STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BIGHAM HIDE COMPANY, INC., )

)

Petitioner, )

)

vs. ) Case No. 97-4206A

) FLORIDA-GEORGIA PRODUCE, ) INC., and CUMBERLAND )

CASUALTY AND SECURITY )

COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on January 9, 1998, in Bushnell, Florida, by Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Terry T. Neal, Esquire

Post Office Box 490327 Leesburg, Florida 34749-0327

For Respondent: James B. Oglesby, President

Post Office Box 6214 Lakeland, Florida 33807

STATEMENT OF THE ISSUE

Whether Respondent owes Petitioner $2,377.20 as alleged in the complaint filed by Petitioner in July 1997.

PRELIMINARY STATEMENT

This matter began in July 1997 when Petitioner, Bigham Hide Company, Inc., filed a complaint with the Department of

Agriculture and Consumer Services alleging that Respondent, Florida-Georgia Produce, Inc., a licensed agricultural dealer, owed it $2,377.20 for reselling one truckload of Petitioner's watermelons on June 3, 1997. After Respondent filed an answer disputing this claim, the matter was forwarded by the agency to the Division of Administrative Hearings on September 9, 1997, with a request that an Administrative Law Judge conduct a formal hearing.

By Notice of Hearing dated October 15, 1997, a final hearing was scheduled on January 9, 1998, in Bushnell, Florida. On January 8, 1998, the case was transferred from Administrative Law Judge Steven F. Dean to the undersigned.

At final hearing, Petitioner presented the testimony of its president and owner, Gregory Bigham. Also, it offered Petitioner's Exhibits 1 and 2. Both exhibits were received in evidence. Respondent was represented by its president, James B. Oglesby, who testified on its behalf. Also, it offered Respondent's Exhibits 1-5. All exhibits were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were due on January 19, 1998.

Respondent filed the same on January 20, 1998, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Petitioner, Bigham Hide Company, Inc. (Petitioner), is a watermelon grower in Coleman and Lake Panasoffkee, Florida. Respondent, Florida-Georgia Produce, Inc. (Respondent), is a licensed dealer in agricultural products having been issued License Number 7666 by the Department of Agriculture and Consumer Services (Department). Respondent has posted a bond in the amount of $30,000.00 written by Cumberland Casualty & Surety Company, as surety, to assure proper accounting and payment to producers such as Petitioner.

2. In a complaint filed with the Department in July 1997, Petitioner alleged that he entered into an agreement with Bobby Patton (Patton) on behalf of Respondent to sell one truckload of "pee wee" watermelons. Under that agreement, Respondent agreed to pay seven cents per pound for the watermelons, and it would advance Petitioner $700.00 to cover the labor costs associated with loading the truck. The remainder would be paid upon final delivery. The complaint goes on to allege that Petitioner subsequently learned that there was "some problem" with the delivered produce. After Respondent inspected Petitioner's field to verify the quality of the crop, Petitioner was told that Respondent would "fight the fight" to get the shipment accepted. Since that time, however, the complaint alleges that Petitioner

   did not receive payment, an accounting of the transaction, an inspection report, or any further explanation. Accordingly, Petitioner filed this complaint seeking $3,077.20, less the

   $700.00 advance, or a total of $2,377.20.

   
   

3. In its answer, Respondent has alleged that it actually received a truckload of "old diseased watermelons that had been lying in the field or on [the] field truck for a week," and the receiver refused to accept the load. Since it received nothing for the shipment, Respondent contends it is owed $700.00 for the money advanced to Petitioner.

4. The parties agree that in late May 1997, Petitioner was contacted by Bobby Patton, who was representing Respondent, regarding the sale of small size watermelons. Patton offered to buy one truckload of "pee wee" watermelons at a price of seven cents per pound, to be paid after delivery to the receiver. Patton also agreed to advance Petitioner $700.00 to cover his loading costs. Petitioner agreed to these terms, and the truck was loaded from his field on June 3, 1997. The net weight of the loaded produce was 43,960 pounds. The vehicle's tag number was recorded on the loading slip as "AH 39099" from the province of Quebec, Canada. There is no evidence that the crop was diseased when it was loaded, or that it had been picked and lying in the field for several days before being loaded, as suggested in Respondent's answer to the complaint.

5. The shipment was destined for Ontario, Canada. On or

   about June 5, 1997, the product was delivered to the customer, Direct Produce, Inc., in Etobicoke, Ontario. Because of a perceived lack of quality, the buyer refused to accept the load. Respondent immediately requested a government inspection which was performed on June 6, 1997. The results of that inspection are found in Respondent's Exhibit 3. It reveals that 1 percent of the load was decayed, 3 percent were bruised, 6 percent had Anthrocnose (belly rot), and 75 percent had "yellow internal discolouration." In addition, a composite sample reflected that

   20 percent had "Whitish Stracked Flesh" while 5 percent had "Hollow Heart." In other words, virtually the entire shipment was tainted with defects or disease. The report also reflected that the net weight of the shipment was 44,500 pounds, and the tag number of the vehicle was "ALP 390999." The weight and tag number were slightly different from those recorded on the loading slip at Petitioner's field.

6. After learning of the results of the inspection, Respondent's president, James B. Oglesby, immediately contacted Petitioner's president, Greg Bigham, and requested an inspection of Bigham's field to verify the quality of watermelons. During the inspection, Oglesby did not find any signs of belly rot or other problems similar to those noted in the government inspection. If there had been any incidence of belly rot in Petitioner's field, it would have been present in other unpicked watermelons. At the end of his inspection, Oglesby told

   Petitioner that he would "fight the fight" to get the shipment delivered and sold.

7. Oglesby eventually found a buyer who would accept the shipment as feed for cattle. The buyer agreed to pay the freight charges for hauling the watermelons to Canada but nothing more. Therefore, Respondent was not paid for the load.

8. Petitioner was led to believe that he would receive payment and paperwork, including the inspection report, within a few days. When he did not receive any documentation, payment, or further explanation within a reasonable period of time, he filed this complaint.

9. It would be highly unlikely that a farmer would have one completely bad load from a field without the same problems being present in other loads shipped from the field at the same time. Petitioner presented uncontroverted testimony that no other shipments from that field during the same time period were rejected or had similar problems. In addition, it was established that poor ventilation on the truck, or leaving the loaded truck unprotected in the sun, could be causes of the crop being spoiled or damaged before it was delivered to Canada. Finally, at hearing, Respondent suggested that Bigham may have shown him a different field than the one from which his load was picked. However, this assertion has been rejected.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has

    jurisdiction over the subject matter and the parties hereto pursuant to Section 120.569, Florida Statutes (1997).

11. As the party seeking to recover money from Respondent, or his surety, Petitioner bears the burden of proving entitlement to the money by a preponderance of the evidence.

12. By a preponderance of the evidence, Petitioner has demonstrated that he is entitled to payment. In reaching this conclusion, the undersigned has considered the established facts that the crop was in good condition when loaded, and that no other produce from the same field was rejected or found to have problems similar to those noted in the inspection report. Under these circumstances, the responsibility for any deterioration in the quality of the crop while in transit must rest upon Respondent.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Agriculture and Consumer Affairs enter a final order determining that Respondent owes Petitioner $2,377.20. In the event payment is not timely made, the surety should be responsible for the indebtedness.

DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this day 6th of February, 1998.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond

508 Mayo Building

Tallahassee, Florida 32399-0800

Terry T. Neal, Esquire Post Office Box 490327

Leesburge, Florida 34749-0327

James B. Oglesby Post Office Box 6214

Lakeland, Florida 33807

Cumberland Casualty & Surety Company 4311 West Waters Avenue

Tampa, Florida 33614

Richard D. Tritschler, Esquire Department of Agriculture and

Consumer Services

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Department of Agriculture and Consumer Services.

Docket for Case No: 97-004206

Orders for Case No: 97-004206