STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BO BASS, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5356A

)

WILSON AND SON SALES, INC., AND )

U.S. FIDELITY AND GUARANTY COMPANY, )

)

Respondents1. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, an Administrative Law Judge of the Division of Administrative Hearings, held a formal hearing in the above-styled case on February 19, 1997, in Gainesville, Florida.

APPEARANCES

For Petitioner: Bo Bass, pro se

2829 Southwest SR45

Newberry, Florida 32669

For Respondent Robert M. Wilson, President Wilson and Son Wilson And Son Sales, Inc. Sales, Inc.,: 2811 Airport Road

Plant City, Florida 33567

For Respondent

U.S. Fidelity &

Guaranty Company: No Appearance

STATEMENT OF THE ISSUES

The issue for determination is whether Respondents owe Petitioner approximately $591 for a quantity of watermelons provided by Petitioner; secondarily, resolution of this issue

1 Correction of obvious error has been made to the style of this case, adding the name of Co-Respondent U.S. Fidelity and Guaranty Co., and eliminating the Department of Agriculture and Consumer

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 September 19, 1996, Petitioner filed a complaint with the Florida Department of Agriculture and Consumer Services, alleging that Respondents owed him the sum of $591 for a quantity of watermelons.

Respondent Wilson and Son Sales, Inc. (Wilson) filed an answer denying the claim on October 15, 1996. 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, and one exhibit. Respondent Wilson and Son presented testimony of one witness, Robert M. Wilson. The Administrative Law Judge took official recognition of the documents contained in the file of the Division Of Administrative Hearings Case No. 96-5356A.

Neither party requested a transcript of the final hearing.

Neither party filed proposed findings of fact.

Based upon the evidence received at the final hearing, the following findings of fact and conclusions of law are determined.

Services as a Respondent.

FINDINGS OF FACT

1. Petitioner is a farmer who produces agricultural products, including watermelons. Petitioner also has trucks in which he hauls agricultural products, including watermelons. When all his trucks are in use, he frequently calls a friend, Freddy Bell, to provide some of Bell’s trucks to haul his products. Petitioner, in turn, helps Bell when Bell’s trucks are all in use.

2. Respondent Wilson is a dealer of such products in the course of normal business activity. Respondent Wilson 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 U. S. Fidelity and Guaranty Company is the bonding agent for Respondent pursuant to Section 604.20, Florida Statutes.

4. Petitioner had not discussed any arrangement for the sale of his melons with Respondent Wilson. Instead, Petitioner discussed the sales price of his melons with Freddy Bell. Petitioner testified that Bell represented to Petitioner that he could get a price of $4.00 per hundred weight for Petitioner’s melons. Petitioner relied on Bell to provide transport his melons and obtain the promised price.

5. While Bell did not testify at the final hearing, the

   parties are in agreement that Bell arranged for sale and shipment of Petitioner’s melons through Wilson.

6. Wilson’s President, Robert M. Wilson, testified at hearing that Bell was not empowered by him to represent a guaranteed price for melons to anyone and that he could not affirm that Bell operated as his agent. He added that Melons were plentiful this past season and no melons were brokered on a guaranteed price basis.

7. Testimony of Robert M. Wilson at the final hearing establishes that the arrangement between Respondent Wilson and Freddy Bell on Petitioner’s behalf was a brokerage arrangement and that the sale of the melons was subject to conditions and demands of the market place, i.e., that the melons would sell for the best possible price which Wilson could obtain for them. Testimony of Petitioner is uncorroborated and fails to establish that the agreement between the parties contemplated a direct sale of the melons to Respondent Wilson or a guaranteed price by Wilson.

   CONCLUSIONS OF LAW

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

9. 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.

10. In order to obtain the disputed amount claimed 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 12th day of March, 1997, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997.

COPIES FURNISHED:

Bo Bass

2829 Southwest SR 45

Newberry, FL 32669

John M. Martirano, Esquire US Fidelity and Guaranty Co Post Office Box 1138 Baltimore, MD 21203-1138

Robert M. Wilson, President Wilson and Son Sales, Inc. 2811 Airport Road

Plant City, FL 33567

Bob Crawford

Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810

Richard Tritschler, Esquire Department of Agriculture

and Consumer Services

The Capitol - Plaza Level 10 Tallahassee, FL 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, FL 32399-0800

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-005356

Orders for Case No: 96-005356