The Issue The issue is whether respondent is indebted to petitioner in the amount $5,838.59 as alleged in the complaint filed on September 19, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Bo Bass, is a watermelon farmer in Alachua County, Florida. Respondent, Hapco Farms, Inc., is licensed as a dealer in agricultural products having been issued License No. 8456 by the Department of Agriculture and Consumer Services. As required by state law, respondent has posted a $75,000 bond written by Insurance Company of North America, as surety, to assure proper accounting and payment to producers. Freddie Bell is also a watermelon farmer who operates under the name of B & G Produce. That firm is located in Williston, Florida. According to petitioner, whenever Bell has extra trucks during watermelon season, he will load petitioner’s watermelons on those trucks, deliver them to B & G Produce’s shed for packing, and then sell them to various dealers. Upon collection of the moneys for the sale of such produce, Bell would then pay petitioner. On June 17, 18 and 19, 1996, petitioner verbally agreed to entrust four loads of watermelons to B & G Produce for resale to third parties. Petitioner expected to be paid six cents per pound for his produce. On the same dates, respondent, through its field buyer, entered into an agreement with B & G Produce, but not petitioner, for the purchase of four loads of watermelons. The weight bills for those shipments reflect that, while Bo Bass was the grower on two of those shipments, B & G Produce was the seller of all four loads. After the watermelons were sold to respondent and transported to its customers, a federal inspection determined that a number of watermelons were overripe and rotten. Because of this, a portion of the loads was “dumped.” This in turn reduced the amount of money due the seller. However, respondent made a proper accounting and payment to B & G Produce, and no claim has been filed by the seller against respondent. When petitioner ultimately received only $4,691.30 from B & G Produce, he filed a complaint against respondent seeking an additional $5,838.59. There is no competent evidence that petitioner ever entered into an agreement to sell his watermelons to respondent. Therefore, if petitioner has a dispute over any moneys allegedly due, it lies with Bell, and not respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order denying petitioner’s claim against the bond of respondent. DONE AND ENTERED this 31st day of March, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge 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 31st day of March, 1997. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Bo Bass 2829 Southwest State Road 45 Newberry, Florida 32669 Andrew B. Hellinger, Esquire First Union Financial Center, Suite 2350 200 South Biscayne Boulevard Miami, Florida 33131-2328 Insurance Company of North America 1601 Chestnut Street Philadelphia, Pennsylvania 19192 Brenda D. Hyatt, Chief Bureau of License and Bond Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether respondents owe petitioner money on account of watermelon sales?
Findings Of Fact Last spring, her first working on behalf of respondent McKay & Associates, Inc., Pat Harper nee ' Maddox accompanied Randy Finch, the company president, to Florida to help buy and ship produce. Because petitioner Bubba Hurst had sold watermelons to Ms. Harper season before last, she sought him out again. On Tuesday night, May 28, 1991, Ms. Harper orally agreed on behalf of McKay & Associates, Inc. (after Ruth Neuman, the company's secretary-treasurer, had been consulted by telephone) to pay Mr. Hurst 12 cents a pound for two truckloads of watermelons "as is." (Earlier she had seen the watermelons piled in the smaller trucks in which petitioner's crew had brought them from the fields to the melon yard, after harvesting them that day.) With Wednesday morning came a truck and driver (engaged by Ms. Harper or Mr. Finch) to haul the watermelons from petitioner's melon yard to truck scales some ten miles away, then to a farm in Denton, Georgia, for crating and transshipment to their ultimate intended destinations in Maryland and Pennsylvania. After the first truck left at 4:58 that afternoon, loaded with watermelons aggregating 43,280 pounds, Petitioner's Exhibits Nos. 1 and 2, a second truck and driver arrived. Mr. Finch had agreed to pay Mr. Hurst cash for the watermelons, but a complication arose before they could settle that night: Only after the crew had gone home was it discovered that the second truck was overloaded by some 9,000 pounds; and the driver refused to risk the fines he might incur by hauling an overload. As a result, it was not clear exactly how many watermelons McKay & Associates, Inc. would owe petitioner for. After some discussion, Mr. Finch wrote and signed a check in petitioner's favor but left blank the amount; petitioner then endorsed and returned the check. The plan was, once the exact amount was known, for Mr. Finch to complete the check, cash it, and give Mr. Hurst the proceeds. Afterwards it occurred to Mr. Hurst that if the check were made out for more than what he was to be paid for the watermelons, he could have problems with the Internal Revenue Service. Apprehensive, he asked Mr. Finch to void the check, which he did, by writing "VOID" across it. Respondent's Exhibit No. 1. Later somebody filled in an amount ($5,193.60, which corresponds to the first load, 43,280 pounds at 12 cents per) and wrote "melons no good," perhaps in anticipation of a formal administrative proceeding like the present one. The check was never negotiated. On Thursday, May 30, 1991, while watermelons were being unloaded from the second truck, two men with a brief case full of cash expressed an interest in the lightening truckload. When Ms. Harper told Mr. Hurst, he said the watermelons were hers to do with as she pleased. She then sold the load to the two men for 12 cents a pound cash, and handed the money over to petitioner. The excess watermelons on the second truck had been offloaded onto a third truck. Of like capacity as the first, the third truck was empty when it accompanied the overloaded truck to the melon yard on Thursday morning. With the departure of the second truck, Ms. Harper and Mr. Finch told Mr. Hurst to fill the third truck up and agreed to buy that truckload. For a while, Mr. Finch was actually "in the line" handing some watermelons along for loading in the third truck, and rejecting others. They weighed 20 pounds each on average. Meanwhile, when Ms. Neuman saw the first truckload, after its arrival in Denton, Georgia, on Thursday morning, she exclaimed, "My God! These are sun scald[ed]!" At hearing, she testified she was incredulous Florida would let such watermelons leave the state. Ms. Neuman telephoned Mr. Finch and told him she was sending the first load back, but that she would take the other load if it "meets federal." She also called the trucking company (then reportedly owned by the late Sam Walton), however, and told the trucker not to load any more watermelons. When Evelyn Hurst, Bubba's mother, answered the telephone at the melon yard lunchtime Thursday, she was asked to tell the driver of the third truck to call home because there was an emergency. The driver made a telephone call, after which he told Mrs. Hurst nothing was wrong at his home. Then he made a second telephone call. After that call, he ordered a stop to the loading then in progress. Bubba Hurst was eating when his mother called with word that no more watermelons were being loaded onto the third truck. He then telephoned the motel where Mr. Finch was staying, and inquired. Mr. Finch told him to finish loading the third truck; and later went to the melon yard and told the driver that loading should go forward. Loading resumed. Later Mr. Finch raised with the driver the possibility of taking the load to New York, but the driver declined the suggestion. Around four o'clock Thursday, the renewed efforts to fill the third truck with watermelons came to an abrupt end, about 250 melons shy of a full load, and the driver, who had ordered the halt, drove away. Mr. Hurst called the motel, and spoke to Ms. Harper, in hope of obtaining the cash he had been promised for his watermelons, but to no avail. The next day the first truck returned from Georgia with the watermelons whose presence on the other side of the state line had so surprised Ms. Neuman; and a federal agricultural inspector, a friend of Mr. Hurst's father, arrived at petitioner's melon yard to inspect them. Mr. Hurst told the inspector (who had been called by Ms. Neuman) that he was welcome to inspect but that the whole load had been sold "as is" and that he - Mr. Hurst - would not be paying for the inspection. Hearing this, the inspector left. Disinterested testimony established that inspections by USDA- certified inspectors are routinely called for by shippers when produce is refused by buyers claiming that produce spoiled before reaching them; but that, at least in the environs of Wildwood, Florida, it is not customary to call for a federal inspection at the point from which watermelons are shipped (unless the shipment is to the Government itself.) Of course, these particular watermelons had already been to Georgia and back. After the inspector left, the driver of the first truck asked that the watermelons be removed from his truck. When Mr. Hurst told him he was trespassing and asked him to leave the melon yard, the driver (or Ms. Neuman by long distance telephone call) summoned a Sumter County deputy sheriff. But the deputy sheriff, informed upon his arrival that the melon yard was a good quarter mile on the Marion County side of the county line, left to perform other duties. Still loaded, the first truck eventually left the melon yard a second time.
Recommendation It is, accordingly, RECOMMENDED: That DACS order McKay & Associates, Inc. to pay petitioner nine thousand seven hundred eighty seven dollars and twenty cents ($9,787.20) within fifteen (15) days of the final order. That, in the event McKay & Associates, Inc. fails to pay petitioner nine thousand seven hundred eighty seven dollars and twenty cents ($9,787.20) within fifteen (15) days of the final order, DACS order payment by State Farm Fire & Casualty Co., to the extent necessary to satisfy the requirements of Section 604.21(8), Florida Statutes (1991), for disbursal to petitioner. DONE and ENTERED this 7th day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 9 and 10 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, see findings of fact Nos. 5 and 6. With respect to petitioner's proposed finding of fact No. 7, petitioner said the load may have been as many as 250 melons light. With respect to petitioner's proposed finding of fact No. 11, the value of the second load established by the evidence is $4,591.60, representing 38,280 pounds at 12 cents a pound. Respondent's proposed finding of fact No. 1 has been adopted, in substance, insofar as material. With respect to Respondent's proposed findings of fact Nos. 2 and 3, Ms. Neuman's testimony that she directed her agents to procure federal inspection before the first truck left has not been credited, but she did try to arrange one later. With respect to respondent's proposed finding of fact No. 4, the second truck load was never rejected. Respondent's proposed finding of fact No. 5 is rejected. With respect to respondent's proposed finding of fact No. 6, see paragraphs 5 and 6 of the findings of fact. Respondent's proposed finding of fact No. 7 is immaterial. With respect to respondent's proposed finding of fact No. 8, Mr. Finch agreed to buy the third truckload and ordered that loading go forward even after Ms. Neuman registered her dissatisfaction with the first load. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agricultural and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agricultural and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Julian E. Harrison, Esquire 324 West Dade Avenue Bushnell, Florida 33513 John Sowa, Esquire Robert L. Rehberger, Esquire 5025 North Henry Boulevard Stockbridge, Georgia 30281
Findings Of Fact The Respondents, F. H. Dicks, III; F. H. Dicks, IV; and F. H. Dicks Company, are wholesale dealers in watermelons which they purchase and sell interstate. The Respondents' agents during the 1991 melon season in the Lake City area were Harold Harmon and his son, Tommy Harmon. The Harmons had purchased watermelons in the Lake City area for several year prior to 1991, and the Petitioner had sold melons through them to the Respondents for two or three seasons. The terms of purchase in these prior transactions had always been Freight on Board (FOB) the purchaser's truck at the seller's field with the farmer bearing the cost of picking. The terms of purchase of the melons sold by Petitioner to Respondents prior to the loads in question had been FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking. One of the Harmons would inspect the load being purchased during the loading and at the scale when the truck was weighed out. After the Harmons left the area, their work was carried on by Jim Coffee, who the Harmons introduced to Mr. Shiver as their representative. Once the melons were weighed and inspected, the melons belonged to the Respondents. Price would vary over the season, but price was agree upon before the melons were loaded. Settlement had always been prompt, and the Harmons enjoyed the confidence of the local farmers. On July 8, 1991, load F 276 of 45,840 pounds of watermelons was sold by Petitioner to Respondents for 4 per pound. They were weighed and inspected by Coffee. These melons were shipped to West Virginia where they were refused by the buyer. The melons were inspected in Charleston, WV, on July 12, 1991. This inspection revealed 10% transit rubs, 12% decay, and 22% checksom. These melons were subsequently shipped to Indianapolis, IN, for disposal. The Respondents deducted the freight on this load in the amount of $2,459.76 from moneys owed the Petitioner on other transactions. On July 9, 1991, two loads of watermelons, F 277 and F 278, were sold to the Respondents. Load F 277 weighed 46,200 pounds and Load F 278 weighed 45,830 pounds. Both loads were inspected by Coffee. Mr. Shiver had negotiated a price of 4 per pound for F 278 and 3.5 per pound for F 277. Load F 278 was received by the Respondents at their facility in Yamassee, SC, where it was government inspected on July 11, 1991. It was found to be in very bad shape. It was bartered to the trucking company by the Respondents in exchange for the freight charges. Load F 277 was also received by the Respondents, who accepted 38,000 pounds of 45,830 pounds of melons shipped. On July 10, 1991, load F 279 of 42,180 pounds was sold for 3.5 per pound, and shipped to the Respondents in Yamassee, SC, for repacking and shipment to Baltimore, MD. They were weighed and inspected by Coffee before shipment. This load was rejected without any inspection by the Respondents. The Petitioners received $1,330 for load F 277, nothing for loads F and 279, and Respondents retained $2,459.76 from prior transactions for freight charges on load F 276. Under the terms of the sale, FOB purchaser's truck at grower's field, the Respondents bore the cost of transportation. The Respondents also bore the risk of loss on sales which they made and which were rejected. On the two loads which were not inspected by government inspectors, F and F 277, the Petitioner is entitled to the sales price for the melons. Although there is evidence to support the Respondents' contention that the produce was not within grade specifications, the Respondent had accepted the produce. Contrary to Respondents' assertion that the produce coming from the same field on the same day would all be bad, these loads were not loaded on the same day. Further, most of one of the loads received on the same day from the same field was accepted. Lastly, as stated above, all the loads were inspected by Respondent prior to acceptance. The Respondents owe the Petitioners $1,833.60 on load F 276, $1,570.80 on load F 277, 1833.20 on load F 278, and 1476.30 on load F 279. This is a total of $6,713.90. The Respondents improperly retained $2,359.76 for freight charges, but did pay the Petitioners $1,330 for load F 277. The total owed by the Respondents to the Petitioners is $9,073.66, of which Respondents have already paid $1,330.00. The Respondents still owe the Petitioners $7,743.66 less $32 for the watermelon assessment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: Respondent be given 30 days to settle with the Petitioner in the amount of $7,711.66 and the Petitioner be paid $7,711.66 from Respondent's agricultural bond if the account is not settled. DONE and ENTERED this 6th day of October, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1992. COPIES FURNISHED: Terry McDavid, Esquire 128 South Hernando Street Lake City, FL 32055 F. H. Dicks, III c/o F. H. Dicks Company P.O. Box 175 Barnwell, SC 29812 Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800 South Carolina Insurance Company Legal Department 1501 Lady Street Columbia, SC 29202 Victoria I. Freeman Seibels Bruce Insurance Companies Post Office Box One Columbia, SC 29202 Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810
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.
Findings Of Fact Petitioner is a grower of watermelons and qualifies as a "producer" under Section 604.15(5) F.S. Respondent Steve Helms Fruit Co., Inc. is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S. 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. 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. Petitioner requested to be paid "up front." 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. 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. Harvesting began May 15, 1994. 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. 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. 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. On Tuesday, June 14, 1994, Petitioner's melons were weighed at Romeo, Florida and the poundage established at 29,330 pounds. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
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. Rejected as unnecessary Rejected as subordinate and mere argumentation. 5-6 Rejected as mere argumentation. Rejected as these were not the dates testified. Rejected as mere argumentation. Respondent Steve Helms Fruit Co., Inc.'s PFOF: 1 Accepted. 2-4 Rejected as not proven. Accepted as to the June 10-14, 1994 load. Rejected as not proven. 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
The Issue The dispute here involves the alleged non-payment for watermelons that the Petitioner claims to have sold to the Respondent.
Findings Of Fact The case is being considered in accordance with the provisions of Chapter 604, Florida Statutes, which establishes the apparatus for settling disputes between Florida produce farmers and dealers who are involved with the farmers' products. Thomas Scott, Sr., a Florida former, contends by his complaint that three loads of watermelons grown and harvested in Florida, were sold directly to Mr. Pagano & Sons, Inc., in the person of Maurice Pagnao, on the following dates, by the following types; in the following weight amounts; at the following price per pound, and for the following total price per load: June 4, 1977, Crimson-Sweet Watermelons, 48,860 lbs., at .03 totaling $1,465.80 June 4, 1977, Crimson Sweet Watermelons, 48,530 lbs., at .03 totaling $1,455.90 June 8, 1977, Crimson Sweet Watermelons, approximately 48,000 lbs., at .02 totaling $960.00 Total for all loads $3,081.70 An examination of the testimony offered in the course of the hearing, supports the Petitioner's contention. The facts in this case also show that Maurice Pagano, acting in behalf of the Respondent, gave money to the Petitioner for having the watermelons loaded for shipment. That amount was $500 and when deducted from the $3,881.70 total price leaves a balance owing to the Petitioner of $2, 381.70. The Respondent has not paid the $2,381.70 which it agreed to pay to the Petitioner and under the facts of the agreement it is obligated to pay the Petitioner. One final matter should be delt with and that pertains to the approximation of the weight of the June 8, 1977, load. The figure used is an approximation, because the Respondent's representative at the loading in Florida, Phil Pepper, took that load away and failed to return the weight ticket. This caused the Petitioner to have to approximate the weight and the approximation is accepted in determining the amount which the Respondent owes the Petitioner.
Recommendation It is recommended that the Respondent be required to pay the Petitioner $2,381.70 for the watermelons it purchased from the Petitioner. DONE AND ENTERED this 21st day of February, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jon D. Caminez, Esquire 1030 East Lafayette Street Suite 101 Tallahassee, Florida 32301 Maurice Pagano 59 Brooklyn Terminal Market Brooklyn, New York 11236 Earl Peterson, Chief Bureau of License and Bend Division of Marketing Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
The Issue Whether the Respondent owes the Petitioner money for watermelons allegedly purchased from Petitioner. The factual and legal issue is whether Respondent purchased the melons or acted as a broker/agent for Petitioner and attempted to sell the melons for Petitioner.
Findings Of Fact During the 1996 season, the Petitioner, who is a labor contractor and farmer, grew watermelons. The Respondent, who is a building contractor and watermelon broker, was “handling” watermelons in the area around Archer, Florida. The Respondent was represented by Tony Tharp, brother of the Respondent, who spoke with the Petitioner. As a result of an oral agreement reached between Tony Tharp and Petitioner, the watermelons which Petitioner had grown were picked by persons working for Tharp on June 20, 21, and 23, 1996. There was no written contract or memorandum regarding the agreement of the parties. Petitioner stated that he wanted to get his melons picked, but that he was busy with his crew and could not pick them, and the melons needed to be picked because they were past their prime. Tony Tharp agreed to “move them” for Petitioner. One truck load was picked and loaded on June 20; three truck loads were picked and loaded on June 21, and two truck loads were picked and loaded on June 23. Tharp paid Petitioner $700 which was termed an “advance” by Respondent, and considered a “down payment” by Petitioner, who understood he would receive the remainder of the money due him in approximately seven days. The trucking was arranged for by Tharp, and the Respondent bore the cost of picking and freight initially, and the merchants who received the melons paid the shipping for the melons they accepted. The melons were shipped to markets in several states. The first load was refused by the intended recipient, and after several attempts to dispose of the melons, they were sold at salvage for $180. The second load was also refused, and could not be salvaged. Pictures of this load were introduced where it was unloaded in Marianna, Florida. The remaining loads of watermelons were accepted, and $4,876.43 received for them. The costs of loading the two loads which were refused was $1,149.75. The freight costs on these two loads was $3,901.83. The Petitioner testified that the Tharp agreed to purchase the melons in the field, and, therefore, he is entitled to the purchase price for the melons. Dennis Tharp stated he was a broker, and that the Petitioner assumed the risk if the melons could not be sold. Dennis Tharp stated that he had lost the costs of picking, $1,149.75, and transporting, $3,901.83, the two loads of melons offset by the salvage value of $180.00, resulted in a total loss of $4,871.58. When the costs of picking the last four loads, $1,591.20, and the $700.00 advance on the sale is deducted from the proceeds of the sale of the last four loads, $4,876.43, the net profit on the last four loads is $2,585.23. When the profits from the sale of the last four loads is deducted from the loses on the first two loads, there is a net loss of $2,286.35. This net loss was absorbed by the Respondent. Several of the people who were in the field testified regarding the state of the melons being picked. The melons were past their prime for picking. On the last load, the pickers refused to pick any more melons without additional compensation because so many melons were being rejected at the truck. Petitioner, who was present, concurred in this extraordinary expense. Generally, melons are not sold because the market drops and the merchants refuse melons being shipped to them. In this case, the first melons were rejected, and the last loads were accepted. The quality of a watermelon cannot be determined without cutting it open which destroys its merchantability. Watermelon graders attempt to judge the quality of melons from the external characteristics; however, purchasers cut open samples upon receipt to judge their quality. The Respondent notified the Petitioner by letter dated July 11, 1996 that the first two loads had been rejected; that he had salvaged those he could; and that the costs related to these two loads exceeded the profits due Petitioner on the last four loads.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter a Final Order finding that the Respondent owes no further money to the Petitioner. DONE and ENTERED this 12th day of March, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge 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: Alphonso Hunt 226 Fawn Drive Archer, Florida 32618 Dennis Tharp 4516 Decatur Street Marianna, Florida 32446 Auto Owners Insurance Company Legal Department Post Office Box 30660 Lansing, MI 48909-8160 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-01 Tallahassee, Florida 32399-0810
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times pertinent to this proceedings Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). At all times pertinent to this proceedings Respondent BB & W was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 245 by the Department, and bonded by Fireman's Fund Insurance Company (Fireman) in the sum of $15,000 - Bond No. SLR - 4152 897. At all times pertinent to this proceeding, Respondent Fireman was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). Although Respondent BB & W contends that the watermelons in dispute were purchased through Scotty Luther Produce as were all watermelons purchased by the Respondent BB & W in Florida, the evidence shows that on the load in dispute, Respondent BB & W, through its president Cecil Bagwell was dealing directly with Petitioner when Cecil Bagwell contacted him by telephone to discuss the purchase of the watermelons and in making the necessary arrangements for a truck to pick up and deliver the watermelons to their destination. The evidence also shows that Scotty Luther of Scotty Luther Produce was not present in the area when the watermelons in dispute were purchased or loaded and was not involved in this transaction. The agreement between Petitioner and Respondent BB & W was that title and risk of loss passed to Respondent BB & W on shipment, with all remedies and rights for Petitioner's breach reserved to Respondent BB & W. Petitioner loaded three (3) loads of Charleston Grey Watermelons (grey) to Respondent BB & W on June 3 and 4, 1985 but only one (1) load is in dispute which is a load of grey watermelons loaded on June 4, 1985 on a truck furnished by Respondent BB & W. The net weight of the watermelons was 46,810 pounds and the agreed upon price was $0.03 per pound for a total price of $1,404.30 which Respondent BB & W has refused to pay. Petitioner also sold Respondent BB & W two (2) loads of grey watermelons on June 3, 1985 that were harvested from the same field as the watermelons in dispute and shipped: one load to Orlando, Florida; and one (1) load to Atlanta, Georgia without any incident of loss as a result of overmaturity or otherwise. The watermelons in dispute were not federally or state inspected before or during loading. Although Respondent BB & W contended that the watermelons had been inspected by a federal inspector at their destinations the evidence was insufficient to show that the watermelons in dispute had been inspected or that they were over mature upon arrival at their destination. Likewise the evidence was insufficient to prove that the watermelons in dispute were over mature upon loading. The record reflects that the watermelons in dispute were loaded in a closed trailer with no apparent ventilation and the refrigeration unit not operating when the trailer departed from Petitioner's farm after loading. Petitioner received a call from Respondent BB & W's office two (2) days after shipping the watermelons advising him that the watermelons had been "kicked" but it was two (2) more days before he reached Cecil Bagwell to find out that they were "kicked" for being over mature.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent BB & W be ordered to pay to the Petitioner the sum of $1,404.30. It is further RECOMMENDED that if Respondent BB & W fails to timely pay the Petitioner as ordered, then Respondent Fireman be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983) Respectfully submitted and entered this 25th day of February, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of February, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire, Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Freddie Woods Jr. Post Office Box 52 Evinston, FL Cecil Bagwell, President BB & W Farms, Inc. Route 2, Box 855 Cordell, GA 31015
The Issue The issues presented here concern the attempt by Petitioner to recover $2,367.30 as payment for watermelons sold to Sunshine Fruit Company, Inc. See Sections 604.15 - 604.30, Florida Statutes.
Findings Of Fact In July, 1993, Petitioner was a producer of agricultural products in Florida. That product was watermelons. At that time Sunshine Fruit Company was a dealer in agricultural products grown in Florida. Bill Hamilton also produced watermelons in Florida in July, 1993. His field had a common boundary with Petitioner's field. The watermelons taken from Petitioner's field in July, 1993 adjacent to the Hamilton field are at issue here. Bill Hamilton had done business with Sunshine Fruit Company in 1993 but was unable to meet the July demand which Sunshine Fruit Company had for watermelons. Hamilton had conducted his business with Allen Reiter as representative for Sunshine Fruit Company. To assist Reiter in obtaining additional watermelons in July that Hamilton could not supply, Hamilton referred Reiter to the Petitioner. An agreement was made to sell Petitioner's watermelons. The agreement was one in which Phillip Allen, Petitioner's son, served as her representative in the negotiations. In this arrangement the son was entitled to fifty percent of any profits and Petitioner the remaining 50 percent. The deal Petitioner made was to provide one load of medium melons and one load of large melons to Sunshine Fruit Company. Allen Reiter sent trucks to pick up the melons from Petitioner's field. After referring the Petitioner's business to Sunshine Fruit Company, Bill Hamilton observed Allen Reiter cut watermelons that were being delivered to Sunshine Fruit Company to examine the condition of the watermelons. Those watermelons that were being examined were located on a field truck. The field truck was a truck different from the truck that was to be used in transporting the watermelons to market. Hamilton also observed Reiter examining watermelons that were being loaded onto the transport truck. Hamilton had not experienced significant problems with hollow heart or bruising in the watermelons that he had harvested in the field adjacent to that belonging to the Petitioner in the year 1993. An approach which Hamilton and Petitioner had employed to avoid crop damage to the watermelons was to avoid loading watermelons that had become wet when it rained. Both producers, that is to say Hamilton and the Petitioner, had experienced an occasional slow down in harvesting in July, 1993, because of rain. Rain delayed the harvesting and loading of the Petitioner's watermelons provided to Sunshine Fruit Company. When the rain shut down the harvesting operation, some of the watermelons had already been picked. Harvested watermelons were put on the field truck before the rain commenced and were covered up with plastic to keep the rain from damaging the watermelons. The watermelons that had been picked that morning and placed on the field truck were left on the field truck while it rained hard that afternoon. The load that is being described was finished with watermelons picked the following day. Charles Gardner who worked for Petitioner in the harvesting operation also saw Allen Reiter cut watermelons that were on the field truck on the first day, the day it rained in the afternoon. Gardner also saw Reiter examine melons on the field truck on the second day. Phillip Allen and others loaded the two trucks provided by Sunshine Fruit Company and he supervised that operation. The second load of watermelons was placed on a truck that Phillip Allen and Charles Gardner understood to be Allen Reiter's "personal truck." An individual whose name was not identified at the hearing, whom Gardner and Phillip Allen understood to be "Reiter's personal driver", based upon an introduction made by Allen Reiter, interfered with the attempts by Phillip Allen to discard watermelons of questionable quality that were being loaded onto the transport truck. Phillip Allen told the driver that the questionable watermelons were bad, and the driver said "they are all right". When Phillip Allen would attempt to discard watermelons, this unidentified individual would return the questionable watermelons into the group of watermelons being transported, accompanied by a remark to the effect, "don't worry about it." This arrangement was contrary to the more typical arrangement in which the producer would discard what it referred to as the "culls." This caused a considerable number of watermelons to be kept for transport that should have been discarded. In the past the "culls" had been broken in the field or sold as pig feed. Phillip Allen tried to contact Allen Reiter by telephone after experiencing problems in which the driver insisted that substandard watermelons be packed. Phillip Allen was unable to reach Allen Reiter. Being unsuccessful in this attempt at contact, Phillip Allen deferred to the driver's choice to leave bad watermelons in the load for transport to market. However, Phillip Allen, not the driver, was in charge of the loading of the truck upon which substandard watermelons were being placed. Therefore, to the extent that the substandard watermelons diminished the value of the load, Petitioner must suffer the consequences. Nothing in the record leads to the conclusion that the driver had the authority to act as agent for Sunshine Fruit Company in determining what watermelons were of sufficient quality to be shipped. The driver mentioned in the previous paragraph stated in the presence of Charles Gardner that he was going home for the weekend and would deliver the watermelons on Monday. This comment was made on the prior Friday. The driver stated in the presence of Phillip Allen that he was going home because of brake problems and was going to wait to deliver the melons until Monday. Larry Thompson was the buyer and field supervisor for Sunshine Fruit Company in the transaction with Petitioner. Because it had been raining for several days, the decision to purchase the watermelons was through an arrangement in which the price would be determined at the time of receipt at the ultimate destination for the produce. There was no written agreement between the parties. Larry Thompson went to the field on the day after it had rained. While at the field on the second day Thompson observed the load of large watermelons. Charles Gardner told Larry Thompson that the large watermelons were popping. Larry Thompson told Allen Reiter that Reiter needed to check the large watermelons. Larry Thompson observed watermelons that were split. The watermelons were further observed by cutting the melons to examine them. During these events Thompson told Reiter that Thompson was glad that Sunshine Fruit Company was "riding" the watermelons, meaning waiting to determine the price until delivery at the ultimate destination. Otherwise Sunshine Fruit Company would not have bought the watermelons that were in the questionable condition as Thompson observed them on the second day. Some of these substandard watermelons were observed by Phillip Allen when loading the trailer and in conversation with the unnamed driver. As expected, this load of watermelons was in poor condition at the place and time that it was delivered. This was confirmed by an inspection that was performed at the place of ultimate delivery. Phillip Allen was made aware of the problem with that load. Phillip Allen told Larry Thompson that he, Phillip Allen, was going to have to contact the Inspector and asked that Thompson provide Allen with a copy of the inspection report. Thompson mailed Allen a copy of the inspection report. Thompson told Allen that some arrangement would have to be made to gain the best financial outcome with the questionable load of watermelons that could be achieved or that the watermelons would have to be dumped. It was resolved between Thompson and Allen that an individual in Pittsburgh, Pennsylvania, would be responsible for making some disposition with the questionable load of watermelons and this was accomplished by that individual in Pittsburgh, Pennsylvania. It is unclear who would pay for freight. Concerning the freight costs, Petitioner made no claim at hearing that the freight costs should be borne by Sunshine Fruit Company, and Petitioner and Sunshine Fruit Company failed to prove the amount of freight costs that had been incurred. However, based upon testimony by Dale Swain, a dealer in agricultural products in the region, it is inferred that the custom and practice employed in selling watermelons in 1993, to include watermelons sold by Petitioner to Sunshine Fruit Company, called for the deduction of freight expenses from the price paid for the watermelons. Watermelons Swain purchased from Petitioner in July 1993 were of acceptable quality. It was established that the cost of harvesting the subject watermelons would be borne by the producer, Pauline Allen. Phillip Allen established that the price per pound for both medium and large watermelons was 3.5 . It is undisputed that the load amounting to 41,180 pounds at 3.5 per pound was worth $1,441.30. Nor is there any contention concerning the fact that Sunshine Fruit Company has paid $740 to the Petitioner for the watermelons in question. At hearing, Petitioner asserted that the second load, the load with problems, weighed at the scales in Florida before the transport in the amount 47,600 pounds. At 3.5 per pound the claimed value was $1,666.00. The at-scale value was not the agreed upon arrangement. The actual amount which was paid for the problem second load as delivered was not established at the hearing, but it can be inferred that the amount is less than $1,666.00 based upon facts that were presented at hearing.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Final Order be entered which dismisses the complaint calling for the payment of additional monies in the amount of $2,367.30. DONE and ENTERED this 18th day of March, 1994, in Tallahassee, Florida. CHARLES C. ADAMS, 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 18th day of March, 1994. APPENDIX CASE NO. 93-6173A The following discussion is given concerning the Respondent Sunshine Fruit Company's findings of fact: Unnumbered Paragraph 1 is subordinate to facts found with the exception that it is not clear in the record whether both loads are to be paid for within two weeks of passing inspection. Unnumbered Paragraphs 2 and 3 are not supported by the record. Unnumbered Paragraph 4 constitutes legal argument. COPIES FURNISHED: Phillip Allen 695 North Maylen Lacanto, FL 34461 Allen Reiter 3535 Recker Highway Winter Haven, FL 33880 Richard E. Straughn, Esquire Post Office Box 2295 Winter Haven, FL 33883-2295 Meritor Savings, F.A. Post Office Box 193 Winter Haven, FL 33882 Brenda Hyatt, Chief Department of Agriculture Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800 Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level Tallahassee, FL 32399-0810
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing and at the subsequent deposition, the following facts are found: At all times pertinent to this proceeding, Petitioners were producers of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). At all times pertinent to this proceeding, Respondent Sales was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 207 by the Department and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $20,000 - Bond No. RN 4429948. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). On June 11, 1985 Respondent Sales, through its agent William C. Summers (Summers), contracted with Petitioners to load several loads of watermelons on trucks furnished by Respondent Sales at Petitioners' watermelon field. Petitioner agreed with Summers to load a good quality watermelon ranging in weight from seventeen (17) pounds and up, with an occasional watermelon weighing less than seventeen (17) pounds. The price agreed upon was $0.03 per pound with the sale being final upon loading, weighing and acceptance by Summers. Before loading any watermelons, Summers along with Petitioners Shivers inspected the field of watermelons for size and quality and to estimate how many watermelons were available for shipment. On June 11, 1985 Petitioners began loading the first load of watermelons the only load in dispute, in accordance with the agreement. Summers was present on several occasions, for periods of approximately thirty (30) minutes each time, during the time of loading and on occasions would instruct Petitioner Sullivan who was packing, to put watermelons, both large and small which Sullivan had rejected, back on the truck for shipment. Petitioner finished loading the first load of watermelons on June 11, 1985 which was weighed and accepted and paid for by Summers on June 12, 1985. The net weight was 43,260 pounds for a total amount of $1,297.80. On June 12, 1985, Summers issued a check jointly to Petitioners on Respondent Sales' checking account which Summers signed for the sum of $1,297.80 but later "stopped for payment" on this check and Respondent Sales has since refused to pay Petitioners this amount. Although Sullivan advised Summers that a range in weight of 17 pounds and up was too wide for a load of watermelons to be classified as medium, Summers advised Sullivan to load watermelons weighing 17 pounds and up. After Petitioners started loading the second load, Summers instructed Sullivan to only pack watermelons ranging in weight from 17 to 24 pounds which Sullivan did and Petitioners were paid for this second load without incident. The evidence was insufficient to prove that the watermelons in question had been rejected at destination due to the wide range of weights or for any other reason. 13, The evidence is clear that Summers was acting for Respondent Sales and had authority to purchase and accept the watermelons in dispute. The only reason Respondent Sales' refused to pay was the alleged nonconformance as to size.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Sales be ordered to pay to the Petitioners the sum of $1,297.80. It is further RECOMMENDED that if Respondent Sales fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 13th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of March 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Terry McDavid, Esquire 200 North Marion Street Lake City, Florida 32055 Steve Shiver and Jody Sullivan Route 1, 8ox 474 Mayo, Florida 32066 A. J. Sales Company Post Office Box 7798 Orlando, Florida 32854 Hartford Insurance Company of the Southeast 200 East Robinson Street Orlando, Florida 32801
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Pinellas County operates a water system which serves a population of approximately 400,000. This figure includes some 250,000 individual meter accounts and 150,000 wholesale customers, including the Pasco County Water Authority 1/ and the Cities of Tarpon Springs, Clearwater, Safety Harbor and Pinellas Park. At the time of the hearing, Pinellas County was conducting negotiations with the Cities of Oldsmar and Dunedin to supply them with water. Like other suppliers of water within the Southwest Florida Water Management District (SWFWMD, Pinellas County is required to obtain consumptive use permits (CUP) from SWFWMD. This petitioner currently operates two wellfields -- the Eldridge-Wilde Wellfield Containing 1,925 acres and the East Lake Road Wellfield Containing 5,861 acres. In addition, Pinellas County receives water supplies from the West Coast Regional Water Supply Authority (WCRWSA), which operates the Cypress Creek Wellfield Containing 4,895 acres and the Cross Bar Ranch Wellfield Containing 8,060 acres. On an average daily basis, the Pinellas County water system presently utilizes 45 million gallons of water per day (mgd), with a peak use of 65 mgd. Projections indicate that the estimated water demand for the Pinellas County water system will be an average of 54.3 mgd, and a peak use of 90.15 mgd by 1980. For the year 1982, the estimate is 60.06 mgd average and 98.71 mgd peak. For 1984, the estimate is 65.44 mgd average and 106.65 mgd peak. At the time of the hearing, the present permitted capacity available to Pinellas County was 73 mgd average and 100 mgd peak or maximum. Estimates of projected water demands for Pinellas County indicate a definite shortage of water during peak periods by the year 1984 and a cushion of only 1.29 million gallons during peak periods as early as 1982. Pinellas County has experienced water shortages in the recent past, resulting in emergency measures such as sprinkling bans during the daylight hours. Considering the possibilities of equipment breakdowns or extremely dry periods, a cushion of 1.29 mgd is not a sufficient surplus. The WCRWSA was formulated by an interlocal agreement under Chapter 373, Florida Statutes, and is authorized to acquire water and water rights, develop, store and transport water, and to provide, sell and deliver water for county or municipal purposes or uses. The members of the WCRWSA are Pasco County, the City of Tampa, Hillsborough County, the City of St. Petersburg and Pinellas County. As noted above, the WCRWSA operates two wellfields -- Cypress Creek and Cross Bar Ranch. Pinellas County actually owns the land at the Cross Bar Ranch. At the time of the hearing, the Cross Bar Ranch Wellfield was permitted for 15 mgd average and 20 mgd peak. In August of 1979, the WCRWSA and Pinellas County, as co-applicants, filed an application for a modification of their consumptive use permit at the Cross Bar Ranch Wellfield to authorize an annual average withdrawal of 30 mgd and a maximum withdrawal of 45 mgd. Under the rules of respondent SWFWMD, an application for an increased use is treated as a new application. Rule 16J- 2.04(5), Fla. Admin. Code. Pasco County moved to intervene in the petitioners' CUP application process concerning the Cross Bar Ranch Wellfield. Among the issues raised by Pasco County in their Petition to intervene was whether the proposed consumptive use would exceed the water crop of land owned, leased or otherwise controlled by the applicants. At the time of the evidentiary hearing in the present cause, SWFWMD had not yet held an administrative hearing on the application for a CUP modification for the Cross Bar Ranch Wellfield. The application was pending both at the time of the filing of the petitions with the Division and at the time that all parties rested at the conclusion of the evidentiary hearing. The petitions filed in the instant cause challenge the validity of SWFWMD'S Rule 16J-2.11(3), Florida Administrative Code. This rule is known as the water rule, and reads as follows: 16J-2.11 Conditions for a Consumptive Use Permit. (3) Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be assumed to be three hundred sixty-five thousand (365,000) gallons per year per acre.) Another subsection of Rule 16J-2.11 provides that the governing board of SWFWMD may grant an exception to the water crop rule. Subsection (5) of Rule 16J-2.11 provides that (5) The Board for good cause shown may grant exceptions to the provisions of paragraphs (2), (3), (4), and (10) of this rule when after consideration of all data presented, including economic information, it finds that it is consistent with the Public interest. The caveat of the water crop rule is that only 1,000 gallons per acre per day may be withdrawn under any permit. The Cross Bar Ranch consists of 8,060 acres. Under the challenged rule, only 8,060,000 gallons per day could be withdrawn. Therefore, the application pending before SWFWMD for a CUP for 30 mgd average and 45 mgd peak far exceeds the water crop rule. The existing permit also exceeds the limitations of the rule. The water crop concept had its genesis in a report on the amount of available water in a certain portion of the respondent's water management district. The rule is applied district-wide by SWFWMD. In spite of its seemingly mandatory language, the rule is not ultimately implemented or interpreted in a mandatory fashion by the respondent. Instead, it is applied as an initial or threshold level of inquiry, or "first cut," and, if the other criteria for a permit can be satisfied, SWFWMD will grant an exception under subsection (5) of Rule 16J-2.11. With one possible exception, the respondent has never denied a permit solely because the application exceeded the water crop concept. It would not be hydrologically sound to deny a CUP solely on the basis of the water crop rule. Consumptive use permits can be adequately regulated without such a rule. No other water management district in Florida has promulgated or requires compliance with a water crop rule. The water crop concept is hydrologically unsound and cannot be properly applied to any specific piece of property. A generalization of the amount of water which is available throughout the district (1,000 gallons per acre per day) cannot reasonably be applied in individual consumptive use proceedings. This is due to the fact that the amount of water which can be withdrawn from any specific parcel of lad is dependent upon the amount of rainfall the land receives, soil types, the water table, the existence of confining layers, vegetation types and other variable hydrological factors. These factors vary widely throughout the subject water management district. If the water crop rule were strictly applied by SWFWMD, the petitioners would be required to purchase or otherwise acquire an additional 80,000 acres of land to supply their customers with the water now permitted to be withdrawn. This would obviously result in excessive financial burdens to the petitioners and, ultimately, consumers. Without objection by the respondent or the intervenors, evidence was adduced by the petitioners regarding the action of the Florida Joint Administrative Procedures Committee in its review of Rule 16J-2.11(3) in 1976. The undersigned makes no finding of fact regarding this evidence inasmuch as it deemed irrelevant and immaterial to the ultimate determination in this cause. As noted above, the City of St. Petersburg is a member of the WCRWSA. Because of recent water shortages, St. Petersburg has loaned to Pinellas County apportion of its allotment from a wellfield operated by WCRSWA. It is projected that the City of St. Petersburg will need additional supplies of water between the years of 1983 and 1985. The remaining intervenors are all charged with the responsibility to obtain sufficient water supplies within the district of SWFWMD. They are subject to the consumptive use permitting rules of SWFWMD. Evidence was offered on the issue of whether the water crop rule was strictly applied to Pinellas County at its East Lake Road Wellfield, which comprises 5,861 acres. At present, the amount of water withdrawal permitted is less than the water crop for the amount of acreage of the wellfield. Though there was evidence that SWFWMD inquired as to the control or ownership of the land, the actual permit application was not introduced into evidence nor was there sufficient evidence adduced by petitioner to illustrate the reasons for a permit for an amount less than that which would be permitted under the challenged rule.
