STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN CRAWFORD, d/b/a CRAWFORD ) and SON'S FARMS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4308A

) WISHNATZKI & NATHEL, INC., and ) CONTINENTAL INSURANCE COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Lakeland, Florida on October 19, 1994, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner : John Crawford, pro se

2545 Sleepy Hill Road Lakeland, Florida 33809

For Respondents: W. Edwin Litton II, Esquire

Annis, Mitchell, Cockey, Edwards & Roehn, P.A.

One Tampa City Center Building, Suite 2100 Post Office Box 3433

Tampa, Florida 33601-3433 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent, Wishnatzki & Nathel, Inc., is responsible for the amounts claimed by Petitioner for beans sold through Respondent as agent for Petitioner.

PRELIMINARY MATTERS

By Complaint dated June 10, 1994, Petitioner herein, John Crawford, d/b/a Crawford & Son's Farm, (Crawford), alleged that Respondent, Wishnatzki & Nathel, Inc., (Wishnatzki),a produce broker, was indebted to him in the amount of

$820.00 which constituted the difference between what Petitioner was paid for his beans by Respondent, and what Petitioner claims is the reasonable amount due for said beans on the market. In response, Respondent, Wishnatzki, denied any obligation to the Petitioner and demanded a hearing on the issue. This hearing ensured.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Sandra L. Crawford, his wife. He also introduced Petitioner's

Exhibits 1 through 3. Respondent presented the testimony of Gary E. Wishnatzki, part owner of Respondent corporation, and introduced Petitioner's Exhibits A through F.

No transcript was provided. Neither party submitted Proposed Findings of Fact. Respondent's counsel submitted a written Post-Hearing Statement which was considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner John Crawford, operated Crawford and Son's Farms located in or near Lakeland, Florida, on which he grows produce including, inter alia, beans of the variety in controversy here. Respondent, Wishnatzki, is a produce broker located in Tampa, Florida, and has been in the business of brokering produce grown by Florida farmers throughout the United States for three generations.

   
   

2. Petitioner and Respondent have done business together in the past on many occasions, without controversy, and have, over the years, developed an amicable business and well as personal relationship. For a substantial portion of that time, including the time in issue, the parties' transactions were consummated under a "written statement of terms and conditions" which called on the broker, Wishnatzki, to act as the grower's agent on the basis of "gross proceeds of a sale, less carrier, cooling, packing and palleting charges, if any, and a Grower's Agent's customary commission."

   
   

3. At some time prior to April 28, 1994, Mr. Crawford, who was, at the time, carrying a bucket full of the beans later sold through Respondent, saw Mr. Wishnatzki who, he claims, indicated the beans could be worth $25.00 per bushel. The beans at hand were the earliest produced from the Petitioner's fields, however, and the main crop was not yet ready for harvesting. Mr. Crawford acknowledges this comment by Mr. Wishnatzki was no guarantee of price but merely an opinion, and Mr. Wishnatzki claims it was Crawford, not him, who stated a figure.

   
   

4. Several days later, however, on or about May 3, 1994, while his beans were being picked, Mrs. Crawford spoke with Mr. Wishnatzki who said he needed beans and had a truck going to New York. According to Mrs. Crawford, Mr. Wishnatzki advised her they could probably get $20.00 per bushel for the beans if Crawford could get them in. Mrs. Crawford immediately went to Petitioner and told him what Respondent had said, and within two days, on May 3 and 4, 1994, Mr. Crawford delivered to Mr. Wishnatzki 164 bushels of beans.

   
   

5. The beans were shipped up north, but in the interim, the price of beans, according to the Department of Agriculture's price report, dropped considerably from a price near $18.00 per bushel. Records maintained by Respondent reflect that between May 4 and May 7, 1994, Respondent sold the entire 164 bushels, in varying amounts, to six different customers, as follows:

   
   

   5/4/94	Scarmardo Produce.	40 bu at	$14.00/bu
   5/5/94	C & S Wholesale Gro.	73 bu at	12.00/bu
   5/5/94	C & S Wholesale Gro.	2 bu at	0.00/bu
   5/5/94	Watson's Produce	5 bu at	16.00/bu
   5/6/94	Scott Street Tomato Co.	5 bu at	16.00/bu
   5/6/94	Sy Katz Produce	5 bu at	16.00/bu
   5/7/94	Tamburo Bros.	34 bu at	4.00/bu

6. Respondent received a total of $1,812.00 for the sale of all Petitioner's beans consigned to it for an average price of $11.04 per bushel. Notwithstanding Respondent was entitled, by the terms of the agreement between it and Petitioner, to deduct a commission on the sale, because of the long- standing harmonious relationship which had existed between them, and because Respondent felt it important to support its growers and insure their financial well-being, Respondent, nevertheless paid Petitioner the full amount it received, and an additional sum as well, for a total payment of $2,132.00. In other words, though Respondent received only an average of $11.04 per bushel from its customers for Petitioner's beans, it nevertheless paid Petitioner an average of $13.00 per bushel for the beans it received from him.

   
   

7. Petitioner is not satisfied with the amount received, however, and claims Respondent sold the beans at a price below market. He refers to Mr. Wishnatzki's comment in passing in late April that the beans could bring $25.00 per bushel. He also notes that the market should have been good because of an infestation of bean virus due to white flies. He further contends that Respondent should not have sold the beans for such a low price; that Respondent should have checked with the northern markets, and if there was a problem with his beans, Respondent should have procured a government inspection of them. While he admits beans were in a downward fall, he does not believe the price dropped to $13.00 per bushel on a first hand picking. In support of his position, he refers to two separate market reports, the first dated May 4, 1994, and the other dated May 6, 1994. The former reflects a "fairly light" demand for beans, with handpicked beans selling between "16.00 and 18.65, mostly 16.65 few 12.00", and the latter reflects, for handpicked beans, a "fairly light" demand with sales at "14.00 - 16.65 few 12.00 occasional lower."

   
   

8. Petitioner does not claim he should have received $18.00 per bushel which he cites, inaccurately, was the fair market price according to the Florida Market Reports cited above, but claims he could have come off that price if he had been contacted to negotiate price. However, the $18.00 price he cites was not, according to the evidence, the usual price received. The usual price was around $16.65, with some lower. In any case, the terms of the brokerage agreement does not provide for price negotiation after delivery is made to the broker. Further, Mr. Wishnatzki did not call Petitioner when he saw the beans were not selling well because they had already been picked and were in Respondent's hands. Not much could have been done at that point, and he had other growers to deal with as well. In addition, Mr. Crawford has access to the market report and knew the price was falling. He did not call Respondent to set a minimum price.

   
   

9. According to Mr. Wishnatzki, the price paid to the growers is based upon the price his company receives for the produce. However, Respondent does not wait until it has been paid before paying its growers. When the produce is sold, the grower is paid, and Respondent receives payment from the buyer after that. There is no way to say with certainty when the grower delivers produce to Respondent what price an ultimate buyer will pay for that produce. Many factors come into play, including quality of the produce, current market price, supply and demand and the like. A market bulletin, published at the end of each market day, gives some idea of what the next day's price is likely to be, but only market conditions control the price.

   
   

10. Review of the prices received by Respondent for the first 130 bushels of beans sold reflect a price of from $12.00 for the 73 bushels sold to C & S, to $14.00 for the 40 bushels sold to Scarmardo. The 15 bushels sold to three different brokers for $16.00 per bushel is but a small amount of the total. The

    remaining 34 bushels sold to Tamburo for $4.00 per bushel brought the average price received down, as did the two bushels for which no payment was received.

    
    

11. Respondent claims they received only $4.00 per bushel from Tamburo because of a constant decline in the market during the entire week the beans were for sale, and the sale to Tamburo was, in effect, a distress sale. Wishnatzki started the week out offering the beans at $18.00 per bushel. The price was reduced each day until the final Saturday when it is usual to sell what they have left over for what they can get. On Saturday, May 7, Wishnatzki still had 34 bushels of beans left and Tamburo sold them at the lower price. It was lower that Wishnatzki had expected, but consistent with the agreement they had with Tamburo who had the beans on consignment. Mr. Wishnatzki asserts the sale at that price was a judgement call he had to make, but were he confronted with the same situation, he would do it again.

    
    

12. At no time did Mr. Wishnatzki advise Mr. Crawford he could, or would, sell a given quantity of beans at a certain price. If he had known what price he would get for the beans at later sale, he would have paid Mr. Crawford on the spot, in advance. Further, even though at the beginning of the week in question the market reports showed beans selling for a good price, sales can not always be made at the reported market price. The price he gets is what his customers are willing to pay. His procedure is to send out a daily inventory sheet to each of his customers, nation-wide, by FAX. At the time these beans were delivered to Respondent, the demand was light, witnessed by the fact that it took a whole week to dispose of 164 bushels. That is not a large volume. While he understands Mr. Crawford's disappointment, it is a result of the fact that Crawford's expectations were higher than reality delivered. This has happened to growers before, and it will, no doubt, happen again.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5DCA 1988); Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 788 (Fla. 1DCA 1981. In this proceeding, it is John Crawford, d/b/a/ Crawford & Son's Farms that is asserting that Respondent should be required to pay it additional money for the beans sold. Therefore, the burden is on Crawford.

    
    

15. The evidence establishes that Wishnatzki & Nathel, Inc. is a "dealer in agricultural products" in this state as defined in Section 640.15(1), Florida Statutes. As such, it was required to be, and was, licensed by the Department of Agriculture and, as a part of the licensing activity, was required to show evidence of a surety bond or certificate of deposit as called for in Section 640.20, Florida Statutes.

    
    

16. Crawford & Son's Farms is a "producer" of agricultural products as defined in Section 640.15(5), Florida Statutes, and, as such, filed a timely complaint against Wishnatzki alleging, inter alia that Wishnatzki underpaid it for 164 bushels of beans sold through the broker, in the total amount of

    $820.00.

17. The evidence clearly shows that Crawford delivered 164 bushels of beans to Wishnatzki under an agreement which obligated Wishnatzki to use its best efforts to obtain "the best possible price" therefor. Wishnatzki made no representations or warranties to Crawford concerning its ability to market the beans at a price certain, nor did it indicate what price Crawford might reasonably expect for them other than casual comments made, well before delivery, that the beans might be worth somewhat more. That comment was made, however, early in the season, not at the time of market.

    
    

18. The evidence also clearly shows that from the time the beans were delivered to Respondent, the price of that commodity was in a steady decline. Respondent paid Petitioner every penny it received from the sale of Petitioner's beans, waiving in every case, the commission to which it was lawfully entitled. What is more, the evidence shows that in an effort to satisfy Petitioner, as it was custom for it to do to keep growers in business, Wishnatzki paid Crawford more than it received for his beans. It was under no obligation to do that.

    
    

19. In short, while Petitioner might feel Respondent cheated him; might be disappointed in the amount he received for his produce from the Respondent; and might have suffered a loss on the crop, the evidence presented in support of the claim falls far short of establishing any irregularity and satisfying its burden of proof. To the contrary, the evidence clearly establishes that Respondent paid Petitioner more than it was legally obligated to pay and there is no evidence of any misconduct on its part to support a further award.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Petitioner, Crawford & Son's Farms' claim against Respondent, Wishnatzki & Natel, Inc. and Continental Insurance Company, in the amount of $824.00, be denied.

RECOMMENDED this 22nd day of November, 1994, in Tallahassee, Florida.

COPIES FURNISHED:

John Crawford

d/b/a Crawford & Son's Farms 2545 Sleepy Hill Road Lakeland, Florida 33809

ARNOLD H. POLLOCK

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 22nd day of November, 1994.

David L. Lapides, Esquire

W. Edwin Litton, II, Esquire Annis, Mitchell, Cockey,

Edwards & Roehn, P.A. Post Office Box 3433 Tampa, Florida 33601

The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel Department of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing & Bond Department of Agriculture

508 Mayo Building

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

John Crawford, d/b/a Crawford & Son's Farms,

Petitioner,

vs DOAH CASE NO. 94-4308A

LB CASE NO. 95-0003

Wishnatzki & Nathel, Inc., and Continental 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 dune 10, 1994, the Petitioner, John Crawford, d/b/a Crawford & Son's Farms, a producer of agricultural products as defined by Section 604.15 (3), Florida Statutes, timely filed an administrative complaint pursuant to Sections 604.21, Florida Statutes, to collect $820 for beans handled as agent by the 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 Continental Insurance Company in the amount of $75,000. The Respondent, through their attorney, filed documents in answer to the complaint in which they stated in part, the Complainant had been paid in full.

A hearing was not requested by the Respondent, but was requested by the Department due to disputed issues of fact. Therefore, this matter was referred to the Division of Administrative Hearings (DOAH) 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 October 19, 1994. The Hearing Officer rendered his Recommended Order on November 22, 1994, a copy of which is attached hereto as Exhibit, to which neither party filed written exceptions with this Department.

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 EXCEPT, in paragraphs 15 and 16, the Hearing Officer refers to Sections 640-15 (1), 640.20 and 640.15 (5), Florida Statutes, respectively. The Conclusions of Law arc hereby modified to correctly show the statutes in paragraphs 15 and 16 as Sections 604.15 (1), 604.20 and 604.15 (5), Florida Statutes, respectively.

   
   

3. The Hearing Officer's recommendation that the Department of Agriculture and Consumer Services enter a Final Order denying Petitioner's claim is hereby approved and adopted as the appropriate disposition of this matter.

   
   

4. The file be closed without further action.

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 Statues, and Rule 9.100, 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 same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE AND ORDERED this day 25th day of January, 1995.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner Agriculture Filed this 25th day of January, 1995.

COPIES FURNISHED:

Mr. John Crawford, d/b/a Crawford & Son's Farms, 2545 Sleepy Hill Road, Lakeland, Florida 33809

Mr. David L. Lapides, Esquire, W. Edwin Litton, II, Esquire, Annis, Mitchell, Cockey, Edwards & Roehn, P.A., P.O. Box 3433, Tampa, FL 33601

Mr. Lester Wishnatzki, President, Wishnatzki & Nathel, Inc., 301 C NYC Terminal Market, Bronx, NY 10474

Mr. Arnold H. Pollock, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550

Mr. Mark Moritz, Field Representative

Docket for Case No: 94-004308

Orders for Case No: 94-004308