Findings Of Fact The Petitioners in this matter are agricultural producers. Respondent GMS is an agricultural dealer. Petitioners, through their agent, Odis Phillips, contracted to sell a portion of their watermelons to GMS through its agent, J. W. Starling. Neither side controverts that prior to June 25, 1983, the terms of their verbal contract were as follows: The watermelons were to be loaded on the shipper's truck at the field by the grower at the grower's expense; GMS would confirm a firm sale price at the time of delivery; and Settlement would be on the day following the delivery of the melons to the shipper. The price was the local market price paid producers of watermelons by the shippers, which price was generally acknowledged to be one cent per pound less than the price for which the shipper could sell the melons. The above terms were not renegotiated between Phillips and Starling. Immediately prior to June 25, 1983, the market price paid to GMS by shippers had been falling at approximately one cent per pound per day. On or about June 25, 1983, William Ward, Jr., manager of GAS, called Starling and advised him that the watermelon market was falling and they no longer had any confirmed sales. Ward advised Starling that Starling could no longer quote fixed prices to the growers from whom GMS had been purchasing watermelons. This constituted a change from the way these transactions had been handled prior to that date, when the price of the melons was fixed and GMS had a confirmed sale for the melons. After that date, GMS sought to obtain the melons for sale as `rollers." A "roller" is a load of melons shipped without a confirmed purchaser, for which a sale is attempted to be negotiated while the melons are in transit. The loads of melons in question were shipped by GMS as "rollers." Testimony regarding whether the Petitioners agreed to the sale of the watermelons in question as "rollers" or continued to demand a fixed price for their melons is conflicting. After June 25, 1983, Starling was in contact with Phillips and advised him that the market was off and the price was dropping. Starling felt he had advised Phillips that the melons would henceforth be "rollers" and the price contingent upon the sale price. Phillips did not feel that there had been any change, but felt that the price would continue to be based upon local market conditions. It is specifically found that the terms in Case Nos. 83-3013A and 83-3014A remained unchanged. The local market price on June 27, 1983, was six cents per pound. Starling was in contact with Petitioner James E. Hiers at Starling's office on the morning of June 29, 1983. Hiers was functioning as a field supervisor, keeping a record of the number of loads, their weight, the buyer, the price, and what was paid for all loads sold involved in Case No. 83-3015A. Starling testified that he advised Hiers that the price of the watermelons shipped on June 28 and 29, 1983, was not firm but would be based upon the price for which GMS could sell them. Starling testified that he told Hiers the price was contingent upon price when the melons sold. Hiers responded to Starling on June 29, 1983, that he was not selling based upon the sales price for the melons received by GMS but would sell only for a firm price at the rate other brokers were paying producers for melons in the local area. Starling did not clearly state that the melons were "rollers;" however, there was definitely no assent on the part of Hiers to ship the Petitioners' melons as "rollers." Starling testified that he did not quote Hiers a price for the watermelons. Hiers testified that it was his practice not to load melons for shipment until a firm, fixed price for them was quoted by the purchaser. Heirs' testimony was the more credible and supported by others who had purchased melons from him. Each morning during the season, Heirs ascertained the market price for watermelons. His records reflect a price of four to five cents per pound for June 29, 1983, which Hiers took to be an effective price of four cents per pound. This price of four cents per pound was consistent with the local market price for watermelons on June 28 and 29, 1983. After Hiers rejected the new terms tendered by Starling and restated that the terms of sale were firm price based upon local market price, GMS trucks were sent with Hiers to the field for loading. It costs a farmer between two and a quarter and two and a half cents per pound to load and ship watermelons. The price eventually tendered by GMS for the melons in question was three cents per pound, or one cent less than the price quoted by Starling. The following reflects by the case number, the date, weight, and tendered settlement price for each load of watermelons purchased by GMS based upon track reports; Petitioners Exhibits 1, 2 and 3; and evidence of price based upon the testimony and records of the Petitioners: Case No. 83-3013A Date Wght. Local Amount Pound Market Tendered Difference Price by GMS Claimed Total Difference Claimed 06/27/83 40,610 $.06 $.05 $.01 $406.10 06/27/83 43,540 .06 .05 .01 435.40 06/27/83 47,900 .06 .04 .02 958.00 06/27/83 41,410 .06 .05 .01 414.10 06/27/83 40,000 .06 .05 .01 400.00 06/28/83 41,130 .05 .04 .01 411.30 06/28/83 42,610 .05 .03 .02 852.20 06/28/83 40,250 .05 .03 .02 805.00 06/28/83 42,520 .04 .03 .01 425.20 $ 5,107.30 Case No. 83-3014A Date Wght. Local Amount Pound Market Tendered Difference Price by GMS Claimed Total Difference Claimed 06/27/83 47,950 $.06 $.05 $.01 $479.50 06/28/83 42,770 .05 .04 .01 427.70 $ 907.20 Case No. 83-3015A Wght. Price Local Amount Pound Market Tendered Difference by GMS Claimed Claimed Total Difference Date 06/28/83 44,220 $.05 $.03 $.02 $884.40 06/28/83 44,070 .05 .03 .02 881.40 06/29/83 46,450 .04 .03 .01 464.50 06/29/83 41,350 .04 .03 .01 413.50 06/29/83 39,880 .04 .03 .01 398.80 06/29/83 42,100 .04 .035 .005 210.50 06/29/83 40,260 .04 .04 .00 - 0 - 06/29/83 42,420 .04 .03 .01 424.20 $ 3,676.30 In addition to the money already tendered, the Respondents owe the Petitioners the following amounts: in Case No. 83-3013A, $5,107.30; in Case No. 83-3014A, $907.20; and in -Case No. 83-3015A, $3,676.30; or a total of $9,690.80.
Recommendation Having determined that the allegations of the complaint have been established, and having determined that Respondent GMS owes the Petitioners respectively the following sums, it is recommended that the Department of Agriculture and Consumer Services order Respondent GMS to pay the Petitioners the following amounts in these cases in addition to the amounts tendered: (a) in Case No. 83-3013A, $5,107.30; (b) in Case No. 83-3014A, $907.20; and (c) in Case No. 83-3015A, $3,676.30. DONE and RECOMMENDED this 17th day of April, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 17th day of April, 1984. COPIES FURNISHED: Frederick E. Landt, III, Esquire Post Office Box 2045 Ocala, Florida 32678 M. Craig Massey, Esquire 1701 South Florida Avenue Post Office Box 2787 Lakeland, Florida 33806-2787 Glenn Bissett, Chief Bureau of Licensing and Bond Department of Agriculture & Consumer Services Mayo Building, Room 418 Tallahassee, Florida 32301 Robert A. Chastain, Esquire Department of Agriculture & Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture & Consumer Services The Capitol Tallahassee, Florida 32301
The Issue Is Petitioner entitled to $7,433.00, or any part thereof, from Respondent on the basis of a brokered sale of watermelons?
Findings Of Fact At all times material, Petitioner Terry McCully was a first-year independent grower of Sangria watermelons in Jasper, Florida. Respondent is a professional broker of produce. On June 13, 1999, Petitioner and Nolan Mancil, known to Petitioner as a watermelon buyer from Georgia representing Respondent, "walked" Petitioner's sole field. On June 13, 1999, Petitioner and Mr. Mancil agreed that Respondent would pay 10¢ per pound for watermelons from Petitioner's sole field of watermelons. However, Petitioner also understood that ultimately, his payment would be based on whatever the "market price" was, per load. Petitioner had no prior experience with how "market price" is defined or determined. At all times material, Nolan Mancil was acting as an agent of Respondent, and regardless of the extent of the authority actually authorized by Respondent, Mr. Mancil had, with Respondent's concurrence, apparent authority for all agreements reached with Petitioner. According to Respondent's President, Mr. Ward, the standard in the industry is that no value is placed on an agricultural commodity until a final price is determined with the ultimate consumer/retailer. Respondent produced business records tracking each of the six loads harvested from Petitioner's field (including the four loads in dispute) and showing the accepted weights for each load. According to Mr. Mancil, "market price" is "zero," unless some amount is paid by the retailer to the broker on delivery and the amount paid on delivery constitutes "the market price." He denied ever telling Petitioner that their oral contract would use the United States Department of Agriculture National Watermelon Report (USDA Report) to specifically set a daily market price, although he admitted that at a later point in time, under changed conditions (see Finding of Fact No. 19) he had told Petitioner that the USDA Daily Report could be the maximum price. Petitioner conceded that he received the USDA Report from the Department of Agriculture Extension Agent only after a dispute arose and Petitioner had begun to prepare his claim. The undersigned infers therefrom that Petitioner was only aware of this methodology of setting a market price "after the fact." On Monday, June 14, 1999, Nolan Mancil's harvesters and graders entered Petitioner's field. Petitioner agreed to pay for the harvesting by Respondent's deduction of harvesting costs from each load after sale to the ultimate buyer, but at this point Petitioner also expected Respondent to pay him by the load, each load, immediately after sale at the ultimate point of sale (FOB). On Tuesday, June 15, 1999, trucks hired by Mr. Mancil and/or Respondent began removing watermelons from Petitioner's field. On that day, Mr. Mancil indicated that the watermelons being loaded were worth only 8-1/2¢ per pound. Petitioner agreed to the change in the amount to be paid. At some point, Petitioner accommodated Mr. Mancil by getting a truck, driver, and loaders, and by feeding Mr. Mancil's crew members. Petitioner seeks no reimbursement for these accommodations. Respondent took two truckloads away on June 15, 1999. Load #3664 of 46,340 pounds "shipped weight" and 45,830 pounds "accepted weight" were brokered by Respondent to a retailer at 8¢ per pound. Load #3692 of 48,060 shipped weight and 43,392 pounds accepted weight were brokered to a retailer at 9¢ per pound. Respondent's business records show that on the first (undisputed) load, the sale to a retailer was contracted by Respondent at 8¢ per pound, but when the time came to settle- up, the payment was made by Respondent's retail customer at the small melon size (13-plus pounds), not at the medium or large melon size. Respondent's business records further show that the second (undisputed) load was contracted at 9¢ per pound but was ultimately paid-out at the average weight per melon of 15.4 pounds instead of at 19.2 pounds per melon, after an initial rejection by the first buyer. No brokerage fee was imposed by Respondent on either of these undisputed loads, and on each of these loads, Respondent suffered a substantial loss. These losses were not passed on to Petitioner due to their "immediate cash payment" arrangement. Respondent immediately paid Petitioner for both loads at the agreed rate of 8-1/2¢ per pound, less harvesting costs and mandatory government fee. Petitioner does not dispute deduction of the government fee from the first two loads. Indeed, Petitioner's claim does not address the amount, method, or appropriateness of Respondent's payment to Petitioner for these first two loads. Petitioner's claim only addresses the last four loads harvested after June 15, 1999. After the first two loads, Mr. Mancil informed Petitioner that Respondent could no longer pay Petitioner in cash immediately after each load, but would henceforth pay Petitioner within 30 days. There is no dispute that Petitioner reluctantly agreed to this change in the timing of payment. Mr. Mancil claimed that he told Petitioner, either beginning with the third load or sometime between the third and fourth loads, that the USDA Report's daily price would be the highest price Petitioner could be paid by Respondent. According to Mr. Ward, over the four loads in dispute, the price received by Respondent from retailers was 7¢ per pound adjusted downward due to market conditions such as watermelon size being less than expected, smaller watermelons being in less demand, and the watermelons being in poor condition when accepted by the retailer(s). According to Mr. Ward, the net weight of a load is determined by deducting the truck's empty weight from the loaded weight of the truck; then the melons in the truck are counted, and that count is divided into the net weight, to get the average weight per melon. Petitioner maintained that he was never advised by Mr. Ward or Mr. Mancil that the watermelons in the last four loads were the wrong size or that many melons were not good. Mr. Mancil stated that he believed he had indicated to Petitioner that the watermelons in the last four truckloads were actually smaller than the size anticipated when the deal was struck on June 13, 1999, and that the watermelons were of poorer quality. He conceded that he was not sure Petitioner had understood him. There is no dispute that Petitioner's field was rather overgrown or that watermelons could be harvested despite this overgrowth. The overgrowth could have obscured the size and condition of the watermelons until after harvest. After the sixth load, neither Respondent nor Mr. Mancil sent any more trucks. There was never an agreement that Respondent would buy all the watermelons in Petitioner's field. Petitioner found it necessary to obtain trucks himself to haul away and dump the remaining watermelons which were rotting in his field. He seeks no reimbursement for this expense. Upon the foregoing Findings of Fact, I also find that the watermelons in the last four loads were smaller and inferior in quality to what had been expected. On June 16, 1999, 42,140 pounds shipped weight of watermelons were loaded by Respondent from Petitioner's field in Load #3691. Petitioner is claiming 7¢ per pound on the basis of a USDA Report on every pound for $2,879.00, less harvesting costs of $781.00 for $2,098.00. On June 17, 1999, 43,500 shipped weight of watermelons were loaded by Respondent from Petitioner's field in Load #3685. Petitioner is claiming 6¢ per pound on the basis of a USDA Report for every pound for $2,610.00, less harvesting costs of $826.00 for $1,784.00. The same day, 43,620 shipped weight of watermelons were loaded by Respondent from Petitioner's field in Load #3694. Petitioner is claiming 6¢ per pound on the basis of a USDA Report for every pound for $2,617.20, less harvesting costs of $830.00 for $1,787.20. Either on June 20, 21, or 22, 1999 (the dates on exhibits conflict), 43,000 shipped weight of watermelons were loaded by Respondent from Petitioner's field in Load #3702. Petitioner is claiming 6¢ per pound on the basis of a USDA Report for every pound less harvesting costs of $817.00 for $1,763.00. Petitioner bases the price per pound that he is claiming on his Exhibit P-6, the USDA Reports for June 17-18, and 21, 1999. He did not select from those reports the price per largest average weight of Sangria watermelon, but selected the middle or lowest average weight of "other red meat varieties." Except for June 21, 1999, this calculation gives Respondent the benefit of the doubt as to cents per pound for average market price on the respective USDA Reports, but in light of all the other evidence it is not an accurate method of calculating the true market price for the four disputed loads. Although Petitioner considers payment on the first two (undisputed) loads based on accepted weight to be within the parties' agreement and correct, he has not made his calculations of claim on the accepted weight of any of the last four (disputed) loads. Petitioner's calculations of claim also have not addressed the mandatory government fee for any of the last four (disputed) loads, although he considers payment on the first two, (undisputed) loads, for which Respondent deducted the mandatory fee, to be within the parties' agreement and correct. According to Respondent's business records for the four loads shipped after the Mancil-Petitioner re-negotiations of price per pound and discussion on maximum market pricing, these disputed loads were sold to retailers as follows: On June 16, 1999, Load #3691 had a shipped weight of 41,140 pounds and accepted weight of 39,940 pounds. The sale price was $0.055 per pound. The sale amount was $2,196.70. The government fee was $7.99. The harvesting cost was $781.00. A brokerage fee of $399.40 was subtracted, and Respondent's debt to Petitioner was calculated as $1,008.31. On June 17, 1999, Load #3685 had a shipped weight of 43,500 pounds and an accepted weight of 43,280 pounds. The watermelons were originally contracted for retail sale at $.0635 per pound but were refused by the first retailer as undersized. The second, alternative retailer bought these watermelons at a smaller-size market price for melons averaging 18 pounds, instead of 19.5- pound melons, and also made some returns of bad watermelons, so that the sale amount ended-up as $973.80, less a $8.66 government fee, less $826.00 for harvesting, less $216.40 brokerage fee, so that even Petitioner lost $77.26 on the deal. Also on June 17, 1999, Load #3694 had a shipped weight of 43,620 pounds and an accepted weight of 42,848 pounds. The contract sale had been for watermelons averaging 19.3 pounds, and the average size turned to out to be 16.7 pounds, and some of these melons were returned. The ultimate sale amount was $1,692.50, less a government fee of $8.72, less harvesting costs of $830.00, less brokerage fee of $321.36, with Respondent owing Petitioner $532.42. Finally, on or about June 22, 1999, the final load, #3702, had a shipped weight of 43,000 pounds, and accepted weight of 41,157 pounds, for a sale amount of $832.00; a government fee of $8.60; harvesting costs of $817.00; brokerage fee of $200.00; and amount due to Petitioner of $193.60. Again, the contract price of 6¢ from the retailer had been negotiated on melons in good condition of an average weight of 19.6 pounds, and the watermelons actually delivered by Respondent from Petitioner's field averaged 16.8 pounds, and many melons were returned to Respondent based on lack of quality. On the foregoing calculations, Respondent admits to owing Petitioner $1,269.87, rather than the $7,433.00 claimed by Petitioner's calculations. Neither party presented any evidence of an agreement to deduct a brokerage fee or how a brokerage fee was to be calculated. No brokerage fee was deducted by Respondent for the first two loads which are not in dispute, but Respondent actually suffered a loss on those loads which was not passed on to Petitioner (See Finding of Fact No. 14). For the last four loads, the only loads in dispute and the only loads for which a brokerage fee was deducted, the brokerage fee constitutes the only profit made by Respondent on the entire six-load transaction.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture enter a final order requiring Respondent Growers Marketing Service, Inc. to pay Petitioner $1,269.87, plus interest, if any, to be calculated by the Department, and requiring that if Growers Marketing Service, Inc., does not pay the amount specified within 30 days of the final order that its surety, Preferred National Insurance Company, shall be liable to Petitioner for the full amount. DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2000. COPIES FURNISHED: Terry McCully 3245 Northwest 30th Lane Jennings, Florida 33806 William R. Ward, Jr., President Growers Marketing Service, Inc. Post Office Box 2595 Lakeland, Florida 33806 Preferred National Insurance Company Post Office Box 407003 Fort Lauderdale, Florida 33306 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether or not Petitioners (complainants) are entitled to recover $10,258.98, or any part thereof against Respondent dealer and his surety company.
Findings Of Fact Petitioners are growers of watermelons and qualify as "producers" under Section 604.15(5) F.S. Respondent Eddie D. Griffin d/b/a Quality Brokerage is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S. Respondent United States Fidelity & Guaranty Company is surety for Respondent Griffin d/b/a Quality Brokerage. This cause is governed by the claims made in the amended complaint. (Exhibit P-13) That amended complaint sets out the parameters of the claimed amounts as follows: AGREED PRICE PAID PRICE DIFFERENCE CLAIMED 6-13-92 Inv.#573 45,429 lbs. Jub. melons @ .04/lb.$1,816.80 (paid on 41,720 lbs.) Adv. -700.00 NWPB - 9.08 1,107.72 950.46 157.26 6-14-92 Inv.#586 48,060 lbs. Jub. melons @ .05/lb. 2,403.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.61 1,693.39 1,202.79 490.60 6-14-92 Inv.#587 50,610 lbs. Jub. melons @ .05/lb. 2,530.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 10.12 1,820.38 1,304.28 516.10 6-15-92 Inv.#592 44,800 lbs. Crim. melons @ .05/lb. 2,240.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.96 1,531.04 1,153.04 378.00 6-15-92 Inv.#593 46,340 lbs. Crim. melons @ .05/lb. 2,317.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.27 1,607.73 1,144.33 463.40 6-16-92 Inv.#598 47,170 lbs. Crim. melons @ .05/lb. 2,358.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.43 1,649.07 1,177.37 471.70 6-16-92 Inv.#607 48,320 lbs. Crim. melons @ .05/lb. 2,416.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.66 1,706.34 1,223.14 483.20 6-17-92 Inv.#628 1/ 40,890 lbs. Jub. melons @ .05/lb. 2,044.50 (no inv.# provided producer) Adv. -700.00 NWPB - 8.18 1,336.32 .00 1,336.32 6-17-92 Inv.#626 36,690 lbs. Jub. melons @ .05/lb. 1,834.50 (paid on 27,890 lbs.) Adv. -700.00 NWPB - 7.34 1,127.16 688.92 438.24 6-17-92 Inv.#627 37,300 lbs. Jub. melons @ .05/lb. 1,865.00 (paid on 30,500 lbs.) Adv. -700.00 NWPB - 7.46 1,157.54 818.90 338.64 6-17-92 Inv.#642 43,350 lbs. Job. melons @ .05/lb. 2,167.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.67 1,458.83 1,025.33 433.50 6-18-92 Inv.#643 44,150 lbs. Crim. melons @ .05/lb. 2,207.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.83 1,498.67 1,057.17 441.50 6-18-92 Inv.#644 45,060 lbs. Crim. melons @ .05/lb. 2,253.00 Adv. -700.00 NWPB - 9.01 1,543.99 .00 1,543.99 6-18-92 Inv.#646 43,180 lbs. Crim. melons @ .05/lb. 2,159.00 (paid on 38,380 lbs.) Adv. -700.00 NWPB - 8.64 1,450.36 1,211.32 239.04 6-18-92 Inv.645 47,070 lbs. Jub. melons @ .05/lb. 2,353.50 Adv. -700.00 NWPB - 9.41 1,644.09 .00 1,644.09 6-19-92 Inv.#663 43,520 lbs. Crim. melons @ .05/lb. 2,176.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.70 1,467.30 1,032.10 435.20 6-19-92 Inv.#685 44,820 Crim. melons lbs. @ .05/lb. 2,241.00 Adv. -700.00 NWPB - 8.96 1,532.04 1,083.84 448.20 TOTAL DUE $10,258.98 The amended complaint admits that Respondent's deductions for advances and NWPB were appropriate on each load/invoice, and these are not in contention. The amended complaint admits that Respondent has already made the payments to Petitioners, which are indicated. It is only the claimed shortfall on each load that is at issue. At formal hearing, Petitioners discussed a load they claimed they had delivered to Respondent on 6-20-92. They had neither receipts, weight tickets, nor settlement sheets, (invoices) nor payment from Respondent on this load. This "lost load," as the parties described it, is not named in the amended complaint. Therefore, no findings of fact can be made thereon, due to lack of jurisdiction. Petitioner's Exhibit 1 appears to apply to loads 560, 561, 562, and 563, all loads occurring on 6-11-92. That date and those load numbers also are not listed in the amended complaint. Accordingly, no findings of fact will be made with regard to loads 560, 561, 562 or 563, due to lack of jurisdiction. Petitioners delineated two theories of recovery as to the seventeen claims actually named in the amended complaint. Petitioners claimed the right to recover from Respondents due to Respondent dealer's failure to pay for all or some of the poundage delivered by Petitioners to Respondent dealer on the following loads: 6-13-92 #573, 6-17-92 #628, 6-17-92 #626, 6-17-92 #627, 6-18-92 #644, 6-18-92 #646, 6-18-92 #645, 6- 19-92 #685. Petitioners claim the right to recover from Respondents due to Respondent dealer's failure to pay per pound at the rate of one cent below the "wire price" per pound on the following loads: 6-14-92 #586, 6-14-92 #587, 6- 15-92 #592, 6-15-92 #593, 6-16-92 #598, 6-16-92 #607, 6-17-92 #642, 6-18-92 #643, and 6-19-92 #663. For 6-15-92 18-24 lb. average 4.50 - 5.00 cents, few 6.00 26-32 lb. average 4.50 - 5.00 cents, few 6.00 For 6-16-92 18-24 lb. average 5.00 - 6.00 cents 26-32 lb. average 5.00 - 6.00 cents For 6-17-92 18-24 lb. average 6.00 cents, few higher and lower 26-32 lb. average 6.00 cents, few higher and lower For 6-18-92 18-24 lb. average 6.00 - 6.50 cents, "Wire prices" are printed in "spread" form. Evidence was presented (Composite Exhibit P-14), and the parties are agreed, that the following were the "wire prices" at certain times material. Otherwise, there is no evidence in this record concerning amounts or dates of "wire prices." mostly 6.00, few higher 26-32 lb. average 6.00 - 6.50 cents, mostly 6.00, few higher and lower For 6-19-92 18-24 lb. average 6.00 - 6.50 cents, mostly 6.00, few higher 26-32 lb. average 6.00 - 6.50 cents mostly 6.00, few higher and lower Since no "wire prices" were proven up for the days involved in loads 586, and 587, Petitioners are not entitled to recover on their theory of entitlement for those loads. Upon the allegations of the amended complaint and the "wire prices" proven, it appears that Petitioners have already received payment from Respondent dealer at one cent (or better) below the proven low-end "wire price" on loads 592, 593, 598, and 607. Therefore, Petitioners are not entitled to recover on their theory of entitlement for those loads. Petitioners (grower-producers) believed that they had negotiated an oral contract with Respondent dealer to the effect that the dealer would pay Petitioners at the rate of one cent below the "wire price" per pound on those days that Respondent took delivery from them of their watermelons. Respondent testified contrariwise that although such an arrangement was discussed, the parties' final oral agreement was concluded in terms of an excellent quality of every melon, and after negotiations were completed, the dealer understood that the price he was to pay the producers was just the same price per pound he paid all his other producers on any given day. In determining the daily uniform price per pound, Respondent admitted that he used the "wire price" as a guideline, but never explained exactly how the "wire price" constituted a guideline. The Petitioners and Respondent dealer had dealt with one another over a period of years. In past years they had discussed what was to occur if any loads were refused, in whole or in part, by retail buyers at their ultimate destinations. Over the years, the parties had agreed that for loads involving a "small deduct," that is, a small amount of refused melons, Respondent had unilateral authority to informally agree to dump the bad melons or take whatever he could get for the load and pass on the monetary loss to Petitioners. Petitioners conceded that the discretion to take or not take such losses always had been entirely that of Respondent during the parties' several years of past dealing, and that before 1992, whenever an ultimate recipient had refused melons, the "deduct" had been "worked out" this way with no prior notice to Petitioners. In short, by Petitioners' own evidence, it appears that up until the loads at issue in 1992, Petitioners had always simply accepted the Respondent's calculations concerning refusals for quality without requiring proof by way of a federal inspection. Mr. Randal Roberts Sr. testified that in his opinion, any "deduct" over 300 pounds was not "small." However, no evidence defining an industry standard for the relative terms of "small deducts" or "large deducts" was introduced. In light of the parties' standard arrangement over the whole course of their business dealings, it is deemed that Respondent continued to be within his rights in 1992 to unilaterally decide which melons to pay Petitioners for and which melons not to pay Petitioners for where quality became an issue between himself and the ultimate recipients. Petitioners estimated that on a scale of one to ten, the melons they had delivered to Respondent dealer in 1992 were "about a seven" when they delivered them to him, even though Respondent's agents culled out the really bad melons. It may be inferred therefrom that the loads were no better and were probably in worse condition when they reached their ultimate destinations. Respondent testified that he had dumped all or part of the remaining loads in question or reduced the price per pound from that of the "wire price" due to the poor quality of the melons based on complaints or refusals by the recipients when the melons reached their ultimate destinations. These are loads 573, 628, 626, 627, 644, 646, 645, 685, 642, 643, and 663. Although Petitioners adamantly denied that they had ever agreed to rely on federal inspections to determine which melons were bad and which were good, Respondent had gotten federal inspection sheets (R-2) to support his decision to dump all or part of loads 628, 643, 645, 663, and 685. Respondent dealer introduced his business journal (R-3) to show that load 643 was "bad" and load 644 was "dumped" due to poor quality. Respondent dealer introduced his contemporaneous business journal (R- 3) to show that except for loads 607, 643, 644, 663, and 685 he had paid as much to Petitioners per pound as to anyone else on the respective days he had taken delivery. On those loads he had paid Petitioners less than some other producers whom he dealt with on those days, but contended that he had reduced the price per pound paid to Petitioners on those days on the basis of poor quality, too. Nonetheless, 607 was paid at least at one cent below the "wire price" (See Finding of Fact 14), 643 was shown bad by inspection, 644 was dumped in its entirety per the dealer's journal, and 663 and 685 were shown bad by inspection. Upon the foregoing, it is determined that Respondent was within the parameters of his standard dealings with Petitioners where he reduced the price per pound of loads 643 and 663 on the basis of quality, just as he was within his clear unilateral authority and discretion to dump or discard whole melons from loads 628, 644, 645, and 685. After accounting for the foregoing loads, that leaves only loads 573, 626, 627, and 646 left in issue as to poundage and only load 642, (for which Respondent paid 4 cents per pound instead of one cent below the "spread" of the "wire price" for that day) at issue as to price per pound. As to each of these loads, Respondent produced business records wherein he had made contemporaneous notations concerning the quality complaints and/or number of melons rejected by the ultimate recipients. (R-2) Respondent did not pay Petitioners anything on load 645 because of freight deductions and Respondent also made freight deductions on some other invoices. There is no evidence in this record regarding how the parties had negotiated who would bear the ultimate cost of the freight. However, the Petitioners have not proven any entitlement to recover these charges which Respondent advanced and paid. Likewise, Petitioners also have not set out any trail by which the undersigned can trace any mathematical errors on any loads/settlement sheets to the Respondent dealer over Petitioners. Under the parties' standard mode of doing business, Respondent had clear unilateral authority and discretion to dump or discard whole melons for quality and pay Petitioners nothing for the whole melons dumped or discarded in loads 573, 626, 627, and 646. Upon the foregoing, it is determined that Respondent was also within the parameters of his standard dealings with Petitioners in not paying full negotiated price per pound on load 642 where some lesser price per pound could be negotiated with the ultimate recipient as to quality.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture enter a final order dismissing all named claims against Respondents. RECOMMENDED this 7th day of July, 1993, 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 7th day of July, 1993.
The Issue Whether Respondent owes Petitioner $41,783.69 as alleged in the complaint filed on December 2, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Lenard Powell (Petitioner), is a watermelon farmer in Lake Panasoffkee, Florida. Respondent, Joe Marinaro (Respondent), is a licensed dealer in agricultural products doing business as Atlantic Fruit Company in Fort Pierce, Florida. He has been in the business for more than forty years and has an unblemished record. As a licensed dealer, Respondent is subject to the regulatory authority of the Department of Agriculture and Consumer Services (Department). Respondent has posted a bond written by Reliance Insurance Company, as surety, to assure proper accounting and payment to producers such as Petitioner. In a complaint filed with the Department on December 11, 1996, Petitioner alleged that he entered into an agreement with Howard Bailey (Bailey) on behalf of Tom Lange Company (Lange), a distributor of fresh fruits and vegetables, to market his 1996 watermelon crop. Under that alleged agreement, Lange would advance "up front seed money, $900.00 per trailer for labor advance, when road truck crossed the scales, [and] supply the boxes and cartons which were to be deducted from the final payment." According to the complaint, Petitioner was to pay Lange and Bailey "a fee of one cent per pound on seeded varieties and two cents per pound on seedless watermelons." The complaint goes on to allege that in May 1996, Bailey advised Petitioner that he no longer represented Lange, but now represented Respondent, and "the deal was still the same." Finally, Petitioner has alleged that the final summary from Respondent "had inconsistent weights, document numbers and prices" and that Petitioner's calculations showed an unaccounted for balance of $45,506.97. As amended at hearing, Petitioner now claims he is owed $41,783.63. In his Amended Response, Respondent contends that even though the agreement called for him to have an exclusive right to sell Petitioner's 1996 crop, a portion of the crop was sold directly by Petitioner or Bailey to third parties without Respondent's knowledge. He further contends that the watermelons were to be sold on a twenty percent of gross proceeds commission basis rather than the one and two cents per pound commission basis alleged in the complaint. Respondent also asserts that some of the watermelons were dumped because of spoilage and that a part of the bins or cartons were packed with oversize watermelons, thus "short-counting" the number of melons in each container. This resulted in the buyers making deductions upon delivery of the produce. After taking these factors into consideration, Respondent claims that no money is owed. The Agreement It is customary in the watermelon business to enter into agreements to buy and sell watermelons without a written contract. Therefore, it was not unusual for the parties to base their agreement on a handshake or verbal understanding. Bailey is a "part-time watermelon broker," farmer, and owner of Bailey Farms, Inc., in Schoolcraft, Michigan. Although he says he has been licensed as a dealer in the past, Bailey had no license or bond when these events occurred. Bailey has had dealings with Respondent since around 1989. In 1995, Bailey was involved in a "relationship" with Lange in which they worked "joint deals" splitting profits and commissions. Under that relationship, Bailey would arrange to market a grower's watermelons through Lange's customers and split the profits or commissions with Lange. In November 1995, two Lange representatives (Phil Gumpert and Michael E. Smith) and Bailey met with Petitioner in Wildwood, Florida, for the purpose of exploring the possibility of marketing Petitioner's 1996 crop. Under the arrangement proposed by Lange, Petitioner would receive the proceeds from the sale of his watermelons handled by Lange, less a commission, less the usual and customary weight differences between the gross weight shipped and the net weight paid by buyers, less the advances made by Lange for plants, seeds, materials and supplies, and less deductions for non-conforming watermelons in general, improper sizing, inaccurate counts in bins, and oversizing in cartons. As to the amount of commission, Lange proposed to charge twenty percent of gross sales proceeds. Bailey acknowledges that Petitioner initially balked at paying a twenty percent commission on the ground that amount was too high but contended he eventually agreed to that figure when it was explained there was no incentive for the dealer to get a good price for the watermelons if the dealer was paid a flat one or two cents per pound commission. Petitioner contends, however, that he did not agree with this amount and instead wanted only to pay one cent per pound for seeded watermelons and two cents per pound for seedless watermelons. His version of the events is accepted as being the most credible, and thus it is found that, as of November 1995, there was no agreement on that issue. It is noted that except for the amount of commissions, Petitioner basically agreed with all other terms and conditions discussed by Lange and Bailey. In view of the lack of agreement on the amount of the commission, there was no meeting of the minds by the parties. This was confirmed by Michael Smith, a Lange representative, who described the meeting as simply "exploratory" in nature and nothing more. Sometime after the meeting, Lange sent Petitioner an unsigned copy of a "Marketing Agreement" which contained the terms under which Lange would advance moneys to Petitioner in return for an exclusive right to sell his 1996 crop. The agreement was sent to Petitioner merely "as an example" in the event the parties might reach an agreement. It contained terms and conditions pertaining to commission, grower advances, and other relevant considerations. Paragraph 7 of the agreement called for the dealer to receive "a commission equal to twenty percent (20%) of the final gross selling price of each shipment." After receiving the agreement, Petitioner consulted his attorney, who at that time was his father-in-law. The attorney lined out a part of the provision relating to commissions, and in paragraph 8, he inserted a requirement that the dealer provide Petitioner with a "verified" accounting of the sales. However, the amended agreement was never signed by Petitioner nor returned to Lange or Bailey. Petitioner did not immediately notify Lange orally or in writing that he was dissatisfied with the terms described in the agreement. It was his intention, however, to further negotiate the amount of the commission. A short time later, he contacted Bailey regarding his disagreement with the amount of commission and was told by Bailey, "don't worry about it." Based on this conversation, Petitioner assumed that only a one or two cents commission would be paid and that an agreement had been formed. Bailey never conveyed Petitioner's concerns to Lange. Events Prior to the Harvesting of the Crop Petitioner received and accepted advances of funds for plants, seeds, and materials to produce the watermelons. While the precise amount is not known, it approximated around $40,468.00. A part of these moneys initially came from Bailey and the remainder from Respondent. Petitioner used these funds to plant and harvest his 1996 watermelon crop. In March 1996, Bailey learned that because the venture "was not attractive," Lange was no longer interested in marketing Petitioner's watermelons. Indeed, in his deposition testimony, a Lange representative suggested that an agreement between Lange and Petitioner had never been reached before Lange bowed out of the picture. In any event, because Bailey had cash invested in the venture, and he was in dire need of a new broker with financial backing and customers to buy the watermelons, he contacted Respondent to ascertain if he was interested in the venture. Among other things, Bailey represented that in return for Respondent providing up-front money to Petitioner, Respondent would have an "exclusive right of sale" and they would share in a twenty percent commission. It is noteworthy that Bailey did not show Respondent a copy of the Marketing Agreement previously sent by Lange to Petitioner, and he did not tell Respondent that Petitioner would pay a commission of only one cent per pound for seeded watermelons and two cents per pound for seedless watermelons. Based on Bailey's less than candid representations, Respondent agreed to take Lange's place in the venture. Under their arrangement, Bailey and Respondent had a community of interest in a common purpose, that is, the sale of Petitioner's crop. By virtue of the exclusive right of sale, they had joint control or right to control to whom they sold the watermelons. In addition, the two had joint control or right to control a checking account established in Michigan for that venture. They intended to share profits by splitting the commissions, and they likewise intended to share in any losses. Finally, they both expended their knowledge, time, labor, and skill in furtherance of the joint venture. Around April 1996, Bailey contacted Petitioner and advised him that Lange was no longer in the transaction, but that Respondent's company, Atlantic Fruit Company, would stand in Lange's shoes and handle the watermelons on the same basis as they had previously agreed. Because Respondent had a good reputation and a sufficient bond, Petitioner agreed to the substitution of dealers. Petitioner and Respondent did not discuss the terms and conditions of the agreement, including the amount of commissions to be paid, since they both relied on the representations of Bailey. The Sale of the Produce In all, fifty loads of watermelons were shipped from Petitioner's field at the direction of either Respondent or Bailey. Because Petitioner never received bills of lading for two of those shipments, and he has abandoned a claim as to those two, only forty-eight shipments are in dispute. Without Respondent's knowledge, Petitioner sold eight loads of watermelons directly to third parties and received a total of $21,069.70. These proceeds were used by Petitioner to pay labor costs. Bailey knew and agreed to the third party sales. Bailey sold thirteen loads of watermelons without Respondent's knowledge. On these loads, Bailey was paid a commission of one cent per pound of the weight of the melons, which amount is consistent with the parties' agreement. Bailey did not split the commission he received on these loads with Respondent. These transactions reinforce the view, as more fully discussed below, that Bailey knew that Petitioner had agreed to a different commission basis than the one he described to Respondent. Petitioner kept track of the harvest by making notes in a "log book." The log book contains the date, variety of watermelon, net weights, and price per pound that he was to receive. The book was prepared contemporaneously. In addition to the log book, Petitioner was given a copy of a bill of lading for each truck load of watermelons that was shipped. The bills of lading indicated the weight, variety, broker, and destination and were prepared on forms of either Atlantic Fruit Company or Bailey Farms, Inc. Petitioner's claim is comprised of five categories. First, he is claiming the difference between the twenty percent commission charged by Respondent and the one or two cents commission to which he agreed. Second, he is claiming the value of the weight difference between what the buyer received and what was shipped from his fields and recorded on the bills of lading. Third, he is claiming the difference between what the buyer paid per pound and the price per pound Petitioner reflects in his log book. Fourth, Petitioner is claiming the amount the buyer deducted from the purchase price because of spoilage or short counts. Finally, Petitioner claims the unaccounted weight shortage in watermelons shipped by Bailey to Bailey's cooler in White Springs, Florida. Each of these categories will be discussed below. Twenty percent commission Petitioner first contends he is owed the difference between a twenty percent commission charged on thirty-five shipments by Respondent and the one and two cents per pound commission to which he agreed. The total amount in controversy is $14,503.18. The underlying documentation for these loads is found in Petitioner's Exhibits 1, 5, 7, 9, 10, 12, 13, 15-20, 23- 28, 31, 33-39, and 41-48. The evidence established that, consistent with Petitioner's claim, it is customary in the industry that brokers receive a one cent per pound commission for the sale of seeded watermelons and a two cents per pound commission for the sale of seedless watermelons. While Bailey contended at hearing that some growers were paying a twenty percent commission on seedless (but not seeded) watermelons, he could not identify any such growers. Further, in deposition testimony, Lange acknowledged that it had no customers in Florida in 1996 using that commission basis. Finally, on thirteen loads sold directly by Bailey to third parties, he was paid a one cent per pound commission, which is consistent with Petitioner's position. Given these considerations, the undersigned is persuaded that Petitioner never agreed to a twenty percent commission arrangement. Therefore, Petitioner is only obligated to pay a one cent per pound commission on seeded watermelons and two cents per pound on seedless watermelons sold by Respondent. Petitioner is entitled to reimbursement for the difference between a twenty percent commission and the agreed upon amount. Since it was not shown that Petitioner's suggested amount of $14,503.18 should be modified if adjustments to other claims are made, that amount is found to be appropriate. This amount, however, should be offset by the commission which Respondent should have received from Petitioner for the sale by Petitioner of eight loads of watermelons to third parties. This is because those sales contravened the parties' agreement that Respondent had an exclusive right to sell all of Petitioner's 1996 crop since he had advanced the money to produce and harvest the crop. While Respondent is also entitled to share in the commission received by Bailey for thirteen loads sold by Bailey to third parties without Respondent's knowledge, Respondent's remedy is against Bailey, and not Petitioner. Buyer deductions Petitioner contends that he is owed $7,121.99 for miscellaneous deductions improperly made by the buyers. In this case, the buyers made deductions for short counts, that is, there were fewer watermelons in a bin or carton than are normally packed in a standard size carton or bin. The underlying documentation for this portion of the claim is found in Petitioner's Exhibits 15, 17, 24, 25, 28, 29, 36, 38, 39, 41, and 43-46. For the following reasons, this claim is found to without merit. The custom and usage in the industry is for the grower to provide good and marketable quality watermelons at the size and state of maturity required by the buyers. Petitioner experienced harvesting problems, and his watermelons were too large, resulting in improper sizing, inaccurate counts in bins, and oversizing in cartons. This ultimately affected the number that could be packed into a carton or bin and resulted in many containers having fewer watermelons than are normally packed. Under these circumstances, the buyers made deductions for non-conforming watermelons. Petitioner argues that he should have been consulted by Bailey or Respondent and allowed to request a government inspection each time a buyer found a non-conforming load. The evidence shows, however, that this would have been impractical, time-consuming, and futile since an inspection would simply confirm that there was a short count in the bins. Moreover, given the time of the year (June 1996), inspections may well have caused additional spoilage since loads would remain unpacked in the truck in the hot weather until a government inspector became available. Then, too, the inspection process would tie up the facilities of the buyer until the process was completed. Weight differences Petitioner next contends that he is owed $5,064.23 for the difference in weight shown on the bills of lading and the weight the buyer received. In other words, on thirteen shipments, the delivered weight was less than the weight shown on the bill of lading. These shipments are documented in Petitioner's Exhibits 2, 4, 6, 8, 9, 11, 14, 16, 21, 22, 30, 32, and 40. The usual and customary practice in the industry is for the buyer to pay for the delivered weight of watermelons and not the shipped weight. In this case, most of the weight differences occurred with respect to bulk load shipments of watermelons. The evidence shows that it is not unusual for bulk load shipments to have weight differences of up to 2,000 pounds. For differences of more than 2,000 pounds, the standard practice is for the broker to contact the grower, advise that there is a problem, and ask if the grower desires a government inspection. The shipments identified in Petitioner's Exhibits 2, 6, 8, 11, 14, 22, 30 and 32 had weight differences of less than 2,000 pounds and therefore were not unusual. On the remaining five loads, however, Petitioner was not told that there was a problem, nor was he asked if he wanted a government inspection. This was contrary to industry practice. Accordingly, as to the shipments identified in Petitioner's Exhibits 4, 9, 16, 21, and 40, Petitioner should be compensated for the difference between the delivered weight and the bill of lading, or $4,420.53, less any commissions due Respondent. Log price differences Petitioner next contends that he is entitled to $7,489.55 for the price difference between the log book price and the price paid by the buyer. In other words, he is contending that he was guaranteed a certain sales price, but the produce was sold for a lesser amount. To determine the amount allegedly due, Petitioner multiplied the difference between his log book price per pound and what the buyer paid per pound times the weight received by the buyer. The standard practice in the industry is that a broker or dealer does not guarantee a price for the grower when the produce is being handled on a commission basis. The dealer is simply obligated to make a "best effort" to get the top price back to the farmer. This industry practice was incorporated into the Marketing Agreement, and Petitioner was aware of this industry standard. Although Petitioner may have been led to believe by Bailey that he would receive a specified amount per pound on some future loads, and Petitioner then recorded that amount in his log book, there was no way that such a price could be guaranteed until the produce was actually sold to the buyer. Accordingly, Petitioner is only entitled to be paid the amount for which the watermelons were sold. Therefore, this portion of his claim should be denied. Cooler loads Finally, Petitioner has claimed reimbursement in the amount of $7,513.74 for 47,798 pounds of watermelons shipped to a cooler in White Springs, Florida, for which he alleges he never received any compensation. The underlying documents for this claim are found in Petitioner's Exhibits 49 through 55. Because some watermelons were ripe in the field but still unsold, and Bailey did not want them to spoil, he shipped seven loads to a cooler in White Springs for storage for delivery on future sales. Bailey had leased the cooler for just this purpose. The total weight shipped from Petitioner's farm to the cooler was 271,464 pounds. The total weight sold from the cooler was 213,666 pounds, or a difference of 57,798 pounds. Through no fault of Bailey, however, some of the produce became spoiled and had to be dumped. According to Bailey, at least 40,000 pounds or more were dumped. However, the individual who was in charge of the cooler, William G. Poucher, estimated the amount to be no more than 10,000 pounds. Poucher's testimony is accepted as being more credible on this issue. This left approximately 47,798 pounds of unaccounted watermelons, for which Petitioner should be compensated. Petitioner apparently calculated his claim by multiplying the unaccounted weight (47,798) by an average price of around fifteen cents per pound to arrive at a figure of $7,513.74. This yardstick has not been challenged, and it is accordingly found that Petitioner is owed $7,513.74, less any commissions due Respondent. Respondent has contended that because the cooler movements were never disclosed to him by Bailey and Petitioner, he should not be held liable for any missing produce. However, the shipments were made at the direction of Respondent's agent and partner, Bailey, and thus he should be accountable for the actions of his agent/partner. Respondent also suggests that the 47,798 pounds of unaccounted watermelons were non-conforming produce unable to be sold. The more credible evidence suggests otherwise.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Affairs enter a final order determining that Respondent owes Petitioner the moneys discussed in paragraph 44. In the event payment is not timely made, the surety should be responsible for the indebtedness. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day 18th of November, 1997. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Felix M. Adams, Esquire 138 Bushnell Plaza, Suite 201 Bushnell, Florida 33516 Richard D. Sneed, Esquire 1905 South 25th Street Suite 206, Mardi Executive Center Fort Pierce, Florida 34947 Nick Cerulli, Esquire Bond Claim Department Reliance Insurance Company 4 Penn Center Plaza Philadelphia, Pennsylvania 19103 Richard D. Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue in this case is whether Petitioner is entitled to payment in connection with the sale of watermelons in June, 1992.
Findings Of Fact Petitioner grows watermelons. He has only done business with Respondent Jim Rash, Inc. (Respondent) in 1991 and 1992. In both of those years, Petitioner was responsible for the hiring of the crews to pick the melons and load the trailers. Respondent obtained receivers who supplied the trailers and then drove them to the markets, which are typically up north. In 1991, Respondent paid for two of the seven loads at the weighing scales and the remainder a few days later. It is unclear whether the latter payment was made before the shipments were received by the wholesalers and retailers from the shippers or receivers. In 1991, as in 1992, the parties maintained no documentation indicating when Respondent became liable for payment to Petitioner. The parties agree that the subject sale was not a sale on consignment. The price of the watermelons was fixed. Petitioner testified that the sale was to Respondent and complete once the weighing was completed and the final price could be calculated. Petitioner might allow a few days to pass before payment, but this, according to Petitioner, was only a convenience to Respondent. Respondent's representative testified that the role of Respondent was to find receivers who shipped the melons to wholesale or retail markets. If the melons were rejected there, then Petitioner was not due payment for the rejected melons. Perhaps the major problem for the parties is that 1992, unlike 1991, was a poor year for watermelon sellers. Unfortunately, the parties did not document which of them was to bear the risk of loss due to poor market conditions, or even due to substandard watermelons in terms of size or quality. Although the loading was performed by persons hired by Petitioner, Jim Rash, who died in December, 1992, supervised the loading of the melons at Petitioner's farm. He could note size discrepancies relatively easily. Although Respondent's representative testified that his late brother accepted the melons under protest, this testimony is not credited. Without Petitioner's consent, Mr. Rash evidently decided to market the melons as a premium, relatively small variety known as Sangrias, which they are not. However, Petitioner admitted that he should not be paid for watermelons that are of substandard quality. He did so when he admitted that Respondent's claim on spoiled or overripe watermelons would be a different matter if he had had a USDA inspector certify that the melons were bad. Although Mr. Rash took some field samples, he could not have as readily determined the condition of the watermelons as he could have determined their size. Petitioner has proved that Respondent was liable for payment of all melons loaded on the trailers except for those that were of deficient quality. In this case, between June 22 and 28, 1992, Petitioner sold nine loads to Respondent under the above-described terms. The total due Petitioner was $18,802.20, of which Respondent paid all but $5175.80. The only load that was rejected due to the watermelons' condition, rather than size, was the one in which Petitioner was underpaid by $2240.80. The purchaser in Chicago rejected these watermelons on June 26, 1992--two days after Petitioner sold them--because they were overripe and bruised.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner the sum of $2935. ENTERED on March 30, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 30th day of March, 1993. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Sonny Chesnut, pro se Route 1, Box 658 Bonifay, FL 32421 Earl M. Rash Post Office Box 1180 Dundee, FL 33838 Legal Department Fidelity & Deposit of Maryland Post Office Box 1227 Baltimore, MD 21203
The Issue The issues that were considered in the course of the hearing were those related to a claim by the Petitioner of entitlement to receive an additional $5,581.00 in proceeds related to the sale of watermelons to J. R. Sales, Inc. In this case Petitioner has alleged that the Respondent J. R. Sales, Inc. in the person of its representative, one Carr Hussey, had agreed to pay a fixed price of four cents per pound for large grey watermelons and 3.5 cents per pound for medium grey watermelons and that four cents per pound was due the Petitioner for the delivery of large jubilee watermelons. It is further alleged that those prices were not paid. If the Petitioner's assertions are correct, the additional amount owed would be $5,581.00. In reply Respondent J. R. Sales, Inc. denies the claim of $5,581.00 and in its defense states that all money due and owning to the Petitioner has been paid.
Findings Of Fact Petitioner, Earl Dicks, is a farmer in Columbia County, Florida. In 1984 Petitioner grew two varieties of watermelons in Columbia County for the purpose of selling those crops commercially. Those watermelon varieties were greys and jubilees. As of June 21, 1984, Petitioner had not sold his crop of watermelons. On that date Petitioner was introduced to Carr Hussey, President of J. R. Sales, Inc. This introduction was made by another farmer, one Doyle Ottinger. The purpose of this introduction was to ascertain whether Hussey would be interested in purchasing the watermelons which Petitioner had available for sale. J. R. Sales, Inc. is a company which purchases watermelons in Florida for delivery and further sale in markets outside of Florida. Following the introduction of the Petitioner and Hussey, those two gentlemen, Ottinger and Petitioner's son, Edward Dicks, went to see Petitioner's grey watermelon crop in Columbia County. Prior to arriving at the field, no discussion had been entered into between the Petitioner and Hussey as to price. While at the field Petitioner offered to sell the entire field of watermelons, and Hussey declined the purchase. At that juncture Hussey was not aware of any particular market in which he might place the Petitioner's watermelons. Hussey did indicate that if he were able to find a market for those crops, he would pay Petitioner the fair market value per pound for those watermelons on a given day. He further stated that the fair market price on June 21, 1984, was four cents a pound for large and 3.5 cents a pound for medium greys. The market price considerations at work, as Hussey envisioned them, had to do with the market conditions in New York, New England and Canada, places where the watermelons would be delivered. It also was important that the watermelons be delivered prior to July 4, 1984. The importance of this date had to do with the demand for watermelons for retail purchase prior to July 4, 1984, and a softening market immediately subsequent to that date. The discussion as to price was made in the presence of Petitioner, his son, and Hussey. There was no other discussion concerning the purchase price of the grey variety of watermelon, and no written document evidences this oral discussion of price. Following the conversation of June 21, 1984, in which price was discussed between the Petitioner and Hussey, the grey watermelons which Petitioner had in Columbia County were available for harvesting. One or two days after this conversation, the first loads of watermelons were harvested. Although Petitioner believes that 17,000 pounds of medium watermelons were harvested with the balance of the watermelons taken on that day being large watermelons, it is found that the 17,000 pounds related to large watermelons with the balance being medium watermelons. This pertains to Petitioner's Exhibit Number 1 admitted into evidence which contains the composite invoices for those loads together with poundage and price. Seventeen thousand pounds relates to the large at 3.5 per pound with the balance of the weights pertaining to mediums at three cents per pound. The net amount paid after deducting the cost of harvesting was $3,085.78. On July 2, 1984, additional medium and large grey watermelons were harvested from the Petitioner's Columbia County fields, through J. R. Sales, Inc. A copy of the composite invoices related to the latter, together with a description of the sizes, weights, and prices paid with deduction of harvesting cost, may be found in Petitioner's Exhibit Number 3 admitted into evidence. Price paid was 2.5 cents per pound for medium greys and three cents per pound for large greys. These watermelons were watermelons which would not have arrived at J. R. Sales' markets in time meet the July 4, 1984, peak sales period. The total amount paid for this July 2, 1984, harvest of greys was $5,104.75. 6..Watermelons purchased from the Petitioner had to be placed in markets other than those normally served by J. R. Sales, Inc. In the period June 23 through June 25, 1984, J. R. Sales, Inc. bought watermelons from other farmers in the growing area and paid prices for large greys which varied from three cents to 3.5 cents per pound. The price being paid for medium greys in that time frame was three cents per pound, to a farmer other than Petitioner. In the same sequence of days, 3.5 cents per pound was paid for a purchase of large jubilees from another farmer. On the subject of large jubilees, Hussey had been shown a field of jubilee watermelons that were grown by Petitioner in Columbia County. When shown the melons, he indicated that he was not interested in purchasing them. Nonetheless, J. R. Sales, Inc. harvested large jubilee watermelons from that field and paid $1,529.15 for them. Payment was made to Petitioner at a rate of three cents per pound less harvesting cost. Petitioner's son was aware of this harvesting of the large jubilees. The composite invoices related to the large jubilees may be found in Petitioner's Exhibit Number 2 admitted into evidence, a copy. This document shows the invoice numbers, the size, the price per pound and weight together with the gross price less harvesting cost and the net payment price. These watermelons were harvested on June 28, 1984. Even though there was no discussion as to price of the jubilees, Petitioner was of the opinion that four cents a pound for large jubilees should be the price, a price never agreed to by J. R. Sales, Inc. Sherod Keen, another individual who brokered and purchased watermelons in the area of Columbia County, Florida, in 1984 gave testimony. His testimony established that in the period June 21 through June 28, 1984, he was paying farmers a price between 3.5 cents to four cents per pound for medium greys and four to 4.5 cents per pound for large greys. On July 2, 1984, Keen was paying 3.5 to four cents for large greys. Keen agreed with Petitioner and Hussey that the cutoff date prior to July 4, 1984, is critical in terms of the price to be paid, in that watermelons delivered to the market prior to July 4, 1984, would bring a better price than those prices immediately following July 4, 1984. Keen sells in places such as Florida, Maine and Wisconsin. Keen was not interested in purchasing the watermelons which Petitioner sold to J. R. Sales, Inc. Hussey, Keen and Ottinger established through their testimony that the prices for watermelons varied day to day within the relevant time frame, June and July, 1984.
Findings Of Fact Petitioner, Am-Pro Distributors, Inc., d/b/a Am-Pro of Florida (hereinafter referred to as "Am-Pro"), is a producer-broker of watermelons. Keith Warren has been the chief operating officer of Am-Pro at all times pertinent to this proceeding. Respondent, Brown's Produce, Inc. (hereinafter referred to as "Brown's"), is also a watermelon producer-broker. Brown's is located in Gilchrist County, Florida. Jerry Brown has been Brown's chief operating officer at all times relevant to this proceeding. In early 1994, James Dukes informed Mr. Warren that he was interested in purchasing watermelons. Mr. Warren was concerned about selling watermelons to Mr. Dukes because of doubts about whether Mr. Dukes would pay for the watermelons. When Mr. Warren told Mr. Dukes that he would not sell watermelons to him, Mr. Dukes mentioned Mr. Brown. Subsequent to Mr. Warren's conversation with Mr. Dukes, Mr. Warren received a telephone call from Mr. Brown. Mr. Brown informed Mr. Warren that he had been doing business with Mr. Dukes. Mr. Brown also told Mr. Warren that he did not have sufficient watermelons to supply Mr. Dukes. During the telephone conversation, Mr. Brown told Mr. Warren that, if he would send watermelons to Mr. Dukes as requested, he would pay for the watermelons. Mr. Warren told Mr. Brown that he would send the watermelons to Mr. Dukes, but that he would look to Mr. Brown for payment and not Mr. Dukes. Mr. Brown agreed. The agreement between Mr. Brown and Mr. Warren was not reduced to writing, consistent with industry practices. Nor did Mr. Brown or Mr. Warren agree on the amount of watermelons that were to be sent to Mr. Dukes. Watermelons were first shipped to Mr. Dukes on or about April 20, 1994. A total of nine shipments of watermelons were made to Mr. Dukes. The following shipments of watermelons were made to Mr. Dukes during April of 1994: DATE AMOUNT CHARGED April 20: $7,272.60 April 26: 7,139.20 April 27: 7,484.40 April 28: 5,909.50 April 28: 6,468.65 April 29: 6,551.20 On or about April 30, 1994, Mr. Warren decided not to send any further shipments of watermelons to Mr. Dukes because no payment had been made for the April shipments. Mr. Warren telephoned Mr. Brown about the lack of payment. Mr. Brown indicated that he would send some money and that he would get Mr. Dukes to send money directly to Mr. Warren that Mr. Dukes owed him. Mr. Brown asked Mr. Warren to continue sending watermelons to Mr. Dukes. Shortly after speaking to Mr. Brown about the nonpayment for watermelons sent to Mr. Dukes, Mr. Warren received three checks from Mr. Dukes. The checks were dated May 2, 1994. The total amount paid by Mr. Dukes was $10,000.00. These payments were credited against the indebtedness for watermelons shipped to Mr. Dukes. Mr. Warren informed Mr. Brown that he had received partial payment. Mr. Brown asked Mr. Warren to send more watermelons because he still did not have sufficient melons to supply Mr. Dukes. In reliance on Mr. Brown's statements, made additional shipments of watermelons to Mr. Dukes during May of 1994. The following shipments of watermelons were made to Mr. Dukes: DATE AMOUNT CHARGED May 2: 5,913.30 May 3: 4,620.60 May 3: 3,780.00 A total of $55,139.45 was invoiced for watermelons shipped to Mr. Dukes. The evidence failed to prove whether invoices for the individual shipments of watermelons to Mr. Dukes were provided to Mr. Brown. Invoices accepted into evidence are addressed to Brown's and J.B. Farms, Inc. Those invoices, however, were generated by an office of Am-Pro located in Plant City, Florida. The evidence failed to prove that the invoices were actually transmitted to Browns. The first written confirmation of the shipments was sent on or about May 21, 1994. Mr. Brown was, however, verbally informed of the shipments by Mr. Warren. Mr. Brown subsequently paid $20,000.00 to Am-Pro by check dated May 18, 1994. The payment was made by Mr. Brown through J.B. Farms, Inc. The payment was credited against the remaining indebtedness of $45,139.45, leaving a balance of $25,139.45. Mr. Warren made additional requests to Mr. Brown for payment of the remaining indebtedness after the $20,000.00 payment. Mr. Brown told Mr. Warren that additional payments would be made. During late May of 1994 or early June of 1994 Mr. Brown first informed Mr. Warren that he would not pay any further amount of the indebtedness for watermelons shipped to Mr. Dukes. On or about May 21, 1994, Johnna Thompson, an employee of Am-Pro, spoke with Mr. and Ms. Brown about the outstanding debt for watermelons shipped to Mr. Dukes. Ms. Thompson was asked to send a summary of the amounts invoiced for the watermelons. Ms. Thompson sent a summary of the watermelons shipped during April and May of 1994 by fax to Ms. Brown by Johnna Thompson. The check for $20,000.00 received by Am-Pro was sent in response to Ms. Thompson's request for payment. For some unexplained reason the check was dated May 18, 1994. The check, however, was not received until after May 21, 1994 and was paid May 27, 1994. At no time during Ms. Thompson's conversations with the Browns did either Mr. Brown or Ms. Brown indicate that only one shipment of watermelons to Mr. Dukes was to be paid for by Brown's. Nor did Mr. Brown, who had earlier told Mr. Warren that he would have Mr. Dukes send Mr. Warren money that Mr. Dukes owed Mr. Brown, tell Ms. Thompson that all or part of the $10,000.00 sent by Mr. Dukes was in payment for the one load of watermelons Mr. Brown allegedly agreed to pay for. Ms. Thompson also overheard one other conversation between Mr. Warren and Mr. Brown concerning the shipment of watermelons to Mr. Dukes. At no time during that conversation did Mr. Brown indicate that he was only paying for one shipment of watermelons.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Affairs enter a Final Order requiring that Brown's Produce, Inc., pay to Petitioner the sum of $25,139.45, within fifteen days of the Final Order and, absent such payment, requiring Lawyers Surety Corporation, after notice of nonpayment, to pay the same amount to Petitioner to the extent of the amount remaining under the bond. DONE and ENTERED this 21st day of May, 1996, in Tallahassee Florida. LARRY J. SARTIN, 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 21st day of May, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-5999A The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Accepted in 5. Accepted in 6-7. Accepted in 8. Accepted in 8-10. 5-6 Summary of some events and testimony at the final hearing. Accepted in 12. See 20. Accepted in 13. Accepted in 12. Accepted in 13. Accepted in 13 and hereby accepted. Accepted in 14. 14-15 Summary of some events and testimony at the final hearing. Accepted in 15. Accepted in 18. 18-19 Accepted in 19. 20 Accepted in 20. 21-22 Accepted in 9 and 15 23 Accepted in 14 and 18. 24-25 Hereby accepted. Not supported by the weight of the evidence. Accepted in 21-22. Accepted in 21. Accepted in 23. 30-35 Not relevant. Summary of some events and testimony at the final hearing. 36-39 These proposed findings are a summary of events and testimony at the final hearing. The statement of Mr. Dukes was given no weight in this Recommended Order. 40-44 Summary of some events and testimony at the final hearing. Accepted in 8-9. Summary of some events and testimony at the final hearing. Cumulative. Accepted in 16. Summary of some events and testimony at the final hearing. Hereby accepted Browns' Proposed Findings of Fact Accepted in 1-2. Accepted in 3-4. Hereby accepted. Statement of the issue. Accepted in 5. Accepted in 6-7. Accepted in 8-9. 8-9 Not supported by the weight of the evidence. See 10. Hereby accepted. See 17 and 21. Accepted in 21. Accepted in 17 and 21. 15-16 Accepted in 17. 17-19 Hereby accepted. 20-21, 24-25 and 33-34 These proposed findings of fact are generally correct. The "discrepancies" in dates were not sufficient to raise doubt as to the pertinent facts in this case. The discrepancies relate to when the invoices were run. Not supported by the weight of the evidence. See 13. Hereby accepted. The last sentence is not, however, supported by the weight of the evidence. 26-27 Not supported by the weight of the evidence. 28-29 Not relevant. Not supported by the weight of the evidence. Not relevant and not supported by the weight of the evidence. Hereby accepted. 35 See 8 36-38 Not supported by the weight of the evidence. Hereby accepted. Not supported by the weight of the evidence. Not relevant. Not supported by the weight of the evidence. COPIES FURNISHED: James H. Buzbee, Esquire Post Office Drawer HHH Plant City, Florida 33564-9053 Theodore M. Burt, Esquire Post Office Box 308 Trenton, Florida 32693 Lawyers Surety Corporation 1025 South Semoran, Suite 1085 Winter Park, Florida 32792 Brenda D. Hyatt, Chief Bureau of License and Bond Department of Agriculture & Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
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
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 the Respondent, Ronald Justice, is indebted to the complainants, James M. O'Dell, Jr., and Ronald Lewis, d/b/a O'Dell & Lewis Farms.
Findings Of Fact This cause is being considered pursuant to Chapter 604, Florida Statutes, which establishes procedure for settlement of controversies between Florida produce farmers and dealers involved with farmers' products. James M. O'Dell, Jr. and Ronald Lewis filed a complaint against Ronald Justice contending that the Respondent had not paid for two loads of watermelons as follows: May 27, 1977, invoice number 387664, 46,640 lbs Grey Watermelons at 4 cents per lb. totaling $1,865.60 May 29, 1977, invoice number 387670, 43,910 lbs Grey Watermelons at 4 cents per lb. totaling $1,756.40 The Petitioners contend, "Mr. Justice placed this order over the telephone, at which time the price had been agreed upon. He sent his own truck and his own driver to pick up these watermelons. The trucks were loaded according to his instructions while his own drivers were present and observed the loading. We had sold watermelons from this same field prior to these and the same day as well as after these dates and there had been no problem with quality. These watermelons were produced here by us at Oxford, Florida. We had expected payment within a few days after arrival, when he was expected to wire money to our bank. Thus far he has not sent this money which is for the above load while previous loads have been paid for." Respondent contends "As the Respondent in this case I wish to state again that I cannot ignore the first load of melons involved, (which I readily paid for sight unseen) as settled even though O'Dell and Lewis wish to ignore it as they had no grievance in the first load transaction. As my own personal affidavit states and as the affidavit of the driver John Braziel, supports; the first load was the greenest of the three loads which it naturally would be as it was clipped from the vine before the next two loads, also it was the inspection of the first load and the second load that made me feel justified that I had paid O'Dell and Lewis an appropriate sum of money until I was more certain how I could come out financially in the freight, sorting and handling of their melons, also please bear in mind that I suffered a business reputation damage that I am now willing to forego in an effort to settle this matter." The Petitioners sold the Respondent three loads of watermelons. Respondent's drivers loaded the watermelons on or near the farm of Petitioners. The first load was paid for and is not a part of the complaint of the Petitioners. The second and third loads ordered by the Respondent and filled by the Petitioners are the points of controversy. The watermelons were delivered to the Respondent in Mississippi where he had sold them to various stores. He stated that of the first load which he bought from the Petitioners that he could use but 50 percent inasmuch as the watermelons were unripe. He states that of the second load 30 percent of the watermelons were unripe and could not be used and that of the third load 25 percent of the watermelons were unripe and could not be used. He states that he was compelled to dump the part of the watermelons that could not be used and so dumped them. He contends that his loss on the first load was $1,640.34; that his loss on the second load was $356.80; and that his loss on the third load was $298.58 for a total loss on the three loads from the Petitioners of $2,295.72 actual money out of pocket. Mr. Justice states that he intended to cancel the third load inasmuch as a large percentage of the first two loads were unripe, but that it was his understanding by a telephone call to the Petitioner Ronald Lewis that Lewis had the intention of standing behind his loss and that therefore he did not cancel the order for the third load. The Petitioners claim that the watermelons were loaded into trucks sent there by the Respondent with his drivers, each of whom inspected the watermelons at the time of loading. They contend that no more than 1 percent of the watermelons loaded were unripe. They also contend that had the Respondent employed a certified inspector to inspect the watermelons at the point of delivery and the inspector had stated that the watermelons were unripe that they would have accepted the inspector's report, but that no inspection was made. Affidavits from the truck drivers who were not growers or inspectors were submitted. Each stated that a large percentage of the watermelons were not ripe.
Recommendation It is recommended that the Respondent be required to pay the Petitioners $3,622.00 for the watermelons purchased from the Petitioners. DONE AND ENTERED this 8th day of March, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Ronald Justice 500 South Main Street Dermott, Arkansas 71638 James A. O'Dell, Jr., and Ronald Lewis d/b/a O'Dell & Lewis Farms Post Office Box 268 Oxford, Florida
