STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUN COAST FARMS OF DADE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 86-4438A

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

MUTUAL INSURANCE COMPANY, )

)

Respondents. )

)

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 cause on April 27, 1987 at Tampa, Florida.

APPEARANCES

For Petitioner: James Fiorica, Esquire

5856 West Flagler Street Miami, Florida 33144

For Respondent: Thomas O'Brian, pro se

Vice President

Sun Coast Farms of Dade Post Office Box 898 Bradenton, Florida 33506

By Complaint dated August 15, 1987 [sic] Sun Coast Farms of Dade, Inc., Complainant, seeks payment in the amount of $1535 for 100 boxes of squash sold to C&D Fruit & Vegetable Co., Respondent, on invoice dated 3/10/86. In answer to this Complaint, Respondent acknowledges ordering 100 boxes of squash to be shipped to a customer in Texas where, upon arrival, the shipment was reported damaged, was inspected, and a net of $644 was paid Complainant.

At the hearing Rosario Strano testified on behalf of Complainant and Thomas O'Brian testified for Respondent.

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. C&D Fruit ordered 100 boxes of squash from Sun Coast Farms to be delivered to a customer in Texas. The agreed price for the squash was $15.35 per box.

2. Upon arrival of the squash in Texas, the customer reported to C&D that the squash did not meet Grade No. l as ordered. C&D contacted George Mason, Complainant's contact on this transaction, and an inspection was ordered.

   
   

3. The inspection report from Texas was passed to O'Brian who in turn read the inspection report to Mason via long distance telephone. Mason agreed to have the buyer get what he could for the squash.

   
   

4. Upon completion of the transaction, C&D submitted its check to Complainant in the amount of $644. No reference is made that $644 was received by Sun Coast in its Complaint.

   
   

5. The inspection certificate (Ex. 2) shows 150 crates of crookneck squash was inspected in wirebound crates "with no distinguishing marks." Complainant contends that it marks all of its boxes with a circle drawn on each end of the box with a "l" inside the circle to indicate Grade No. l.

   
   

6. It is doubtful that an agriculture inspector would recognize a "l" in a circle as a grower's distinguishing mark. Many growers who mark all of their boxes do so with a stamp containing their name or the name of their co-op with their co-op number.

   
   

   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).

   
   

9. Here Respondent acknowledged ordering 100 boxes of squash at the price of $15.35 per box and only contends that upon arrival the product was rejected as not being Grade No. 1. Accordingly, the burden shifted to Respondent to show the contract price to be inappropriate. To do this, a USDA inspection report was presented into evidence which showed damage to the squash upon arrival at its destination. This information was passed to claimant's representative as soon as it was received and this representative agreed to the procedure that was followed. When it is considered that the grower was in Homestead, the broker was in Bradenton, and the buyer was in Texas, telephone communications is the only practicable method of communicating and resolving problems that arise when dealing with perishable produce.

   
   

10. It also appears from the Complaint that Complainant is attempting to collect again for the $644 already paid to it.

    
    

11. Had Complainant been dissatisfied with the inspection report which showed 150 boxes of squash was inspected, he could have ordered a second inspection restricted to the 100 boxes it shipped. It cannot fail to take appropriate action in a timely manner and later contend that the inspection was erroneous because it included produce not shipped by Complainant.

    
    

12. From the foregoing, it is concluded that when the squash arrived in Texas and a dispute arose, Respondent immediately contacted claimant's representative who agreed to the procedure that was followed to mitigate the loss due to the damaged vegetables. It is

RECOMMENDED that the Complaint of Sun Coast Farms of Dade, Inc., against C&D Fruit & Vegetable Co., Inc., be dismissed.

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

K. N. AYERS 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 11th day of June, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4438A

Treatment accorded Complainant's proposed findings:

1. Included in HO #7.

2. Included in HO #2.

3. Rejected as irrelevant in light of HO findings #2, 3 and 5.

4. Accepted.

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 Insurance Co.

518 East Broad Street Columbus, Ohio 43216

Ted Helms, Chief

Bureau of License and Bond Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32399-0810

Robert Chastain, Esquire General Counsel

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32399-0810

Docket for Case No: 86-004438

Orders for Case No: 86-004438