Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following facts are found: On April 16, 1982, through Florida Produce Brokers, Petitioner sold two shipments of cabbage to Respond dent C & B, to be shipped directly from the growing field to a consumer in Canada (785 crates) and to the United States Army in Chicago (200 crates). The 200 crates are not a part of this claim. All further reference to cabbage and crates, unless specifically identified differently refers to the 785 crates of U.S. #1 green cabbage destined for Canada M. T. Fruit, Inc., of St. Laurent, Quebec, Canada (M.T.). A truck was contracted for by M.T. through O. G. Sheppard Truck Brokers. On April 16, 1982, the 785 crates were loaded on the truck during the period 9:30 a.m. to 1:30 p.m. at the grower's field, Povie Farm, near Hastings, Florida. No ice was put aboard the truck at this time. Petitioner was not presented at the loading. The shipment was to be an f.o.b. origin shipment which places the responsibility for loading and icing on the purchaser. The truck was refrigerated, and the delivery order given in writing by Petitioner to the truck driver after loading contained the instructions: "Set unit 38 degrees Keep top iced to destination." The crates in which the cabbage was packed were marked: "Charleston County Wholesale Vegetable Market Inc. Hastings, Florida. Produce of U.S.A." and were marked: "1 3/4 bushel in volume." The inspection report made by D. B. Williams, inspector of the U.S. Department of Agriculture, at the time of loading reflected that the defects in the cabbage were within tolerance with no decay showing and the temperature control unit of the truck was operating. The inspection report also indicated the shipment met Canadian import requirements. At the time of the purchase and until the truck was loaded and back at Petitioner's office for billing out, Petitioner's representative, Mr. Limehouse, did not know for where the shipment was destined. By the time he found out, after the load was on board the truck, it would have been impossible to mark the crates with weight unless they were all unloaded from the truck, even if it were known that was required. The comments on the inspection regarding Canadian import requirements are placed on every shipment whether destined for Canada or not. Mr. Limehouse did not receive any indication anything was wrong with the shipment until several days later when he was called by Mr. Readding, a representative of C & B, and told that the shipment had been detained in Canada because the crates were not properly marked. At this point, he told Mr. Readding to tell the driver to get a crayon and mark the boxes. He did not receive any trouble sheets on this shipment such as he received on the Chicago shipment, although at least one was made out but, through a mixup in C & B's office, not sent. Unknown to all parties, the Canadian requirements had been changed to require that instead of a certification as to the volume of the container, as had been acceptable in the past, the weight of each container was now required to be marked on it. This was not known to the Department of Agriculture inspector at the time he made his inspection on April 16, 1982. Notwithstanding this, the shipment passed through Canadian customs at the border without any difficulty and arrived at M.T.'s facility early in the morning of April 19. Unloading began about 8:30 a.m.; and when approximately 400 crates had been off-loaded from the truck, M.T. found some of the cabbage was decayed. At this point, it was also noticed that the boxes did not show the weight as required by Canadian law, and M.T. requested an inspection by Canadian authorities. This reflected that: (1) the condition of the vehicle was clean; (2) those crates not yet unloaded were piled six high and five or seven wide in the truck in good order and properly packed; and (3) the condition of the cabbage was: WRAPPER LEAVES: 3 percent slimy decay affecting from 1 to 2 leaves, mostly 2 leaves. 16 percent slimy decay at butt end, ranging from nil to 57 percent. No decay in evidence on head leaves. The certificate also reflected that the inspection had been "requested for and certificate restricted to condition only," but the lot was placed under detention because of a lack of markings. The cabbage was released the following day from M.T.'s warehouse when the weight was placed on the crates. Petitioner did not receive any payment for the cabbage until after it filed its first claim with the Florida Department of Agriculture. Thereafter, in July, 1982, it received C & B's check in the amount of $1,350, which was held without being deposited immediately since it did not satisfy the obligation. The second complaint was filed in September, 1982; and late that month, Petitioner received C & B's second check, this one in the amount of $4,223.50. This latter check bore the notation "#939, Final Payment." The figure "#939" reflects the number on Petitioner's invoice on which the amount allegedly due was billed to C & B. The two checks total $5,573.50, a sum $1,570 less than the amount ultimately billed to C & B by Petitioner for the cabbage--$7,143.50. Petitioner also filed a claim under the Perishable Agricultural Commodities Act of the United States and forwarded the two checks referenced above as exhibits to the U.S. Department of Agriculture. On November 2, 1982, Petitioner was notified by the Assistant Chief, Regulatory Branch, Fruit and Vegetable Division, Department of Agriculture (U.S.), that since a claim had also been filed with the State of Florida, they would not process it, and the checks were returned. The notice also bore the caveat that under federal law, deposit of the checks would constitute an accord and satisfaction of the dispute and that before depositing the checks, Petitioner should insure that a similar result would not occur under Florida law. However, because Mr. Limehouse felt that if the checks were not soon deposited, they might be cancelled by C & B; on November 12, 1982, both checks were deposited to Petitioner's account. Prior to that time, however, on September 7, 1982, Respondent C & B invoiced M.T. for $5,691.25 net for the 785 crates of cabbage shipped f.o.b. This invoice shows a credit adjustment of $2 per crate for the crates held in detention by Canadian officials because the boxes were improperly marked and further shows C & B's comment that any loss because cabbage arrived uniced and heated will be their (M.T.`s) responsibility to collect from the truck broker. Respondent C & B was paid in full by M.T. the amount claimed, $5,691.25, which was the net amount due after deducting the adjustment but adding in a 15 cents per crate brokerage. The amount claimed as owing by Petitioner is $1,570.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department enter an order finding that Petitioner is due the amount of $1,570 from the sale of the agricultural products which were the subject of this administrative proceeding. RECOMMENDED this 31st day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of May, 1983. COPIES FURNISHED: Mr. W. Lawton Limehouse President Charleston County Wholesale Vegetable Market, Inc. Post Office Box 131 Hastings, Florida 32045 Michael J. Grindstaff, Esquire Allen, Mathews & Baker 257 South East Avenue E Belle Glade, Florida 33430 Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Reliance Insurance Company Four Penn Center Plaza Philadelphia, Pennsylvania 19103 The Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32301 Mr. Glenn A. Bissett Department of Agriculture and Consumer Services Room 418, Mayo Building Tallahassee, Florida 32301
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 issue for determination is whether Respondents owe Petitioner approximately $591 for a quantity of watermelons provided by Petitioner; secondarily, resolution of this issue 1 Correction of obvious error has been made to the style of this case, adding the name of Co-Respondent U.S. Fidelity and Guaranty Co., and eliminating the Department of Agriculture and Consumer requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.
Findings Of Fact Petitioner is a farmer who produces agricultural products, including watermelons. Petitioner also has trucks in which he hauls agricultural products, including watermelons. When all his trucks are in use, he frequently calls a friend, Freddy Bell, to provide some of Bell’s trucks to haul his products. Petitioner, in turn, helps Bell when Bell’s trucks are all in use. Respondent Wilson is a dealer of such products in the course of normal business activity. Respondent Wilson acts as a broker in these arrangements, receives the gross sales receipts from buyers and from that sum deducts costs of labor, freight, inspections, any other associated costs and his commission. The net balance of the gross sales receipts are paid to the melon producers. Respondent U. S. Fidelity and Guaranty Company is the bonding agent for Respondent pursuant to Section 604.20, Florida Statutes. Petitioner had not discussed any arrangement for the sale of his melons with Respondent Wilson. Instead, Petitioner discussed the sales price of his melons with Freddy Bell. Petitioner testified that Bell represented to Petitioner that he could get a price of $4.00 per hundred weight for Petitioner’s melons. Petitioner relied on Bell to provide transport his melons and obtain the promised price. While Bell did not testify at the final hearing, the parties are in agreement that Bell arranged for sale and shipment of Petitioner’s melons through Wilson. Wilson’s President, Robert M. Wilson, testified at hearing that Bell was not empowered by him to represent a guaranteed price for melons to anyone and that he could not affirm that Bell operated as his agent. He added that Melons were plentiful this past season and no melons were brokered on a guaranteed price basis. Testimony of Robert M. Wilson at the final hearing establishes that the arrangement between Respondent Wilson and Freddy Bell on Petitioner’s behalf was a brokerage arrangement and that the sale of the melons was subject to conditions and demands of the market place, i.e., that the melons would sell for the best possible price which Wilson could obtain for them. Testimony of Petitioner is uncorroborated and fails to establish that the agreement between the parties contemplated a direct sale of the melons to Respondent Wilson or a guaranteed price by Wilson.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing Petitioner's complaint.DONE AND ENTERED this 12th day of March, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Bo Bass 2829 Southwest SR 45 Newberry, FL 32669 John M. Martirano, Esquire US Fidelity and Guaranty Co Post Office Box 1138 Baltimore, MD 21203-1138 Robert M. Wilson, President Wilson and Son Sales, Inc. 2811 Airport Road Plant City, FL 33567 Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol - Plaza Level 10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, FL 32399-0800
The Issue The issues are as follows: Is the Respondent liable to the Petitioner for $140.00 for 3,500 pounds of unacceptable potatoes on Load number 15? Is the Respondent liable to the Petitioner for $1,792.00 for Load number 16? Does the contractual agreement provide for FOB payment or payment based upon delivered weight? Can the Respondent "back charge" the Petitioner for $964.06 freight charges, $60.00 for dumping charges, and $33.40 for U.S. Department of Agriculture inspection costs?
Findings Of Fact The Petitioner, Lee A. Maltby and Sons, Inc., doing business as Poa-Boy Farms, is a producer of agricultural products in Florida. The Respondent, Kenneth Rose Company, Inc., is a licensed dealer in agricultural products, pursuant to Chapter 604, Florida Statutes. The Respondent was bonded, pursuant to Chapter 604, Florida Statutes, as such a Florida dealer during the period of time between January 24, 1978 and May 23, 1978. On or about January 24, 1978, the Petitioner, as seller, and the Respondent, as buyer, entered into an executory contract for the Petitioner to deliver "10,000 CWT of chipping potatoes, 85 percent or better US. number 1," at $4.00 FOB. As to terms, the contract designated "usual." As to special terms, the contract stated "Potatoes will be paid on the basis of delivered weight as evidenced by a certified weight ticket prepared at the time and place of delivery." Shipment was "May, 1978 (Last week of April if possible)." On or about the same day, the Respondent entered into an executory contract with Cloud Produce, Inc. for the same shipment, excluding the "special terms." Undisputed testimony was that the price was at a rate of $.10 CWTFOB. Cloud Produce, Inc. was a corporation authorized to do business in the State of Florida as a dealer in agricultural products under Chapter 604, Florida Statutes. Cloud Produce, Inc. agreed to deliver the chipping potatoes to Frito- Lay, Inc., a corporation with a potato chip manufacturing plant in Louisville, Kentucky. The Respondent also contracted with Montgomery and Rose, Inc., a Florida corporation authorized to do business under the laws of the State of Florida as a truck broker, to transport the potatoes to Louisville, Kentucky. The broker contracted with an independent trucking firm known as "R & L" to transport and deliver the potatoes to Frito-Lay in Louisville, Kentucky. The potatoes designated as Load number 15 were delivered to Frito-Lay in Louisville, Kentucky, on May 18, 1978. There was no report to Petitioner that there was a problem with said load, and there was no USDA inspection made. Evidence submitted showed that 3,500 of the 43,620 pounds of potatoes contracted to be delivered were dumped. The potatoes designated as Load number 16 were loaded on an R & L truck late Friday, May 19, 1978. The R & L truck was weighed in Hastings, Florida, on May 19, 1978, passed a Florida inspection station on May 20, 1978, and arrived at the Frito-Lay plant in Louisville, Kentucky, at approximately 7:00 a.m. on May 23, 1978. The load of potatoes was rejected by Frito-Lay "due to wet breakdown." The report of Frito-Lay stated that the potatoes were in a very poor condition with rot from 30 to 80 percent. Frito-Lay ordered the R & L trucking company to remove the load from the Frito-Lay property due to its offensive odor. The Petitioner and the Respondent discussed the problem on May 23, 1978. The Petitioner requested that the Respondent re-route the potatoes to Muncie, Indiana. The Respondent was not able to get this instruction through to the trucking company before the load was dumped, and within hours, it informed the Petitioner that the potatoes were no good, that the expense was prohibitive, and that the potatoes had already been dumped. Part of the problem was the demand by Frito-Lay that the load be removed quickly because of the odor and leakage at the plant in Louisville, Kentucky, which adjoined a baseball field. The USDA Inspection Office was closed when called on May 23, 1978, but it inspected the load on May 24, 1978 and reported "Condition: Soft rot 90 percent, slimy soft rot, mostly in advanced, some in early stages. Remainder stock: Firm." The following transpired: The United States Department of Agriculture charged an inspection fee of $33.40 for its inspection of the potatoes on May 24, 1978. The USDA billed Frito-Lay, Frito-Lay billed Cloud Produce, Inc., and Cloud Produce, Inc. billed the Respondent for the inspection fee. R & L trucking company paid $60.00 for unloading the potatoes, Montgomery and Rose, Inc. paid R & L $60.00 for such unloading, plus $964.06 for hauling the potatoes to Louisville, Kentucky, and the Respondent paid this amount to Montgomery and Rose, Inc. The Respondent then "back charged" the Petitioner for the following: $140.00 for the load designated number 15; $1,792.00 for the value of the potatoes on Load number 16; $964.06 for freight charges; $60.00 dumping charges; and $33.40 inspection. These charges totaled $2,989.46, and this amount of money was retained by the Respondent as a set-off from the entire contract between the parties, which included Loan number 22, with which there was no problem. By letter to the Respondent dated July 25, 1978, the Petitioner demanded the money that is the subject of this hearing. The Petitioner stated that he did not believe that Load number 16 was his produce inasmuch as he had had no other complaints as to his produce from other receivers before or after said load. No evidence was introduced to substantiate the position of the Petitioner, and substantial evidence was introduced that Load number 16 was, in fact, the load that was ultimately dumped. The Petitioner presented a witness who testified that Montgomery and Rose, Inc. had salvaged a portion of Load number 16 after it was dumped. The Petitioner felt that it was unfair that one firm had made a profit from the Petitioner's loss. Montgomery and Rose, Inc. was not joined as a party. The Respondent presented undisputed testimony that it is customary to "charge back" a broker and a producer where the produce does not meet specifications. There was no evidence presented that the Petitioner was not familiar with the custom of the trade or the laws and regulations of the Perishable Agricultural Commodities Act, or that the Petitioner had reason to believe that it would not be liable for freight and brokerage charges if the potatoes were not sold. The contract between the parties merely stated that terms were "usual." The usual charges on such a transaction include USDA inspection fees, if needed, and freight and brokerages charges.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State of Florida, Department of Agriculture and Consumer Services, uphold the claim of the Petitioner against Respondent in the amount of $140.00 deducted for the price of potatoes delivered designated as Load number 15. It is further RECOMMENDED that a Final Order be entered discharging the Respondent and its surety from any further liability. DONE and ENTERED this 8th day of June, 1979, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1979. COPIES FURNISHED: Ronald E. Clark, Esquire P.O. Drawer V Palatka, FL 32077 Alan B. Fields, Jr., Esquire P.O. Drawer F Palatka, FL 32077 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Room 530, Carlton Building Tallahassee, FL 32301
Findings Of Fact Petitioner sold watermelons to Respondent in June, 1982, for a net price due grower of $5,907.15. The buyer paid the grower $4,883.62 leaving a balance owed of $1,023.53. During the same period the grower delivered to the buyer some 692 bushels of cucumbers. Buyer advanced $1,200 to the grower on May 7, 11, and 14, 1982. The Comchecks (Exhibit 4) show $407.00, $607, and $407 on each of those dates; however, Exhibit 5 shows $400 was advanced by each check, Neither party was prepared to present evidence that the charges contained on Exhibit 5 were customary and proper in the brokerage of agricultural products business, and both parties agreed that the cucumber dispute should he referred to the Department of Agriculture and Consumer Services for investigation as the watermelon dispute had been.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, Petitioner, Carl Hiers was a "producer" of agricultural products in the state Of Florida as defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Respondent, Jay Nichols, Inc. (Nichols) was a licensed "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes, issued license number 1547 by the Department, and bonded by U.S. Fidelity & Guaranty Co. (Fidelity) for the sum of $50,000.00, bond number 790103-10-115-88-1, with an effective date of March 22, 1988 and a termination date of March 22, 1989. At all times pertinent to this proceeding, Nichols was authorized to do business in the state of Florida. Prior to Petitioner selling or delivering any watermelons (melons) to Nichols, Petitioner and Nichols agreed verbally that: (a) Petitioner would sell Nichols melons on a per pound basis at a price to be quoted by Nichols on the day of shipment; (b) Petitioner would harvest and load the melons on a truck furnished by Nichols; (c) a weight ticket with the weight of the truck before and after loading would be furnished to Petitioner; (d) Nichols or its agent in the field would have the authority to reject melons at the place of shipment (loading) which did not meet the quality or grade contracted for by Nichols; (e) the melons were to be of U.S. No. 1 grade and; (f) settlement was to be made within a reasonable time after shipment. Although Nichols assisted Petitioner in obtaining the crew to harvest and load the melons, Petitioner had authority over the crew and was responsible for paying the crew. On a daily basis, L.L. Hiers would contact Nichols and obtain the price being paid for melons that day. The price was marked in the field book with the net weight of each load shipped that day. Nichols contends that the price quoted each day was the general price melons were bringing on the market that day but the price to be paid to the Petitioner was the price Nichols received for the melons at their destination minus a 1 cent per pound commission for Nichols, taking into consideration freight, if any. Nichols was not acting as Petitioner's agent in the sale of the melons for the account of the Petitioner on a net return basis nor was Nichols acting as a negotiating broker between the Petitioner and the buyer. Nichols did not make the type of accounting to Petitioner as required by Section 604.22, Florida Statutes, had Nichols been Petitioner's agent. The prices quoted by Nichols to L.L. Hiers each day was the agreed upon price to be paid for melons shipped that day subject to any adjustment for failure of the melons to meet the quality or grade contracted for by Nichols. On June 24 and 25, 1988, L.L. Hiers contacted Nichols and was informed that the price to be paid for melons shipped on June 24 and 25, 1988 was 4.5 cents per pound. This price was recorded in the field book with the net weight of each load of melons shipped on June 24 and 25, 1988. There were 2 loads of melons shipped on June 24, 1988 and 3 loads of melons shipped on June 25,1988 that are in dispute. They are as follows: load nos. 11252, and 11255 weighing 23,530 and 49,450 pounds respectively shipped on June 24, 1988, for which Nichols paid 2 cents per pound and; load nos. 11291, 11292 and 11294, weighing 43,000, 47,070 and 47,150 pounds respectively, shipped on June 25, 1988, for which Nichols paid 4 cents per pound. The total amount in dispute for these 6 loads is $2,510.60. Nichols contends that the 2 loads of melons shipped on June 24, 1988, were rejected at their destination and paid Petitioner 2 cents per pound. There was insufficient evidence to show that these melons were rejected at their destination or that the price received for the melons at their destination minus the 1 cent per pound commission was less than the agreed upon price of 4.5 cents per pound. On the 4 loads of melons shipped on June 25, 1988, load nos. 11291, 11292 and 11294, Nichols contends that the melons were below the quality for which he contracted. Nichols failed to present sufficient evidence to support his contention of low quality or that the price received at destination would have resulted in Petitioner receiving less than the agreed upon price of 4.5 cent per pound. There is no evidence that any of the loads in dispute were federally inspected at their origin or destination. Nichols has refused to pay Petitioner the amount in dispute on the 6 loads of melons shipped on June 24 and 25, 1988.
Recommendation Upon consideration of the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Respondent Jay Nichols, Inc., be ordered to pay the Petitioner, Carl Hiers the sum of $2,510.60. It is further RECOMMENDED that if Respondent Jay Nichols, Inc., fails to timely pay Petitioner, Carl Hiers as ordered, then Respondent U.S. Fidelity & Guaranty Co. be ordered to pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes. Respectfully submitted and entered this 20th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 20th day of March, 1989. COPIES FURNISHED: Carl Hiers Route 5, Box 339 Dunnellon, Florida 32630 Steve Nichols, Vice President Jay Nichols, Inc. Post Office Box 1705 Lakeland, Florida 33801 U.S. Fidelity and Guaranty Co. Post Office Box 1138 Baltimore, Maryland 21203 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 513 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Lab Complex Tallahassee, Florida 32399-1650
The Issue The issues concern the complaint by Petitioner against Respondents for the alleged failure to pay for $125.00 worth of medium zucchini squash also referred to as medium green squash. See Sections 604.15 through 604.30, Florida Statutes.
Findings Of Fact Petitioner sells produce. East Coast purchases produce and resells that produce at wholesale. The transaction which is in dispute here concerns an April 25, 1990 sale of medium zucchini squash. On that date Jerry B. Portnoy, Vice President for East Coast who runs the day to day operations of the company and buys produce spoke with Petitioner. In that conversation, which took place early in the morning, Petitioner stated that he had the squash to sell. Portnoy told Petitioner that he had plenty of that form of produce on hand. Petitioner stated that this was the last picking and that he would give Portnoy a good price. The price that Petitioner mentioned was $2.50 a crate. Mr. Portnoy said that he could use about 100 crates and he reiterated that he had plenty of that type of produce on hand. That comment by Mr. Portnoy met with the remark by Petitioner which was to the effect, that there might be a few additional crates above the 100 discussed. Portnoy said that he did not need any more than 100 crates in that he had plenty of that produce on hand. As Portnoy described at hearing, he felt that he really did not even need 100 crates; however, based upon the past working relationship between the Petitioner and Portnoy he agreed to take 100 crates. Contrary to the agreement between Portnoy and the Petitioner, sometime on the evening of April 25, 1990, Petitioner delivered 236 crates of the squash. No one was at East Coast at its Jacksonville, Florida business location to receive the squash and inspect them. East Coast would not have accepted 236 crates that were delivered if it had known of that number of crates. No one was available to inspect the squash until the following morning. On April 26, 1990, Mr. Portnoy examined the squash and found that some of the product was inferior and was in a state of decay. As a consequence, Mr. Portnoy called the Petitioner on the telephone on that morning and told the Petitioner that the Petitioner had sent too many crates and some of the squash were bad. Nonetheless, Mr. Portnoy told Petitioner that he would work it out as best he could, meaning that he would sell as much of the product as possible. During contact with the Petitioner on the part of East Coast, Petitioner did not ask for a federal inspection. East Coast was able to sell all but 50 crates of the squash as delivered. It submitted payment in the amount of $465 as reflected on the face of the invoice which Petitioner sent to East Coast. That exhibit is Respondent's Exhibit No. 1, admitted into evidence. It reflects that 50 crates were dumped which had they been sold would have been worth $125.00. It is that $125.00 which is in dispute. Mr. Portnoy called the Petitioner after the squash had been sold. That call took place a couple of weeks later. In the course of this conversation the Petitioner said that he did not want to hear about problems anymore and that he wanted to be paid for the full amount of all crates delivered. Mr. Portnoy said that 50 crates had been lost and that the amount being remitted through a check would relate only to those crates that had been sold. This describes the amount remitted on June 15, 1990 set out in Respondent's Exhibit No. 1. Petitioner replied that he did not know if he would cash the check or not. Mr. Portnoy said that the check in the amount of $465.00 was for payment in full. This concluded their business until the time of the complaint filed by the Petitioner. On that facts as reported, there was no agreement to sell more than 100 crates. The additional crates that were sold by East Coast was a gratuitous gesture on the part of East Coast for which Petitioner was paid the full amount. The 50 crates that were not paid for contained inferior products for which Petitioner was not entitled to payment. This speaks to the 50 crates that were dumped which had they been sold would have been worth $125.00.
Recommendation Based upon the consideration of the facts found and the conclusions of law, it is recommended that a Final Order be entered which dismisses the complaint of the Petitioner and relieves the Respondents of any financial obligation to pay the contested $125.00 claim. RECOMMENDED this 8th day of April, 1991, 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 8th day of April, 1991. COPIES FURNISHED: David Browning c/o David Browning Wholesale Produce 234 Church Street Starke, FL 32091 East Coast Fruit Company Jerry Portnoy, Vice President Post Office Box 2547 Jacksonville, FL 32203 James W. Sears, Esquire 511 North Ferncreek Avenue Orlando, FL 32803 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, FL 32399-0800 Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810
Findings Of Fact The Petitioner, Thomas J. Chastain, is an agricultural producer and packer in Arcadia, Florida. The Respondent, C. J. Prettyman, Jr., Inc., is a agricultural broker doing business in Exmore, Virginia. Pursuant to an oral agreement, the Respondent has acted as a broker for agricultural products shipped to him by the Petitioner. (Testimony of C. J. Prettyman, Jr.). The complaint filed against the Respondent alleged a failure to properly package and account for five shipments of cucumbers and/or peppers shipped to the Respondent between November 7, 1978 and December 15, 1978. The first disputed shipment occurred November 7, 1978, and involved the sale of 750 cartons of cucumbers in the amount of $1,250.00 on invoice number 2775. (Respondent Exhibit 1A). These cucumbers were subsequently sold to Whamco, Inc., and shipped to Minneapolis, Minnesota. (Respondent Exhibit 1B). On November 11, 1978, the cucumbers were inspected by the United States Department of Agriculture in Minneapolis and found to require repacking due to decay which caused a $560.55 deduction from the amount paid Respondent by Whamco and a corresponding deduction in the amount due the Petitioner. (Respondent Exhibit 1C). The amount due the Petitioner from the sale of the cucumbers on invoice number 2775 is $689.45. On November 15, 1978, 205 assorted cucumbers were sold by the Petitioner to Wick and Brothers, Inc., a wholesale fruit and produce merchant. (Respondent Exhibit 4). Included in the shipment of cucumbers to Wick were cucumbers belonging to other growers. Wick paid the Petitioner for 300 boxes of cucumbers on November 30, 1978. (Respondent Exhibit 3). The Petitioner, therefore, received payment for 95 boxes of cucumbers owned by another grower for whom the Respondent acted as broker. In order to recoup the monies due the other grower, the Respondent deducted $308.75 from the amount due the Petitioner. (Testimony of Respondent). Similarly, Wick purchased 450 boxes of "super cukes" from Petitioner on November 20, 1978. (Respondent Exhibit 6). Wick, however, paid the Petitioner for 700 boxes of cucumbers on December 7, 1978. (Respondent Exhibit 5). Petitioner was thus paid for 250 boxes of cucumbers which were the property of Respondent or another grower. Again to recoup the monies due another grower, the Respondent deducted $562.50 from the amount due the Petitioner. (Testimony of Respondent). Respondent invoiced 600 packages of large peppers on December 15, 1979, at a price per unit of $8.00. (Respondent Exhibit 2B). On the same day, the Petitioner sent the Respondent a statement invoicing 600 large peppers at $9.00. (Respondent Exhibit 2). The 600 peppers were sold by the Respondent to Weiss Market for $8.00. (Testimony of Respondent). The $8.00 sale price was based on the prevailing market rate. (Testimony of Respondent). Invoice number 2911 was not disputed by the parties at the final hearing.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter an Order finding that the Petitioner is due the amount of $982.09 from the sale of these agricultural products by the Respondent. DONE and ORDERED this 13th day of March, 1980, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Earl Peterson, Chief Bureau of License and Bond Division of Marketing Room 418, Mayo Building Tallahassee, Florida 32301 Mr. Thomas J. Chastain Star Route "A", Box 110 Punta Gorda, Florida 33950 C. J. Prettyman, III Vice President C. J. Prettyman, Jr., Inc. Broad Street Exmore, Virginia 23350 The Travelers Indemnity Company One Tower Square Hartford, Connecticut
The Issue The issue in the proceeding is what amount, if any, is owed by M. G. Ford Produce to Spessard Putnal for two and a half loads of watermelons. A determination of this issue requires a determination of the character of the transaction regarding the watermelons: Was it a "sale", or was it an agreement to "handle" the melons as a broker?
Findings Of Fact Spessard Putnal grows watermelons in Lafayette County and operates out of Mayo, Florida. M. G. Ford owns M. G. Ford Produce Company, a licensed and bonded brokerage business and the successor to his father's business, Malvin Ford Produce. Both S. J. Ridgdill and Rodney Ridgdill own a fraction of the business. The principal office is in LaBelle, Florida; however, other offices are located temporarily elsewhere, including Mayo, during the various growing seasons. The watermelons which are the subject of this dispute are described as follows: Load number 218 This was 44,340 pounds of Charleston Grey watermelons: 28,260 pounds of melons grown by Cory Buchanan from Mayo, and 16,080 pounds of melons grown by Spessard Putnal. The truck left Lafayette County on June 22, 1986, and arrived at A & P Stores in Edison, New Jersey, on June 24, 1986. The load was inspected by an A & P inspector and was rejected for excessive rind rot. The load was then consigned to Eckert Produce, Inc. in Philadelphia on June 25, 1986. Eckert sold the melons for $.75 and $1.00 each, and after deducting its unloading, handling and selling charges ($534.88), paid M. G. Ford Produce $1,057.62. M. G. Ford's accounting to Spessard Putnal and Cory Buchanan which, after deducting freight expense of $1,640.58 and $75.00 handling charge, indicated a net loss of $657.96. The loss was apportioned between the two growers according to their share of the load. Load number 227 This was a full load of Spessard Putnal's Charleston Grey melons; 46,070 pounds. It left by truck on June 30, 1986, and was inspected by a U.S. Department of Agriculture inspector in New York on July 3, 1986. Six per cent damage by "transit rubs" was found, and 7 percent decay. The load arrived at Wakefern Foods in Linden, New Jersey, on July 3, 1986, where it was rejected. The load was then consigned to Eckert Produce Company in Philadelphia on July 7, 1986. A few melons sold for $1.25 each; most sold for $1.00 each. After deducting its various charges ($587.74), Eckert paid M. G. Ford Produce $1,098.51 for the load. M. G. Ford's accounting to Spessard Putnal showed deductions of $1,773.69 for freight and $75.00 for handling, for a net loss of $750.18. Load number 228 This was 43,890 pounds of Spessard Putnal's Charleston Grey melons. The truck left on July 2, 1986, and the load was inspected in New Jersey for a prospective distributor, Anthony Gangemi, Inc. The U.S. Department of Agriculture inspection form dated July 5, 1986, is stamped "Rejected" with notations of internal rind spots, bruising, bacterial soft rot, and "overripe". The load was consigned to Eckert Produce on July 7, 1986. The melons that were not discarded were sold for $1.00 each. After deducting its charges ($545.55), Eckert paid M. G. Ford Produce $1,143.45 for the load. In turn, M. G. Ford deducted freight of $1,645.87 and handling charges of $75.00, and its accounting to Spessard Putnal showed a net loss of $577.42. 1/ The end of the watermelon season in Lafayette County in 1986 was around the Fourth of July. Because of heavy rains and because of the end of the season, M. G. Ford Produce had considerable trouble with rind rot on Charleston Greys by the time they got to the northern markets. John Hull works for M. G. Ford Produce. He inspects the melons in the field and supervises the loading by contract crews. He thought Spessard Putnal's watermelons looked good and would "ride" (go north and pass inspection and be accepted). He told Putnal that he (Putnal) should be able to get at least $.03 per pound. When the two men called M. G. Ford, who was in North Carolina, he told them that the only way he would take the loads was on a consignment basis and that he would pay $.03 a pound or better if they passed inspections. The melons were loaded and their fate is described in Paragraph 3, above. Spessard Putnal claims that the agreement was that M.D. Ford bought his melons for $.03 a pound. He says that he never sells his melons on consignment but is paid "when they cross the scale". He said that the reason he wasn't paid immediately in this case was that M. G. Ford was in North Carolina. He admits that on other occasions he was paid by M. G. Ford according to the prices the melons brought "up the road". Sonya Ridgdill is M. G. Ford's mother and Malvin's widow. She served as bookkeeper, office manager and secretary for Malvin Ford Produce for 15 years and now works with her son's company. She was in the Mayo office when the arrangements were made regarding Mr. Putnal's melons and she could have paid him immediately if that had been the agreement. M. G. Ford Produce both "buys" produce and "handles" (consignment) produce for growers. When the produce is bought, the grower is paid immediately. The company has "handled" melons for both Spessard Putnal and Cory Buchanan. Cory Buchanan did not contest the accounting on his share of load number 218. A negative inspection will not necessarily result in a load being "kicked" (rejected). The market supply and demand also governs whether the load will be sold. As is common in such transactions, the arrangement between Spessard Putnal and M. G. Ford Produce is not reflected in writing. Nor is there evidence of written or verbal consent from Spessard Putnal to the consignment by M. G. Ford to Eckert Produce.
Recommendation Based upon the foregoing, it is recommended that a Final Order be entered finding that no funds are owed by Respondents to Petitioner for the watermelons in question and dismissing Petitioner's complaint. DONE AND RECOMMENDED this 25th day of February, 1987, at Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1987.
