STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE J. WOODS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1032A

) GROWERS MARKETING SERVICE, INC., ) and PREFERRED NATIONAL INSURANCE ) COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on June 4, 1992, in Brooksville, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Willie J. Woods, pro se

For Respondents: W. R. Ward, Jr., President

Growers Marketing Service, Inc. Post Office Box 2595

Lakeland, Florida 33806 STATEMENT OF THE ISSUE

The ultimate issue in this case is whether Growers Marketing Service, Inc., made a full and complete payment to Willie J. Woods for the watermelons which Growers Marketing Service, Inc., (GMS) handled or purchased from Willie J. Woods. A collateral issue is whether GMS purchased Mr. Woods' watermelons.

PRELIMINARY STATEMENT

In the 1991 growing season, Growers Marketing Service, Inc. (GMS), through its President, W. R. Ward, Jr., engaged in a series of transactions with Willie

J. Woods in which watermelons grown by Woods were introduced into the stream of agricultural commerce by GMS. Mr. Woods asserts that W. R. Ward agreed to buy his crop of watermelons directly at the market price, and W. R. Ward asserts that he agreed to "handle" Woods' crop as a agricultural broker seeking to obtain the best price for Mr. Woods' crop which he could obtain. Both Woods and Ward agree that the terms of their agreement were not reduced to writing.

At the hearing, Mr. Woods introduced Petitioner's Exhibit 1 which is a handwritten list prepared by Woods of the dates, transaction number, type of product, weight of product and price paid by Growers Marketing Service to Woods. Mr. Woods testified that he was owed approximately $62,000 based upon the difference between what he was paid and what the market price was on the date of sale. Mr. Woods also introduced as Petitioner's Exhibit 2, copies of the

Southeastern Watermelon Report giving the market prices for watermelons for the period of June 3, 1991 to June 28, 1991.

W. R. Ward, Jr. testified and introduced the records of the receipt and sale of all the watermelons received from Mr. Woods during the 1991 season. Mr. Ward testified at length from Respondent's Exhibit 24 which is a list which Mr. Ward prepared giving the date, transaction numbers, type of watermelon, weight of watermelon and the price for which Ward asserts he sold the melons in behalf of Woods. Respondent's Exhibit 24 also summarizes other deductions, adjustments and comments about the transactions. In addition, Mr. Ward introduced the individual files for each of the transactions involving Woods'

watermelons. The Findings of Fact which follow are based upon a detailed review of each of these transactions and the documentation surrounding each transaction.

Neither of the parties submitted proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Willie J. Woods is a farmer. He entered into an agreement with W. R. Ward, Jr., President of Growers Marketing Service, Inc. (GMS) concerning the disposition of watermelons which he had grown. The testimony of Woods and Ward concerning the nature of the agreement is conflicting. In the absence of a written contract, the nature of the agreement must be determined from the other documents surrounding their transactions. From these documents, it is determined that the agreement between the parties was not for the purchase of Woods' watermelons by GMS. The documentation surrounding the transactions by GMS, show that GMS was acting as a broker or middle man in introducing Woods' watermelons into the stream of commerce.

   
   

2. According to Mr. Ward's records, each shipment was assigned a transaction number, and each sale from a lot of watermelons was also assigned a transaction number. The record of each of these transactions was examined in detail. Below each of these transactions is discussed, and where portions of the record are particularly pertinent, they have been copied and attached to this order for ease of reference. In some instances, the settlement statement has been reproduced and corrected to reflect what the actual charges should have been based upon the underlying record. A handwritten explanation of the adjusting entries has been added to these statements.

   
   

3. Transaction number 1439: On June 4, 1991, Woods delivered 43,750 pounds of watermelons to GMS The documentation surrounding this transaction shows that GMS, sold the load of watermelons FOB Brooksville, Florida for a price of 14 cents per pound.The purchaser's driver transported the load from Brooksville to Canada where the purchaser "rejected" the load because the melons were immature. By purchasing the watermelons FOB Brooksville, the purchaser waived any right to reject the melons upon their arrival at their destination. Further, the only evidence of immaturity is an inspection report which states that the inspection was limited and may not reflect the condition of the whole load. The inspection report itself is hearsay. The dollar value of this load as stated in the Bill of Lading/Customs Declaration was $6,125.00. The cost of freight was not shown in the file because it was delivered FOB Brooksville and the costs were borne by the purchaser. The GMS's handling fee was 1 cent per pound or $438.00. GMS owed Woods $5,687.00 on transaction number 1439. GMS paid Woods $2,879 on this transaction. GMS still owes Woods $2,808 on this transaction.

4. Transaction number 1424: On June 4th, GMS sold in behalf of Woods

   $4,320 pounds of watermelons for 20.25 cents per pound. W. R. Ward stated that the price was reduced from 15 to 5 cents per pound, and was a bookkeeping error. The file reflects the sales price for the 46,320 pounds of watermelons was

   $9,380. The file reflects that transportation on this load of watermelons was

   $1,683.00, and GMS, was entitled to 2.5 cents per pound for packing and 1 cent handling for a total of $1,621. The total expenses were $3,304.00 for transaction number 1424. GMS owed Woods $6,077.00 for transaction 1424, but only paid him $1,844. GMS still owes Woods $4,233 on this transaction.

   
   

5. Transaction number 3534: On June 4th, GMS, handled a load of yellow meat watermelons weighing 4,071 pounds for Willie J. Woods. Subsequently, GMS sold portions of this load of watermelons in transactions number 1565, 1507, 1461, 1403, and 1476. On June the 6th, GMS sold 13,337 pounds of watermelons at

   17 cents a pound for a total sales price of $2,267.29 in transaction 1461. On June 6th, Growers Marketing Service sold 18,909 pounds at 14 cents a pound for a total of $2,647.26 in transaction number 403. On June 7th, Growers Marketing Service sold 1,945 pounds at 22 cents a pound for a total of $427.90 in transaction 1476. On June 14th, Growers Marketing Service sold 5,347 pounds on transaction 1565 which were subsequently rejected because of severe decay. See, Dump Report dated July 5 in Transaction 1565. Growers Marketing Service showed no income nor expense to the grower on transaction 1565. Because these melons were not sold until June 14, it is possible that they decayed. GMS's treatment of the transaction on the settlement statement is contrary to the notes on transaction 1565 which treat is as a wash with no income or expense to Woods. The assessment of freight and handling charges was not inappropriate under the circumstances, and are disallowed. See, Corrected Invoice 3534 attached to this Order. The total revenue from the remaining transactions was $6,142. The expenses on the various loads total $2,285. GMS owed Woods $3,857 on this load, but only paid him $1152. GMS still owes Woods $2705 on this transaction.

   
   

6. Transaction number 3541: On June 7, 1991, Growers Marketing Service handled 9,997 pounds of watermelons for Willie J. Woods on transaction number 1565. This load was sold to Castellini Produce on transaction 1565, discussed above, where it was rejected for excessive decay. The assessment of the freight charges and handling charges on this load which was handled 10 days after it was picked was inappropriate, and is disallowed. It is treated also as a wash in this transaction just as it was in 3534, and just as GMS treated it in transaction 1565.

   
   

7. Transaction number 3546: On June 11th, Growers Marketing Service received 4,949 pounds of yellow meat watermelons from Woods. It subsequently sold these watermelons for Woods in transactions 1589, 1607, and 1613.

   Regarding transaction 1589, the Growers Marketing Service's settlement statement to Woods reflects that this transaction is subject to PACA Audit; however, GMS included the 14,121 pounds of watermelons in its settlement at a expense to Woods of 5 cents per pound on a sales price of 1.67 cents per pound. Because this transaction is still subject to audit, it was inappropriate to settle with the farmer. For purposes of this accounting, 1589 is not considered. In transaction 1607, GMS sold 16,775 pounds of yellow meat watermelons received from Woods on transaction 3546. Transaction 1607 and the funds received from the transaction are discussed in full below with regard to transaction 3548; therefore, it is not discussed or accounted for as part of transaction 3546. In transaction 1613, Growers Marketing Service sold 10,053 pounds of watermelons at

   11.6 cents per pound for a total of $1,069.00. Expenses attributable to transaction 1613 were $554.00. Woods was entitled to $614.00 on transaction

   1613; however, he was paid nothing on this transaction; GMS owes Woods $614 on this transaction.

   
   

8. Transaction 1475: On June 11th, Growers Marketing Service received 45,050 pounds of watermelons from Woods. Growers Marketing Service asserts that the original price of these watermelons was dropped from 15 cents to 12 cents; however, the checkstub attached to the invoice shows a total payment to GMS of

   $7,298.10 at the original purchase price of 17.2 cents per pound. Growers Marketing Service's costs in this transaction were $2,358. Because this transaction clearly shows the original price was paid, it reflects adversely on creditability of the witnesses for Growers Marketing Service with regard to their testimony in other transactions that the original price was reduced due to fall in the market. Growers Marketing Service owed Woods $4,940 on transaction 1475, and paid him $4,484. GMS still owes Woods $456 on this transaction.

   
   

9. Transaction number 1508: On June 11, 1991, Growers Marketing Service received 46,000 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these melons at a price of 10.25 cents per pound. Growers Marketing Service received $4,715.00 on transaction 1508 and had expenses in the amount of $2,259.00. Growers Marketing Service owed Woods $2,456.00 on transaction 1508, and paid Woods $2,284. GMS still owes Woods $172 on this transaction.

   
   

10. Transaction number 1497: On June 11, 1991, Growers Marketing Service received 45,340 pounds of watermelons in this transaction. Growers Marketing Service sold these watermelons at 16.35 cents per pound and deducted freight of

    4.35 cents per pound, showing a net sales price of 12 cents per pound. This resulted in sales revenue of $5,441 from which GMS deducted its 1 cent handling charge and an additional $4,750 listed as a harvesting advance. GMS paid Woods

    $204. GMS introduced no proof of a harvesting loan; however, Woods' complaint admits this loan. Nothing is owed to Woods on this transaction.

    
    

11. Transaction number 3548: On June 12, 1991, Growers Marketing Service received 41,132 pounds of watermelons from Willie J. Woods. Subsequently, Growers Marketing Service sold watermelons received from Woods on this transaction in its transaction numbered 1613, 1607 and 1627. Growers Marketing Service asserts that 24,457 pounds of watermelons were rejected and destroyed on transaction 1607. The records regarding transaction 1607 show handwritten notation on the invoice that Growers Marketing Service received a total after expenses of sale of $3,286.00 on transaction 1607. In transaction 1613, Growers Marketing Service sold 10,032 pounds of watermelons at 11 cents a pound and in transaction 1627 Growers Marketing Service sold 7,899 pounds of watermelons at 7 cents a pound. The original settlement statement reflected incorrectly that Woods owed GMS $810. A corrected settlement statement on transaction 3548 is attached to this Order and reflects that Willie J. Woods was owed the amount of

    $1,019.00 in transaction 1607, $624.00 in transaction 1613, and $1,019.00 in transaction 1627. GMS paid Woods no money on this transaction, and owes Woods a total of $1,873.

    
    

12. Transaction number 1527: On June 12, 1991, Growers Marketing Service received 50,080 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these watermelons for 17.35 cents per pound receiving a total of

    $8,689.00 less expenses of $2,441.00. GMS owed Willie J. Woods $6,248.00 on transaction 1527, and paid Woods $247. GMS owes Woods $6,001.

    
    

13. Transaction number 1536: On June 12, 1991, Growers Marketing Service received 41,320 pounds watermelons from Willie J. Woods. Growers Marketing

    Service consigned these watermelons and received $2,078.00 less expenses of

    $1,473.00. Woods owed $605.00 from Growers Marketing Service on transaction 1536, and paid Woods $307. GMS still owes Woods $298.

    
    

14. Transaction number 1535: On June 12, 1991, Growers Marketing Service received 43,240 pounds of watermelons from Willie J. Woods in this transaction. Growers Marketing Service subsequently sold these watermelons at 16.45 cents per pound receiving a total of $7,113.00 less expenses of $2,357.00. Growers Marketing Service owed Willie J. Woods $4,856.00 on transaction 1535, and paid Woods $2,802. GMS still owes Woods $2,054.

    
    

15. Transaction number 1505: On June 13, 1991, Growers Marketing Service received 44,950 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold these watermelons for a total of

    $6,967.00 to a dealer in Canada. The dealer in Canada rejected the watermelons upon their receipt serving that they were overripe on June 15, 1991, when they were received. A Canadian agricultural inspection was ordered and conducted on June 21, 1991, which revealed that 28% of the melons showed decay. However, the inspection was not timely and the report is hearsay. GMS failed to exercise due diligence in obtaining a prompt inspection and seeking recovery in behalf of Woods. Therefore, after absorbing expenses of $2,747.00, Growers Marketing Service owed Woods $4,220.00 for his loss in this transaction. GMS paid Woods

    $1,250 salvage on the load; however, it still owes him $2,970.

    
    

16. Transaction number 1520: On June 13, 1991, Growers Marketing Service received 45,940 pounds of watermelons from Willie J. Woods in this transaction. The front of the folder shows that Growers Marketing Service sold this load of watermelons to Winn Dixie in South Carolina for 12 cents per pound, or $5,513. Upon receiving the watermelons on June 15 1991, Winn Dixie rejected the melons because they were "cutting white, green fresh." See copy of front of file. Growers Marketing Service asked another broker to move the load, and that broker and Growers Marketing Service arranged to have the load inspected at its next destination, Staunton, Virginia. The truck broke down in route to Staunton, Virginia and did not arrive until June 18, 1991. The other broker described the melons as looking "cooked" on arrival. Growers Marketing Service charged Woods with freight on this load. Because Growers Marketing Service had a legitimate freight claim against the trucking company, yet charged the loss and freight charges to the grower, GMS owes Woods $5,940 less the salvage, freight and expenses totaling $2,125. GMS owes Woods $3,816.

    
    

17. Transaction number 3553: On June 13, 1991, Growers Marketing Service received 29,478 pounds of watermelons from Willie J. Woods on transaction 3553. Subsequently, Growers Marketing Service sold these melons to various concerns realizing $3,450.76 on these sales. GMS's settlement statement with Woods on this transaction reflects a deficit on transaction 1505 of $822.50. According to the records reviewed by the Hearing Officer there was no deficit in transaction 1505; therefore, the deduction of $822.50 was inappropriate. Adding this money back into the amount due Woods, Woods should have received $1,615.74 on transaction number 3553. GMS paid Woods $675, and still owes Woods $941.

    
    

18. Transaction number 3552: On June 13, 1991, Growers Marketing Service received 32,769 pounds of watermelons from Willie J. Woods on this transaction. A review of the records reflects that Growers Marketing Service subsequently sold 10,403 pounds of these melons at three cents a pound, realizing $312.09. Growers Marketing Service also sold 19 bins of these melons weighing 22,366 pounds for nine cents a pound for a total of $2,012.94. Growers Marketing Service's settlement statement reflects a packing charge of two and a half cents

    per pound for 22,366 pounds of melons that were in bins. This is excluded as an expense because the adjustment for packing charges was included in the Hearing Officer's recomputation of the price of nine cents per pound. Similarly, the price adjustment of one and a half cents per pound was included in the recomputation of the price and is therefore excluded. The settlement statement which is attached to this Order reflects total receipts of $2,325 and total expenses of $750. Growers Marketing Services owed Willie J. Woods $1,575 on transaction number 3552, and paid Woods $1,551. GMS owes Woods $24 on this transaction.

    
    

19. Transaction number 3549: On June 13, 1991, Growers Marketing Service received 32,564 pounds of watermelon from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold 4,008 pounds of watermelons at three cents a pound on transaction 1669, realizing $120.24 on the sale. Growers Marketing Service sold seven bins of watermelons weighing 8,400 pounds at

    $217.66 for each bin, realizing a total of $1,523.66 on transaction 1532. Growers Marketing Service sold 1,346 pounds of watermelon at eight cents a pound, realizing $107.68 on transaction 1678. Growers Marketing Services sold 18,810 pounds of watermelons at sixteen and a half cents a pound, realizing

    $3,104 on transaction 1530. The Growers Marketing Services' settlement statement on transaction 3549, corrected as indicated above, shows that Growers Marketing Services received a total of $4,855 on this transaction. Growers Marketing Services' statement reflects packing charges of four cents per pound for 24,164 pounds. This packing charge was not applicable because the melons are indicated to have been in bins, not in cartons. Further, the price adjustment of one and a half cents per pound on 18,810 pounds was included in the Hearing Officer recomputation of the price per pound. Taking into account these corrections, total revenue was $4,855, and the total expenses of Growers Marketing Services were $1,613. Growers Marketing Services owed Woods $3,242 on transaction 3549, and paid him $1,690. GMS still owes Woods $1,552.

    
    

20. Transaction 3556: On June 13, 1991, Growers Marketing Services received 32,898 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Services sold 2,086 pounds of these watermelons for 12 cents a pound on transaction 1622. Growers Marketing Services sold 2,096 pounds of these watermelons at 10 cents a pound realizing $210 on transaction 1575. Growers Marketing Services sold 1,983 pounds of these watermelons at 10 cents a pound realizing $198 in transaction 1647. Growers Marketing Services' settlement for transaction 3556 is attached to this Order and reflects an original price for these melons of 4 cents per pound; however, Growers Marketing Services sold 1,029 of these watermelons at 11.6 cents a pound in transaction 1613. The settlement statement, a copy of which is attached, is corrected to reflect the sales price of 11.6 cents a pound, and the resulting change in the monies received from $41.16 to $119. GMS sold 2086 pounds of melon for 12 cents per pound realizing $250 on transaction 1622. GMS sold 3,841 pounds of watermelons for 10 cents per pound realizing $384 on transaction 1707. Growers Marketing Services sold 21,862 of these watermelons at 7 cents a pound realizing

    $1,530 on transaction 1627. The total received by Growers Marketing Services was $2,691 less expenses of $1,952. Growers Marketing Services owed Willie J. Woods $739, and paid him $662 on transaction 3556. GMS still owes Woods $77.

    
    

21. Transaction number 3557: On June 14, 1991, Growers Marketing Services received 20,013 pounds of watermelons from Willie J. Woods on this transactions. Subsequently, Growers Marketing Services sold 9,214 watermelons at 12 cents a pound on transaction 1616. Growers Marketing Services 3,418 pounds of watermelons at 3 cents a pound in transaction 1669. Growers Marketing Services sold three bins of watermelons weighing 3,525 pounds at 16.5 cents a pound and

    an additional 3,852 pounds of watermelons at 16.5 cents a pound in transaction 1530. This is a total of 16,162 pounds of watermelons. The Growers Marketing Service's settlement statement, which is attached, is corrected to show the correct number of pounds sold and the correct amounts of money received by Growers Marketing Service. Growers Marketing Service received a total of

    $3,301.50 for the sell of these watermelons. Concerning the expenses shown by Growers Marketing Service, the number of pounds handled is adjusted to show that 16,162 pounds was handled. In addition, the 4 cent packing charge for 16,484 pounds of watermelons is deleted since these melons were not packed in cartons but in bins. In addition, the 1.5 cent price adjustment for 3,525 pounds of watermelons handled in transaction 1530 is in the recomputation of the price.

    The corrected expense total is $254. Growers Marketing Service owes Willie J. Woods $3,048 on transaction 3557. GMS paid Woods $643; however, it still owes Woods $2,405.

22. The total of the sums still owed Mr. Woods by GMS is $32,999.

    
    

    CONCLUSIONS OF LAW

    
    

    1. The Division of Administrative Hearings has jurisdiction over the subject matter of this case pursuant to Chapter 604, Florida Statutes, and this order is entered pursuant to Section 120.57, Florida Statutes.

       
       

    2. Section 604.21, Florida Statutes, provides that any person claiming to be damaged by breach of the conditions of an agreement given by a licensed dealer in agricultural products may enter a written complaint against the dealer if the amount of the transactions involves more than $250.

       
       

    3. Willie J. Woods and W. R. Ward agreed that Ward would act as Woods' broker for the sale of Woods' watermelons during the 1991 season. The value of these transactions exceeded $250, and Woods filed a timely written complaint claiming damage by Ward's breech of that agreement.

       
       

    4. At the hearing, Mr. Woods testified that it was his understanding of their agreement that Mr. Ward was purchasing his melons at market price. Mr. Ward testified that he only agreed to broker or "handle" Mr. Woods' melons. The records introduced by Mr. Ward support a finding that Ward acted as a broker.

       
       

    5. Mr. Ward's records were carefully reviewed as the best evidence of the totality of the transactions between the men. They reflect that Mr. Ward's accounting and settlement with Mr. Ward was frequently wrong, and that as a result, Woods did not receive the amount of money which Mr. Ward should have remitted to him. These findings are detailed in the findings above and in the corrected settlement statements attached and made a part of this order. Based upon these findings, Growers Marketing Service, Inc., owes Willie J. Woods

$32,999. The parties should be notified of these findings, and GMS permitted the opportunity to pay the amount owed within a stated time, and if GMS fails to settle with the Petitioner, he should be permitted to obtain settlement from the Respondent's bond.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the parties be notified of these findings, and GMS permitted the opportunity to pay to Willie J. Woods $32,999 within 30 days, and if GMS fails to settle with Mr. Woods, Mr. Woods should be permitted to obtain settlement from the Respondent's bond in the amount of $32,999, or to the limits of the bond.

DONE and ENTERED this 29th day of July, 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 29th day of July, 1992.

COPIES FURNISHED:

Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-1550

Willie J. Woods

1022 Piercewood Point

Brooksville, Florida 34602

W. R. Ward, Jr., President Growers Marketing Srevice, Inc. Post Office Box 2595

Lakeland, Florida 33806

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

of Licensure and Bond Mayo Building

Tallahassee, Florida 32399-0800

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

WILLIE J. WOODS,

Petitioner,

DACS CASE NO. 92-1268

vs. DOAH CASE NO. 92-1032A

GROWERS MARKETING SERVICE, INC., and PREFERRED NATIONAL INSURANCE COMPANY,

Respondents.

/

FINAL ORDER

THIS CAUSE, arising pursuant to Florida's Agricultural License and Bond Law (Sections 604.15-604.34, Florida Statutes), is before the Commissioner of Agriculture of Florida as head of the Florida Department of Agriculture and Consumer Services (hereafter "the department"), for final agency action.

Background:

On November 14, 1991, Petitioner, WILLIE J. WOODS (hereafter "Woods"), a watermelon producer, filed an administrative complaint with the department pursuant to Section 604.21, Florida Statutes, alleging that Respondent, GROWERS MARKETING SERVICE, INC. (hereafter "Growers"), a licensed dealer in agricultural products, owed him $61,918.57 for 21 loads of watermelons it purchased from him pursuant to their oral agreement.

Growers denied it, and requested a formal administrative hearing which was subsequently held before a hearing officer of the Division of Administrative Hearings after the department referred the case there pursuant to Section 120.57, Florida Statutes (1991). Neither party submitted a proposed recommended order.

A recommended order (copy attached to Appendix hereto as Exhibit "A") was ultimately entered. It found that although Growers did not agree to purchase the watermelons at issue, it did agree to sell them for him, i.e., acting as his agent it would owe and remit to him the sales prices it received from third- parties less its fee and expenses.

After merging two of the sales (Nos. 1530 and 3558) with the other 19, the hearing officer found that Growers failed to fully account to Woods and that it owes him $32,999. The hearing officer concluded by recommending to the department that it order Growers to pay Woods that amount.

Growers has filed written exceptions (copy attached to Appendix hereto as Exhibit "B") to the hearing officer's findings on 15 of 19 sales (conceding the correctness of four sales, Nos. 1424, 1508, 1497 and 3552, discussed by Paragraphs 4, 9, 10 and 18 of the recommended order). They are explicitly dealt with in the attached "Appendix To Final Order."

Upon review of the Record here, virtually all of the hearing officer's findings of fact are supported by and based upon competent substantial evidence-

-with two exceptions, both of which required only slight modification and totaling only $1,866 [as well as two findings which required modification due to mathematical errors and which totalled only $108].

It is, therefore, ORDERED AND ADJUDGED:

1. The hearing officer's findings of fact are adopted as modified by the modifications set forth in the Appendix hereto;

   
   

2. The hearing officer's conclusions of law are adopted as modified by the modification to the total balance-due to Woods, as set forth in the Appendix: $ 31,025; and,

   
   

3. The hearing officer's recommendation--that Woods receive the balance- due from Growers or its surety to the limit of Growers' bond--is approved, as modified to $31,025, as the correct disposition of this cause.

NOTICE OF APPEAL RIGHTS

Any party to these proceedings adversely affected by this Final Order is entitled to seek review hereof 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, Mayo Building, 5th Floor; Tallahassee, Florida 32399-0800, and a copy of the same with the appropriate District Court of Appeal within 30 days of rendition of this Final Order.

DONE AND ORDERED this 10th day of February, 1993.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

Ann H. Wainwright Assistant Commissioner

Filed this 11th day of February, 1993.

DEBORAH PARKS, DEPUTY AGENCY CLERK

COPIES FURNISHED:

Mr. Willie J. Woods 1022 Piercewood Point

Brooksville, Florida 34602

Growers Marketing Service, Inc. Post Office Box 2595

Lakeland, Florida 33806

ATTN: Mr. W. R. Ward, Jr., Pres.

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 ATTN: Mr. Stephen F. Dean, H.O.

EXHIBIT B STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

WILLIE J. WOODS,

Petitioner,

DACS CASE NO. 92-1268

vs. DOAH CASE NO. 92-1032A

GROWERS MARKETING SERVICE, INC., and PREFERRED NATIONAL INSURANCE COMPANY,

Respondents.

/

APPENDIX TO FINAL ORDER

"Modifications To Findings And Rulings On Written Exceptions" Prologue:

The exceptions challenge the hearing officer's recalculations of the balances-due to Woods from Growers' sales of his watermelons to third-parties as set forth by Growers' accounting statements.

Subsection 604.22(1) of Florida's so-called "Agricultural License and Bond Law" (Sections 604.15-604.34, Florida Statutes), mandates:

Each licensee, while acting as agent for a producer, shall make and preserve for at least 1 year a record of each transaction, specifying the name and address of the producer for whom he acts as

agent; the date of receipt; the kind, quality, and quantity of agricultural products received; the name and address of the purchaser of each package of agricultural products; the price for which each package was sold; the amount and explanation of any adjustments given; and the net amount due from each purchaser. An account of sales shall be furnished each producer within 48 hours after the sale of such agricultural products. Such account of sales shall clearly show the sales price of each lot of agricultural products sold; all adjustments to the original price, along with an explanation of such adjustments; and an itemized showing of all marketing costs deducted by the licensee, along with the net amount due the producer.

But review of Growers' accounting statements, tendered to Woods and into evidence at the administrative hearing, reflect noncompliance with this controlling statute: the sales prices set forth therein were incorrect-- supported neither by Growers' documentary evidence nor by its witnesses' testimony.

Revealing just how serious the sales price inaccuracies of Growers' accounting statements were, the hearing officer opined:

Because this transaction clearly shows the original price was paid [to Growers], it reflects adversely on the credibility of the witnesses for Growers Marketing Service with regard to their testimony in other transactions that the original price was reduced due to fall in the market. R.O. Paragraph 8, Pp. 7-8.

The credibility of the witnesses, of course, is solely the prerogative of the hearing officer as the finder of fact. Heifetz v. Dept. of Bus. Reg., 475 So.2d 1277, 1281-1282 (Fla. 1st DCA 1985). Note.--Heifetz also holds that an agency head may not substitute his or her opinion of the evidence for that of the hearing officer if there is any competent substantial evidence in the record to support the hearing officer's findings. This is so even if there is competent substantial record evidence to the other effect. However, review of Growers' exceptions reveals that virtually all of them are grounded not upon the absence of competent substantial evidence to support the hearing officer, but upon the presence of evidence to support its view; accordingly, they must be denied.

Exception One

Re: Recommended Order [R.O.] Paragraph 3; Sale No. 1439 (Respondent's Exhibit 4).

Load No. 1439 consisted of 43,750 pounds of watermelons. The sales price was 14 cents a pound "FOB." (Tr. 129)

The hearing officer found that these melons were transported from Brooksville to Canada by the purchaser's rather than Growers' truck (Tr. 129) and that Growers' file contained no evidence of any charge for freight. Thus, the hearing officer concluded that such FOB purchaser "waived any right to reject the melons upon their arrival...." The hearing officer so found despite testimony of Growers' president that FOB really meant the delivered price (Tr.

150) and that the sale in Florida was really conditional on the melons meeting inspection upon arrival in Canada. (Tr. 131)

Understandably, the hearing officer believed that part of Growers' testimony which was corroborated by documentation in its file and disbelieved its president's self-serving testimony. (See, the Prologue above regarding the hearing officer's express concern for the veracity of Growers' witnesses.)

[Although the hearing officer held that a "limited" Canadian inspection report of the melons' immaturity was hearsay, such holding was surplusage and, therefore, is immaterial in light of his earlier finding that the sale was FOB Brooksville, Florida. Clearly, it is standard practice for parties to some sales of perishable agricultural products not to finalize the price until the condition is verified at the destination point, where, if there is any question about it, an inspection is ordered. Then, if the report--an objective so-called inspection certificate--shows the product's quality (and/or quantity) to be less than originally bargained for, the purchaser has a right of rejection. But when the sale is FOB, there is no such right. Since the purchaser is deemed to own the product at the point of shipment, it is obligated to the seller at the agreed price, as well as for the freight.]

Since there is competent substantial evidence to support the hearing officer's findings regarding No. 1439, the department cannot as a matter of law consider Growers' exception here regarding evidence to the contrary. See, Heifetz, supra. Therefore, Growers owes Woods $2,208 for his No. 1439 watermelons, as the hearing officer correctly so found.

Exception Two

Re: R.O. Paragraph 5; Sale No. 3534 (Respondent's Exhibit 5)

The No. 3534 watermelons were sold as five loads: Nos. 1403, 1461, 1476, 1507 and 1565--the last of which was dumped as rotten, so that the remaining four loads were as follows:

Total expenses of $2,285 included the usual 1 cent a pound brokerage fee and 4 cents a pound packing charge for each of the 39,522 pounds (not 40,4071 as shown by Growers' No. 3534 accounting statement nor 44,869 set forth by this exception), plus $300 freight from Woods' Brooksville fields to Growers' Plant City packing house, and a National Watermelon Board Assessment of $8.98. Note.-

-Compare the hearing officer's red-ink notations on the copy of Growers' No. 3534 accounting statement with Growers' contrary claims therein, which notation disallows Growers' setoffs for three other loads (Nos. 3546, 3541 and 1520 totaling $2,671) because there was no evidence or reason thereof (Tr. 139-141) and which were unsubstantiated by Growers' accounting or testimony. It should be further noted that Growers abandoned such setoffs in this exception.

The hearing officer thus found that Growers owes Woods $2,705:

There is competent substantial evidence to support this finding by the hearing officer; therefore, Growers' exception--that the balance due is only

$2,404--must be and is rejected.

Exception Three

Re: R.O. Paragraph 6; Sale No. 3541 (Respondent's Exhibit 6)

Growers' testimony regarding No. 3541 was that it consisted of No. 1565 (Tr. 142), and that No. 1565 brought practically nothing. (Tr. 142) And an examination of the bill of lading for No. 1565 (located in Envelope No. 3541), shows that load No. 1565 consisted of Woods No. 3541 melons [and loads from other growers/producers].

Written on the face of Growers' No. 1565 envelope is the following notation by it: "No income or expenses for growers." That is to say, Growers neither credited income to Woods (and the other growers whose melons made-up load No.

1565) nor debited expenses to him (and them therefor) because the income and expenses offset each other, i.e., they were a "wash."

The hearing officer's recommended order emphasizes this "admission against interest" by Growers when he opined:

GMS's treatment of the transaction [No. 1565] on the [sic: its] settle- ment statement [for No. 3534] is contrary to the [sic: its] notes on transaction 1565 which treat is [sic: it, the income and expenses] as a wash with no income or expense to Woods. [Therefore, t]he assess- ment of freight and handling charges

was not inappropriate [sic: appro- priate] under the circumstances, and are disallowed. R.O. Paragraph 5, Page 6.

Understandably, then, the hearing officer disallowed Growers' $423 deduction for No. 3541 by making the following red-ink notation on a copy of Growers' accounting statement of transaction No. 3534 (which includes No. 3541): "there is no evidence why this load was dumped."

[But, the hearing officer surmised that a 10-day delay by Growers between the time it received them and shipped them was the reason why they arrived in Cincinnati rotten.]

In any case, the hearing officer treated the No. 1565 melons as a wash regarding sale No. 3541 (here in R.O. Paragraph 6) just like he did regarding sale No. 3534 (in R.O. Paragraph 5) and just like Growers had done in its No. 1565 paperwork.

Thus, the hearing officer's disallowance to Growers of any expenses therefor was correct.

Exception Four

Re: R.O. Paragraph 7; Sale No. 3546 (Respondent's Exhibit 23)

Transaction No. 3546 consisted, in part, of yellow meat watermelons from Woods designated as Nos. 1589, 1607 and 1613 which Growers sold for Woods to third-parties. (Exhibit 23)

[Because the Woods yellow meat watermelons designated as No. 1589 were the subject of an action under Federal law, the Perishable Agricultural Commodities Act, the hearing officer properly excluded them from his consideration of Transaction No. 3546. And because the hearing officer included Woods' No. 1607 yellow meats with his consideration of Transaction No. 3548 (which the hearing officer discussed in R.O. Paragraph 11), Woods' No. 1607 watermelons are dealt with in Exception Six below regarding Transaction No. 3548. Thus, the only part of Transaction No. 3546 which this exception challenges are the watermelons designated as No. 1613.]

There is no disagreement that the weight of the No. 1613 watermelons was 10,053 pounds and that the net price due Woods was the gross price Growers received less deductions of 1 cent a pound for its broker's fee and 4 cents a pound for its packing expenses. (Exhibit 23 and Tr. 122 and 139)

But Growers disputes the 11.638 cents a pound which the hearing officer found it owes Woods' from its sale of his No. 1613 watermelons. It contends that it owes Woods only 4 cents a pound, as set forth by its entry for such No. 1613 watermelons in its No. 3546 accounting statement. (Exhibit 23)

In that accounting statement Growers states a gross price of ".0167 " [sic:

16.7 cents] a pound for Woods' No. 1589 yellow meats. Therefore, the net price is the 16.7 cents gross price less 5 cents for expenses (of 1-cent brokerage fee and 4-cent packaging fee) for net price of 11.7 cents a pound. Note.--See and compare Tr. 153, Lns. 2-21, regarding Growers' penchant for misplacing decimals, with the attendant incorrectness and confusion which that causes.

The hearing officer relied on Growers' entry for No. 1589 in order to find that Growers also owes Woods 11.638 [sic: 11.7] cents a pound for his No. 1613 yellow meats--which 11.638-cent net is virtually the same as No. 1589's 11.7- cent net, i.e., 16.7 cents gross less 5 cents for expenses equals 11.7 cents net.

Clearly the hearing officer's use of 11.638 cents instead of 11.7 to calculate Growers' obligation for Woods' No. 1613 watermelons was a mathematical error.

As a matter of law, however--and in the context of Growers' written exception--such error was "harmless error."

[And, as a practical matter, not only does such harmless error result in a total difference of only $6.35 on more than 10,000 pounds of the No. 1613 watermelons, the error favors Growers. Of course, 11.638 cents a pound multiplied by 10,053 pounds equals less liability than if the hearing officer had used the correct 11.7 cents.]

Nevertheless, the hearing officer's harmless mathematical error requires modification of the recommended order in this respect if the department is to adopt such as its final order.

But harmless error aside, the question rearises as to whether there is competent substantial evidence in the Record--including the Transcript of the administrative hearing and the Exhibits introduced into evidence there--to support and sustain the hearing officer's finding that Growers owes Woods $614 therefor, using 11.7 cents a pound net.

The hearing officer's rejection of Growers' self-serving 4 cents a pound net in favor of its 11.638 [sic: 11.7] cents a pound net is well-founded:

--There is no evidence, competent substantial or otherwise, to support Growers' 4-cent price. Too, see Prologue above regarding the hearing officer's express concern about the credibility of Growers' witnesses; and,

--There is ample competent substantial evidence to support the hearing officer's 11.638 cents [sic: 11.7 cents] a pound net price.

1. No Evidence of 4 Cents Net for No. 1613:

   
   

   Compare the Respondent Exhibit 23 documentation, containing nothing to corroborate the 4-cent price Growers alleges for Woods' No. 1613 watermelons, with the Respondent Exhibit 7 documentation, containing a copy of third-party purchaser's purchase order and of Growers' check to Woods for those No. 1475 watermelons which does corroborate the price Growers' alleged was due Woods therefor.

   
   

   This absence of documentation of the price Growers received from the sale of those No. 1613 watermelons was particularly damning to Growers in its capacity as Woods' agent. See, Prologue above regarding Growers' statutory accounting obligation.

   
   

   In light thereof, the hearing officer understandably rejected as unworthy of belief Growers' attribution of only 4 cents a pound for Woods' No. 1613 yellow meats. See, Prologue above regarding Growers' credibility vel non.

2. Ample Evidence of 11.638 [sic: 11.7] Cents Net for No. 1613:

Although there was little testimony at the administrative hearing regarding either No. 3546 or No. 1613, the two instances there were, were critical.

First, toward the hearing's conclusion, Growers' paperwork regarding No.

3546, including No. 1613, was marked for identification and admitted into evidence as Respondent's Exhibit 23. (Tr. 238)

Secondly, when Growers' president was cross-examined by Woods, he testified that when his company received the Woods' watermelons which comprised transaction No. 3546 on June 11 (Tr.182)--which consisted solely of yellow meats watermelons--it was not overwhelmed with yellow meat watermelons then because that did not occur until June 14, (Tr. 184), by which time it had received two more loads (Nos. 3548 and 3558) of all yellow meats from Woods [and from some others]. (Tr. 182)

There is additional competent substantial evidence in the Record on which the hearing officer could find that Growers owes Woods 11.7 cents, rather than 4 cents, a pound for each of the 10,053 pounds of the No. 1613 watermelons it sold for him.

Testimony elicited by Growers, itself, reflects that it sold yellow meats for another watermelon grower (Arthur Lambert) for 17 cents a pound (Tr. 67 and

70) prior to mid-June, when "it [became] more or less a dump situation" (Tr. 64) because by then the market "flooded out." (Tr. 63)

The Record regarding Woods' No. 1613 watermelons is that by June 11 (Tr.

182) they were in coolers at Growers' Plant City packinghouse along with all his other No. 3546 yellow meat watermelons (T. 175), so that they were on hand for sale by Growers to third-parties prior to the mid-June glut and drop in the market, about which Lambert had testified, as set forth above.

Indeed, Growers' own president testified that market prices for yellow meats did not fall until June 14 (Tr. 184). That date was not until the third day after Growers' receipt of Woods' No. 3546 yellow meats (Tr. 182), which included both Woods' No. 1589--which ultimately brought 16.7 cent a bound--and his No. 1613--which, according to Growers' accounting in Respondent's Exhibit 23, brought only 4 cents a pound. (Exhibit 23)

A final example of competent substantial to support the hearing officer's finding of 11.7 cents a pound for Woods' No. 1613 yellow meats was the testimony of Growers' witness and field man for Woods, Wilbert Lumley. (Tr. 103). When questioned by an obviously incredulous hearing officer, he testified that he permitted watermelons that had become waterlogged due to heavy rains to be harvested from Woods' fields for shipment and sale to third-parties. (Tr. 115- 118)

Of course, Woods incurred the expenses for their packing and freight when they were in fact worthless, and which expenses Growers offset against receipts from its sales of Woods' good melons!

Thus, it is axiomatic that the hearing officer rejected as unworthy of belief Growers' unsubstantiated representation on its No. 3546 accounting statement that Woods was due only 4 cents a pound from Growers' sales of his No. 1613 yellow meats. See, again, Prologue above regarding Growers' lack of credibility with the hearing officer.

Accordingly, Growers' Exception Four is rejected as without merit, but the hearing officer's $614 recommendation is modified to $606 in order to correct the aforementioned mathematical error.

Exception Five

Re: R.O. Paragraph 8; Sale No. 1475 (Respondent's Exhibit 7)

Even though Grower's filed an exception regarding this transaction, it nevertheless concedes that it owes Woods the same amount which the hearing officer found that it owes Woods: $456.

Therefore, this exception is irrelevant and immaterial and, accordingly, it is rejected therefor as well as for being moot.

Exception Six

Re: R.O. Paragraph 11; Sale No. 3548 (Respondent's Exhibit 22)

There was no testimony at the hearing regarding No. 3548 or any of the three sales which comprise it: Nos. 1607, 1613 and 1627. (Tr. 238)

However, the hearing officer's red-ink notations on a photocopy of Growers' No. 3548 accounting statement (which the hearing officer refers to as "the corrected statement") explains his calculations for these three sales and his conclusion that Growers owes Woods $1,873 therefor:

$1,019 Net No. 1607

+ 624 Net No. 1613

+ 237 Net No. 1627

$1,880 Total Net No. 3548

- 7 Nat'l Watermelon Production Bd.

$1,873 Balance Due Woods

Although Growers shows an entry of $662.43 gross receipts for Woods' No.

1607 melons, the invoice regarding that sale reflects that Growers received

$3,905 therefor. (Respondent's Envelope No. 1607)

Accordingly, once again the hearing officer was skeptical of Growers' credibility based on its incorrect accounting of the No. 1607 watermelons on its No. 3548 accounting statement.

Review of Grower's own documents, in the several envelopes regarding each of these sales, reflects the presence of competent substantial evidence to support the hearing officer's calculations of the $1,873 total he found Growers owes Woods therefor. Therefore, Growers' exception thereto is denied.

[Although the hearing officer's $1,873 finding is correct and well-founded, several mathematical and/or transpositional errors appear in Paragraph 11 which require correction and modification before adoption by the department: 7,683 (rather than 24,457) pounds of No. 1607 watermelons were rejected and destroyed (see R.O., pg. 7); the No. 1613 watermelons netted 11.6 (not 11) cents a pound (see Respondent's Envelope No. 1613), and the No. 1627 ones netted 12 (not 7) cents a pound (see Respondent's Envelope No. 1627), which yielded $237 (not the

$1,019 erroneously stated by the hearing officer). Nevertheless, the hearing officer's $1,873 balance-due amount is correct.]

Exception Seven

Re: R.O. Paragraph 12; Sale No. 1527 (Respondent's Exhibit 10)

Growers asserts that from the $6,001 which the hearing officer finds it owes Woods that it is entitled to deduct $4,750 for a "harvesting advance." However, it cites to nothing in the Record--nor is there any competent substantial evidence--that supports such assertion.

Therefore, the exception is denied.

Exception Eight

Re: R.O. Paragraph 13; Sale No. 1536 (Respondent's Exhibit 11)

Growers' president, Ward, testified that "we were just plain unable to sell that [Woods' No. 1536 watermelons]. (Tr. 151)

However, the documentation in Growers' Envelope No. 1536 (Respondent's Exhibit 11) when coupled with Ward's testimony that his company "took a $50 sales charge" supports the hearing officer's finding that Growers still owes Woods $298 on this sale:

$2,028 Gross Receipts [not $2,078]

-1,373 Freight [not $1,473]

$655 Subtotal

-50 Commission

$605 Net

-307 Previously Paid

$298 Balance Due Woods

Therefore, after the above two transpositional errors are corrected, there is competent substantial evidence that Growers owes Woods $298.

Thus, Growers' exception is without merit, and it is denied.

Exception Nine

Re: R.O. Paragraph 14; Sale No. 1535 (Respondent's Exhibit 12)

Contrary to this exception, because the trucker that shipped this sale of Woods' melons was chosen by Growers and arrived late (Tr. 154)--which resulted in spoiled melons, which were rejected upon arrival in New Jersey--the hearing officer held that as between Growers and Woods, it (who had let the trucker off- the-hook (Tr. 155) was responsible.

Consequently, the hearing officer held Growers to the $7,113 contract price, i.e., the full 43,240 pound load of Red Jubilees at 16.45 cents a pound. After deducting expenses and what Growers had already paid Woods, the correct balance is $1,954.

The hearing officer made one mathematical error which, in turn, resulted in a second one: $7,113 receipts less $2,357 expenses equals $4,756--not $4,856], so that $4,756 less $2,802 (payment already made to Woods) leaves a balance due of $1,954--not $2,054. So the hearing officer's recommended order is, accordingly, modified.

In any case, this exception is without merit, and it is denied.

Exception Ten

Re: R.O. Paragraph 15; Sale No. 1505 (Respondent's Exhibit 13)

On June 13 (Tr. 159) Growers shipped this load of Crimson Sweets to Toronto, Canada. (Tr. 157) It was to have brought $6,967. (Tr. 159)

It arrived there on Sunday night, June 16. (Tr. 160) Because of the load's condition, on the 18th [Tuesday, not Monday immediately after arrival on Sunday night] a certified inspection was ordered from the Canadian government, which was not performed until June 21 (Tr. 159)--the fifth day after arrival and the third day after request.

Since Growers was responsible for getting the best price and for securing the inspection, the hearing officer evidently was impatient with Growers' delay in ordering the inspection, as well as in its delay, and the $1,249.66 reduced price which Growers accepted for the load. (Tr. 160).

So, the hearing officer holds Growers financially responsible for the consequences: the full $6,967 original price less its expenses of $2,747 for a gross liability of $4,220 less the $1,250 (salvage already paid to Woods) for a net balance due of $2,970.

Respectfully, Growers' exception cannot and does not change the legal affect of the above-cited facts. Thus, such exception does nor warrant relief, and it is denied.

[Although the Canadian inspection report is hearsay, it is admissible under the so-called business records exception. See, Paragraph 90.803(6)(a), Florida Statutes. However, the hearing officer's hearsay finding was harmless error, in any case, because the content of the inspection report was too late to have been germane to the issue of the melons' condition when they arrived five days earlier. (See and compare Tr. 167, Lns. 4-7 regarding the worthlessness of an inspection which is delayed.) Obviously, that is the very point of the frustration the hearing officer exhibited over Growers' delay and the inspection's delay: the report's content was immaterial as too late and, in any case, would not have vitiated the hearing officer's decision that "GMS [Growers] failed to exercise due diligence in obtaining a prompt inspection and [in] seeking recovery on behalf of Woods." (R.O., pg. 10)]

Exception Eleven

Re: R.O. Paragraph 16; Sale No. 1520 (Respondent's Exhibit 14)

Here, too, the hearing officer expresses frustration about what Growers did and why it is liable to Woods: "Because [it] had a legitimate freight claim against the trucking company, yet charged the loss...to the grower [Woods], GMS owes Woods $5,940 less salvage, freight and expenses totaling $2,125. GMS owes Woods $3,816."

Unlike Exception Ten immediately above, Growers concedes that the Record and the hearing officer's prerogative support his finding as to No. 1520.

Note.--Growers correctly points out the hearing officer's mathematical error, which warrants the following modifications to the recommended order: $5,513 [not

$5,940] less $2,125 equals a balance due of $3,388 [not $3,816].

Exception Twelve

Re: R.O. Paragraph 17; Sale No. 3553 (Respondent's Exhibit 16)

Here Growers agrees that it owes Woods $1,616 but that in addition to the

$674 payment which the hearing officer gives it credit for having paid, he overlooked a $119 payment, so that Growers claims that it owes Woods $823 rather than $941.

However, review of the documents in Respondent's Exhibit 16 does not appear to support its contention. Therefore, the hearing officer's finding stands, and Growers' exception is denied.

Exception Thirteen

Re: R.O. Paragraph 19; Sale No. 3549 (Respondent's Exhibit 18)

Growers' No. 3549 accounting statement (part of Exhibit 18) reflects that the 32,564 pounds of Crimson Sweets therein consisted of four loads: Nos. 1530, 1532, 1669 and 1698.

The hearing officer's findings thereto are supported by his red-ink calculations on a copy of Growers' No. 3549 settlement statement.

Those calculations in turn were based upon a combination of the testimony-- which was confusing, at best (Tr. 209-223)--and the documentary evidence in Growers' envelopes for Nos. 3549, 1530, 1532, 1669 and 1678 [as well as No.

3552; see Tr. 216-223].

In this exception regarding No. 3549, Growers sticks by its accounting statement as to receipts, decreases its expenses, but claims an allowance not previously raised. With no competent substantial evidence thereof in the Record, the exception as to it must be, and it is, denied as a matter of law.

Therefore, the hearing officer's $3,242 net is adopted, less $1,690 which Growers already paid, leaving a balance due of $1,552.

Exception Fourteen

Re: R.O. Paragraph 20; Sale No. 3556 (Respondent's Exhibit 15)

This sale, involving 32,898 pounds of yellow meat watermelons, consists of six numbered loads. But Growers' exception challenges only No. 1613, and that the melons in it brought 4 cents, not 11.6 cents, a pound.

However, the hearing officer relied on the same No. 1613 documentation here that he relied on for the No. 1613 melons in No. 3548 (see Paragraph 11 and Exception Six), i.e., Growers' notation of "11.6 cents a pound" on the No. 1613 invoice.

Such is competent substantial evidence, and Growers' exception here is, likewise, denied. Growers still owes Woods $77 for Sale No. 3556.

Exception Fifteen

Re: R.O. Paragraph 21; Sale No. 3557 (Respondent's Exhibit 20)

Growers' Envelope No. 3557 (Respondent's Exhibit 20) reflects that the 20,013 pounds of melons which made up No. 3557 consisted of four parts from the following loads:

No. Pounds

1530 3,528

1669 3,418 and

3,852

2755 9,215

20,013 Total Pounds No. 3557

The No. 1530 Envelope (Respondent's Exhibit 19) contains one entry for No.

3557: 3,528 pounds. Although total receipts were $7,373 for 38 bins (46,710 pounds), for the 3 bins at issue receipts were $538.02, not $2,094 as found by the hearing officer.

The No. 1669 Envelope contains two entries for No. 3557: 3,418 pounds and 3,852 pounds, totaling 7,270 pounds, rather than the 3,418 amount found by the hearing officer. Thus--at 3 cents a pound--the total receipts were $218 rather than the hearing officer's $102.50.

Although there is no No. 2755 Envelope--which both Growers and the hearing officer refer to as No. 1617--the $1,105 therefor (9,214 pounds at 12 cents each) which Growers' accounting statement reflects for No. 1617 was not changed by the hearing officer.

Therefore, the recommended order's entry for No. 1617 within No. 3557 is not modified; but, the entries for Nos. 1530 and 1669 are, as set forth above, to reflect gross receipts of $1,862 rather than the hearing officer's $3,301.

The expenses as found by the hearing officer are supported by competent substantial evidence, so that the balance due Woods for his No. 3557 watermelons is $965:

Summary of Modifications:

This Record supports the findings of the hearing officer's recommended order except modifications to Paragraphs 16 and 21--totaling $1,866 less for Woods--as a result of Growers' Exceptions Eleven and Fifteen as set forth above.

[Paragraphs 7 and 14 are also modified--but due to mathematical and/or transpositional errors--in the total amount of $108 less for Woods, as discussed above regarding Exceptions Four and Nine.]

Otherwise, the hearing officer's findings as to the balance-due to Woods for each of the remaining fifteen paragraphs are unmodified.

Therefore, the total of the balance-due sums as modified that Growers still owes Woods is:

Docket for Case No: 92-001032

Orders for Case No: 92-001032