted in substance in finding of fact,

Paragraph #3(c).

1. Rejected as immaterial.

2. Adopted by implication in finding of fact, Paragraph #4.

3. Rejected as immaterial.

4. Adopted in finding of fact, Paragraph #7.

5. Rejected as inconsistent with the testimony of all the witnesses, unless the statement is intended to be a legal conclusion, in which case it is unclear what legal concept of "possession" is being addressed.

6. Rejected as immaterial.

COPIES FURNISHED:

Mr. Spessard Putnal Route 1, Box 922

Mayo, Florida 32066

John Jay Watkins, Esquire

190 North Bridge Street Post Office Box 250 LaBelle, Florida 33935

Lawyers Surety Corporation

P. O. Box 19327 Orlando, Florida 32814

Robert Chastain, General Counsel Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32399-0800

Ted Helms, Chief

Bureau of License and Bond Department of Agriculture

and Consumer Services Lab Complex

Tallahassee, Florida 32399-1650

Docket for Case No: 86-004209

Orders for Case No: 86-004209