STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. D. (SONNY) CHESNUT, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 92-6075A

   ) JIM RASH, INC. and FIDELITY ) AND DEPOSIT COMPANY OF )

   MARYLAND, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, final hearing in the above-styled case was held in Lake Wales, Florida, on March 16, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   The parties were represented at the hearing as follows: For Petitioner: Sonny Chesnut, pro se

   Route 1, Box 658

   Bonifay, Florida 32421

   
   

   For Respondent: Earl M. Rash

   Post Office Box 1180 Dundee, Florida 33838

   
   

   STATEMENT OF THE ISSUE

   
   

   The issue in this case is whether Petitioner is entitled to payment in connection with the sale of watermelons in June, 1992.

   
   

   PRELIMINARY STATEMENT

   
   

   By Complaint dated August 24, 1992, Petitioner alleged that he had sold to Respondent Jim Rash, Inc. a total of $5175.80 of watermelons between June 22 and June 28, 1992, for which he had received no payment.

   
   

   By Answer dated September 28, 1992, Respondent Jim Rash, Inc. denied the allegations of the Complaint and alleged that it agreed with Petitioner to take his watermelons on a "handle basis." The Answer states that many of the watermelons were rejected by the ultimate purchasers due to their small size and quality.

   At the hearing, Petitioner called two witnesses and offered into evidence four exhibits. Respondent Jim Rash, Inc. called one witness and offered into evidence one exhibit. Respondent Fidelity and Deposit Company of Maryland did not appear.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner grows watermelons. He has only done business with Respondent Jim Rash, Inc. (Respondent) in 1991 and 1992. In both of those years, Petitioner was responsible for the hiring of the crews to pick the melons and load the trailers. Respondent obtained receivers who supplied the trailers and then drove them to the markets, which are typically up north.

      
      

   2. In 1991, Respondent paid for two of the seven loads at the weighing scales and the remainder a few days later. It is unclear whether the latter payment was made before the shipments were received by the wholesalers and retailers from the shippers or receivers. In 1991, as in 1992, the parties maintained no documentation indicating when Respondent became liable for payment to Petitioner.

      
      

   3. The parties agree that the subject sale was not a sale on consignment. The price of the watermelons was fixed.

      
      

   4. Petitioner testified that the sale was to Respondent and complete once the weighing was completed and the final price could be calculated. Petitioner might allow a few days to pass before payment, but this, according to Petitioner, was only a convenience to Respondent.

      
      

   5. Respondent's representative testified that the role of Respondent was to find receivers who shipped the melons to wholesale or retail markets. If the melons were rejected there, then Petitioner was not due payment for the rejected melons.

      
      

   6. Perhaps the major problem for the parties is that 1992, unlike 1991, was a poor year for watermelon sellers. Unfortunately, the parties did not document which of them was to bear the risk of loss due to poor market conditions, or even due to substandard watermelons in terms of size or quality.

      
      

   7. Although the loading was performed by persons hired by Petitioner, Jim Rash, who died in December, 1992, supervised the loading of the melons at Petitioner's farm. He could note size discrepancies relatively easily. Although Respondent's representative testified that his late brother accepted the melons under protest, this testimony is not credited. Without Petitioner's consent, Mr. Rash evidently decided to market the melons as a premium, relatively small variety known as Sangrias, which they are not.

      
      

   8. However, Petitioner admitted that he should not be paid for watermelons that are of substandard quality. He did so when he admitted that Respondent's claim on spoiled or overripe watermelons would be a different matter if he had had a USDA inspector certify that the melons were bad. Although Mr. Rash took some field samples, he could not have as readily determined the condition of the watermelons as he could have determined their size.

      
      

   9. Petitioner has proved that Respondent was liable for payment of all melons loaded on the trailers except for those that were of deficient quality.

   10. In this case, between June 22 and 28, 1992, Petitioner sold nine loads to Respondent under the above-described terms. The total due Petitioner was

       $18,802.20, of which Respondent paid all but $5175.80.

       
       

   11. The only load that was rejected due to the watermelons' condition, rather than size, was the one in which Petitioner was underpaid by $2240.80. The purchaser in Chicago rejected these watermelons on June 26, 1992--two days after Petitioner sold them--because they were overripe and bruised.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

       
       

   13. Petitioner has proved that he was underpaid by Respondent for watermelons sold to it between June 22 and 28, 1992, by the amount of $2935.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner the sum of $2935.

ENTERED on March 30, 1993, in Tallahassee, Florida.

ROBERT E. MEALE

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 March, 1993.

COPIES FURNISHED:

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

Richard Tritschler, General Counsel Department of Agriculture

The Capitol, PL-10 Tallahassee, FL 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

508 Mayo Building Tallahassee, FL 32399-0800

Sonny Chesnut, pro se Route 1, Box 658

Bonifay, FL 32421

Earl M. Rash

Post Office Box 1180 Dundee, FL 33838

Legal Department

Fidelity & Deposit of Maryland Post Office Box 1227 Baltimore, MD 21203

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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

1. D. (Sonny) Chesnut,

   
   

   Petitioner,

   
   

   vs. DOAH CASE NO.: 92-6075A

   LB CASE NO.: 93-0016

   Jim Rash, Inc., and Fidelity

   and Deposit Company of Maryland,

   
   

   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 26, 1992, the Petitioner, F. D. (Sonny) Chesnut, 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 $5,175.80 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 Fidelity and Deposit Company of Maryland in the amount of $50,000. The Respondent's answer denied owing Petitioner, and the Petitioner requested a hearing in this case, so this matter was subsequently heard in accordance with provisions of Section 120.57(1), Florida Statutes, as rendered March 30, 1993, a copy of which is attached hereto as Exhibit, to which neither party filed written exceptions with this Department. A letter was filed with Hearing Officer, Robert E. Meale who subsequently issued a Notice of Ex Parte Communication.

   
   

   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, Jim Rash, Inc., pay Petitioner $2,935 within fifteen (15) days after this Order becomes final. This Order is final and effective on the date filed with the Clerk of the Department. The Hearing Officer's Recommendation is further modified to stipulate that in the event Respondent fails to pay Petitioner $2,935 within fifteen (15) days of the Final Order, Fidelity and Deposit Company of Maryland, as Surety for Respondent is hereby ordered to provide payment under the conditions and provisions of the bond.

Any party to the 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 Rides 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 thin (30) days of rendition of this Order.

DONE AND ORDERED this 6th day of May, 1993.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture

Filed with Agency Clerk, this 6th day of May, 1993.

Agency Clerk

COPIES FURNISHED:

Mr. Earl Rash, President Jim Rash, Inc.

Post Office Box 1180 Dundee, Florida 33838-1180

Mr. F. D. (Sonny) Chesnut Route 1, Box 658

Bonifay, Florida 32425

Fidelity and Deposit Company of Maryland Attn.: Legal Department

Post Office Box 1227 Baltimore, Maryland 21203

Mr. Robert E. Meale, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Mr. Les Harrison, Field Representative Plant City Field Representative

Docket for Case No: 92-006075

Orders for Case No: 92-006075