STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BIGHAM HIDE COMPANY, INC., )

)

Petitioner, )

)

vs. ) Case No. 97-4207A

) SOUTHERN CORPORATE PACKERS, ) INC. and AMWEST SURETY )

INSURANCE 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: Roy Roman (Qualified Representative)

403 East Main Street Immokalee, Florida 34142

STATEMENT OF THE ISSUE

Whether Respondent owes Petitioner $1,673.00 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, Southern Corporate Packers, Inc., a licensed agricultural dealer, owed it $1673.00 for reselling one truckload of Petitioner's watermelons in June 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 1-3. All exhibits were received in evidence. Respondent was represented by its sales manager, Roy Roman, who testified on its behalf. Also, it presented the testimony of Judy Duke, its controller. Finally, it offered Respondent's Exhibit 1 which was received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were due on January 19, 1998. None were filed by either party.

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, Southern Corporate Packers, Inc. (Respondent), is a licensed dealer in agricultural products having been issued License Numbers 7017 and 10367 by the Department of Agriculture and Consumer Services. Respondent has posted a bond in the amount of $60,000.00 written by Amwest Surety Insurance 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 it entered into an oral agreement with Monty Morris (Morris) on behalf of Respondent to market one truckload of small size watermelons. Under that alleged agreement, Morris agreed to pay five cents per pound when the melons were loaded. The complaint further alleged that while the truck was being loaded, Morris advised that final payment would not be made until the load was delivered and sold. Morris agreed, however, to advance Petitioner $700.00 to cover its labor costs. When Petitioner did not receive its final payment from Morris after the load was delivered, and it was unable to get Morris to respond to telephone calls, it filed this complaint.

3. In its answer, Respondent has alleged that it purchased a truckload of melons from Morris at four and one-half cents per pound, and that Morris was fully paid, but it never entered into any dealings with Petitioner. It denies that any moneys are due.

4. On June 7, 1997, Petitioner's president, Greg Bigham (Bigham), was contacted by Morris regarding the sale of one load of "pee wee" watermelons. After discussing the matter with Morris, Bigham was left with the impression that Morris represented Respondent, and he would be paid five cents per pound for his crop when it was loaded onto the truck. Bigham was satisfied with these terms and agreed to sell one load of small size watermelons.

5. About the same time, Respondent was contacted by Morris regarding the sale of a truckload of small size watermelons. Morris was neither an employee or agent of Respondent, and Respondent considered Morris to be the seller. Respondent agreed to pay Morris four and one-half cents per pound for the load. This amount did not include a commission since Morris was treated as a producer in the transaction.

6. While the truck was being loaded in Bigham's field, Bigham had a conversation with Morris and learned that he would not be paid until the crop was delivered. He would, however, be given a cash advance of $700.00 to cover his labor costs. At the same time, Respondent received an inquiry from Morris regarding reimbursement for labor costs. Respondent agreed to advance Morris his labor costs and sent Morris a check in the amount of

   $700.00 with the name of the payee left blank. Morris then gave the check to Bigham, who filled in his own name as payee and deposited the check.

7. After the load was delivered and sold to a buyer in Canada three days later, Respondent issued a check to Morris in the amount of $1435.00 as full payment for the load. This constituted full payment under their agreement.

8. When he received no payment from Morris within a reasonable period of time, Bigham repeatedly attempted to contact Morris by telephone. However, Morris refused to return his calls. Three weeks after the load was shipped, Bigham telephoned Respondent, who advised that Morris had already been paid for the shipment. Surprisingly, Bigham did not ask Respondent if Morris was its agent or employee, and he did not demand payment from Respondent. Shortly thereafter, Bigham filed a small claims action against Morris and obtained a default judgment against the debtor. Since that time, Morris has not been located.

9. Morris was not an employee or agent of Respondent, and he was not authorized to use Respondent's name when he solicited business with Petitioner. Because Respondent has made a proper accounting and payment to Morris, as producer, Petitioner's appropriate remedy is against Morris, and not Respondent.

   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 its surety, Petitioner bears the burden of proving entitlement

    to the money by a preponderance of the evidence.

    
    

12. The evidence supports a conclusion that Morris was not an agent of Respondent and was not authorized to use its name when he solicited the business from Petitioner. Under these circumstances, Petitioner's proper remedy is against Morris, and not Respondent. Therefore, its claim must fail. Compare Bass v. Hapco Farms, Inc., DOAH Case No. 97-0054A (DACS, Final Order May 16, 1997).

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 denying the claim by Petitioner against Respondent.

DONE AND ENTERED this 4th 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 4th day 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 Roy Roman

Southern Corporate Packers, Inc.

403 East Main Street Immokalee, Florida 34142

Amwest Surety Insurance Company 4830 West Kennedy Boulevard Suite 540

Tampa, Florida 33609

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: 97-004207

Orders for Case No: 97-004207