STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBIN SHIVER and his wife, )

VERA SHIVER, )

)

Petitioners, )

)

vs. ) CASE NO. 92-0533A

)

F.H. DICKS, III AND F.H. DICKS, IV ) d/b/a F. H. DICKS COMPANY, and ) SOUTH CAROLINA INSURANCE CO., )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in the above-styled case by Stephen

1. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on September 1, 1992 in Live Oak, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Terry McDavid, Esquire

   128 South Hernando Street Lake City, Florida 32055

   
   

   For Respondent: F. H. Dicks, III

   c/o F. H. Dicks Company

   P.O. Box 175

   Barnwell, South Carolina 29812 STATEMENT OF THE ISSUES

   Did the Respondents meet their financial obligations in purchasing watermelons from the Petitioner under the terms of their agreement for said purchase?

   
   

   PRELIMINARY STATEMENT

   
   

   In 1991, the Petitioner negotiated with Respondents' agent to sell watermelons to the Respondents. Petitioner sold eleven loads of watermelons to the Respondents FOB the purchaser's truck at the grower's field, and received prompt payment. Prior to July 8, 1991, the Respondents' agents, Harold and Tommy Harmon, had left the Lake City area. Harold Harmon had advised Mr. Shiver that Jim Coffee, who had been accompanying the Harmons, would continue to represent them in the area.

   
   

   On July 8, 1991, load F 276 was prepared with 45,840 pounds of watermelons.

   They were weighed and inspected by Coffee. These melons were shipped to West Virginia where they were refused by the buyer. The melons were inspected by government inspectors in Charleston, WV, on July 12, 1991. This inspection

   revealed 10% transit rubs, 12% decay, and 22% checksom. These melons were subsequently shipped to Indianapolis, IN, for disposal. The Respondents deducted the freight on this load in the amount of $2,459.76 from moneys owed the Petitioner on other transactions.

   
   

   On July 9, 1991, two loads of watermelons were prepared for the Respondents, F 277 and F 278. They were weighed and inspected by Coffee. Load F 278 was received by the Respondents at their facility in Yamassee, SC, were it was inspected on July 11, 1991. It was found to be in very bad shape. It was bartered to the trucking company by the Respondents in exchange for the freight charges. Load F 277 was also received by the Respondents who paid for 38,000 pounds of 45,830 pounds of melons shipped.

   
   

   On July 10, 1991, load F 279 was prepared and shipped to the Respondents in Yamassee, SC, for repacking and shipment to Baltimore, MD. They were weighed and inspected by Coffee before shipment. This load was rejected without any inspection by the Respondents.

   
   

   The Petitioners received $1,330 for load F 277, nothing for loads F 278 and 279, and were assessed $2,459.76 for load F 276. The Petitioner filed a claim against the Respondents' agricultural bond with the Department of Agriculture pursuant to Ch. 406, Florida Statutes, for the amount due on these two loads.

   The Department determined that a controversy existed between the parties regarding the material facts surrounding the transactions, and referred the case to the Division of Administrative Hearings. The case was set, noticed, and heard.

   
   

   The Respondent, F. H. Dicks, III, appeared and was qualified to represent his son and his company. The parties were afforded the opportunity to file findings of fact and post hearing briefs. The Petitioner did not file post hearing findings of fact. The Respondent, F. H. Dicks, III, filed a letter, which was read and considered, stating what he felt was an equitable settlement of the dispute.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondents, F. H. Dicks, III; F. H. Dicks, IV; and F. H. Dicks Company, are wholesale dealers in watermelons which they purchase and sell interstate.

      
      

   2. The Respondents' agents during the 1991 melon season in the Lake City area were Harold Harmon and his son, Tommy Harmon. The Harmons had purchased watermelons in the Lake City area for several year prior to 1991, and the Petitioner had sold melons through them to the Respondents for two or three seasons.

      
      

   3. The terms of purchase in these prior transactions had always been Freight on Board (FOB) the purchaser's truck at the seller's field with the farmer bearing the cost of picking.

      
      

   4. The terms of purchase of the melons sold by Petitioner to Respondents prior to the loads in question had been FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking.

      
      

   5. One of the Harmons would inspect the load being purchased during the loading and at the scale when the truck was weighed out. After the Harmons left the area, their work was carried on by Jim Coffee, who the Harmons introduced to

      Mr. Shiver as their representative. Once the melons were weighed and inspected, the melons belonged to the Respondents.

      
      

   6. Price would vary over the season, but price was agree upon before the melons were loaded.

      
      

   7. Settlement had always been prompt, and the Harmons enjoyed the confidence of the local farmers.

      
      

   8. On July 8, 1991, load F 276 of 45,840 pounds of watermelons was sold by Petitioner to Respondents for 4 per pound. They were weighed and inspected by Coffee. These melons were shipped to West Virginia where they were refused by the buyer. The melons were inspected in Charleston, WV, on July 12, 1991. This inspection revealed 10% transit rubs, 12% decay, and 22% checksom. These melons were subsequently shipped to Indianapolis, IN, for disposal. The Respondents deducted the freight on this load in the amount of $2,459.76 from moneys owed the Petitioner on other transactions.

      
      

   9. On July 9, 1991, two loads of watermelons, F 277 and F 278, were sold to the Respondents. Load F 277 weighed 46,200 pounds and Load F 278 weighed 45,830 pounds. Both loads were inspected by Coffee. Mr. Shiver had negotiated a price of 4 per pound for F 278 and 3.5 per pound for F 277. Load F 278 was received by the Respondents at their facility in Yamassee, SC, where it was government inspected on July 11, 1991. It was found to be in very bad shape. It was bartered to the trucking company by the Respondents in exchange for the freight charges. Load F 277 was also received by the Respondents, who accepted 38,000 pounds of 45,830 pounds of melons shipped.

      
      

   10. On July 10, 1991, load F 279 of 42,180 pounds was sold for 3.5 per pound, and shipped to the Respondents in Yamassee, SC, for repacking and shipment to Baltimore, MD. They were weighed and inspected by Coffee before shipment. This load was rejected without any inspection by the Respondents.

       
       

   11. The Petitioners received $1,330 for load F 277, nothing for loads F

       1. and 279, and Respondents retained $2,459.76 from prior transactions for freight charges on load F 276.

          
          

   12. Under the terms of the sale, FOB purchaser's truck at grower's field, the Respondents bore the cost of transportation. The Respondents also bore the risk of loss on sales which they made and which were rejected.

       
       

   13. On the two loads which were not inspected by government inspectors, F

       1. and F 277, the Petitioner is entitled to the sales price for the melons. Although there is evidence to support the Respondents' contention that the produce was not within grade specifications, the Respondent had accepted the produce.

       
       

   14. Contrary to Respondents' assertion that the produce coming from the same field on the same day would all be bad, these loads were not loaded on the same day. Further, most of one of the loads received on the same day from the same field was accepted. Lastly, as stated above, all the loads were inspected by Respondent prior to acceptance.

       
       

   15. The Respondents owe the Petitioners $1,833.60 on load F 276, $1,570.80 on load F 277, 1833.20 on load F 278, and 1476.30 on load F 279. This is a total of $6,713.90. The Respondents improperly retained $2,359.76 for freight charges, but did pay the Petitioners $1,330 for load F 277. The total owed by

       the Respondents to the Petitioners is $9,073.66, of which Respondents have already paid $1,330.00. The Respondents still owe the Petitioners $7,743.66 less $32 for the watermelon assessment.

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Division has jurisdiction over the subject matter and the parties pursuant to Chapter 406 and Chapter 120, Florida Statutes. The hearing was held and this order entered pursuant to Chapter 120.57(1), Florida Statutes.

       
       

   17. While there appears to have been a change in the nature of the relationship between Harmon and Dicks in which the power to contract for purchase was limited, Dicks did not insure that the Petitioner, with whom he had been doing business, was apprised of this fact. Prior to the loads in question, the terms had been FOB the purchaser's truck at the seller's field, and there is no evidence that Harmon altered those terms or that Dicks advised the Petitioner that Harmon did not have the authority to offer those terms with regard to either of the transactions in question.

       
       

   18. The facts reveal that the Respondents' agent contracted to buy the Petitioner's watermelons FOB purchaser's truck at the Petitioner's field, and were accepted after Jim Coffee inspected the load.

       
       

   19. Section 672.606, Florida Statutes, states: 672.606 What constitutes acceptance of goods.

       
       

       1. Acceptance of goods occurs when the buyer:

          1. After a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or

          2. Fails to make an effective rejection (s. 672.602(1)), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or

          3. Does any act inconsistent with the seller's ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.

       2. Acceptance of a part of any commercial unit is acceptance of that entire unit.

          
          

   20. The facts reveal that Coffee inspected the loads of produce, and afterward the melons were introduced into commerce on the purchaser's trucks. The buyer is entitled to no recovery resulting from the poor condition of the produce after delivery. The inspector, Coffee, or the agent, Harmon, may be responsible for Respondents' losses; however, Petitioner is entitled to the sales price for loads F 276 and F 278.

       
       

   21. The Respondents owe the Petitioners $1,833.60 on load F 276, $1,570.80 on load F 277, 1833.20 on load F 278, and 1476.30 on load F 279. This is a total of $6,713.90. The Respondents improperly retained $2,359.76 for freight charges, but did pay the Petitioners $1,330 for load F 277. The total owed by the Respondents to the Petitioners is $9,073.66, of which Respondents have already paid $1,330.00. The Respondents still owe the Petitioners $7,743.66 less $32 for the watermelon assessment.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED:

Respondent be given 30 days to settle with the Petitioner in the amount of

$7,711.66 and the Petitioner be paid $7,711.66 from Respondent's agricultural bond if the account is not settled.

DONE and ENTERED this 6th day of October, 1992, in Tallahassee, Florida.

STEPHEN F. DEAN,

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1992.

COPIES FURNISHED:

Terry McDavid, Esquire

128 South Hernando Street Lake City, FL 32055

F. H. Dicks, III

c/o F. H. Dicks Company

P.O. Box 175 Barnwell, SC 29812

Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810

Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau

of Licensure and Bond

508 Mayo Building Tallahassee, FL 32399-0800

South Carolina Insurance Company Legal Department

1501 Lady Street

Columbia, SC 29202

Victoria I. Freeman

Seibels Bruce Insurance Companies Post Office Box One

Columbia, SC 29202

Richard Tritschler, Esquire Department of Agriculture 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. 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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

ROBIN and VERA SHIVER,

Petitioners,

vs. DOAH CASE NO. 92-533A

LB CASE NO. 920048

1. DICKS, III AND F.H. DICKS, IV d/b/a F.H. DICKS COMPANY, and SOUTH CAROLINA INSURANCE CO.,

   
   

   Respondents.

   /

   
   

   FINAL ORDER

   
   

   THIS CAUSE, arising under Florida's "Agricultural License and Bond Law" (Sections 604.15 - 604.34, Florida Statutes), came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On September 24, 1991, the Petitioners, producers of agricultural products as defined by Section 604.15(3), Florida Statutes, timely filed an administrative complaint pursuant to Section 604.21, Florida Statutes, to collect $7,929.86 for watermelons it sold to Respondent, a licensed dealer in agricultural products, pursuant to an oral contract. Respondent's license for the time in question was supported by a bond required by Section 604.20, Florida Statutes, written by

   South Carolina Insurance Company in the amount of $45,000. The Respondent's answer denied owing Petitioner, so this matter was referred to the Division of Administrative Hearings for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. An administrative hearing was held in this matter on September 1, 1992. Neither party filed timely written exceptions to the Hearing Officer's Recommended Order. The Respondent filed a response with the Department in this cause that was accompanied with a check issued by the Respondent, and made payable to the Complainants in the amount of $6,010.46. A notation on the statement portion of the above-mentioned check stated in part, "In settlement of all claims...under CASE # 92-533A".

   This response was not timely filed and cannot be considered as exceptions.

   
   

   Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is

   
   

   1. The Hearing Officer's preliminary statement be amended to show that the Petitioner filed a claim against the Respondent pursuant to Ch. 604, Florida Statutes.

      
      

   2. The Hearing Officer's findings of fact are adopted in toto as this agency's findings of fact.

      
      

   3. The Hearing Officer's conclusions of law are adopted in toto as this agency's conclusions of law EXCEPT for the fact that the Division has jurisdiction over the subject matter and the parties pursuant to Chapter 604 and Chapter 120, Florida Statutes.

      
      

   4. The Hearing Officer's Recommendation is hereby modified to reflect that Respondent be given fifteen (15) days after the Order becomes final to settle with the Petitioner in the amount of $7,711.66, as provided in Section 604.21 (7), Florida Statutes. The Hearing Officer's Recommendation is further modified to show that in the event Respondent fails to pay Petitioner within fifteen (15) days of the Final Order, South Carolina Insurance Company, as surety for the Respondent is hereby ordered to provide payment as contemplated under the conditions and provisions of the bond. The aforementioned check for $6,010.46 submitted by the Respondent and made payable to the Complainants, is returned herewith to the Respondent for their disposal with the request that payment as ordered above be provided within the stated deadline.

Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5th Floor, Mayo Building, Tallahassee, FL 32399-0800, and a copy of the same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE AND ORDERED this 11th day of December, 1992.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture

FILED with Agency Clerk, this 11th day of December, 1992.

Agency Clerk

COPIES FURNISHED:

Mr. Terry McDavid, Esquire Mr. Robin Shiver and

P.O. Box 1328 Mrs. Vera Shiver

Lake City, FL 32056-1328 Route 3

Mayo, FL 32066

Messrs. F.H. Dicks, III and

F.H. Dicks, IV, d/b/a South Carolina Insurance Co.

F.H. Dicks Company Legal Department

P.O. Box 175 1501 Lady Street

Barnwell, SC 29812 Columbia SC 29202

Ms. Victoria I. Freeman, Claims Representative II Seibels Bruce Insurance Companies

P.O. Box 1 Columbia, SC 29202

Mr. Stephen F. Dean, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

Docket for Case No: 92-000533

Orders for Case No: 92-000533