STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT TUCKER AND PHILLIP WATSON, )

)

Petitioners, )

)

vs. ) CASE NO. 92-7490A

) EDDIE D. GRIFFIN, d/b/a QUALITY ) BROKERAGE AND UNITED STATES ) GUARANTY COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on April 28, 1993, in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioners Scott Tucker and Phillip Watson:

Scott Tucker, pro se Phillip Watson, pro se Route 2 Box 280

Trenton, Florida 32693

For Respondent Eddie D. Griffin d/b/a Quality Brokerage:

Eddie D. Griffin

d/b/a Quality Brokerage Post Office Box 889 Immokalee, Florida 33934

For Respondent United States Fidelity & Guaranty Company: (No Appearance)

STATEMENT OF THE ISSUE

Whether or not Petitioners (complainants) are entitled to recover $5,640.19 or any part thereof against Respondent dealer and Respondent surety company.

PRELIMINARY STATEMENT

Petitioners, a de facto partnership, represented themselves. Scott Tucker testified. They had twelve exhibits admitted in evidence.

Respondent Griffin represented himself d/b/a Quality Brokerage, testified on his own behalf, and had one composite exhibit admitted in evidence.

Respondent's Exhibit 2 was not admitted.

Respondent United States Fidelity & Guaranty Company did not appear.

Filing of a transcript and of proposed recommended orders was waived.

FINDINGS OF FACT

1. Petitioners are growers of watermelons and qualify as "producers" under Section 604.15(5) F.S.

   
   

2. Respondent Eddie D. Griffin d/b/a Quality Brokerage is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S.

   
   

3. Respondent United States Fidelity & Guaranty Company is surety for Respondent Griffin d/b/a Quality.

   
   

4. Petitioners' claims against the dealer and his bond are listed in the Amended Complaint in the following amounts and categories:

   
   

   6-18-92 Inv. #657 45,580 lbs. Crimson melons

   @ .05 lb. $2,279.00

   Advance - 700.00

   NWPB* - 9.12

   $1,569.88

   
   

   6-19-92 Inv. #668 2,490 lbs. Crimson melons

   @ .05 lb. $ 124.50

   (paid for 42,860 lbs. short 2,490 lbs.)

   NWPB* - .50 124.00

   
   

   6-20-92 Inv. #695 6,818 lbs. Crimson melons

   @ .05 lb. $ 340.90

   (paid for 39,062 lbs. short 6,818 lbs.)

   NWPB* 1.36 339.54

   
   

   6-20-92	Inv. @	#702 .05	39,880 lbs. Sangria melons lb. $1,994.00 Advance - 700.00 Packing Straw - 10.00 NWPB* - 7.98 Pmt. - 90.00	1,186.02
   6-21-92	Inv. @	#706 .05	44,740 lbs. Sangria melons lb. $2,237.00 Advance - 700.00 Packing Straw - 10.00 NWPB* - 8.95	1,518.05
   6-22-93	Inv. @	#716 .04	11,280 lbs. Crimson melons lb. NWPB* - 2.32	460.88
   6-22-92	Inv. @	#709 .04	46,740 lbs. Crimson melons lb. $1,869.60 Advance - 700.00 Packing Straw - 10.00 NWPB* - 9.35 1,150.25
   			Deducted for #706 - 441.82	441.82

   PAID 708.43

   
   

   Total Claimed $5,640.19

   
   

   *NWPB = National Watermelon Promotion Board Fee

   
   

5. Petitioners and Respondent dealer have had an oral business relationship for four to five years. Both parties agree that their oral agreement initially called for a federal inspection to be done on each load if the load were refused in whole or in part by the ultimate recipient. Respondent Griffin contended that over the years there had been further oral agreements to "work out" or "ride out" small discrepancies or partial refusals of loads without resorting to federal inspections, the cost of which inspections could eliminate the entire profit on single loads. Petitioners denied that such an amended oral agreement was ever reached and further maintained that the amounts of the loads at issue herein could not be considered "small" by any interpretation. Respondent submitted no evidence as to what the relative terms, "large" and "small," mean in the industry. Consequently, it appears that there was never a meeting of the minds of the parties on the alleged oral contract amendments relied upon by Respondent.

   
   

6. Respondent testified that in past years, prior to 1992, he had interpreted the term "ride it out" to mean that he would simply accept the hearsay statements of ultimate recipients that named poundages of melons were bad and he would let the ultimate recipients pay for only the melons they said were good. Respondent would thereafter absorb any losses himself, not passing on the loss by deducting any amount from the full amount he would normally pay to the growers within ten days. However, 1992 was such a bad year for melons that the Respondent dealer chose not to absorb the greater losses and passed them on to the growers by way of deductions on "settlement sheets." In 1992 Respondent sent Petitioners the settlement sheets with the deductions explained thereon with the net payments as much as thirty days after the ultimate sales.

   
   

7. Upon the foregoing evidence, it appears that Respondent had established a course of business whereby Petitioners could reasonably have expected him to absorb any losses occasioned by Respondent's reliance on hearsay statements of the ultimate recipients concerning poor quality melons unless Respondent chose not to test the questionable melons with a federal inspection.

   
   

8. Petitioners obtained Exhibit P-5 for load 657 at Respondent dealer's place of business, but were not certain it applied to the load Mr. Tucker claimed he delivered to Respondent on 6-18-92 because Mr. Tucker did not know his load number that day. The exhibit represents the weight ticket Petitioners believe applies to the load which Mr. Tucker claimed to have delivered to Respondent dealer on 6-18-92. However, the exhibit bears two other names, "Jones and Smith," not Petitioners' respective names of Tucker or Watson. It has "WACC" handwritten across it, which Mr. Tucker claimed signified the name of his watermelon field. The number "657" also has been handwritten across it. There is no evidence of who wrote any of this on the exhibit. Respondent denied that load 657 was received from Mr. Tucker. The exhibit shows a printed gross weight of 78,900 lbs., tare weight of 32,860 lbs. and net weight of 66,800 lbs. Net weights are supposed to signify the poundage of melons delivered to the dealer. Nothing on the exhibit matches Mr. Tucker's journal entry (Petitioners' Exhibit 3) of delivering 45,580 lbs. of watermelons to Respondent dealer on 6- 18-92. Mr. Tucker testified that he was never paid for his delivery.

   Respondent denied there was such a delivery and testified that he paid Jones and

   Smith for load 657. Petitioners have established no entitlement to their claim of $1,569.88 on Invoice 657.

   
   

9. Petitioners' Exhibit P-4 represents two weight tickets secured from Respondent dealer's records that Petitioners contend apply to load 668. The first page has "45,350/6-19-92/Scott Tucker WACC" handwritten across it. None of the four poundages imprinted thereon match any of the amounts claimed by Petitioners for invoice 668, and subtracting amounts testified to also does not conform these figures to Petitioners' claim on load 668. The second page weight ticket shows a date of 6-18-92 and a weight of 34,260 lbs. It also does not match Petitioner's claim that they were owed for 45,350 lbs. but were paid for only 42,860 lbs., being paid 2,490 lbs. short. Exhibit P-8 is the 668 invoice/settlement sheet which Respondent provided to Petitioners and shows invoice 668 with date of 6-19-92, tare and pay weight of 42,860 lbs. at $.05/lb. for $2,143.00 less $8.57 melon adv. association (a/k/a NWPB, see supra) for

   $2,134.43, less a $700.00 advance and $10.00 for packing straw for a total due Petitioners of $1,424.43 which Respondent has already paid. Petitioners have established no entitlement to their claim of $124.00 on Invoice 668.

   
   

10. Petitioners Exhibit P-6 represents two weight tickets secured from Respondent dealer's records. The first page has "45,880 lbs./6-20-92/Scott Tucker Crimson WACC 695" handwritten across it. None of the printed gross, tare, or net weights thereon match any of the amounts claimed by Petitioners for invoice 695. The second page shows the date 6-20-92 and a printed net weight of 32,000 lbs. Respondent dealer provided Petitioners with Exhibit P-7, invoice/settlement sheet 695 dated 6-20-92 showing tare and pay weights of 39,062 lbs. priced at $.05/lb. totalling $1,953.10, less melon adv. assoc. (a/k/a NWPB) fee of $7.81, for $1,945.29, less $700.00 advanced, less $10.00 for packing straw for a total of $1,235.29. The foregoing do not support Petitioner Tucker's claim based on his journal entry (P-3) that he was entitled to be paid for 45,880 lbs. he claims he delivered that day instead of for 39,062 pounds (short by 6,818 pounds) with balance owing to him of $339.54. Respondent has paid what was owed on invoice 695.

    
    

11. By oral agreement at formal hearing, Petitioners' Composite Exhibit 9 shows that Petitioner Tucker delivered 39,880 lbs. of melons to Respondent dealer on 6-20-92 and Petitioner Watson received back from Respondent dealer an invoice/settlement sheet 702 showing 39,880 pounds @ $.05/lb. equalling

    $1,994.00 and that although $1,994.00 was owed Petitioners, Respondent thereafter subtracted for $800.00 worth of returned melons, a $700.00 advance,

    $7.98 for melon adv. association (a/k/a NWPB), and $10.00 for packing straw, and that a balance was paid to Petitioners of only $90.00. This is arithmetically illogical. The subtractions total $1,517.98. Therefore, if all of Respondent's subtractions were legitimate, the total balance due Petitioners would have been

    $476.02. If the right to deduct for the $800.00 in returned melons were not substantiated by Respondent dealer, then Petitioners would be due $1,276.02. Since all parties acknowledge that $90.00 was already paid by Respondent dealer, then Petitioners are due $1,186.02 if Respondent did not substantiate the right to deduct the $800.00.

    
    

12. Load 702 was "graded out," i.e. accepted as satisfactory, by a representative of Respondent dealer or a subsequent holder in interest when the melons were delivered by Petitioners to Respondent dealer. That fact creates the presumption that the melons were received in satisfactory condition by the Respondent dealer. Nothing persuasive has been put forth by the Respondent dealer to show that the situation concerning the melons' quality had changed by the time the load arrived at its final destination. Respondent got no federal

    inspection on this load and relied on hearsay statements by persons who did not testify as to some melons being inferior. In light of the standard arrangement of the parties over the whole course of their business dealings (see Findings of Fact 5-7 supra), Petitioners have proven entitlement to the amount claimed on load 702 of $1,186.02.

    
    

13. By oral agreement at formal hearing, Petitioners' Composite 10 shows Petitioners Tucker and Watson delivered 44,740 lbs. of melons to Respondent dealer on 6-21-92. At $.05/lb., Petitioners were owed $2,237.00, less melon adv. association fee (a/k/a NWPB) of $8.95, $700.00 for an advance, and $10.00 for straw. Those deductions are not at issue. Therefore, Petitioners would be owed $1,518.05, the amount claimed, from Respondent. However, the invoice also notes that Respondent made a $268.18 deduction for melons returned. Respondent's Composite Exhibit 1 purports to be a BB&W Farms Loading Sheet and Federal Inspection Sheet. Respondent offered this exhibit to show that only

    $68.18 was realized by him on load 706 which he attributed to Petitioner Watson. However, the federal inspector did not testify as to the results of the inspection, the inspection sheet itself is illegible as to "estimated total," the "estimated total" has been written in by another hand as "$62.60," and there was no explanation on the Composite Exhibit or in testimony as to how Respondent dealer came up with $200.00 in "return lumping charges" as also indicated on Exhibit R-1. Accordingly, Petitioners have established that with regard to load/invoice 706, they delivered watermelons worth $2,237.00 to Respondent dealer and Respondent dealer did not affirmatively establish that any melons were bad, despite the federal inspection sheet introduced in evidence.

    Petitioners have proven entitlement to their claim on invoice 706 for $1,518.05. However, Petitioners conceded that Respondent actually paid them $441.82 on invoice/settlement sheet 706. Therefore, they are only entitled to recoup a total of $1,076.23 on their claim for Invoice 706.

    
    

14. In the course of formal hearing, Respondent dealer admitted that, with regard to load invoice 716, (Tucker) he did owe Petitioners $460.88 for 275 watermelons, and that it had not been paid purely due to clerical error.

    
    

15. By oral agreement at formal hearing, Petitioners' Composite Exhibit 12 (Invoice and Weight Tickets 709, Watson) shows Petitioner Watson delivered 46,740 lbs. of melons to Respondent dealer on 6-22-92 and at $.04 lb., Petitioners were owed $1,869.60, less appropriate deductions. Petitioners conceded that Respondent dealer appropriately deducted $9.35 for melon adv. association (a/k/a NWPB), $700.00 for an advance, and $10.00 for packing straw, bringing the amount they were owed to $1,150.25. Petitioners and Respondent are in agreement the Respondent paid only $708.43 of the $1,150.25 owed on invoice/settlement sheet 709 because Respondent dealer also deducted from the amount owed on invoice 709 the $441.82 he had previously paid out on Invoice 706. See, Finding of Fact 13, supra. Since Petitioners have established that they were owed $1,518.05 on invoice 706 but were paid only $441.82 thereon, it appears that Petitioners should be paid $1,076.23 on Invoice 706 and realize nothing on Invoice 709.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1), F.S.

    
    

17. Petitioners bear the duty to go forward in this type of proceeding and have the burden of proving, by a preponderance of the evidence, that the dealer defaulted on its agreement and is indebted to the Petitioners. Petitioners were

able to establish that certain amounts, but not all those amounts claimed, had been delivered to Respondent dealer and that an agreement existed that Petitioners should be paid at set prices therefor. The Respondent dealer was not able to rebut the Petitioners' prima facie case by proving legitimate entitlement to all the deductions he had previously taken.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture enter a final order awarding Petitioners $1,186.02 on invoice 702, $1,076.23 on invoice 706, and $460.88 on invoice 716 for a total of $2,723.13, dismissing all other claimed amounts, and binding Respondents to pay the full amount of $2,723.13, which in United States Fidelity & Guaranty Company's case shall be only to the extent of its bond.

RECOMMENDED this 30th day of June, 1993, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 June, 1993.

COPIES FURNISHED:

Scott Tucker and Phillip Watson Route 2 Box 280

Trenton, FL 32693

Eddie D. Griffin

d/b/a Quality Brokerage Post Office Box 889 Immokalee, FL 33934

William J. Moore USF&G

Post Office Box 31143 Tampa, FL 33631

United States Fidelity & Guaranty Company Post Office Box 1138

Baltimore, MD 21203

Brenda Hyatt, Chief Department of Agriculture

Division of Marketing, Bureau of Licensure and Bond

Mayo Building

Tallahassee, FL 32399-0800

Honorable Bob Crawford Department of Agriculture and

Consumer Services Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810

Richard Tritschler, Esquire General Counsel

Department of Agriculture and Consumer Services

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. 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

SCOTT TUCKER AND PHILLIP WATSON,

Petitioners,

vs. DOAH CASE NO. 92-7490A

LB CASE NO. 93-0027

EDDIE D. GRIFFIN, D/B/A OUALITY BROKERAGE AND U.S. FIDELITY AND GUARANTY 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 September 8, 1992, the Petitioners, producers of agricultural products as defined by Section 604.15(3), Florida Statutes, timely filed an administrative complaint pursuant to Section 604.21, Florida Statutes, to collect $5,640.19 for watermelons it sold to Respondent, a licensed dealer in agricultural products.

Respondent's license for the time in question as supported by a bond required by Section 604.20, Florida Statutes, written by U.S. Fidelity and Guaranty Company in the amount of $50,000. The Respondent's answer denied the claim as valid, so this matter was referred to the Division of Administrative Hearings for administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. An administrative hearing was held in this matter on April 28, 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, Eddie D. Griffin, d/b/a Quality Brokerage, pay Petitioners $2,723.13 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 $2,723.13 within fifteen (15) days of the Final Order, U.S. Fidelity and Guaranty 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 5th day of August, 1993.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture

Filed with Agency Clerk, this 5th day of August, 1993.

Agency Clerk

COPIES FURNISHED:

Messrs. Scott Tucker and Phillip Watson

Route 2, Box 280

Trenton, Florida 32693

Mr. William J. Moore

U. S. Fidelity & Guaranty Company

P. O. Box 31143 Tampa, Florida 33631

Ms. Ella Jane P. Davis, Hearing Officer Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Messrs. Jim Brooks and David Bokan, Field Representatives Mr. Eddie D. Griffin

d/b/a Quality Brokerage

P. O. Box 889

Immokalee, Florida 33934

U.S. Fidelity & Guaranty Company

P. O. Box 1138 Baltimore, MD 21203

Docket for Case No: 92-007490

Orders for Case No: 92-007490