Findings Of Fact Upon consideration of the oral testimony and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, Petitioners were producers of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). At all times pertinent to this proceeding, Respondent GMS was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license no. 936 by the Department and bonded by Commercial Union Insurance Company (Commercial) in the sum of $50,000.00 - Bond No. CZ 7117346. At all times pertinent to this proceeding, Respondent Commercial was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). Prior to Petitioners selling or delivering any watermelons (melons) to Respondent GMS, Petitioners and Respondent GMS entered into a verbal contract whereby: (a) Petitioners would harvest and load their melons on trucks furnished by Respondent GMS at Petitioners' farm; (b) the loading, grading and inspection, if any, was to be supervised by, and the responsibility of Respondent GMS or its agent; (c) the melons were to be U.S. No. 1 grade; (d) the melons were purchased F.O.B. Petitioner's farm subject to acceptance by Respondent GMS, with title and risk of loss passing to Respondent GMS at point of shipment (See Transcript Page 95 lines 5-7); (e) the price was left open subject to Petitioners being paid the market price for the melons at place of shipment on the day of shipment as determined by Respondent GMS less one (1) or two (2) cent sales charge, depending on the price; and requiring Respondent GMS to notify Petitioners on a daily basis of that price and; (f) the settlement was to be made by Respondent GMS within a reasonable time after the sale of the melons by Respondent GMS. Respondent GMS was not acting as Petitioners agent in the sale of the melons for the account of the Petitioners on a net return basis nor was it acting as a negotiating broker between the Petitioners and the buyers. Respondent GMS did not make the type of accounting to Petitioners as required by Section 604.22, Florida Statutes had it been their agent. Although Respondent GMS purchased over twenty (20) loads of melons from the Petitioners, there are only ten (10) loads of melons in dispute and they are represented by track report numbers 536 dated April 29, 1985, 534 dated April 30, 1985, 2363 and 537, dated May 1, 1985, 2379, 2386 and 538 dated May 2, 1985, and 2385, 2412 and 2387 dated May 3, 1985. Jennings W. Starling (Starling) was the agent of Respondent GMS responsible for loading; grading- inspecting and accepting and approving the loads of melons for shipment that Respondent GMS was purchasing from Petitioners during the 1985 melon season. Petitioners and Starling were both aware that some of the melons had hollow hearth a conditions if known, would cause the melons to be rejected. Aware of this condition in the melons, Starling allowed Petitioners to load the melons on the truck furnished by Respondent GMS. Starling rejected from 20 percent to 40 percent of the melons harvested and brought in from Petitioners' fields before accepting and approving a load for shipment. Starling accepted and approved for shipment all ten (10) of the disputed loads of melons. On a daily basis, Robert E. McDaniel, Sr., one of the Petitioners, would contact the office of Respondent GMS in Lakeland Florida to obtain the price being paid that day by Respondent GMS to Petitioners but was not always successful, however, he would within a day or two obtain the price for a particular day. Robert E. McDaniel did obtain the price to be paid by Respondent GMS for the ten (10) disputed loads and informed his son Robert E. McDaniel, Jr. of those prices. The prices quoted to Robert E. McDaniel, Sr. by Respondent GMS on the ten (10) disputed loads were 12 cents, 10 cents, 8 cents, 8 cents, 8 cents, 8 cents, 8 cents, 7 cents, 7 cents, and 7 cents on tract reports number 536, 534, 2363, 537, 2379, 2386, 538, 2385, 2412 and 2387, respectively. No written record of their prices was produced at the hearing but the testimony of Robert E. McDaniel Sr. concerning these prices was the most credible evidence presented. After the melons were shipped, sometimes as much as one week after, a track report was given to Robert E. McDaniel Jr. by Starling for initialing. Sometimes a price would be indicated on the track report but this price was based on selling price at point of destination and not the market price at point of shipment. Also, the letters "H.H." would also appear on the track report which, according to the testimony of Starling, indicated hollow heart but the evidence was insufficient to prove that Starling had rejected these loads for shipment because of a hollow heart condition in the melons. The loads in question were paid for by Respondent GMS based on a price at point of destination under its drafts no. 831912 and 851311. The amount in dispute is as follows: DATE TRACK NET AMOUNT AMOUNT SHIPPED
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent GMS be ordered to pay to the Petitioners the sum of $11.212.31. It is further RECOMMENDED that if Respondent GMS fails to timely pay the Petitioners as ordered, then Respondent Commercial be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioners in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 13th day of June, 1986, in Tallahassee, Leon County, Florida. Hearings Hearings WILLIAM R. CAVE Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative this 13th day of June, 1986.
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 Respondent, L.A. Wroten Company, Inc., is indebted to Petitioner for agricultural products purchased by Respondent Wroten from the Petitioner.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Respondent, L.A. Wroten Company, Inc., is a Florida corporation and a licensed dealer in agricultural products. During times material, Respondent Wroten possessed a surety bond issued through Respondent, Cincinnati Insurance Company. During times material, Respondent Wroten employed Grady Smith as a field representative, who is authorized to and on numerous occasions, purchased watermelons on Respondent Wroten's behalf. Petitioner is a producer of agricultural products, specifically watermelons. Petitioner has been a producer of melons for approximately 30 years. Petitioner has known Grady Smith, Respondent Wroten's representative, in excess of ten years and has had business dealings with Smith as a representative of Respondent Wroten on several occasions during 1991 and 1992. During May and June 1992, Petitioner sold five (5) loads of watermelons to Respondent Wroten. At issue here is the fifth load Petitioner sold to Respondent Wroten on June 6, 1992. All five loads of melons sold by Petitioner to Respondent Wroten were loaded and shipped over a short period of time, to wit, May 30-June 6, 1992. All of the melons came from the same field. On June 6, 1992, Grady Smith, acting as a representative of Respondent Wroten, agreed to purchase a load of royal sweet watermelons from Petitioner at 4 per pound. The load of "royal sweets" consisted of the following melons: Load #6138 57,700 pounds x 4 cents = $2,308.00. Beginning in 1991 and continuing through 1992, Petitioner and Smith, acting on Respondent's behalf, agreed to the sale of melons under an understanding that the sale and purchase was F.O.B. at Coleman, Florida, acceptance final at shipping point. The agreement also included an understanding that the Respondent would provide the trailers and pay all transportation charges for the melons. Pursuant to the agreement, payment for the melons was due "when they moved over the scale", i.e., as soon as the trucks were loaded and weighed or within the following day. Finally, the agreement between the parties was that title and risk of loss to the melons passed to Respondent Wroten at the time of shipment. Respondent Wroten 's representative Smith offered other producers and growers in the area identical terms under which they conducted their business with Respondent Wroten. On June 6, 1992, the "royal sweet" melons in question were loaded on trailers provided by Respondent Wroten. Respondent Wroten's representative Smith was present in the field as the truck was loaded and he inspected and "graded" the melons as they were loaded. Any melons which were not deemed acceptable to Smith were taken from the conveyor belt so that they would not be loaded. When the trailer was loaded, representative Smith accepted the load and indicated that the melons "looked good to him". Respondent Wroten has not paid Petitioner any of the amount claimed to be due for the melons in question. Respondent Wroten contended that the melons were "overripe" when they reached their ultimate destination on June 9, 1992. 1/ There is an industry practice whereby the producer or seller agrees to accept the risk of loss until the produce reaches its final destination and the products are sold. This practice is referred to as offering "protection" or "ride-the-load". Petitioner did not offer to Respondent, in this instance, any protection or otherwise "ride-the-load".
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department enter a final order requiring Respondent L.A. Wroten Company, Inc., be ordered to pay Petitioner the sum of $2,308.00. In the event that Respondent L.A. Wroten Company, Inc., fails to timely pay Petitioner as ordered, that Respondent Cincinnati Insurance Company be ordered to pay the Department the sum of $2,308.00 as required by Section 604.21, Florida Statutes and that the Department reimburse Petitioner. DONE AND ENTERED this 30th day of April, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 April, 1993.
The Issue The issue in this case is whether Petitioner is entitled to additional payment for a shipment of watermelons that he delivered to Respondent in May, 1993.
Findings Of Fact Growers Marketing Services, Inc. (Respondent) is a broker of watermelons and other agricultural produce. Preferred National Insurance Company, Inc. is the surety for Respondent. Petitioner has grown watermelons for about six years. In 1993, as in past years, Petitioner sold watermelons to Respondent and other brokers. Late on the afternoon of May 5, 1993, and continuing past darkness, Petitioner loaded a trailer full of watermelons for C & C, which is another agricultural broker to which Petitioner sells watermelons. Because Petitioner lacks sufficient lighting at the place of loading, the crew could not sufficiently determine the quality of the watermelons that they were loading. Many misshapen and substandard watermelons were loaded, but the trailer was not quite full. The conformance of the shipment, which was supposed to be all large watermelons, suffered further when a C&C representative told Petitioner to complete the load with smaller melons. Petitioner did so. The C & C shipment was taken to the scales, weighed, and trucked that night to Miami, where the recipient rejected the shipment due to poor quality and small size. On the morning of May 6, Petitioner learned that C & C was returning the shipment to him and would not pay for it. A field representative of Respondent learned of the rejected shipment and offered to try to sell it for whatever he could. Petitioner agreed. When the melons returned to the area on May 6, they were immediately taken to Respondent's packing house in Plant City. The packer immediately recognized that the melons were quite distressed. Misshapen, flat, and leaking, the melons needed to be sold fast. The packer so informed representatives of Respondent, who directed the packer to place the melons in large bins, rather than boxes, so they could be more easily marketed. A representative of Respondent immediately informed Petitioner of this development, and he said that they should get whatever they could for the melons. Respondent called a customer in Jacksonville, explained the situation, and agreed to sell them on consignment to the customer. The customer successfully remarketed a large number of the melons and, on May 25, 1993, remitted to Respondent a check in the amount of $5000, representing full payment for the melons. Respondent deducted from the $5000 its normal binning charge of $1260 and its normal sales charge of $420, leaving $3320. After a small mandatory deduction for National Watermelon Promotion Board, Respondent remitted to Petitioner, by draft dated June 10, 1993, the net of $3311.60. With the above-described payment, Petitioner has been paid in full for the watermelons.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the Complaint. ENTERED on January 10, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on January 10, 1994. 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 Kye Bishop, pro se 145 N. Osceola Arcadia, FL 33821 Arthur C. Fulmer P.O. Box 2958 Lakeland, FL 33806 Preferred National Insurance P.O. Box 40-7003 Ft. Lauderdale, FL 33340-7003
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing; the following facts are found: At all times pertinent to this proceedings Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes, (1983). At all times pertinent to this proceeding, Respondent Rentz was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4103 by the Departments and bonded by Respondent Nationwide in the sum of $14,000 - Bond No. LP 505 761 0004. At all times pertinent to this proceedings Respondent Nationwide was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). On June 21, 1985; Petitioner harvested from his field and loaded on a trucks procured by Respondent Rentz, 2,835 pee wee grey watermelons (watermelons) weighing a total of 43,380 pounds. On June 21, 1985, Petitioner harvested from his field and loaded on a trucks procured by Petitioner on Respondent Rentz's instructions, 1850 pee wee grey watermelons (watermelons) weighing a total of 43,460 pounds. The agreed upon price for both loads of watermelons was 2 1/2 cents per pound for a total gross sale price of $2,171.00 of which $353.55 was paid by Respondent Rentz on October 25, 1985 by check no. 290 drawn on the account of Mr. or Mrs. Ronald D. Rentz leaving a balance of $1,817.45. This amount does not include either the $20.00 for lumber added on to the June 21, 1985 invoice or the $20.00 added to the complaint for lumber. There was no evidence that the lumber was an agricultural product or that Petitioner produced the lumber charged to Respondent Rentz. Also the price of the lumber was added on and not included in price of the watermelons. The watermelons were invoiced to Seaway Produce by Petitioner on its invoice showing Ron Rentz as brokers at Respondent Rentz's request. Petitioner's understanding that Respondent Rentz was acting as buyer and not as a broker was credible and supported by Respondent Rentz's actions subsequent to the watermelons being loaded and shipped. Although Respondent Rentz contended that he was acting as a brokers the more credible evidence shows that Respondent Rentz was acting as a buyer and that risk of loss passed to him upon shipments with all remedies and rights for Petitioner's breach reserved to him. There was no official inspection of the watermelons when they were loaded and the evidence presented by Petitioner that the watermelons were of good quality and in good condition when shipped was believable and went unrebutted by Respondent Rentz. For purposes of Sections 604.15-604.30, Florida statutes; the Department's policy is to consider a person a brokers requiring only a minimum bond ($13,000.00) for licensure when that person does not take title to the product and whose function is to bring buyer and seller together and assist them in negotiating the terms of the contract for sale but not to invoice or collect from the buyer.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Rentz be ordered to pay to the Petitioner the sum of $1,817.45. It is, further RECOMMENDED that if Respondent Rentz fails to timely pay the Petitioner as ordered, then Respondent Nationwide be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes Respectfully submitted and entered this 14th day of April, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, FL 32301 Robert Chastain General Counsel Department of Agriculture and Consumer Services Mayo Buildings Room 513 Tallahassee, FL 32301 Ron Weaver, Esq. Department of Agriculture and Consumer Services Mayo Building Tallahassee, FL 32301 Mr. Joe W. Kight Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, FL 32301 Mr. Ronald Rentz Route 1, Box 3510 Havana, FL Bigham Hide Company, Inc. Post Office Box 188 Coleman, FL 33521 Lawrence J. Marchbanks Esq. P. O. Box 879 Wildwood, FL 32785 Nationwide Mutual Insurance Company Attention: Robert Brand, Esq. Post Office Box 1781 Gainesville, FL 32602 Robert D. Stinson P. O. Box 1739 Tallahassee, FL 32302
Findings Of Fact Petitioner Rushton is a grower of watermelons and qualifies as a "producer" under Section 604.15(5) F.S. Respondents Smith are broker-shippers of watermelons and qualify as dealers" under Section 604.15(1) F.S. Respondent South Carolina Insurance Company is surety for Respondents Smith. The amount and period of the bond have not been established. Petitioner's complaint sets out the amounts owed as follows: DATE OF SALE QUANTITY, AND PRICE PRODUCTS PER UNIT GRADE 6/7/92 Inv.#2051 43,200 lbs. AMOUNT Crimson Sweet Melons @.04 lb. $1,728.00 NWPB - 8.64 Adv. - 700.00 $1,019.36 6/10/92 Inv.#2053 43,900 lbs. Crimson Sweet Melons @3.5 lb. $1,536.50 NWPB - 8.78 Adv. - 700.00 $ 827.72 6/10/92 Inv.#2056 46,180 lbs. Crimson Sweet Melons @3.5 lb. $1,616.30 NWPB - 9.24 Adv. - 700.00 Less Payment of - 933.18 $ 907.06 $2,754.14 TOTAL $1,820.96 Regardless of the form of the complaint, Petitioner acknowledged at formal hearing that his claim relates only to Load 2051, that he did not dispute the deductions made by Respondents for NwPB or the advances paid him by the Dealer. Petitioner's complaint lumped the three loads together only because Respondent chose to cut a single check for all three loads and pay his accounts that way nearly three months after Load 2051 was shipped. With regard to Load 2051, it is not disputed that 43,200 pounds of watermelons were loaded by Dealers in Petitioner's field on June 7, 1992. The 1992 season was Petitioner's initial endeavor at growing watermelons. He was "in a bind" from the beginning of the growing season. Petitioner had originally intended to sell his watermelons to another buyer- dealer, but that person failed to send trucks to Petitioner's field. Petitioner was approached by Bobby Patton who put him in contact with Respondent Jim Smith on Saturday, June 6, 1992. Petitioner testified that Bobby Patton cut into and inspected sample melons and accepted most of his field of melons on Friday, June 5, 1992. After speaking with Petitioner by telephone on Saturday, June 6, 1992, Jim Smith went to Petitioner's field on Sunday, June 7, 1992. Petitioner and Respondents had no prior business dealings before their June 6 phone call. Jim Smith did not arrive at Petitioner's field on June 7, 1992 until the open-topped truck he had sent was half-loaded with Petitioner's melons. At that time, Smith and his employee, Dale Hires, inspected the melons on the truck and found some hollow hearts. At that time, Mr. Smith thought that the melons on the truck had been picked since Friday, but the undersigned accepts Petitioner's testimony and finds as fact that all the melons loaded into Load 2051 had been picked only since Saturday. Petitioner admitted that the melons were, "a little overripe and should have been loaded on Thursday or Friday and moved." Petitioner admitted that he and Smith then discussed that the melons were a little overripe and that they were "close" and had to be moved. Respondent Jim Smith told Petitioner there was a "potential problem," and he would let him know if a problem actually developed. Smith also said that they would try to work together and move the melons and try not to get Respondents "hurt." However, Petitioner did not specifically agree to "help" Respondent on melon loss. Petitioner later thought he was "helping" by putting a trucker up overnight in a motel at Petitioner's own expense. Smith used the phrases, "help each other" "help us" and "not hurt" to mean, "help Respondents so that Respondents would not show a loss." Petitioner testified that he had understood on June 7 that he was "not going to ride no freight" on the load. Smith concurred that this phrase he had used was mutually understood to mean that Respondents agreed to pick up the cost of freight. Respondent Smith considered the arrangement reached on June 7 to be a brokeraged deal wherein Respondent Dealers would "ride the freight" and Petitioner would "ride the melons," that is, Respondents expected Petitioner to absorb any loss occasioned by bad melons. Petitioner, on the other hand, considered all the watermelons accepted without reservation by Hires and Smith when they stepped off the half-loaded truck on June 7, 1992 and continued to load the truck with melons of questionable ripeness. Despite Petitioner's first assertion that he considered Bobby Patton's acceptance of the melons on Friday, June 5 to have been made on behalf of Respondents, that testimony is found to be contrary to his subsequent and more credible testimony that he considered Dale Hires to be acting for Respondents on June 7 and that he personally negotiated with Jim Smith on June 6 and June 7, after Bobby Patton was out of the picture. Respondents did nothing to cloak Bobby Patton, an independent contractor who "finds" melon fields, with apparent agency to negotiate the final "deal" for them with Petitioner. The "deal" between Petitioner and Respondents, such as it was, was finally and fully negotiated on June 7 between Petitioner and Respondent Jim Smith. The "deal" applied only to a certain specified segment of Petitioner's watermelon crop. Respondent Dealers thereafter handled a total of ten loads of watermelons. Respondent Dealers paid Petitioner satisfactorily on nine of the ten loads Only Load 2051, the first load, presented any problems. No agreement as to Respondents accepting all of Petitioner's field of watermelons was ever reached between the parties. Petitioner lost money with regard to the rest of his field, but that loss is in no way attributable to Respondents, despite Petitioner's expressed frustration in that regard. Petitioner heard nothing from Respondents until he requested payment and to "settle up" concerning all ten loads, approximately June 17, 1992. At that time, Jim Smith gave Petitioner settlement documents, including weight tickets and invoices for all ten loads at one time in a large envelope. Petitioner termed these documents "confirmations." At the time Smith handed Petitioner the envelope, Smith mentioned to Petitioner that one load had a problem with it. He did not give Petitioner any further information about which load had the problem. Before putting the confirmations in the envelope, Jim Smith had written across them, " * protect shipper on quality (ripe)." Petitioner testified that if this phrase had been on the documents, he did not see it, and if he had seen the phrase, he would not have understood it. Jim Smith had originally been promised $3,564.00 on Load 2051 in a telephone conversation with the ultimate recipient/receiver. He had based his June 6 offer and "deal" on June 7 with Petitioner for an expected gross to Petitioner of $1,734.04 in anticipation of the Respondents realizing the full amount of $3,564.00 from the receiver. Smith testified that when Load 2051 reached the receiver, it was rejected by the receiver due to the melons being overripe and hollow-hearted and that a federal inspection paid for by the receiver showed 15 percent to 40 percent of the samples were hollow hearted and the overall samples in the load was 25 percent, with bruising throughout but with the highest percentage in the lower layer of the piled watermelons, and some sunburn. He produced a federal inspection sheet dated June 10, 1992 (three days after the melons left Petitioner's field), covering an estimated sixteen hundred melons to the same effect. Respondent Smith had mailed this inspection sheet to Petitioner only in August 1992, with the final settlement documents and Respondents' check covering three loads, including Load 2051. The inspection sheet indicates "Midwest Marketing 2051" and "North Coast Brokerage, Cleveland, Ohio and carrier 39TR337-AL." The settlement sheets show the same trailer license number for Load 2051. (P-2) Smith also produced a bill of lading showing that North Coast Produce received carrier 39TR337 and rejected 15 melons cut for inspection, 238 melons bruised and racked, and seven decayed melons on June 10, 1992. The bill of lading shows 260 out of 1568 melons or roughly 17 percent of the load were rejected by the receiver. (R-5) Smith also produced a Norman's Brokerage invoice for shipping that trailer, for which shipping he says he paid $1,676.16, (R-4) and an invoice showing he was paid only $1,700.00 by the receiver for this load (R-2). Neither the receiver, the federal inspector, nor any trucker testified. Smith testified that after the receiver rejected some or all of Load 2051, he thought he would get at least $1,743.04 from the receiver but the receiver's check to him was rounded to only $1,700.00. The foregoing shows that Respondent Smith ultimately accepted, without dispute, the $1,700.00 paid him by the receiver which amount was less than 50 percent of the originally promised amount and which amount did not comport with a load that was at the worst only 15 percent to 40 percent bad as per the inspection report and which the bill of lading shows contained only 260 or 17 percent rejected melons. When Jim Smith totalled out the final settlement sheets for Petitioner in August 1992, Smith intended to deduct $1,676.16 for shipping and $108.00 as a "finder's fee" he had paid to independent contractor Bobby Patton from the $1,700.00 that he had actually been paid by the receiver, thus showing a net loss to Respondents on Load 2051 of $84.16. Instead, he explained Respondents' loss to Petitioner in the final August 1992 settlement documents as "original invoice $3,564.00, (meaning the originally anticipated revenues to Respondents) less actual receipts $1,743.04, (meaning the amount Smith had expected to receive after federal inspection and rejection of part of Load 2051 by the receiver, and not what Smith actually received from the receiver) for a balance of $1,820.96." Smith labelled that figure of $1,743.04 as "customer deducts" meaning it was Respondents' net loss due to actions of the receiver. He then deducted the $1,820.96 figure from the total amount owed by Respondents to Petitioner for three loads. Mr. Smith admitted he had no authority or justification per his agreement with Petitioner for deducting the finder's fee of $108.00 he paid to Bobby Patton or his additional loss of $43.04, which occurred when the recipient promised $1743.04 and paid $1700.00. He also admitted he had no authority per Respondents' agreement with Petitioner to deduct anything attributable to freight charges.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture enter a Final Order awarding Petitioner $1,820.96 on Load 2051 only and binding Respondents to pay the full amount, but which in South Carolina Insurance Company's case shall be only to the extent of its bond. RECOMMENDED this 5th day of August, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Greg Rushton 10940 N. Circle M Avenue Dunnellon, Florida 32630 James R. Smith Randall Smith Midwest Marketing Company Post Office Box 193 Vincennes, IN 47591 South Carolina Insurance Company 1501 Lady Street Columbia, SC 29201
The Issue Whether respondents owe petitioner money on account of watermelon sales?
Findings Of Fact Last spring, her first working on behalf of respondent McKay & Associates, Inc., Pat Harper nee ' Maddox accompanied Randy Finch, the company president, to Florida to help buy and ship produce. Because petitioner Bubba Hurst had sold watermelons to Ms. Harper season before last, she sought him out again. On Tuesday night, May 28, 1991, Ms. Harper orally agreed on behalf of McKay & Associates, Inc. (after Ruth Neuman, the company's secretary-treasurer, had been consulted by telephone) to pay Mr. Hurst 12 cents a pound for two truckloads of watermelons "as is." (Earlier she had seen the watermelons piled in the smaller trucks in which petitioner's crew had brought them from the fields to the melon yard, after harvesting them that day.) With Wednesday morning came a truck and driver (engaged by Ms. Harper or Mr. Finch) to haul the watermelons from petitioner's melon yard to truck scales some ten miles away, then to a farm in Denton, Georgia, for crating and transshipment to their ultimate intended destinations in Maryland and Pennsylvania. After the first truck left at 4:58 that afternoon, loaded with watermelons aggregating 43,280 pounds, Petitioner's Exhibits Nos. 1 and 2, a second truck and driver arrived. Mr. Finch had agreed to pay Mr. Hurst cash for the watermelons, but a complication arose before they could settle that night: Only after the crew had gone home was it discovered that the second truck was overloaded by some 9,000 pounds; and the driver refused to risk the fines he might incur by hauling an overload. As a result, it was not clear exactly how many watermelons McKay & Associates, Inc. would owe petitioner for. After some discussion, Mr. Finch wrote and signed a check in petitioner's favor but left blank the amount; petitioner then endorsed and returned the check. The plan was, once the exact amount was known, for Mr. Finch to complete the check, cash it, and give Mr. Hurst the proceeds. Afterwards it occurred to Mr. Hurst that if the check were made out for more than what he was to be paid for the watermelons, he could have problems with the Internal Revenue Service. Apprehensive, he asked Mr. Finch to void the check, which he did, by writing "VOID" across it. Respondent's Exhibit No. 1. Later somebody filled in an amount ($5,193.60, which corresponds to the first load, 43,280 pounds at 12 cents per) and wrote "melons no good," perhaps in anticipation of a formal administrative proceeding like the present one. The check was never negotiated. On Thursday, May 30, 1991, while watermelons were being unloaded from the second truck, two men with a brief case full of cash expressed an interest in the lightening truckload. When Ms. Harper told Mr. Hurst, he said the watermelons were hers to do with as she pleased. She then sold the load to the two men for 12 cents a pound cash, and handed the money over to petitioner. The excess watermelons on the second truck had been offloaded onto a third truck. Of like capacity as the first, the third truck was empty when it accompanied the overloaded truck to the melon yard on Thursday morning. With the departure of the second truck, Ms. Harper and Mr. Finch told Mr. Hurst to fill the third truck up and agreed to buy that truckload. For a while, Mr. Finch was actually "in the line" handing some watermelons along for loading in the third truck, and rejecting others. They weighed 20 pounds each on average. Meanwhile, when Ms. Neuman saw the first truckload, after its arrival in Denton, Georgia, on Thursday morning, she exclaimed, "My God! These are sun scald[ed]!" At hearing, she testified she was incredulous Florida would let such watermelons leave the state. Ms. Neuman telephoned Mr. Finch and told him she was sending the first load back, but that she would take the other load if it "meets federal." She also called the trucking company (then reportedly owned by the late Sam Walton), however, and told the trucker not to load any more watermelons. When Evelyn Hurst, Bubba's mother, answered the telephone at the melon yard lunchtime Thursday, she was asked to tell the driver of the third truck to call home because there was an emergency. The driver made a telephone call, after which he told Mrs. Hurst nothing was wrong at his home. Then he made a second telephone call. After that call, he ordered a stop to the loading then in progress. Bubba Hurst was eating when his mother called with word that no more watermelons were being loaded onto the third truck. He then telephoned the motel where Mr. Finch was staying, and inquired. Mr. Finch told him to finish loading the third truck; and later went to the melon yard and told the driver that loading should go forward. Loading resumed. Later Mr. Finch raised with the driver the possibility of taking the load to New York, but the driver declined the suggestion. Around four o'clock Thursday, the renewed efforts to fill the third truck with watermelons came to an abrupt end, about 250 melons shy of a full load, and the driver, who had ordered the halt, drove away. Mr. Hurst called the motel, and spoke to Ms. Harper, in hope of obtaining the cash he had been promised for his watermelons, but to no avail. The next day the first truck returned from Georgia with the watermelons whose presence on the other side of the state line had so surprised Ms. Neuman; and a federal agricultural inspector, a friend of Mr. Hurst's father, arrived at petitioner's melon yard to inspect them. Mr. Hurst told the inspector (who had been called by Ms. Neuman) that he was welcome to inspect but that the whole load had been sold "as is" and that he - Mr. Hurst - would not be paying for the inspection. Hearing this, the inspector left. Disinterested testimony established that inspections by USDA- certified inspectors are routinely called for by shippers when produce is refused by buyers claiming that produce spoiled before reaching them; but that, at least in the environs of Wildwood, Florida, it is not customary to call for a federal inspection at the point from which watermelons are shipped (unless the shipment is to the Government itself.) Of course, these particular watermelons had already been to Georgia and back. After the inspector left, the driver of the first truck asked that the watermelons be removed from his truck. When Mr. Hurst told him he was trespassing and asked him to leave the melon yard, the driver (or Ms. Neuman by long distance telephone call) summoned a Sumter County deputy sheriff. But the deputy sheriff, informed upon his arrival that the melon yard was a good quarter mile on the Marion County side of the county line, left to perform other duties. Still loaded, the first truck eventually left the melon yard a second time.
Recommendation It is, accordingly, RECOMMENDED: That DACS order McKay & Associates, Inc. to pay petitioner nine thousand seven hundred eighty seven dollars and twenty cents ($9,787.20) within fifteen (15) days of the final order. That, in the event McKay & Associates, Inc. fails to pay petitioner nine thousand seven hundred eighty seven dollars and twenty cents ($9,787.20) within fifteen (15) days of the final order, DACS order payment by State Farm Fire & Casualty Co., to the extent necessary to satisfy the requirements of Section 604.21(8), Florida Statutes (1991), for disbursal to petitioner. DONE and ENTERED this 7th day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 9 and 10 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, see findings of fact Nos. 5 and 6. With respect to petitioner's proposed finding of fact No. 7, petitioner said the load may have been as many as 250 melons light. With respect to petitioner's proposed finding of fact No. 11, the value of the second load established by the evidence is $4,591.60, representing 38,280 pounds at 12 cents a pound. Respondent's proposed finding of fact No. 1 has been adopted, in substance, insofar as material. With respect to Respondent's proposed findings of fact Nos. 2 and 3, Ms. Neuman's testimony that she directed her agents to procure federal inspection before the first truck left has not been credited, but she did try to arrange one later. With respect to respondent's proposed finding of fact No. 4, the second truck load was never rejected. Respondent's proposed finding of fact No. 5 is rejected. With respect to respondent's proposed finding of fact No. 6, see paragraphs 5 and 6 of the findings of fact. Respondent's proposed finding of fact No. 7 is immaterial. With respect to respondent's proposed finding of fact No. 8, Mr. Finch agreed to buy the third truckload and ordered that loading go forward even after Ms. Neuman registered her dissatisfaction with the first load. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agricultural and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agricultural and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Julian E. Harrison, Esquire 324 West Dade Avenue Bushnell, Florida 33513 John Sowa, Esquire Robert L. Rehberger, Esquire 5025 North Henry Boulevard Stockbridge, Georgia 30281
The Issue Whether Respondent owes Petitioner $1,673.00 as alleged in the complaint filed by Petitioner in July 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Bigham Hide Company, Inc. (Petitioner), is a watermelon grower in Coleman and Lake Panasoffkee, Florida. Respondent, Southern Corporate Packers, Inc. (Respondent), is a licensed dealer in agricultural products having been issued License Numbers 7017 and 10367 by the Department of Agriculture and Consumer Services. Respondent has posted a bond in the amount of $60,000.00 written by Amwest Surety Insurance Company, as surety, to assure proper accounting and payment to producers such as Petitioner. In a complaint filed with the Department in July 1997, Petitioner alleged that it entered into an oral agreement with Monty Morris (Morris) on behalf of Respondent to market one truckload of small size watermelons. Under that alleged agreement, Morris agreed to pay five cents per pound when the melons were loaded. The complaint further alleged that while the truck was being loaded, Morris advised that final payment would not be made until the load was delivered and sold. Morris agreed, however, to advance Petitioner $700.00 to cover its labor costs. When Petitioner did not receive its final payment from Morris after the load was delivered, and it was unable to get Morris to respond to telephone calls, it filed this complaint. In its answer, Respondent has alleged that it purchased a truckload of melons from Morris at four and one-half cents per pound, and that Morris was fully paid, but it never entered into any dealings with Petitioner. It denies that any moneys are due. On June 7, 1997, Petitioner's president, Greg Bigham (Bigham), was contacted by Morris regarding the sale of one load of "pee wee" watermelons. After discussing the matter with Morris, Bigham was left with the impression that Morris represented Respondent, and he would be paid five cents per pound for his crop when it was loaded onto the truck. Bigham was satisfied with these terms and agreed to sell one load of small size watermelons. About the same time, Respondent was contacted by Morris regarding the sale of a truckload of small size watermelons. Morris was neither an employee or agent of Respondent, and Respondent considered Morris to be the seller. Respondent agreed to pay Morris four and one-half cents per pound for the load. This amount did not include a commission since Morris was treated as a producer in the transaction. While the truck was being loaded in Bigham's field, Bigham had a conversation with Morris and learned that he would not be paid until the crop was delivered. He would, however, be given a cash advance of $700.00 to cover his labor costs. At the same time, Respondent received an inquiry from Morris regarding reimbursement for labor costs. Respondent agreed to advance Morris his labor costs and sent Morris a check in the amount of $700.00 with the name of the payee left blank. Morris then gave the check to Bigham, who filled in his own name as payee and deposited the check. After the load was delivered and sold to a buyer in Canada three days later, Respondent issued a check to Morris in the amount of $1435.00 as full payment for the load. This constituted full payment under their agreement. When he received no payment from Morris within a reasonable period of time, Bigham repeatedly attempted to contact Morris by telephone. However, Morris refused to return his calls. Three weeks after the load was shipped, Bigham telephoned Respondent, who advised that Morris had already been paid for the shipment. Surprisingly, Bigham did not ask Respondent if Morris was its agent or employee, and he did not demand payment from Respondent. Shortly thereafter, Bigham filed a small claims action against Morris and obtained a default judgment against the debtor. Since that time, Morris has not been located. Morris was not an employee or agent of Respondent, and he was not authorized to use Respondent's name when he solicited business with Petitioner. Because Respondent has made a proper accounting and payment to Morris, as producer, Petitioner's appropriate remedy is against Morris, and not Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Affairs enter a final order denying the claim by Petitioner against Respondent. DONE AND ENTERED this 4th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1998. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Terry T. Neal, Esquire Post Office Box 490327 Leesburge, Florida 34749-0327 Roy Roman Southern Corporate Packers, Inc. 403 East Main Street Immokalee, Florida 34142 Amwest Surety Insurance Company 4830 West Kennedy Boulevard Suite 540 Tampa, Florida 33609 Richard D. Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Has Respondent VBJ Packing, Inc. (Respondent) paid Petitioner, Chastain- Bishop Farms (Petitioner) in full for watermelons represented by Respondent's load numbers 3002 and 3004 purchased from Petitioner during the 1995 watermelon season?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Petitioner was a "producer" of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes. Watermelons come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. At all times pertinent to this proceeding, Respondent was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Respondent was issued license number 8887 by the Department which is supported by Bond Number 137743741 in the amount of $75,000 written by Respondent Continental Casualty Company (Continental), as surety, with an inception date of January 1, 1995, and an expiration date of December 31, 1995. The Complaint was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes. Sometime during the week prior to Monday, May 8, 1995, Petitioner and Respondent entered into a verbal agreement which contained the following terms: (a) Petitioner would sell Respondent a semi-trailer load of medium size melons of good quality to be harvested and loaded by Petitioner onto a semi-trailer furnished by Respondent; (b) Respondent would have the right and opportunity to inspect the melons before or during loading; (c) Respondent would pay Petitioner fifteen cents ($0.15) per pound for the melons loaded onto the trailer; (d) upon delivery at Petitioner's farm, the melons became Respondent's property and Petitioner had no further obligation to Respondent concerning the melons; and (e) settlement was to be made by Respondent within a reasonable time. Subsequent to the above agreement, Petitioner sold and Respondent bought, a second semi-trailer load of melons to be delivered under the same terms and conditions as agreed in the above verbal agreement. On Friday, May 5, 1995, Respondent's agent, Robert Allen and T. J. Chastain, a partner in Chastain-Bishop Farms, had a disagreement concerning Eddie Idlette, Respondent's inspector, being on the Petitioner's farm. Because of an incident in the past involving Idlette and Petitioner, Chastain did not want Idlette on Petitioner's farm and made this known to Allen. As result of this disagreement, Idlette left the Petitioner's farm and was not present on Monday or Tuesday, May 8 & 9, 1995, to inspect the two loads of melons. Allen testified that Chastain also excluded him from Petitioner's farm at this time, and that Chastain told him that neither he nor Idlette needed to be present during the loading of the melons because Chastain "would stand behind the loads". However, the more credible evidence shows that Chastain did not prevent Allen from inspecting the melons on Monday or Tuesday, May 8 & 9, 1995, or tell Allen that he "would stand behind the loads". Furthermore, there is credible evidence to show that Allen was present at Petitioner's farm on Monday and Tuesday, May 8 & 9, 1995, and he either inspected, or had the opportunity to inspect, the two loads of melons, notwithstanding Allen's testimony or Respondent's exhibit 6 to the contrary. Petitioner did not advise Respondent, at any time pertinent to the sale of the melons, that Petitioner would give Respondent "full market protection" on the melons. Furthermore, Petitioner did not agree, at any time pertinent to the sale of the melons, for Respondent to handle the melons "on account" for Petitioner. The more credible evidence supports Petitioner's contention that the melons were purchased by Respondent with title to the melons passing to Respondent upon delivery at Petitioner's farm, subject to inspection or the opportunity to inspect before loading and delivery. On Monday, May 8, 1995, Petitioner loaded Respondent's first semi- trailer with a State of Georgia tag number CX9379, with 2,280 medium size Sangria melons of good quality weighing 46,800 pounds and identified as Respondent's load number 3002. Respondent accepted load 3002 for shipment to its customer. Using the agreed upon price of fifteen cents ($0.15) per pound times 46,800 pounds, the Respondent owed Petitioner $7,020.00 for load number 3002. On Tuesday, May 9, 1995, Petitioner loaded Respondent's second semi- trailer with a State of New Jersey tag number TAB4020, with 2,331 medium size Sangria melons of good quality weighing 46,620 pounds and identified as Respondent's load number 3004. Respondent accepted load 3004 for shipment to its customer. Using the agreed upon price of fifteen cents ($0.15) per pound times 46,620 pounds, the Respondent owed Petitioner $6,9993.00 for load number 3004. The combined total amount owed to Petitioner by Respondent for load numbers 3002 and 3004 was $14,013.00. Respondent shipped load 3002 to E. W. Kean Co, Inc. (Kean). Upon receiving load 3002, Kean allegedly found problems with the melons. Respondent allowed Kean to handled the melons on account for Respondent. Kean sold the melons for $6,804.05 or 14.5 cents per pound. After Kean's deduction for handling, Kean paid Respondent $6,112.05 or 13.02 cents per pound. In accounting to Petitioner, Respondent made further deductions for handling and freight, and offered Petitioner $3,641.24 or 7.8 cents per pound for the melons on load 3002. Respondent shipped load 3004 to Mada Fruit Sales (Mada). Upon receiving load 3004, Mada allegedly found problems with the melons. By letter dated June 8, 1995 (Respondent's exhibit 4), Mada grudgingly agreed to pay the freight plus 10 cents per pound for the melons. Mada paid Respondent $4,662.00 for load 3004, and after Respondent deducted its commission of $466.20, offered Petitioner $4,195.80 or nine cents per pound for the melons on load 3004. By check number 18922 dated May 28, 1995, Respondent paid Petitioner $7,760.08. Respondent contends that this amount was offered to Kye Bishop in full settlement for loads 3002 and 3004, and that after Bishop consulted with Chastain, Bishop on behalf of Petitioner, accepted this amount in full settlement for loads 3002 and 3004. Bishop contends that he turned down the $7,760.08 as settlement in full but took the $7,760.08 as partial payment and proceeded to file a complaint with the Department against Respondent's bond for the difference. There is nothing written on the check to indicate that by accepting and cashing the check Petitioner acknowledged that it was payment in full for load numbers 3002 and 3004. The more credible evidence shows that Bishop did not accept the check in the amount of $7,760.08 as payment in full for loads 3002 and 3004 but only as partial payment, notwithstanding the testimony of Allen to the contrary. There was an assessment charge of $62.72 which Petitioner agrees that it owes and should be deducted from any monies owed to Petitioner by Respondent. Initially, Respondent owed Petitioner $14,013.00. However, substracting the partial payment of $7,760.08 and the assessment of $62.72 from the $14,013.00 leaves a balance owed Petitioner by Respondent of $6,190.20
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order granting the Petitioner relief by ordering Respondent VBJ Packing, Inc. to pay Petitioner the sum of $6,190.20. RECOMMENDED this 23rd day of May, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4226A The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed findings of fact 1(a) through 1(i) are adopted in substance as modified in Findings of Fact 1 through 16. Respondent VBJ Packing, Inc's Proposed Findings of Fact. Proposed finding of fact 1 is covered in the Conclusion of Law. Proposed finding of fact 2 is adopted in substance as modified in Findings of Fact 1 through 16. Proposed finding of fact 3, 6, 7 and 8 10, are not supported by evidence in the record. As to proposed finding of fact 4, Petitioner and Respondent VBJ Packing, Inc. agreed that Petitioner would sell and Respondent would pay $0.15 per pound for medium size melons. Otherwise proposed finding of fact is not supported by evidence in the record. See Findings of Fact 4, 7 and 8. As to proposed finding of fact 5, Respondent sold the loads. Otherwise proposed finding of fact 5 is not supported by evidence in the record. Respondent Continental elected not to file any proposed findings of fact. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Lakeland, Florida 32399-0800 David K. Oaks, Esquire David Oaks, P.A. 252 W. Marion Avenue Punta Gorda, Florida 33950 Mark A. Sessums, Esquire Frost, O'Toole & Saunders, P.A. Post Office Box 2188 Bartow, Florida 33831-2188
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
