STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BIGHAM HIDE COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6193A

)

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 No appearance Cincinnati:

   
   

   STATEMENT OF THE ISSUES

   
   

   Whether Respondent, L. A. Wroten Company, Inc., is indebted to Petitioner for agricultural products (watermelons) purchased by Respondent.

   
   

   PRELIMINARY STATEMENT

   
   

   Petitioner, by its complaint filed with the Bureau of License and Bond, Florida Department of Agriculture and Consumer Services, seeks payment for a balance due on watermelons sold and delivered to Respondent Wroten on June 11 and 12, 1992.

   
   

   At hearing, Craig Bigham, Petitioner's president testified and Petitioner presented the testimony of Grady Smith, Jerald Davis, Raymond Smart and Raiford Dunn. Respondent, L. A. Wroten Company, Inc., presented the testimony of Lee Wroten. Respondent Cincinnati presented no witnesses or evidence.

   Petitioner offered a composite of "growers receipts" covering the four (4) loads at issue herein which were received. Respondent Wroten offered a series of "growers receipts" which did not cover the loads at issue which were received.

   
   

   Petitioner filed a proposed recommended order which was considered in preparation of this recommended order. Proposed findings not incorporated herein are the subject of specific rulings in an appendix. Likewise, Respondent filed a written closing argument which was considered.

   
   

   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 licensed dealer in agricultural products. During times relevant, Respondent had a bond posted through Cincinnati Insurance Company as surety.

      
      

   2. During times material, Respondent employed Grady Smith as a field representative. As such, Smith had authority to, and on numerous occasions, purchased watermelons on behalf of Respondent.

      
      

   3. Petitioner is a producer of agricultural products, specifically watermelons. Petitioner has been growing melons for approximately 30 years. Petitioner has known Smith for the duration of his production of agricultural products and has had business dealings with Smith as a representative of Respondent Wroten on numerous occasions during the past two years.

      
      

   4. During May and June of 1992, Petitioner sold 21 loads of melons to Respondent Wroten. Four of those loads are at issue in this case. (The remaining 17 loads Smith purchased from Petitioner as representative of Respondent, are not at issue herein.)

      
      

   5. On June 11 and 12, 1992, Smith, acting as representative of Respondent Wroten, agreed to buy the loads of melons in controversy here. Smith purchased Sangria watermelons at four and one-half cents per pound. When the loads were loaded, graded and weighed, Smith was on hand and the totals were as follows:

      
      

      Load #6149 44,460 pounds x 4-1/2 cents = $2,000.70 Load #6351 43,870 pounds x 4-1/2 cents = $1,974.15 Load #5898 49,140 pounds x 4-1/2 cents = $2,211.30 Load #5900 43,660 pounds x 4-1/2 cents = $1,964.70

      
      

   6. The total agreed price for the melons at issue was $8,150.85. Respondent Wroten has previously paid Petitioner $4,456.13 of the amount due which, when deducted from the amount claimed together with $45.71 in melon promotion fees, leaves a balance claimed by Petitioner in the amount of

      $3,649.01.

      
      

   7. Beginning in 1991 and continuing through 1992, Petitioner and Smith, as representative of Respondent Wroten, agreed to the sale of melons under an understanding that the transaction was F.O.B. at Coleman, Florida, acceptance final at shipping point. This agreement included an understanding that Respondent would provide a trailer to haul the melons and would pay all transportation charges. Pursuant to the parties' agreement, payment for the

      melons was due "when they moved over the scales", i.e., as soon as the trucks were loaded and weighed or on the following day. Finally, the understanding and agreement between the parties was that the title and risk of loss to the melons passed to Respondent Wroten on the day of shipment.

      
      

   8. The growers receipt submitted in evidence clearly showed the essential terms of the agreement and contained no language which would indicate that the sale was conditioned in any manner respecting Respondent Wroten's claim that Petitioner agreed to "ride the load". The admitted growers receipts and other testimony supports Petitioner's claim that Respondent's representative Smith offered the same terms to other producers and growers in the area. The referenced understanding/agreement was the focal point of the terms under which Petitioner conducted business with representative Smith.

      
      

   9. Although the growers receipt did not contain a price for the melons, Petitioner's president, Greg Bigham, credibly testified that the agreed price between Bigham and Smith was 4 1/2 cents per pound. Further, Respondent offered no testimony and presented no documentary evidence establishing that the price was other than as stated by Bigham.

      
      

   10. Respondent Wroten contests that it owes the sum claimed by Petitioner based on a phone conversation allegedly had between Lee Wroten and Greg Bigham in which it is contended that Bigham agreed to bear the risk of loss of the melons to their ultimate destination. This method of sale in the industry is known as offering "protection" or "riding-the-load".

       
       

   11. Bigham acknowledged a phone conversation respecting loads of royal sweet melons which had been previously rejected by Respondent Wroten, however he did not agree to offer "protection" or otherwise "ride-the-load" as to the Sangria melons questioned here. Likewise, Smith could not remember telling Bigham that the terms of sale had changed nor did he attempt to confirm that Petitioner was required to assume the risk of loss for the Sangria melons. Likewise, the growers receipts issued thereafter to Petitioner contained no changed conditions or restrictions respecting the terms of sale.

       
       

   12. Even assuming, arguendo, that Petitioner offered protection or otherwise agreed to "ride the load", Respondent offered no credible evidence to establish that the melons were either defective or that there was any other fault with the melons when shipped or upon arrival at destination which would somehow require that a set off be issued to Respondent.

       
       

   13. As stated, Smith was present on June 11 and 12, 1992 and witnessed the loading and graded the melons as they were being placed on the trailers provided by Respondent Wroten. Smith, while inspecting and grading the melons, eliminated those melons which were not acceptable to him. After the melons were loaded, Smith, acting as representative of Respondent, accepted the load and observed the weighing.

       
       

       CONCLUSIONS OF LAW

       
       

   14. 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.

       
       

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

   16. The authority of the Department is derived from Chapter 604, Florida Statutes.

       
       

   17. 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 possessed and showed evidence of a surety bond or a certificate of deposit as required according to Section 604.20, Florida Statutes and Rule 5H-1.01, Florida Administrative Code.

       
       

   18. Respondent L. A. Wroten Company, Inc., was bonded by Respondent Cincinnati Insurance Company (as surety).

       
       

   19. 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. The complaint alleged, inter alia, that Respondent Wroten refused to pay for agricultural products sold to Respondent Wroten on June 11 and 12, 1992.

       
       

   20. Petitioner presented credible evidence establishing that it sold to Respondent L. A. Wroten Company, Inc., at Coleman, Florida, watermelons at a total agreed price of $8,150.85, of which only $4,456.13 less $45.71 for promotion fees leaving the remaining sum of $3,649.01 which Respondent Wroten Company has refused to pay Petitioner.

       
       

   21. Credible evidence offered herein by Petitioner also demonstrates that watermelons were loaded on June 11 and 12, 1992 and were in good condition based on the inspection by Respondent's field representative. The melons were of the size and type purchased by Respondent Wroten from Petitioner. No credible evidence was offered by Respondent Wroten to establish that there were quality problems with the melons when they were shipped or upon their final destination. Finally, the risk of loss passed to Respondent Wroten upon shipment.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order requiring that:

1. Respondent L. A. Wroten Company, Inc., pay to Petitioner the sum of

   $3,649.01.

   
   

2. In the event that Respondent, L. A. Wroten Company, Inc., fails to timely pay Petitioner the sum of $3649.01 as ordered, that the Respondent Cincinnati Insurance, as surety, be ordered to pay the Department a like sum as required by Section 604.21, Florida Statutes and that the Department timely reimburse Petitioner in accordance with that subsection.

DONE AND ENTERED this 29th 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 29th day of April, 1993.

APPENDIX

Rulings on Petitioner's proposed findings of fact:

Paragraph 6, adopted in part, Paragraph 9, Recommended Order. Paragraph 7, rejected as argument.

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 SERVICES

BIGHAM HIDE COMPANY,

Petitioner,

vs. DOAH CASE NO. 92-6193A

LB CASE NO. 93-0020

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 21, 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 $3,649.01 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 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

   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. Woten Co., Inc., pay Petitioner $3,649.01 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 $3,649.01 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 sane 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 Commisioner of Education Filed with Agency Clerk, this 2nd day of June, 1993.

COPIES FURNISHED:

Mr. Greg Bigham Bigham Hide Company Post Office Box 188

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. John Brooks, Field Representative Tampa Field Representative

Docket for Case No: 92-006193

Orders for Case No: 92-006193