STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. C. STEVENSON, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 94-6189A

   ) STEVE HELMS FRUIT CO., INC., )

   )

   Respondent, )

   and )

   ) OHIO CASUALTY INSURANCE CO., )

   )

   Surety. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Upon due notice, this cause came on for formal hearing on March 28, 1995, in Ocala, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: L. C. Stevenson, pro se

   333 Northwest 46th Avenue Ocala, Florida 34482

   
   

   For Respondents: no appearance

   
   

   STATEMENT OF THE ISSUE

   
   

   Whether or not Petitioner (complainant) is entitled to recover $1,340.50 or any part thereof against Respondent dealer and Respondent surety company.

   
   

   PRELIMINARY STATEMENT

   
   

   Petitioner filed his claim/complaint with the Department of Agriculture on or about September 10, 1994. An amended complaint was filed on or about September 29, 1994.

   
   

   On or about October 5, 1994, the Department of Agriculture gave notice to both Respondents of the filing of the complaint, advising that response must be made within 21 days or their right to a hearing would be forfeit. The surety was advised that "an Answer is not deemed necessary." Steve Helms Fruit Co., Inc. answered and requested formal hearing. Ohio Casualty Insurance Co. did not answer.

   
   

   The case was referred to the Division of Administrative Hearings for formal hearing.

   Upon due notice, formal hearing was convened on March 28, 1995.

   
   

   Petitioner presented the oral testimony of Homer Gray and Wilbert Cole and testified in his own behalf. He had six exhibits, some including composites, admitted in evidence.

   
   

   Neither Respondent appeared for formal hearing. Respondent Steve Helms Fruit Co., Inc. filed a "Post Hearing Order Proposed Findings of Fact" and a "Motion for Rehearing and/or Order Dismissing Claim" on April 12, 1995.

   
   

   By order entered May 8, 1995, the motion to rehear and/or dismiss was denied, but Respondent Steve Helms Fruit Co., Inc.'s proposed recommended order was deemed timely filed for consideration.

   
   

   No transcript was provided. Petitioner's and Respondent Steve Helms Fruit Co., Inc.'s proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S. Respondent Ohio Casualty Insurance Co. filed no proposals.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner is a grower of watermelons and qualifies as a "producer" under Section 604.15(5) F.S.

      
      

   2. Respondent Steve Helms Fruit Co., Inc. is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S.

      
      

   3. Respondent Ohio Casualty Insurance Co. is listed as surety for Steve Helms Fruit Co., Inc. The amount and period of the bond have not been established.

      
      

   4. The time material to the amended complaint is June, 1994. Two or three weeks before Petitioner's melons were ready for harvest, Steve Helms personally came to Petitioner's home and requested to ship Petitioner's melons for ultimate retail sale.

      
      

   5. Petitioner requested to be paid "up front."

      
      

   6. Mr. Helms would not agree to pay all the money "up front" but agreed to pay some. He also agreed to pay within 14 days of the first shipment.

      
      

   7. Petitioner had had a bad experience two years previously, so he got Mr. Helms to promise to "clean up" his field. This expression is subject to some interpretation, and although Petitioner initially stated that the agreement was for Respondent broker-shipper to buy all his melons regardless of condition, Petitioner later modified his statement to say that Mr. Helms only promised not to take the best melons and leave the rest.

      
      

   8. Harvesting began May 15, 1994.

      
      

   9. Until June 10, 1994, Petitioner's usual contact with Respondent broker- shipper was Frank Favuzza, who oversaw all weighing and loading and assessed the Petitioner's melons on behalf of Respondent broker-shipper.

   10. On June 10, 1994, Mr. Helms was again personally in the field. Petitioner told Mr. Helms that he had to get the remainder of the melons off the field by Sunday, otherwise the heat would ruin them. Mr. Helms said he would wait until Monday.

       
       

   11. Petitioner believes that if the melons had been harvested by Sunday, June 12, 1994, three truckloads could have been harvested. On Monday, less than a full truckload was in good enough condition to be loaded onto a truck. A lot of melons were going bad and were left in the field to rot.

       
       

   12. On Tuesday, June 14, 1994, Petitioner's melons were weighed at Romeo, Florida and the poundage established at 29,330 pounds.

       
       

   13. Frank Favuzza estimated to Petitioner that his melons would only bring

       $.04/lb. From this conversation, related by Petitioner, it may be clearly inferred that Petitioner knew he would not be paid until after Respondent broker-shipper received payment from the ultimate retailer at the other end of the transaction.

   14. Petitioner's amended complaint alleged the amounts due as follows: "On June 1, 1994, #92111, 700 lbs. at $.07

       equals $49.00, not $490.00; June 3, 1994, #92117, 900 lbs. at $.07 equals $63.00, not

       $630.00; and June 3, 1994, #92120, 790 lbs.

       at $.07 equals $55.30, not $553.00. Therefore

       Item (12) Complaint Total is amended to $1,340.00."

       
       

       The amendments did not alter the original claim for 6-14-94, invoice 92157 for 29,330 lbs. of melons at $.04 for $1,173.20. There was no claim for the melons that rotted in Petitioner's field.

       
       

   15. Weight tickets and Respondent's corresponding broker-shipper's bills of lading were admitted in evidence. These showed the following amounts were received by Respondent broker-shipper:

       
       

       6/1/94	INVOICE 92111	46,020	net weight melons
       6/3/94	INVOICE 92117	45,580	net weight melons
       6/3/94	INVOICE 92120	44,720	net weight melons
       6/14/94	INVOICE 92157	29,330	net weight melons

       
       

       Petitioner testified, without refutation, that he was present at each weighing and that he had agreed to take $.07 per pound on all loads except for the June 14, 1994 load for which he was claiming $.04 per pound. The bills of lading support Petitioner's testimony as to the price per pound.

       
       

   16. The bills of lading also clearly show that the price per pound was "to farm minus labor." This notation means that the net amount to be paid Petitioner by Respondent was subject to a prior deduction for labor, but it cannot reasonably be inferred to include a deduction for shipping.

       
       

   17. Petitioner's last load of 29,330 lbs. of melons weighed on June 14, 1994 was less than a full truckload, so Respondent added melons from another farm to that truck to make up a full load.

       
       

   18. Respondent broker-shipper did not pay Petitioner for 700 pounds of the June 1, 1994, invoice 92111 truckload; for 900 pounds of the first June 3, 1994

       invoice 92117 truckload; for 790 pounds of the second June 3, 1994 invoice 92120

       truckload; or for any (29,330 pounds) of the June 14, 1994 invoice 92157 truckload, upon grounds that those melons were not saleable at their destination.

       
       

   19. Petitioner put in evidence Exhibit P-3 which is an accounting Respondent had sent him. It shows that Respondent broker-shipper had deducted

       $690.30 for labor on invoice 92111 and claimed 700 pounds could not be sold; had deducted $683.70 for labor on invoice 92117 and claimed 900 pounds could not be sold; had deducted $670.80 for labor on invoice 92120 and claimed 790 pounds could not be sold; and had paid Petitioner nothing on a June 14, 1994 truckload, invoice 92159. Invoice 92157, which corresponds to Petitioner's June 14, 1994 partial truckload of 29,330 pounds of melons, is not listed or otherwise explained in the exhibit. The exhibit is conclusionary and inexplicably is dated 1993. There is no back-up evidence to support Respondent's making these deductions. No inspection certificate or labor charges are in evidence.

       
       

   20. Petitioner's initial complaint, which he put in evidence as P-1, constitutes an admission by him. In the complaint, Petitioner contended (1) that he was selling "direct" to Respondent broker-shipper; (2) that he was selling "f.o.b."; and (3) that he was selling "Fob shipping point excectance (sic) after final inspection." Petitioner also stated therein that he was given an inspection sheet showing 46,310 lbs. of watermelons had failed inspection and he did not feel the melons that failed inspection were his melons because Frank Favuzza approved of all melons loaded from Petitioner's field and the inspection sheet did not say that the bad melons were Petitioner's melons. Somewhat contrariwise, Petitioner testified at formal hearing that he had asked Respondent broker-shipper for a government inspection certificate showing that his melons were bad and never got it.

       
       

   21. From the credible evidence as a whole, it is inferred that Petitioner sold his watermelons on the June 14, 1994 truckload at $.04 per pound contingent upon the melons arriving at their ultimate destination in saleable condition per a federal inspection. It is further inferred that the prior three loads at issue also were sold contingent upon their arriving in saleable condition.

       
       

   22. The evidence as a whole also supports a finding that Petitioner's melons left the weigh station in a condition capable of being sold for the respective prices agreed upon between Petitioner and Respondent broker-shipper. Any deterioration of melons between June 10, 1994 when Petitioner requested that the broker-shipper take the last load and June 14, 1994 when the last load actually was weighed and shipped is attributable to Respondent broker-shipper, but that fact is not significant since the lesser rate of $.04/lb. was agreed upon prior to shipping and after Respondent broker-shipper had seen and approved the loaded melons.

       
       

   23. Petitioner's foregoing evidence of delivering saleable quality melons to Respondent broker-shipper is unrefuted. The presumption is thereby created that but for some failure of Respondent broker-shipper, the melons would have arrived at their ultimate destination in saleable condition. There is no evidence of record to support Respondent's deductions for "labor," or for melons which allegedly could not be sold upon delivery at the ultimate destination.

       
       

   24. Petitioner moved ore tenus to further amend his complaint to include a prayer for reimbursement for the cost of the melons which rotted in his field and became unsaleable between June 10 and June 14, 1994 due to Respondent

       broker-shipper's delay in loading and to assert a claim for interest on the

       $1,340.50 claim. This motion was denied as too late.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   26. Petitioner bears the duty to go forward in this type of proceeding and the burden of proving, by a preponderance of the evidence, that the broker- shipper defaulted on its agreement and is indebted to the Petitioner.

Petitioner was able to establish that the amounts alleged had been delivered to the broker-shipper in saleable condition and that an agreement existed that Petitioner should be paid a set price therefor. The Respondent dealer did not appear and rebut Petitioner's prima facie case by proving legitimate entitlement to all deductions previously taken. Accordingly Petitioner should prevail.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture enter a final order awarding Petitioner $1,340.50, and binding Respondents to pay the full amount of

$1,340.50, which in Ohio Casualty Insurance Co.'s case shall be only to the extent of its bond.

RECOMMENDED this 2nd day of June, 1995, 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 2nd day of June, 1995.

APPENDIX TO RECOMMENDED ORDER 94-6189A

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1-2 Accepted.

1. Rejected as unnecessary

2. Rejected as subordinate and mere argumentation. 5-6 Rejected as mere argumentation.

1. Rejected as these were not the dates testified.

2. Rejected as mere argumentation.

Respondent Steve Helms Fruit Co., Inc.'s PFOF:

1 Accepted.

2-4 Rejected as not proven.

1. Accepted as to the June 10-14, 1994 load.

2. Rejected as not proven.

3. Not proven in whole. Covered to the extent proven. While one inference might be that a different invoice number was assigned to the combined load, that is not the only reasonable inference based on the evidence submitted. Likewise, although Petitioner apparently got some inspection certificate, that certificate is not in evidence. There is no record evidence as to what it covered. It is not reasonable to infer or guess that it covered four loads on four trucks on three dates or that there is any way to calculate from it that the only bad melons were Petitioner's melons and not those mixed in from another farm on June 14, 1994. See FOF 19-20.

8-15 Rejected as not proven.

Respondent Ohio Casualty Insurance Co.'s PFOF: None filed

COPIES FURNISHED:

Frank Favuzza, President Steve Helms Fruit Co., Inc. Post Office Box 1682 Auburndale, Florida 33823

Tom Morton

Ohio Casualty Insurance Co. Post Office Box 94-5010 Maitland, Florida 32794-5010

L. C. Stevenson

333 NW 46th Avenue Ocala, Florida 34482

Richard Tritschler, Esquire Department of Agriculture

and Consumer Services The Capitol PL-10

Tallahassee, Florida 32399-0810

Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL 10 Tallahassee, Florida 32399

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. C. Stevenson,

   
   

   Petitioner,

   
   

   vs DOAH CASE NO. 94-6189A

   LB CASE NO. 95-0029

   Steve Helms Fruit Company, Inc., and Ohio Casualty 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 September 7, 1994, the Petitioner, L.C. Stevenson, 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 $1,340.50 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 Ohio Casualty Insurance Company in the amount of $75,000. The Respondent's answer denied the claim as valid and admitted no indebtedness. 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 March 28, 1995. The Hearing Officer rendered her Recommended Order on June 2, 1995, 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.

      
      

   3. The Hearing Officer's Recommendation is modified to reflect that Respondent, Steve Helms Fruit Company, Inc., pay Petitioner $1,340.50 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 $1,340.50 within (15) days of the Final Order, Ohio Casualty Insurance Company, as Surety for Respondent is hereby ordered to provide payment under the conditions and provisions of the Bond, to BOB CRAWFORD, COMMISSIONER OF AGRICULTURE AND CONSUMER SERVICES, as Oblige on the Bond. Should responsibility for payment evolve to the Surety, Ohio Casualty Insurance Company will be notified by this office.

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 same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE AND ORDERED this 20th day of July, 1995.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture Filed with Agency Clerk this 20th day of July, 1995.

Joann S. Dixon Agency Clerk

COPIES FURNISHED:

Mr. Frank Favuzza, President, Steve Helms Fruit Co., Inc., P.O. Box 1682, Auburndale, Florida 33823

Ohio Casualty Insurance Co., 136 North 3rd Street, Hamilton, OH 45025 Mr. L.C. Stevenson, 333 NW 46th Avenue, ocala, Florida 34482

Mr. Tom Morton, Ohio Casualty Insurance Company, P.O. Box 94-5010, Maitland, Florida 32794-5010

Ms. Ella Jane P. Davis, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550

Messrs. Jim Brooks and Mark Moritz, Field Representatives

Docket for Case No: 94-006189

Orders for Case No: 94-006189