STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAIFORD DUNN, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5704A

)

1. A. WROTEN COMPANY, INC. and ) THE CINCINNATI INSURANCE COMPANY, )

   )

   Respondents. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on March 25, 1993 in Lakeland, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Lawrence J. Marchbanks, Esquire

   Marchbanks, Daiello & Leider, P.A. 4800 North Federal Highway - #101-E Boca Raton, Florida 33431

   
   

   For Respondent Don Davis

   Wroten: L. A. Wroten Company, Inc.

   Post Office Box 2437 Lakeland, Florida 33806

   
   

   For Respondent

   Cincinnati: No appearance

   
   

   STATEMENT OF THE ISSUES

   
   

   Whether Respondent, L.A. Wroten Company, Inc., is indebted to Petitioner for agricultural products purchased by Respondent Wroten from the Petitioner.

   
   

   PRELIMINARY STATEMENT

   
   

   By its administrative complaint filed August 11, 1992 with the Florida Department of Agriculture and Consumer Services, Bureau of License and Bond, and submitted to the Division of Administrative Hearings on September 21, 1992, Petitioner seeks to be paid a balance allegedly due for watermelons sold and delivered to Respondent L.A. Wroten Company, Inc. on June 6, 1992.

   
   

   At the hearing, Petitioner presented the testimony of Grady Smith, Greg Bigham and Raymond Smart and he (Petitioner) testified on his behalf.

   Respondent's representative, Grady Smith, testified on Respondent's behalf.

   Petitioner offered composite exhibit 1, consisting of a series of growers receipts, which was received in evidence. Respondent offered composite exhibit 1, an inspection certificate, which was also received in evidence.

   
   

   Petitioner filed a proposed recommended order which was considered in preparation of this Recommended Order, pursuant to Section 120.57(1)(b)4., Florida Statutes. Respondent filed a posthearing closing argument which was also considered. Proposed findings which are not incorporated herein are the subject of specific rulings in an appendix.

   
   

   FINDINGS OF FACT

   
   

   Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings.

   
   

   1. Respondent, L.A. Wroten Company, Inc., is a Florida corporation and a licensed dealer in agricultural products. During times material, Respondent Wroten possessed a surety bond issued through Respondent, Cincinnati Insurance Company.

      
      

   2. During times material, Respondent Wroten employed Grady Smith as a field representative, who is authorized to and on numerous occasions, purchased watermelons on Respondent Wroten's behalf.

      
      

   3. Petitioner is a producer of agricultural products, specifically watermelons. Petitioner has been a producer of melons for approximately 30 years. Petitioner has known Grady Smith, Respondent Wroten's representative, in excess of ten years and has had business dealings with Smith as a representative of Respondent Wroten on several occasions during 1991 and 1992.

      
      

   4. During May and June 1992, Petitioner sold five (5) loads of watermelons to Respondent Wroten. At issue here is the fifth load Petitioner sold to Respondent Wroten on June 6, 1992.

      
      

   5. All five loads of melons sold by Petitioner to Respondent Wroten were loaded and shipped over a short period of time, to wit, May 30-June 6, 1992. All of the melons came from the same field.

      
      

   6. On June 6, 1992, Grady Smith, acting as a representative of Respondent Wroten, agreed to purchase a load of royal sweet watermelons from Petitioner at

      4 per pound. The load of "royal sweets" consisted of the following melons: Load #6138 57,700 pounds x 4 cents = $2,308.00.

   7. Beginning in 1991 and continuing through 1992, Petitioner and Smith, acting on Respondent's behalf, agreed to the sale of melons under an understanding that the sale and purchase was F.O.B. at Coleman, Florida, acceptance final at shipping point. The agreement also included an understanding that the Respondent would provide the trailers and pay all transportation charges for the melons. Pursuant to the agreement, payment for the melons was due "when they moved over the scale", i.e., as soon as the trucks were loaded and weighed or within the following day. Finally, the agreement between the parties was that title and risk of loss to the melons passed to Respondent Wroten at the time of shipment. Respondent Wroten 's representative Smith offered other producers and growers in the area identical terms under which they conducted their business with Respondent Wroten.

   8. On June 6, 1992, the "royal sweet" melons in question were loaded on trailers provided by Respondent Wroten. Respondent Wroten's representative Smith was present in the field as the truck was loaded and he inspected and "graded" the melons as they were loaded. Any melons which were not deemed acceptable to Smith were taken from the conveyor belt so that they would not be loaded. When the trailer was loaded, representative Smith accepted the load and indicated that the melons "looked good to him".

      
      

   9. Respondent Wroten has not paid Petitioner any of the amount claimed to be due for the melons in question.

      
      

   10. Respondent Wroten contended that the melons were "overripe" when they reached their ultimate destination on June 9, 1992. 1/

       
       

   11. There is an industry practice whereby the producer or seller agrees to accept the risk of loss until the produce reaches its final destination and the products are sold. This practice is referred to as offering "protection" or "ride-the-load". Petitioner did not offer to Respondent, in this instance, any protection or otherwise "ride-the-load".

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Section 120.57(1), Florida Statutes.

       
       

   13. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

       
       

   14. The authority of the Florida Department of Agricultural Services, Bureau of License and Bond, is derived from Chapter 604, Florida Statutes.

       
       

   15. Respondent, L.A. Wroten Company, 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 604.17, Florida Statutes. As a requirement of licensing, Respondent Wroten provided the Department evidence of a surety bond in accordance with Section 604.20, Florida Statutes and Rule 5H-1.01, Florida Administrative Code. Respondent Wroten was issued a surety bond by Respondent Cincinnati Insurance Company.

       
       

   16. Petitioner is a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner filed a timely complaint against Respondent Wroten and its surety in accordance with Section 604.21, Florida Statutes alleging, inter alia, that Respondent Wroten refused to pay for agricultural products sold to Respondent Wroten on June 6, 1992.

       
       

   17. Petitioner presented credible evidence that it sold and delivered to Respondent Wroten Company at Coleman, Florida a load of watermelons at a total agreed price of $2,308.00 which Respondent Wroten has refused to pay.

       
       

   18. The melons that were loaded and sold to Respondent on June 6, 1992 were in good condition based on the inspection of Respondent's field representative and were of the size and type purchased by Respondent. Respondent presented no credible evidence of any quality problems with the melons when they were loaded and shipped. Finally, the risk of loss passed to

Respondent Wroten at the shipping point, Coleman, Florida, pursuant to the parties understanding and agreement.

RECOMMENDATION

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

1. The Department enter a final order requiring Respondent L.A. Wroten Company, Inc., be ordered to pay Petitioner the sum of $2,308.00.

   
   

2. In the event that Respondent L.A. Wroten Company, Inc., fails to timely pay Petitioner as ordered, that Respondent Cincinnati Insurance Company be ordered to pay the Department the sum of $2,308.00 as required by Section 604.21, Florida Statutes and that the Department reimburse Petitioner.

DONE AND ENTERED this 30th day of April, 1993, in Tallahassee, Florida.

JAMES E. BRADWELL

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 30th day of April, 1993.

ENDNOTE

1/ In support of Respondent Wroten's contention, Wroten introduced what purported to be an inspection certificate which allegedly showed the overripe conditions of the melons when they arrived at their ultimate destination. The author of the certificate did not testify. Respondent Wroten failed to offer any reason for the inspector's absence from the hearing. The inspection certificate was unsubstantiated hearsay and cannot serve as a basis for a finding of fact as to matters set forth in the certificate.

APPENDIX

Rulings on Responsent Wroten's proposed findings of fact:

Paragraph 4, adopted in part, Paragraph 7, Recommended Order. Paragraph 6, adopted in part, Paragraph 10, Recommended Order.

NOTE--Where a proposed finding has been adopted in part, the remainder is rejected as being unnecessary, subordinate, irrelevant, not supported by the evidence or a conclusion of law.

COPIES FURNISHED:

Lawrence J. Marchbanks, Esquire MARCHBANKS DAIELLO & LEIDER

4800 North Federal Highway #101-E Boca Raton, Florida 33431

Don Davis

L.A. Wroten Company, Inc. Post Office Box 2437 Lakeland, Florida 33806

Richard Tritschler, Esquire General Counsel

Department of Agriculture The Capitol - Plaza Level 10

Tallahassee, Florida 32399 0810

Brenda Hyatt, Chief

Bureau of Licensing & Bond Department of Agriculture

508 Mayo Building

Tallahassee, Florida 32399 0800

Honorable Bob Crawford Commissioner of Agriculture The Capitol - Plaza Level 10

Tallahassee, Florida 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 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.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER AFFAIRS

RAIFORD DUNN,

Petitioner,

vs. DOAH CASE NO. 92-5704A

LB CASE NO. 93-0021

1. WROTEN CO., INC., and THE CINCINNATI INSURANCE COMPANY,

   
   

   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 August 11, 1992, the Petitioner, a producer 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 $2,308 for watermelons it sold to Respondent, a licensed dealer in agricultural products. Respondent's license for the time in question was supported by a bond required by Section 604.20, Florida Statutes, written by The Cincinnati Insurance Company in the original amount of $50,000 and subsequently increased to $75,000. The Respondent's answer denied the claim as valid, 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 March 25, 1993. Neither party filed written exceptions to the Hearing Officer's Recommended Order.

   
   

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

   
   

   ORDERED:

   
   

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

      
      

   2. The Hearing Officer's conclusions of law are adopted in toto as this agency's conclusions of law.

      
      

   3. The Hearing Officer's Recommendation is modified to reflect that Respondent, L.A. Wroten Co., Inc., pay Petitioner $2,308 within fifteen (15) days after this Order becomes final. This Order is final and effective on the date filed with the Clerk of the Deparent. The Hearing Officer's Recommendation is further modified to stipulate that in the event Respondent fails to pay

Petitioner $2,308 within fifteen (15) days of the Final Order, The Cincinnati Insurance Company, as Surety for Respondent is hereby ordered to provide payment to BOB CRAWFORD, COMMISSIONER OF AGRICULTURE, under the conditions and provisions of the bond.

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, Florida 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 2nd day of June, 1993.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture Filed with the Agency Clerk, this 2nd day of June, 1993.

Agency Clerk

COPIES FURNISHED:

Mr. Raiford Dunn Post Office Box 333

Coleman, Florida 33521

Mr. Don Davis

L.A. Wroten Co., Inc. Post Office Box 2437 Lakeland, Florida 33806

Mr. Lawrence J. Marchbanks, Esquire MARCHBANKS DAIELLO & LEIDER

4800 North Federal Highway, #101-E Boca Raton, Florida 33431

The Cincinnati Insurance Company Post Office Box 145496 Cincinnati, Ohio 45214-5496

Mr. James E. Bradwell, Hearing Officer Division of Administrative Hearings

The DeSoto Building, 1230 Apalachee Parkway Tallahassee, Florida 32399-1550

Mr. Jim Brooks, Field Representative Tampa Field Representative

Docket for Case No: 92-005704

Orders for Case No: 92-005704