STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMUNDO GARCIA, d/b/a )

JOSEPHINE LOPEZ FARMS, )

)

Petitioner, )

)

vs. ) Case No. 99-4563A

) HORIZON PRODUCE SALES and ) GULF INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Plant City, Florida, on December 7, 1999.

APPEARANCES

For Petitioner: Raymundo Garcia

Josephine Garcia Qualified Representative 1101 Wheeler Road

Seffner, Florida 33584

For Respondent: Donald E. Hinton, President President

Horizon Produce Sales Post Office Box 70 Sydney, Florida 33587

STATEMENT OF THE ISSUE

The issue is whether Respondent owes Petitioner money for cucumbers that Petitioner delivered to Respondent.

PRELIMINARY STATEMENT

By Complaint filed September 1, 1999, Petitioner alleged that Respondent owed him $1477.88 for three shipments of cucumbers delivered by Petitioner to Respondent on June 7, June 8, and June 10, 1999.

By Answer filed October 29, 1999, Respondent denied the allegations.

At the hearing, Petitioner called two witnesses and offered into evidence no exhibits. Respondent called one witness and offered into evidence four exhibits, which were all admitted.

The parties did not order a transcript.

FINDINGS OF FACT

1. Petitioner farms vegetables. He has previously grown squash and strawberries in Florida and sugar cane, beans, bananas, yucca, and rice in his native Cuba. Prior to the crop in question in this case, he had not previously grown cucumbers.

2. Respondent is a licensed agricultural commodities handler. Its policy is to use best efforts in the sale of farmers' produce, but not to guarantee any particular results.

3. About one week before the first delivery, Petitioner and Josephine Garcia drove by Respondent's business offices and decided that they should try to sell Respondent some of the cucumbers that Petitioner had been growing.

4. Ms. Garcia, representing Petitioner, visited Respondent's offices and spoke with Don Hinton, the president and

   owner of Respondent. She asked Mr. Hinton if Respondent would like to buy Petitioner's cucumbers. Mr. Hinton replied that Respondent did not buy vegetables, but would sell what he could for a ten percent commission. Mr. Hinton was concerned about the quality of the cucumbers because the weather had been hot and it was late in the season for pickles. He warned Ms. Garcia that the quality had to be good and Petitioner had to grade the cucumbers properly as to size.

5. On June 7, 1999, Petitioner delivered 46 boxes of cucumbers to Respondent. The next day, Petitioner delivered 61 boxes of cucumbers to Respondent. On June 10, Petitioner delivered a final 18 boxes of cucumbers to Respondent.

6. There was little, if any, communication between Petitioner, who delivered the cucumbers, and the employee of Respondent, who accepted the delivery. Petitioner speaks only a little English, and Respondent's employee spoke no Spanish.

7. Mr. Hinton examined the cucumbers after they were delivered. He found that the cucumbers were misgraded and bore an undesirable light green color. In general, they were showing the effects of heat and were not of good quality. Mr. Hinton thus combined the first two shipments into a single shipment and tried to sell the cucumbers to a buyer in New York.

8. The New York buyer generally rejected the substandard cucumbers. Respondent was able to obtain only $237 for the 107 boxes sent to New York. The shipping bill was $278.20.

   Respondent calculated its commission on the gross sales price less freight.

9. After finding the third delivery to be of the same quality as the first two, Mr. Hinton decided to combine them with a shipment under preparation at his brother's nearby farm.

   Mr. Hinton received $43 for these 18 boxes, and his brother's farm paid the freight.

10. Mr. Hinton would have contacted Petitioner, but he had no way of doing so. Petitioner did not provide him with an address or telephone number. Petitioner instead sent a representative to stop by Respondent's office to obtain payment. In this way, Petitioner eventually discovered that his cucumbers had grossed only $280.

11. To resolve the dispute, Respondent offered Petitioner

    
    

    $250, which Petitioner declined. However, at the conclusion of the hearing, Mr. Hinton renewed the offer, and Petitioner accepted the offer. The only conditions attached to the offer and acceptance were that Petitioner was not waiving or releasing its claim to additional amounts and, if the order required Respondent to pay an additional amount, Respondent would receive a credit in the amount of this payment.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.57(1) and

    604.21(6), Florida Statutes. (All references to Sections are to Florida Statutes.)

13. The agreement between Petitioner and Respondent was for Respondent to use its best efforts to obtain the highest possible sales price for Petitioner's cucumbers.

14. Other conditions of the agreement are more difficult to infer. However, it is reasonable to infer that Respondent's commission was 10 percent and was to be calculated by multiplying this percentage by the gross sales price for the cucumbers.

15. It is much more difficult to infer that the agreement allocated the cost of freight upon Petitioner. Sparing Respondent that cost leaves it in a largely riskfree transaction, assuming that Respondent would also claim that the agreement required Petitioner to bear the relatively remote risk of nonpayment by the buyer. Even if Respondent bore that risk, shifting the cost of freight upon Petitioner would remove the incentive of the relatively sophisticated broker from examining the products prior to shipment and deciding if the freight expense is a worthwhile expenditure. Under all of these circumstances, then, the more reasonable inference is that the agreement allocated the freight cost to Respondent.

16. Thus, the total gross of $280 yields a commission of

$28 for Respondent, which owes Petitioner the difference of $252.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring Respondent to pay Petitioner the sum of $252; provided, however, Respondent shall be credited with the prior payment of $250. (This assumes that Petitioner has not again declined to accept or declined to cash the $250 check. If so, then the total payment should be $252.)

DONE AND ENTERED this 27th day of December, 1999, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1999.

COPIES FURNISHED:

Raymundo Garcia Josephine Garcia

Qualified Representatives 1101 Wheeler Road

Seffner, Florida 33584

Donald Hinton, President Horizon Produce Sales Post Office Box 70 Sydney, Florida 33587

Brenda Hyatt, Chief

Bureau of License and Bond Department of Agriculture

and Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services

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

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture

and Consumer Services

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

Gulf Insurance Company Legal Department

Post Office Box 1771 Dallas, Texas 75221-1771

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: 99-004563

Orders for Case No: 99-004563