STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID BROWNING, d/b/a DAVID )

BROWNING WHOLESALE PRODUCE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7493A

) EAST COAST FRUIT COMPANY, INC., and ) CONTINENTAL CASUALTY COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Following the provision of notice a formal hearing was held in this case on March 28, 1991, in Room 455, Richard P. Daniel Building, 111 East Coast Line Drive, Jacksonville, Florida, commencing at 10:30 a.m. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes.

Charles C. Adams was the Hearing Officer in the absence of P. Michael Ruff who was unavailable to conduct the hearing.

APPEARANCES

For Petitioner: No appearance For Respondent,

East Coast Fruit

Company: Jerry Portnoy, Vice President Post Office Box 2547 Jacksonville, Florida 32203

For Respondent Continental

Casualty Company: No appearance

STATEMENT OF ISSUES

The issues concern the complaint by Petitioner against Respondents for the alleged failure to pay for $125.00 worth of medium zucchini squash also referred to as medium green squash. See Sections 604.15 through 604.30, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a complaint against East Coast Fruit Company, Inc. (East Coast) and Continental Casualty Company alleging non-payment for medium zucchini squash in the amount of $125.00. East Coast responded in opposition to the complaint. The State of Florida, Department of Agriculture and Consumer

Services forwarded the case to the Division of Administrative Hearings for formal hearing pursuant to Section 120.57(1), Florida Statutes. That hearing took place as announced in this Recommended Order.

Petitioner did not attend the hearing, nor did Continental Casualty Company. East Coast did attend. It waived the opportunity to submit a proposed recommended order. Although the hearing was reported, a transcript was not ordered.

FINDINGS OF FACT

1. Petitioner sells produce. East Coast purchases produce and resells that produce at wholesale.

   
   

2. The transaction which is in dispute here concerns an April 25, 1990 sale of medium zucchini squash. On that date Jerry B. Portnoy, Vice President for East Coast who runs the day to day operations of the company and buys produce spoke with Petitioner. In that conversation, which took place early in the morning, Petitioner stated that he had the squash to sell. Portnoy told Petitioner that he had plenty of that form of produce on hand. Petitioner stated that this was the last picking and that he would give Portnoy a good price. The price that Petitioner mentioned was $2.50 a crate. Mr. Portnoy said that he could use about 100 crates and he reiterated that he had plenty of that type of produce on hand. That comment by Mr. Portnoy met with the remark by Petitioner which was to the effect, that there might be a few additional crates above the 100 discussed. Portnoy said that he did not need any more than 100 crates in that he had plenty of that produce on hand. As Portnoy described at hearing, he felt that he really did not even need 100 crates; however, based upon the past working relationship between the Petitioner and Portnoy he agreed to take 100 crates.

   
   

3. Contrary to the agreement between Portnoy and the Petitioner, sometime on the evening of April 25, 1990, Petitioner delivered 236 crates of the squash. No one was at East Coast at its Jacksonville, Florida business location to receive the squash and inspect them. East Coast would not have accepted 236 crates that were delivered if it had known of that number of crates. No one was available to inspect the squash until the following morning.

   
   

4. On April 26, 1990, Mr. Portnoy examined the squash and found that some of the product was inferior and was in a state of decay. As a consequence, Mr. Portnoy called the Petitioner on the telephone on that morning and told the Petitioner that the Petitioner had sent too many crates and some of the squash were bad. Nonetheless, Mr. Portnoy told Petitioner that he would work it out as best he could, meaning that he would sell as much of the product as possible. During contact with the Petitioner on the part of East Coast, Petitioner did not ask for a federal inspection.

   
   

5. East Coast was able to sell all but 50 crates of the squash as delivered. It submitted payment in the amount of $465 as reflected on the face of the invoice which Petitioner sent to East Coast. That exhibit is Respondent's Exhibit No. 1, admitted into evidence. It reflects that 50 crates were dumped which had they been sold would have been worth $125.00. It is that

   $125.00 which is in dispute.

   
   

6. Mr. Portnoy called the Petitioner after the squash had been sold. That call took place a couple of weeks later. In the course of this conversation the Petitioner said that he did not want to hear about problems anymore and that he

   wanted to be paid for the full amount of all crates delivered. Mr. Portnoy said that 50 crates had been lost and that the amount being remitted through a check would relate only to those crates that had been sold. This describes the amount remitted on June 15, 1990 set out in Respondent's Exhibit No. 1. Petitioner replied that he did not know if he would cash the check or not. Mr. Portnoy said that the check in the amount of $465.00 was for payment in full. This concluded their business until the time of the complaint filed by the Petitioner.

   
   

7. On that facts as reported, there was no agreement to sell more than 100 crates. The additional crates that were sold by East Coast was a gratuitous gesture on the part of East Coast for which Petitioner was paid the full amount. The 50 crates that were not paid for contained inferior products for which Petitioner was not entitled to payment. This speaks to the 50 crates that were dumped which had they been sold would have been worth $125.00.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

   
   

9. Petitioner bears the burden of proving his entitlement to the $125.00 claim. He has failed to meet that burden. These conclusions are reached in accordance with Section 604.21, Florida Statutes.

RECOMMENDATION

Based upon the consideration of the facts found and the conclusions of law, it is recommended that a Final Order be entered which dismisses the complaint of the Petitioner and relieves the Respondents of any financial obligation to pay the contested $125.00 claim.

RECOMMENDED this 8th day of April, 1991, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1991.

COPIES FURNISHED:

David Browning

c/o David Browning Wholesale Produce

234 Church Street Starke, FL 32091

East Coast Fruit Company Jerry Portnoy, Vice President Post Office Box 2547 Jacksonville, FL 32203

James W. Sears, Esquire

511 North Ferncreek Avenue Orlando, FL 32803

Clinton H. Coulter, Jr., Esquire Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, FL 32399-0800

Bob Crawford, Commissioner Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, FL 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which top submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007493

Orders for Case No: 90-007493