STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID HINGSON, )

)

Petitioner, )

)

vs. ) CASE NO. 93-865A

)

JOHN W. HILL, d/b/a ) SUWANNEE VALLEY COMPANY, and ) FLORIDA FARM BUREAU MUTUAL )

INSURANCE CO., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on June 25, 1993, in Live Oak, Florida.

APPEARANCES

For Petitioner: David Hingson, pro se

Route 4, Box 330

Live Oak, Florida 32060

For Respondent

John W. Hill: William A. Slaughter, II, Esquire

Post Office Box 906 Live Oak, Florida 32060

For Respondent Florida Farm Bureau Mutual Insurance

Company: No Appearance

STATEMENT OF THE ISSUES

The issue for determination is whether Respondents owe Petitioner approximately $3,807.00 for a quantity of watermelons provided to Respondents by Petitioner; secondarily, resolution of this issue requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.

PRELIMINARY STATEMENT

On or about January 12, 1993, Petitioner David Hingson filed a complaint with the Florida Department of Agriculture and Consumer Services, alleging that Respondents owed him the sum of $3,807.00 for a quantity of watermelons.

Respondent Hill filed an answer denying the claim. Subsequently, the matter was transferred to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of one witness, himself.

Respondent Hill testified on his own behalf and presented two exhibits. The Hearing Officer took official recognition of the documents contained in the file of the Division Of Administrative Hearings Case No. 93-865A.

Neither party requested a transcript of the final hearing. Proposed findings of fact provided by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner is a resident of Suwannee County, Florida and a farmer who produces agricultural products, including watermelons.

   
   

2. Respondent John W. Hill, is a dealer of such products in the course of normal business activity. Respondent Hill's services include arranging for the harvesting and loading of melons for shipment to northern markets, as well as the location of buyers for the melons. Respondent Hill acts as a broker in these arrangements, receives the gross sales receipts from buyers and from that sum deducts costs of labor, freight, inspections, any other associated costs and his commission. The net balance of the gross sales receipts are paid to the melon producers.

   
   

3. Respondent Florida Farm Bureau Mutual Insurance Company is the bonding agent for Respondent pursuant to Section 604.20, Florida Statutes.

   
   

4. Petitioner knew Respondent Hill and had discussed brokerage or trading of watermelons with him on occasion. Shortly before or on July 2, 1992, Petitioner's watermelon crew left him and he telephoned Respondent Hill. Unable to speak with Hill, Petitioner spoke with Hill's wife. She and Petitioner discussed a possible price for Petitioner's melons of five cents a pound.

   
   

5. Shortly thereafter, Respondent Hill later contacted Petitioner by telephone and confirmed the five cents per pound price, provided the melons met requirements. Respondent was using a cellular telephone in his truck and when Petitioner hung up his telephone and walked out of his barn, he observed Respondent's employees in the field starting to cut the vines connected to the melons. Respondent Hill was nearby in his truck.

   
   

6. Petitioner and Respondent Hill drove around the farm and looked at Petitioner's various melon plots. Respondent Hill agreed to attempt to market a variety of the melons known as sangaria at the five cents per pound price. The parties did not reduce their agreement to writing.

   
   

7. Respondent Hill felt that Petitioner understood that they were partners, that he was acting as Petitioner's broker for the eventual sale of the melons to a specified buyer, FRESH PLUS, a buyer in Philadelphia, Pennsylvania. At one point during the process of driving around the watermelon field, Hill and Petitioner discussed the condition of the melons and that they would run the melons in and see if they could get five cents per pound for them. Hill also was convinced that Petitioner understood that the melons must be accepted by the

   receiver or meet certain conditions in order to get that price for the melons. It is customary within the industry that, unless stated otherwise, all melons must grade US #1 at the time of delivery to a buyer.

   
   

8. Petitioner did not accompany the loads of watermelons to the shipping facility where the sangaria melons were weighed and loaded for shipment. As a result, he did not receive a copy of Respondent Hill's July 2, 1992, track report documenting a 48,320 pound load of sangaria watermelons bearing the written statement "must be accepted by receiving or grade U.S. #1."

   
   

9. The melons were rejected by the buyer upon arrival in Philadelphia as not meeting requirements and Respondent Hill, when learning of the rejection, called for and received an official USDA inspection of the melons. The July 6, 1992 inspection revealed that the melons were not US #1. Respondent Hill then shipped the melons to an alternate perspective buyer, T & K Binning in Jessup, Maryland. Upon arrival, T & K rejected 375 of the melons and accepted 2,127 melons at $1.25 per melon for a total purchase price of $2,685.75 which was received by Respondent Hill. After subtraction of labor costs of $733.12, freight costs of $1,965.00, and inspection costs of $133.50, Respondent Hill absorbed a net loss of $212.93.

   
   

10. Another 27,280 pounds of melons that were not of the sangaria variety were loaded from Petitioner's farm and shipped to a seller, Park-N-Shop, in Charlotte, North Carolina, along with melons grown by several other producers. These commingled melons were sold for a gross sales price of $1,344.00. After substraction of labor costs of $792.83 and freight costs of $714.20, Hill absorbed a net loss of $163.03 for the melons.

    
    

11. Testimony of Respondent Hill at the final hearing was corroborated by documentation of Respondent Hill's absorption of all costs connected with the sale of the melons, including initial loading costs. Hill's testimony establishes that the arrangement between the parties was a brokerage arrangement and that the sale of the melons was subject to conditions common to the industry, i.e., that the melons grade #1 upon receipt by buyer. Testimony of Petitioner is uncorroborated and fails to establish that the agreement between the parties contemplated a direct sale of the melons to Respondent Hill.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Dealers of agricultural products are licensed by the Department of Agriculture and Consumer Services. Section 604.17, Florida Statutes. Dealers must post a bond or other security as a precondition to licensure, insuring payment to producers for all agricultural products purchased. Sections 604.19 and 604.20, Florida Statutes. The watermelons in question are an agricultural product. Section 604.15(3), Florida Statutes.

    
    

14. Petitioner bears the burden of proving by a preponderance of the evidence that the arrangement between the parties in this instance was a direct sale as opposed to a brokerage arrangement. Florida Department of Transportation

v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet this burden.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered dismissing Petitioner's complaint.

DONE AND ENTERED this 15th day of July, 1993, in Tallahassee, Leon County, Florida.

DON W. 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 15th day of July, 1993.

APPENDIX

The following constitutes my rulings, pursuant to requirements of Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings

1. Accepted in substance.

2.-3. Rejected, subordinate to HO findings on this point.

4. Rejected, argument.

Respondent's Proposed Findings 1.-9. Accepted in substance.

10. Rejected, cumulative.

COPIES FURNISHED:

David Hingson Route 4, Box 330

Live Oak, Florida 32060

William A. Slaughter, II, Esquire

P.O. Box 906

Live Oak, Florida 32060

Florida Farm Bureau Mutual Insurance Company Legal Department

5700 SW 34th Street Gainesville, Florida 32608

Hon. Bob Crawford Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-1550

Richard Tritschler General Counsel

513 Mayo Building

Tallahassee, Florida 32399-0800

Brenda Hyatt, Chief

Bureau of Licensing & Bond Department of Agriculture Mayo Building, Rm 508

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. 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.

Docket for Case No: 93-000865

Orders for Case No: 93-000865