STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAIFORD DUNN, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4580A

) LAWRENCE J. LAPIDE, INC. and ) PEERLESS INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

On April 27, 1987, a formal hearing was conducted in this case at Leesburg, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

FOR PETITIONER DUNN: Lawrence J. Marchbanks, Esquire

Marchbanks & Feamen

4700 Northwest 2nd Avenue, Suite 101 Boca Raton, Florida 33432

FOR RESPONDENT LAPIDE: Mr. Lawrence J. Lapide

3 Willshire Court Freeport, New York 11236

FOR RESPONDENT PEERLESS: (No appearance)

ISSUES

The basic issue in this case is whether the Respondent Lawrence J. Lapide, Inc., is indebted to the Petitioner Raiford Dunn for agricultural products purchased by the Respondent from the Petitioner.

BACKGROUND AND INTRODUCTION

By complaint filed with the Bureau of License and Bond, Florida Department of Agriculture and Consumer Services, on October 7, 1986, and submitted to the Division of Administrative Hearings on November 21, 1986, for hearing, the Petitioner seeks payment of a balance due on watermelons sold and delivered to Lawrence J. Lapide, Inc., on June 17, 18, and 19, 1986. At the hearing the Petitioner and the representative for the Respondent Lapide both testified and both presented the testimony of other witnesses. The Petitioner and the Respondent Lapide also both offered exhibits which were received in evidence.

Following the hearing, none of the parties ordered a transcript of the proceedings. Further, none of the parties have filed any post- hearing proposed findings of fact or conclusions of law as allowed by Section 120.57(1)(b)4, Florida Statutes.

FINDINGS OF FACT

Based on the parties stipulations, on the testimony at the hearing, and on the exhibits received in evidence I make the following findings of fact.

l. The Respondent Lawrence J. Lapide, Inc., is a New York corporation. It is a licensed dealer in agricultural products, having been issued license number 1274. For the time period in question, Lawrence J. Lapide, Inc., had a bond posted through Peerless Insurance Company in the amount of $50,000.00. The bond number was RG-30-44.

1. The Petitioner is a producer of agricultural products, specifically watermelons. The Petitioner has been raising watermelons for approximately 25 years. The Petitioner knows Mr. Lawrence J. Lapide and has had business dealings with Lawrence J. Lapide, Inc., on several occasions during the past 4 or 5 years. During 1986 the Petitioner sold three loads of watermelons to Lawrence J. Lapide, Inc., prior to the four loads which are the subject of this case. (The parties do not have any disputes about the three earlier loads.)

   
   

2. During June of 1986, Mr. Lawrence J. Lapide met with the Petitioner to discuss the purchase of watermelons. Mr. Lapide, acting on behalf of Lawrence

   J. Lapide, Inc., agreed to buy four loads of watermelons. Mr. Lapide purchased

   3 loads of small watermelons (referred to as "dinks") at 3 cents per pound and l load of medium watermelons at 5 cents per pound. When the watermelons were loaded and weighed, the totals were as follows:

   
   

   Pig # 676086 43,290 pounds x 3 cents $1,298.70

   Pig # 677969 47,980 pounds x 3 cents $1,439.40

   Pig # 676036 43,910 pounds x 3 cents $1,317.30

   Pig # 677047 45,640 pounds x 5 cents $2,282.00

   
   

   Thus, the total agreed price for the four loads of watermelons was $6,337.40.

   
   

3. When the Petitioner and Mr. Lapide agreed to the sale of the four loads of watermelons, the terms of the sale included an understanding that the transaction was F.O.B. at Sumterville, Florida. The agreement between the parties included an understanding that Mr. Lapide would provide the trailers to haul the watermelons and Mr. Lapide would pay all transportation charges for the watermelons. Pursuant to the agreement of the parties, payment for the watermelons was due "when they moved over the scale," i.e., as soon as the trucks were loaded and weighed. Finally, the evidence shows that the agreement between the parties was to the effect that title and risk of loss to the watermelons passed to the Respondent Lapide on shipment, with all remedies and rights for the Petitioner's breach reserved to the Respondent Lapide.

   
   

4. The watermelons in question were loaded on June 17, 18, and 19, 1986, on trailers provided by Mr. Lapide. Pursuant to Mr. Lapide's request, as soon as each truck was loaded, the Petitioner called the transportation company to advise them that the melons were loaded and ready to be shipped. When the watermelons were loaded, they were in good marketable condition and if anthractnose rot was present on the watermelons, it was not visible at the time of loading. During the week of June 16, 1986, the Petitioner loaded watermelons for Mr. James Hill at the same time he was loading watermelons for the Respondent Lapide. The watermelons loaded for Mr. Hill came from the same fields as the watermelons loaded for the Respondent Lapide. Mr. Hill did not have any problems with the loads of watermelons he bought from the Petitioner during the week of June 16, 1986.

5. Two of the loads of watermelons received by the Respondent Lapide were not inspected when received in New York. Those two loads contained saleable watermelons although an unspecified percentage of the watermelons in the two uninspected loads were unsaleable. The Respondent Lapide sold watermelons from the two uninspected loads. Two of the loads of watermelons received by the Respondent Lapide were inspected after they were received in New York. The inspections showed that one load contained anthractnose rot in various stages in

   44 percent of the watermelons and that the other load contained anthractnose rot in various stages in 79 percent of the watermelons. The Respondent Lapide dumped the last two loads of watermelons.

   
   

6. The Respondent Lapide has previously paid the Petitioner $1,500.00 of the amount due for the four loads of watermelons in question.

   
   

   CONCLUSIONS OF LAW

   
   

7. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sec. 120.57, Fla. Stat.

   
   

9. The Respondent Lawrence J. Lapide, Inc., was a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes, and was therefore required to be licensed by the Department pursuant to Section 605.17, Florida Statutes. As a requirement of licensing, the Respondent had to show the Department evidence of a surety bond or a certificate of deposit in accordance with Section 604.20, Florida Statutes, and Rule 5H-l.01, Florida Administrative Code. The Respondent Lawrence J. Lapide, Inc., was properly and sufficiently bonded by the Respondent Peerless Insurance Company for the sum of $50,000.00.

   
   

10. The Petitioner, a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes, filed a timely complaint against the Respondent Lawrence J. Lapide, Inc., and its surety in accordance with Section 604.21, Florida Statutes, alleging, among other things, that the Respondent Lawrence J. Lapide, Inc., had refused to pay for "agricultural products" as defined by Section 605.15(3), Florida Statutes, sold and delivered to the Respondent Lawrence J. Lapide, Inc., on June 17, 18, and 19, 1986.

    
    

11. The evidence is clear that the Petitioner sold and delivered to the Respondent Lawrence J. Lapide, Inc., at Petitioner's farm four loads of watermelons at a total agreed price of $6,337.40, of which only $1,500.00 has been paid. The remaining balance due is $4,837.40, which the Respondent Lawrence J. Lapide, Inc., has refused to pay.

    
    

12. The evidence shows that when the watermelons were loaded on June l7, 18, and 19, 1986, they were in good marketable condition and of the sizes purchased .by the Respondent Lawrence J. Lapide, Inc. There is no evidence of any problems with the watermelons at the time they were loaded. Similarly, there is no evidence that the problems with some of the watermelons upon arrival was in any way the fault of the Petitioner or was in any way a breach of the Petitioner's duty to provide watermelons of good marketable condition.

RECOMMENDATION

Based upon all of the foregoing, it is recommended that the Respondent Lawrence J. Lapide, Inc., be ordered to pay to the Petitioner the sum of

$4,837.40. It is further recommended that if the Respondent Lawrence J. Lapide, Inc., fails to timely pay the Petitioner as ordered, :the Respondent Peerless Insurance Company then be ordered to pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes.

DONE AND ENTERED this 2nd day of June, 1987, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 2nd day of June, 1987.

COPIES FURNISHED:

William C. Harris, Esquire Florida Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

Lawrence J. Lapide, Inc.

3 Willshire Court Freeport, New York 11236

Peerless Insurance Company

62 Maple Avenue

Keene, New Hampshire 03431

Ted Helms, Chief

Bureau of License and Bond Lab Complex

Tallahassee, Florida 32399-1650

Lawrence J. Marchbanks, Esquire MARCHBANKS & FEAN

4700 N.W. 2nd Avenue, Suite 101 Boca Raton, Florida 33432

Hon. Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

RAIFORD DUNN,

Petitioner,

vs. CASE NO. 86-4580A

LAWRENCE J. LAPIDE, INC. and PEERLESS INSURANCE COMPANY,

Respondents.

/

FINAL ORDER

THIS CAUSE came on for Consideration upon a Recommended Order (copy attached) entered in favor of the Petitioner following formal hearing in the parties' dispute over the sale and purchase of watermelons for which there remains a $4,837.40 balance.

I adopt the Hearing Officer's findings of fact. However, in accordance with Subparagraph 120.57(1)(b)9., Florida Statutes, I reject the conclusion of law that Petitioner did not breach his duty to provide good watermelons.

The facts as found are not in dispute. Petitioner sold Respondent watermelons with an implied promise of marketability. Petitioner loaded Respondent's trailers at field-side. Respondent rail-shipped them to New York.

Although anthractnose rot was not visible on the melons when they were loaded--so that they were in good marketable condition" at that time--two loads of them were so rotten when they reached their New York destination that Respondent "dumped" them. Respondent sold the melons from the other two loads.

As Commissioner of Agriculture I am familiar with anthractnose rot.

Critical in this case is the fact that 44 percent of one load and 79 percent of another load of watermelons were rotten upon arrival in New York. (See Finding of Fact, Paragraph 6.) In order for this rot to have occurred, anthractnose had to have been present on some of his watermelons at the time Petitioner loaded them onto Respondent's trailers, albeit not necessarily visible. Accordingly, Respondent is not liable to Petitioner for the two rotten loads.

Respondents worksheet regarding the melons at issue reflects that the loads identified as "Pig" numbers 676036 and 677047 were "dumped." The Hearing Officer found the agreed price for then was $1,317.30 and $2,282.00 respectively, for a total of $3,599.30. (Finding of Fact, Paragraph 3.) Thus, the balance sheet is as follows:

THEREFORE, IT IS ORDERED AND ADJUDGED that Respondent Lapide pay Petitioner

$1,238.10 and failure to do so shall result in the liability of its surety, Peerless Insurance Company.

DONE AND ORDERED, this 28th day of October, 1987 at Tallahassee, Florida.

DOYLE CONNER

Commissioner

Copies furnished to:

Lawrence J. Marchbanks, Esquire Attorney for Petitioner Dunn

Lawrence J. Lapide, Inc. Respondent

Peerless Insurance Company Surety for Respondent

Docket for Case No: 86-004580

Orders for Case No: 86-004580