Findings Of Fact On April 22, 1988, an indemnity bond was executed between D & S as principal and Fidelity as surety. The effective dates of the bond were from April 22, 1988 to April 21, 1989. The bond was required under Sections 604.15-604.30, Florida Statutes, in order for D & S to become licensed as a dealer in agricultural products. The purpose of the bond is to secure the faithful accounting for and payment to producers of all agricultural products handled or purchased by D & S. In September 1987, Junior Martin met with Cliff Price and Buddy Session regarding the Spring 1988 watermelon crop in LaBelle, Florida. Junior Martin was the grower. Cliff Price was the harvester, and Buddy Session planned to become a dealer before harvest. During the meeting, Junior Martin and Buddy Session entered into a verbal agreement which contained the following terms: a) Junior Martin would sell Buddy Session all of the shippable melons in his fields on a per pound basis at market price on the day of shipment; b) Junior Martin would harvest and load the melons on trucks furnished by Buddy Session; c) settlement was to be made within a reasonable time after shipment; and d) settlement would include any adjustment for failure of the melons to meet the quality or grade contracted for by Buddy Session. Such adjustments could be made by Junior Martin taking less cash or giving Buddy Session replacement melons. In the interim period between the planting and the harvesting of the crop, the farms run by Junior Martin were incorporated and became Stacys Farms, Inc. Buddy Session formed D & S Product, Inc. during the same time frame. The verbal agreement between the two individuals was accepted by both the corporations who continued to transact business under its terms. The harvesting of the crop began in May 1988. The market price began at ten cents per pound but quickly dropped to nine cents. From May 15, 1988 through May 20, 1988, the producer and the dealer in these proceedings acted under the terms of the verbal agreement without controversy. During harvest, load tickets were prepared on site by Junior Martin's harvester, Cliff Price. Each load ticket reflected the number of pounds of melons loaded, the size and variety of melon, the date, market price, the driver's name and the trailer license number. Due to a mistake in loading as to the size of melons shipped from the loading dock on May 19, 1988, D & S assigned one of its own employees to the loading dock. The employee's job was to oversee the loading process and to make sure that the correct size of melons were loaded on the proper trucks. D & S owned the melons at the time they were placed on the trucks on May 21, 1988. D & S was not acting as Stacys Farms agent in the sale of melons. On May 21, 1988, a number of loads were purchased by D & S at the market rate of nine cents per pound. The loads in dispute which were loaded on this date are: 46,060 lbs. of medium Crimson watermelons loaded onto Trailer P78 Ohio, and shipped May 21, 1988. 40,020 lbs. of medium Crimson watermelons loaded onto Trailer 92102 S/T ILL, and shipped May 21, 1988. 53,800 lbs. of large Greys loaded onto Trailer BG133M Fla, and shipped May 21, 1988. 48,000 lbs. of medium Crimsons loaded onto Trailer T03286KY, and shipped May 21, 1988. 49,120 lbs. of medium Greys loaded onto Trailer TH50695 PA, and shipped May 21, 1988. 42,840 lbs. of large Crimsons loaded onto trailer C5XZ2676310, and shipped May 21, 1988. The total amount in dispute for these loads is $23,200.60. D & S contends that the melons shipped in the loads in dispute were below the quality or size for which it contracted. As a result, D & S contends it suffered a loss of $21,987.56. A review of D & S' business records show that Trailer P78 Ohio was also referred to upon occasion as 8878 Ohio. The load number was 88135. It appears from office notes made by D & S by a person who is ill with cancer (Petitioner's Exhibit #5) that the trouble with these melons was that the customer wanted large melons, not medium ones. (The notation states, "trouble NL".) Nevertheless, the load was accepted by the customer, Tom Lange. The purchase price paid by Lange was more than the price paid by D & S. The one hundred and fifty dollars less than the amount billed by D & S was a result of the sizing difference. Stacys Farms was accurate in its billing regarding the size of melons loaded, and D & S' on site employee accepted them and allowed the medium melons to be shipped. D & S owes Stacys Farms $4,145.40 for this load. D & S' business records show that the melons loaded on Trailer 92102 S/T ILL. were referred to as load number 88129. The load was received and paid for by D & S customer E.W. Kean. D & S' business record has two numbers transposed in the weight entry on the computer printout. The bill of lading and the load ticket reflect the correct weight. Again, Petitioner's Exhibit #5 shows a notation of "trouble NL". Medium melons were shipped as reflected on the load ticket. A reasonable inference exists that D & S' customer wanted large melons as opposed to medium melons. The load was accepted by E.W. Kean, and the price billed of $3,800.00 was paid in full. D & S' on site employee accepted the load and allowed the medium melons to be shipped. Stacys Farms believed the medium melons were ordered and did not misrepresent the size purchased from them. D & S owes $1,616.80 to Stacys Farms for this load. The large Greys on Trailer BG133M Fla, were received by D & S' customer, Winn-Dixie in Jacksonville. Thirteen of the melons were cut open at the delivery site for inspection purposes prior to acceptance. The customer determined that the quality was not as good as represented at the time the shipment was ordered. The customer agreed to pay D & S $800.00 for the load. As the quality of these melons was below the quality contracted for, D & S does not have to pay the price placed on the loading ticket for these melons. In settlement under the oral agreement, D & S is entitled to an offset of $391.50, the remaining portion of the freight bill once the $800.00 paid is deducted. The medium Crimsons loaded onto Trailer T03286KY were accepted by D & S customer Maddox Brothers Produce, Inc. A government inspection of melons in warehouse bins of Taylor Produce three days later which purportedly came from the same trailer from Maddox Brothers were rejected by the second receiver. A drop in market price had also occurred in the interim. The customer paid $1,400.00 to D & S for the load. As there is no reliable evidence that the inspected melons were the same melons as those originally accepted three days before by Maddox Brothers, D & S owes Stacys Farms $4,320.00 for the melons. All of the other medium Crimsons loaded on May 21, 1988 appeared to be of acceptable quality. The uncorroborated hearsay regarding the origin of the inspected melons in Kentucky, especially after a market drop, is insufficient proof that Stacys Farms did not meet the terms of its verbal agreement with D & S regarding quality of shipped melons. D & S owes $4,320.00 for the melons. The computer records at D & S do not show the 49,120 lbs. of medium Greys loaded on Trailer TH50695PA pursuant to instructions from Tom Killmon. At the time the melons were loaded, Tom Killmon was a licensed buyer for D & S, but he also ran an independent melon business. Tom Killmon's business records reflect that he purchased the melons from D & S at nine and one-half cents per pound. The office memo referred to as Petitioner's Exhibit #5 acknowledges the load and that it received a government inspection. Tom Killmon's records reflect that he was paid for the melons but that he had not paid D & S. D & S owes $4,420.80 to Stacys Farms for the melons. Large Crimsons were loaded onto Trailer CSXZ676130 and shipped to Quebec as load number 88124. According to Petitioner's Exhibit #5, some trouble existed concerning the purchase by D & S' customer and the price of the melons was reduced by approximately $876.00. This later turned out to be $869.35. The business records show that the number of melons actually shipped to Montreal by D & S was less than the number of pounds represented on the bill of lading. At the point of destination only 38,443 lbs. of melons arrived. The quantity of melons and the freight flat rates were adjusted accordingly by the customer. For some reason, the purchase rate of $.123 per pound was reduced to $.11 per pound. There was no proof provided to establish whether the reduction in price had anything to do with the quality of the melons. Because a seal was placed upon the load at Stacys Farms prior to the shipment of the product by rail, a reasonable inference exists that the loading ticket accurately reflects the amount of melons purchased by D & S from Stacys Farms. The sum of $3,855.60 should be paid to Stacys Farms for this load.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Agriculture and Consumer Services enter a Final Order requiring D & S to make payment to Stacys Farms in the amount of $17,967.10. In the event D & S does not comply with the Department's order within fifteen days from the date it becomes final, Fidelity should be ordered to provide payment under the conditions and provisions of the agricultural products bond. The bond only provides for payment up to $10,000.00. DONE and ENTERED this 8th day of January, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. See HO #4-#5. Rejected. Improper conclusion. See HO #5. Rejected. Improper summary. Rejected. The weight to be given to testimony is within the sole discretion of the Hearing Officer. Accepted. Rejected. Irrelevant. See HO #9. Rejected. Irrelevant and immaterial to the complaint. Rejected. Irrelevant. See HO #9. Respondent D & S' proposed findings of fact are addressed as follows: Rejected as to Buddy Session's status. Otherwise accepted. See HO #3 and #5. Rejected as to the term "top quality" in first sentence. Contrary to fact. Rejected as to last two sentences. Contrary to fact. See HO #4. Accepted. Rejected. Irrelevant. Accept the first sentence. The rest is rejected. Contrary to fact. Improper conclusion. See HO #8. Rejected. Outside the terms of the complaint and the proceeding. Also, improper conclusion based upon insufficient evidence. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Rejected. Argumentative. Improper summary. Contrary to fact. See HO #4. Rejected. Contrary to fact. See HO #17. Rejected. Contrary to fact. See HO #17. Rejected. Contrary to fact. See HO #13-#18. Copies furnished: Marilyn G. Sears Stacys Farms, Inc. 1201 Riverbend Drive LaBelle, Florida 33935 Philip L. Burnett, Esquire PHILIP L. BURNETT, P.A. Post Office Box 2258 Fort Myers, Florida 33902 Fidelity & Deposit Company of Maryland Post Office Box 1227 Baltimore, Maryland 21203 Fidelity & Deposit Company of Maryland Honorable Doyle Conner Post Office Box 25857 Commissioner of Agriculture Tampa, Florida 33622 The Capitol Tallahassee, FL 32399-0810 Ben F. Pridgeon, Jr., Chief Bureau of License and Bond Mallory Horne, Esquire Department of Agriculture General Counsel and Consumer Services Department of Agriculture Lab Complex and Consumer Services Tallahassee, Florida 32399-1650 Mayo Building Tallahassee, FL 32399-0800
Findings Of Fact The Petitioners and the Respondent had a business relationship under which the Respondent purchased watermelons from the Petitioners during the 1978 harvest season. Watermelons are at times sold on a "cash basis", which means that a buyer purchases the melons at the field for a set price per pound. At other times watermelons are sold on a "handle basis" or a "brokerage basis". Under these arrangements a buyer picks up a load of melons, sells it at the best obtainable price, and a portion of the sale price goes to the producer and a portion to the buyer. Prior to the 1978 harvest season, the Petitioners had had some unhappy experiences selling watermelons on a "handle" or "brokerage" basis. They decided to sell melons during the 1978 season only on a cash basis. The Respondent purchased several loads from the Petitioners during 1978 on a cash basis. A dispute arose as to four loads of melons which the Respondent purchased from the Petitioners late in the 1978 harvest season. The Petitioners understood that the transactions would continue to be on a cash basis. The Respondent, who was represented by W.B. Stevens in the transactions, appears to have had the honest belief that the transactions would be on a brokerage basis. Mr. Stevens did not, however, reduce the brokerage arrangement to writing, and he did not adequately advise the Petitioners that the terms of the transactions would be different from previous transactions that year. The four transactions were as follows: On May 30, 1978, the Respondent purchased 2,000 Grey watermelons which weighed 44,650 pounds at a quoted price of 4.75 cents per pound. On June 2, 1978, the Respondent purchased 1,330 Jubilee watermelons which weighed 45,470 pounds at 5.25 cents per pound. On June 5, 1978, the Respondent purchased 1,560 Grey watermelons which weighed 40,080 pounds at a quoted price of 4.50 cents per pound, and 1,550 Jubilee watermelons which weighed 44,100 pounds at a quoted price of 5.00 cents per pound. The total amount the Respondent owed the Petitioners for these four loads was $8,516.66. The Respondent issued the Petitioners a check for the loads in the amount of $5,453.72. The Petitioners are thus owed an additional $3,062.94. The Respondent offered several affidavits into evidence. These were identified for the record as Respondent's Exhibits 1-5, but they were rejected. Even if the affidavits had been admissible, they would not serve to alter the findings of fact set out herein. The affidavits identified as Respondent's Exhibits 1, 3 and 4 relate to the quality of the watermelons. Since it has been found that the melons were sold on a cash basis, the Respondent took ownership of the melons when they were loaded onto the Respondent's trucks. The quality of the melons would not, therefore, affect the amount the Respondent owed the Petitioners. If the Respondent were going to reject the melons, it should have done so when they were loaded onto the trucks. The affidavit which was identified as Respondent's Exhibit 2 relates to a truck shortage that existed in Florida at the time that the Petitioners' melons were harvested. While this affidavit may tend to support the Respondent's contention that it intended these loads to be sold on a brokerage basis, it does not alter the fact that the Respondent did not adequately communicate this understanding to the Petitioners. The affidavit which was marked as Respondent's Exhibit 5 is unsigned. Furthermore, it relates only that Mr. Stevens believed that the transactions would be handled on a brokerage basis. The affidavits are hearsay and are not cumulative of other evidence in this case. They are therefore inadmissible. Even if the affidavits were admissible, however, they would have no relevance to the issues. The Respondent is licensed with the Department of Agriculture and Consumer Services as an agricultural commodity dealer. The Respondent has a $20,000 bond on file with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED: That a final order be entered by the Department of Agriculture and Consumer Services finding that the Petitioners are entitled to $3,062.94 in additional compensation for agricultural commodities which they sold to the Respondent, and requiring the Respondent to pay this sum to the Petitioners. RECOMMENDED this 7th day of March, 1979, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June. COPIES FURNISHED: Mr. W. B. Stevens President Eastern Marketing Services, Inc. P.O. Box 2156 Bartow, Florida 33830 Mr. Thomas H. Mancil P.O. Box 303 Clewiston, Florida 33840 L. Earl Peterson, Chief Bureau of License & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32304 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32304 Robert A. Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
The Issue The issue in the proceeding is what amount, if any, is owed by M. G. Ford Produce to Spessard Putnal for two and a half loads of watermelons. A determination of this issue requires a determination of the character of the transaction regarding the watermelons: Was it a "sale", or was it an agreement to "handle" the melons as a broker?
Findings Of Fact Spessard Putnal grows watermelons in Lafayette County and operates out of Mayo, Florida. M. G. Ford owns M. G. Ford Produce Company, a licensed and bonded brokerage business and the successor to his father's business, Malvin Ford Produce. Both S. J. Ridgdill and Rodney Ridgdill own a fraction of the business. The principal office is in LaBelle, Florida; however, other offices are located temporarily elsewhere, including Mayo, during the various growing seasons. The watermelons which are the subject of this dispute are described as follows: Load number 218 This was 44,340 pounds of Charleston Grey watermelons: 28,260 pounds of melons grown by Cory Buchanan from Mayo, and 16,080 pounds of melons grown by Spessard Putnal. The truck left Lafayette County on June 22, 1986, and arrived at A & P Stores in Edison, New Jersey, on June 24, 1986. The load was inspected by an A & P inspector and was rejected for excessive rind rot. The load was then consigned to Eckert Produce, Inc. in Philadelphia on June 25, 1986. Eckert sold the melons for $.75 and $1.00 each, and after deducting its unloading, handling and selling charges ($534.88), paid M. G. Ford Produce $1,057.62. M. G. Ford's accounting to Spessard Putnal and Cory Buchanan which, after deducting freight expense of $1,640.58 and $75.00 handling charge, indicated a net loss of $657.96. The loss was apportioned between the two growers according to their share of the load. Load number 227 This was a full load of Spessard Putnal's Charleston Grey melons; 46,070 pounds. It left by truck on June 30, 1986, and was inspected by a U.S. Department of Agriculture inspector in New York on July 3, 1986. Six per cent damage by "transit rubs" was found, and 7 percent decay. The load arrived at Wakefern Foods in Linden, New Jersey, on July 3, 1986, where it was rejected. The load was then consigned to Eckert Produce Company in Philadelphia on July 7, 1986. A few melons sold for $1.25 each; most sold for $1.00 each. After deducting its various charges ($587.74), Eckert paid M. G. Ford Produce $1,098.51 for the load. M. G. Ford's accounting to Spessard Putnal showed deductions of $1,773.69 for freight and $75.00 for handling, for a net loss of $750.18. Load number 228 This was 43,890 pounds of Spessard Putnal's Charleston Grey melons. The truck left on July 2, 1986, and the load was inspected in New Jersey for a prospective distributor, Anthony Gangemi, Inc. The U.S. Department of Agriculture inspection form dated July 5, 1986, is stamped "Rejected" with notations of internal rind spots, bruising, bacterial soft rot, and "overripe". The load was consigned to Eckert Produce on July 7, 1986. The melons that were not discarded were sold for $1.00 each. After deducting its charges ($545.55), Eckert paid M. G. Ford Produce $1,143.45 for the load. In turn, M. G. Ford deducted freight of $1,645.87 and handling charges of $75.00, and its accounting to Spessard Putnal showed a net loss of $577.42. 1/ The end of the watermelon season in Lafayette County in 1986 was around the Fourth of July. Because of heavy rains and because of the end of the season, M. G. Ford Produce had considerable trouble with rind rot on Charleston Greys by the time they got to the northern markets. John Hull works for M. G. Ford Produce. He inspects the melons in the field and supervises the loading by contract crews. He thought Spessard Putnal's watermelons looked good and would "ride" (go north and pass inspection and be accepted). He told Putnal that he (Putnal) should be able to get at least $.03 per pound. When the two men called M. G. Ford, who was in North Carolina, he told them that the only way he would take the loads was on a consignment basis and that he would pay $.03 a pound or better if they passed inspections. The melons were loaded and their fate is described in Paragraph 3, above. Spessard Putnal claims that the agreement was that M.D. Ford bought his melons for $.03 a pound. He says that he never sells his melons on consignment but is paid "when they cross the scale". He said that the reason he wasn't paid immediately in this case was that M. G. Ford was in North Carolina. He admits that on other occasions he was paid by M. G. Ford according to the prices the melons brought "up the road". Sonya Ridgdill is M. G. Ford's mother and Malvin's widow. She served as bookkeeper, office manager and secretary for Malvin Ford Produce for 15 years and now works with her son's company. She was in the Mayo office when the arrangements were made regarding Mr. Putnal's melons and she could have paid him immediately if that had been the agreement. M. G. Ford Produce both "buys" produce and "handles" (consignment) produce for growers. When the produce is bought, the grower is paid immediately. The company has "handled" melons for both Spessard Putnal and Cory Buchanan. Cory Buchanan did not contest the accounting on his share of load number 218. A negative inspection will not necessarily result in a load being "kicked" (rejected). The market supply and demand also governs whether the load will be sold. As is common in such transactions, the arrangement between Spessard Putnal and M. G. Ford Produce is not reflected in writing. Nor is there evidence of written or verbal consent from Spessard Putnal to the consignment by M. G. Ford to Eckert Produce.
Recommendation Based upon the foregoing, it is recommended that a Final Order be entered finding that no funds are owed by Respondents to Petitioner for the watermelons in question and dismissing Petitioner's complaint. DONE AND RECOMMENDED this 25th day of February, 1987, at Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1987.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, and at the subsequent deposition, the following facts are found: At all times pertinent to this proceeding, 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 Sales was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4103 by the Department, and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $20,000 Bond No. RN 4429948. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). On June 12, 1985, Respondent Sales, acting through its agent William C. Summers (Summers), contracted with Petitioner to purchase several loads of watermelons which were to be loaded by Petitioner on trucks furnished by Respondent Sales at Petitioner's watermelon field. Summers acting as Respondent Sales' agent had the authority to purchase, inspect, accept and pay for the watermelons. Petitioner agreed with Summers to load "field run" watermelons that were not "too big" or not "too small". Respondent did not request that the load be small, medium or large. Small being watermelons ranging in size from 11 to 17 pounds medium being watermelons ranging in size from 17 to 24 pounds and large being watermelons ranging in size from 24 to 40 pounds. Although Petitioner did not agree to furnish any specific grade of watermelon, the evidence shows that it was understood by Petitioner that Summers was contracting for "good quality" watermelons. On the second load Summers instructed the Petitioner to eliminate the large watermelons and this was done while harvesting and packing. The agreed upon price per pound of watermelons was $0.03 and the total price of each load of watermelons was to be determined by multiplying the price per pound by the net weight of each load of watermelons. The net weight of the load of watermelons in dispute was 46,260 pounds which when multiplied by $0.03 per pound equals a total price of $1,386.90 which Respondent Sales has refused to pay. Under the agreement it was Petitioner's responsibility to harvest and pack the watermelons on the trailer in accordance with Summers instructions but at Petitioner's expense, and it was Summers' responsibility to inspect the watermelons as to size and quality during the harvesting and packing and to reject any watermelons not conforming as to size and quality under the agreement. Upon the watermelons being loaded, inspected, accepted and weighed, the sale was to be final and Petitioner was to receive payment with title and risk of loss passing to Respondent Sales at point of shipment. Although Petitioner loaded approximately 2 1/2 loads of watermelons for Respondent Sales, only the last load or the second full load, which Petitioner started loading on June 12, 1985 and finished loading on June 13, 1985, is in dispute. On June 13, 1985, Summers issued a check on the account of Respondent Sales for payment of the 2 full loads of watermelons, which included payment for the load in dispute, but later that same day demanded that Petitioner return the check or Summers would stop payment on the check. Petitioner returned the check and was later paid for the first load but Respondent Sales has refused to pay for second load alleging that the quality of the watermelons did not conform to the agreement. There was no problem as to the size of the watermelons. Respondent Sales, after Summers accepted and issued the check for the watermelons in dispute, decided to make payment of the watermelons contingent on acceptance at destination rather than acceptance by Summers at the point of shipment as agreed earlier and refused to pay Petitioner for the watermelons in dispute because allegedly they had not been accepted at their destination. When advised of this change, Petitioner refused to sell any more watermelons to Respondent Sales. Although Respondent's exhibit 1 and 2 show that a load of watermelons loaded by Petitioner was federally inspected on June 17, 1985 at its destination, the evidence is insufficient to prove that the load of watermelons in dispute was inspected on June 17, 1985. In any event, only the condition of the watermelons was reported on the inspection report and no determination made by the inspector as to size, quality or grade, and there was no evidence to show that the condition of the watermelons at their destination would result in the watermelons failing to conform to the agreement; i.e., good quality. The watermelons were culled in the field during harvesting, at the trailer during packing and were additionally culled by Summers during the packing while he was present. Summers was not present full time while the watermelons were being harvested and loaded but was present on several occasions for periods up to 20 or 30 minutes for a total time of approximately 1 1/2 hours. Summers was allowed to inspect the watermelons in the field before harvesting and during harvesting and, in addition to the culling of the watermelon during harvesting and loading by Petitioner, Summers was allowed to cull, while he was present during loading. The evidence is sufficient to show that Summers had ample opportunity to inspect the watermelons and that he did inspect and accept the load of watermelons in dispute at point of shipment. The testimony of Petitioner and Bill Lamb that the watermelons in dispute were of the size and quality to conform to the agreement when loaded on the trailer on June 12 and 13, 1985 was credible.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Sales be ordered to pay to the Petitioners the sum of $1,386.90. It is further RECOMMENDED that if Respondent Sales fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 14th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Terry McDavid, Esquire 200 North Marion Street. Lake City, Florida 32055 Robin C. Shiver Route 3, Box 248 Mayo, Florida 32066 Carl Boyles A. J. Sales Company P. O. Box 7798 Orlando, Florida 32854 Hartford Insurance Company of the Southeast 200 East Robinson Street Orlando, Florida 32801
Findings Of Fact Upon consideration of the oral testimony and the documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, Petitioner, L. L. Hiers was a "producer" of agricultural products in the state of Florida as defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Respondent, Jay Nichols, Inc. (Nichols) was a licensed "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes, issued license number 1547 by the Department, and bonded by U.S. Fidelity & Guaranty Co. (Fidelity) for the sum of $50,000.00 bond number 790103-10-115-88-1, with an effective date of March 22, 2988 and a termination date of March 22, 1989. At all times pertinent to this proceeding, Nichols was authorized to do business in the state of Florida. The Complaint was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes. Prior to Petitioner selling or delivering any watermelons (melons) to Nichols, Petitioner and Nichols agreed verbally that: (a) Petitioner would sell Nichols melons on a per pound basis at a price to be quoted by Nichols on the day of shipment, (b) Petitioner would harvest and load the melons on trucks furnished by Nichols (c) a weight ticket with the weight of the truck before and after loading would be furnished to Petitioner; (d) Nichols or its agent in the field would have the authority to reject melons at the place of shipment (loading) which did not meet the quality or grade contracted for by Nichols; (e) the melons were to be of U.S. No. 1 grade and; (f) settlement was to be made within a reasonable time after shipment. Although Nichols assisted Petitioner in obtaining the crew to harvest and load the melons, Petitioner had authority over the crew and was responsible for paying the crew. On a daily basis, Petitioner would contact Nichols and obtain the price being paid for melons that day. The price was marked in the field book with the net weight of each load. Nichols contends that the price quoted each day was the general price melons were bringing on the market that day, but the price to be paid Petitioner was the price Nichols received for the melons at their destination minus a 1 cent per pound commission for Nichols, taking into consideration freight, if any. Nichols was not acting at Petitioner's agent in the sale of the melons for the account of the petitioner on a net return basis nor was Nichols acting as a negotiating broker between the Petitioner and the buyer. Nichols did not make the type of accounting to Petitioner as required by Section 604.22, Florida Statutes, had Nichols been Petitioner's agent. The prices quoted by Nichols to Petitioner each day was the agreed upon price to be paid for melons shipped that day subject to any adjustment for failure of the melons to meet the quality or grade contracted for by Nichols. On June 10, 1988, Petitioner contacted Nichols and was informed that the price to be paid for melons shipped that day was 6 cents per pound. This price was recorded in the field book with the net weight of each truckload of melons shipped that day. Petitioner shipped 4 loads of melons on June 10, 1988 but only 3 loads are in dispute, as follows: (a) load no. 10891 weighing 45,830 lbs. for which Nichols paid 3 cents per pound; (b) load no. 10892 weighing 43,950 lbs. for which Nichols paid 5 cents per pound and; (c) load 10893 weighing 47,190 lbs. for which Nichols paid 5 cents per pound. On June 22, 1988, Petitioner contacted Nichols and was informed that the price to be paid ford melons shipped that day was 5.25 cents per pound. This price was recorded in the field book with the net weight the loads shipped that day. Only load no. 10174 weighing 44,550 lbs. for which Nichols paid 3 cents per pound is in dispute. On June 23, 1988, Petitioner contacted Nichols and was informed that the price to be paid for melons shipped that day was 5.5 cents per pound. This price was recorded in the field book with the net weight of the loads shipped that day. Two loads were shipped, but only load no. 11227 weighing 48,490 pounds for which Nichols paid 5 cents per lbs. is in dispute. The differences in the price paid for each load and the agreed upon price are as follows: (a) load no. 10891-$1324.90; (b) load no. 10892-$479.50; (c) load no. 10893-$471.90; (d) load no. 11174-$891.00 and; (c) load no. 11227- $242.45. The total amount in dispute is $3,419.75. Nichols contends that load no. 10891 was rejected because it failed to pass government inspection due to quality, and that the quality of load nos. 10982, 10893, 1174 and 1122 was poor, resulting in a lower price than the price agreed upon. There was insufficient evidence to support this contention. Nichols has refused to pay Petitioner the difference between the agreed upon price for load nos. 10891, 10892, 10893, 11174 and 11227 and the price paid by Nichols as indicated on the settlement sheet. The difference is $3,419.75, and is owed to Petitioner by Nichols.
Recommendation Upon consideration of the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Respondent, Jay Nichols, Inc. be ordered to pay to Petitioner, L. L. Hiers the sum of $3,419.75. It is further RECOMMENDED that if Respondent, Jay Nichols, Inc. fails to timely pay Petitioner, L. L. Hiers as ordered, then Respondent, U.S. Fidelity & Guaranty Co. be ordered to pay the Department as required by section 604.21, Florida Statutes, and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes. Respectfully submitted and entered this 20th day of March, 1989, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1989. COPIES FURNISHED: Carl Hiers, Qualified Representative Route 5, Box 339 Dunnellon, Florida 32630 Steve Nichols, Vice President Jay Nichols, Inc. Qualified Representative Post Office Box 1705 Lakeland, Florida 33802 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 513 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 U.S. Fidelity & Guaranty Co. Post Office Box 1138 Baltimore, MD 21203
Findings Of Fact Willie J. Woods is a farmer. He entered into an agreement with W. R. Ward, Jr., President of Growers Marketing Service, Inc. (GMS) concerning the disposition of watermelons which he had grown. The testimony of Woods and Ward concerning the nature of the agreement is conflicting. In the absence of a written contract, the nature of the agreement must be determined from the other documents surrounding their transactions. From these documents, it is determined that the agreement between the parties was not for the purchase of Woods' watermelons by GMS. The documentation surrounding the transactions by GMS, show that GMS was acting as a broker or middle man in introducing Woods' watermelons into the stream of commerce. According to Mr. Ward's records, each shipment was assigned a transaction number, and each sale from a lot of watermelons was also assigned a transaction number. The record of each of these transactions was examined in detail. Below each of these transactions is discussed, and where portions of the record are particularly pertinent, they have been copied and attached to this order for ease of reference. In some instances, the settlement statement has been reproduced and corrected to reflect what the actual charges should have been based upon the underlying record. A handwritten explanation of the adjusting entries has been added to these statements. Transaction number 1439: On June 4, 1991, Woods delivered 43,750 pounds of watermelons to GMS The documentation surrounding this transaction shows that GMS, sold the load of watermelons FOB Brooksville, Florida for a price of 14 cents per pound.The purchaser's driver transported the load from Brooksville to Canada where the purchaser "rejected" the load because the melons were immature. By purchasing the watermelons FOB Brooksville, the purchaser waived any right to reject the melons upon their arrival at their destination. Further, the only evidence of immaturity is an inspection report which states that the inspection was limited and may not reflect the condition of the whole load. The inspection report itself is hearsay. The dollar value of this load as stated in the Bill of Lading/Customs Declaration was $6,125.00. The cost of freight was not shown in the file because it was delivered FOB Brooksville and the costs were borne by the purchaser. The GMS's handling fee was 1 cent per pound or $438.00. GMS owed Woods $5,687.00 on transaction number 1439. GMS paid Woods $2,879 on this transaction. GMS still owes Woods $2,808 on this transaction. Transaction number 1424: On June 4th, GMS sold in behalf of Woods $4,320 pounds of watermelons for 20.25 cents per pound. W. R. Ward stated that the price was reduced from 15 to 5 cents per pound, and was a bookkeeping error. The file reflects the sales price for the 46,320 pounds of watermelons was $9,380. The file reflects that transportation on this load of watermelons was $1,683.00, and GMS, was entitled to 2.5 cents per pound for packing and 1 cent handling for a total of $1,621. The total expenses were $3,304.00 for transaction number 1424. GMS owed Woods $6,077.00 for transaction 1424, but only paid him $1,844. GMS still owes Woods $4,233 on this transaction. Transaction number 3534: On June 4th, GMS, handled a load of yellow meat watermelons weighing 4,071 pounds for Willie J. Woods. Subsequently, GMS sold portions of this load of watermelons in transactions number 1565, 1507, 1461, 1403, and 1476. On June the 6th, GMS sold 13,337 pounds of watermelons at 17 cents a pound for a total sales price of $2,267.29 in transaction 1461. On June 6th, Growers Marketing Service sold 18,909 pounds at 14 cents a pound for a total of $2,647.26 in transaction number 403. On June 7th, Growers Marketing Service sold 1,945 pounds at 22 cents a pound for a total of $427.90 in transaction 1476. On June 14th, Growers Marketing Service sold 5,347 pounds on transaction 1565 which were subsequently rejected because of severe decay. See, Dump Report dated July 5 in Transaction 1565. Growers Marketing Service showed no income nor expense to the grower on transaction 1565. Because these melons were not sold until June 14, it is possible that they decayed. GMS's treatment of the transaction on the settlement statement is contrary to the notes on transaction 1565 which treat is as a wash with no income or expense to Woods. The assessment of freight and handling charges was not inappropriate under the circumstances, and are disallowed. See, Corrected Invoice 3534 attached to this Order. The total revenue from the remaining transactions was $6,142. The expenses on the various loads total $2,285. GMS owed Woods $3,857 on this load, but only paid him $1152. GMS still owes Woods $2705 on this transaction. Transaction number 3541: On June 7, 1991, Growers Marketing Service handled 9,997 pounds of watermelons for Willie J. Woods on transaction number 1565. This load was sold to Castellini Produce on transaction 1565, discussed above, where it was rejected for excessive decay. The assessment of the freight charges and handling charges on this load which was handled 10 days after it was picked was inappropriate, and is disallowed. It is treated also as a wash in this transaction just as it was in 3534, and just as GMS treated it in transaction 1565. Transaction number 3546: On June 11th, Growers Marketing Service received 4,949 pounds of yellow meat watermelons from Woods. It subsequently sold these watermelons for Woods in transactions 1589, 1607, and 1613. Regarding transaction 1589, the Growers Marketing Service's settlement statement to Woods reflects that this transaction is subject to PACA Audit; however, GMS included the 14,121 pounds of watermelons in its settlement at a expense to Woods of 5 cents per pound on a sales price of 1.67 cents per pound. Because this transaction is still subject to audit, it was inappropriate to settle with the farmer. For purposes of this accounting, 1589 is not considered. In transaction 1607, GMS sold 16,775 pounds of yellow meat watermelons received from Woods on transaction 3546. Transaction 1607 and the funds received from the transaction are discussed in full below with regard to transaction 3548; therefore, it is not discussed or accounted for as part of transaction 3546. In transaction 1613, Growers Marketing Service sold 10,053 pounds of watermelons at 11.6 cents per pound for a total of $1,069.00. Expenses attributable to transaction 1613 were $554.00. Woods was entitled to $614.00 on transaction 1613; however, he was paid nothing on this transaction; GMS owes Woods $614 on this transaction. Transaction 1475: On June 11th, Growers Marketing Service received 45,050 pounds of watermelons from Woods. Growers Marketing Service asserts that the original price of these watermelons was dropped from 15 cents to 12 cents; however, the checkstub attached to the invoice shows a total payment to GMS of $7,298.10 at the original purchase price of 17.2 cents per pound. Growers Marketing Service's costs in this transaction were $2,358. Because this transaction clearly shows the original price was paid, it reflects adversely on creditability of the witnesses for Growers Marketing Service with regard to their testimony in other transactions that the original price was reduced due to fall in the market. Growers Marketing Service owed Woods $4,940 on transaction 1475, and paid him $4,484. GMS still owes Woods $456 on this transaction. Transaction number 1508: On June 11, 1991, Growers Marketing Service received 46,000 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these melons at a price of 10.25 cents per pound. Growers Marketing Service received $4,715.00 on transaction 1508 and had expenses in the amount of $2,259.00. Growers Marketing Service owed Woods $2,456.00 on transaction 1508, and paid Woods $2,284. GMS still owes Woods $172 on this transaction. Transaction number 1497: On June 11, 1991, Growers Marketing Service received 45,340 pounds of watermelons in this transaction. Growers Marketing Service sold these watermelons at 16.35 cents per pound and deducted freight of 4.35 cents per pound, showing a net sales price of 12 cents per pound. This resulted in sales revenue of $5,441 from which GMS deducted its 1 cent handling charge and an additional $4,750 listed as a harvesting advance. GMS paid Woods $204. GMS introduced no proof of a harvesting loan; however, Woods' complaint admits this loan. Nothing is owed to Woods on this transaction. Transaction number 3548: On June 12, 1991, Growers Marketing Service received 41,132 pounds of watermelons from Willie J. Woods. Subsequently, Growers Marketing Service sold watermelons received from Woods on this transaction in its transaction numbered 1613, 1607 and 1627. Growers Marketing Service asserts that 24,457 pounds of watermelons were rejected and destroyed on transaction 1607. The records regarding transaction 1607 show handwritten notation on the invoice that Growers Marketing Service received a total after expenses of sale of $3,286.00 on transaction 1607. In transaction 1613, Growers Marketing Service sold 10,032 pounds of watermelons at 11 cents a pound and in transaction 1627 Growers Marketing Service sold 7,899 pounds of watermelons at 7 cents a pound. The original settlement statement reflected incorrectly that Woods owed GMS $810. A corrected settlement statement on transaction 3548 is attached to this Order and reflects that Willie J. Woods was owed the amount of $1,019.00 in transaction 1607, $624.00 in transaction 1613, and $1,019.00 in transaction 1627. GMS paid Woods no money on this transaction, and owes Woods a total of $1,873. Transaction number 1527: On June 12, 1991, Growers Marketing Service received 50,080 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these watermelons for 17.35 cents per pound receiving a total of $8,689.00 less expenses of $2,441.00. GMS owed Willie J. Woods $6,248.00 on transaction 1527, and paid Woods $247. GMS owes Woods $6,001. Transaction number 1536: On June 12, 1991, Growers Marketing Service received 41,320 pounds watermelons from Willie J. Woods. Growers Marketing Service consigned these watermelons and received $2,078.00 less expenses of $1,473.00. Woods owed $605.00 from Growers Marketing Service on transaction 1536, and paid Woods $307. GMS still owes Woods $298. Transaction number 1535: On June 12, 1991, Growers Marketing Service received 43,240 pounds of watermelons from Willie J. Woods in this transaction. Growers Marketing Service subsequently sold these watermelons at 16.45 cents per pound receiving a total of $7,113.00 less expenses of $2,357.00. Growers Marketing Service owed Willie J. Woods $4,856.00 on transaction 1535, and paid Woods $2,802. GMS still owes Woods $2,054. Transaction number 1505: On June 13, 1991, Growers Marketing Service received 44,950 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold these watermelons for a total of $6,967.00 to a dealer in Canada. The dealer in Canada rejected the watermelons upon their receipt serving that they were overripe on June 15, 1991, when they were received. A Canadian agricultural inspection was ordered and conducted on June 21, 1991, which revealed that 28% of the melons showed decay. However, the inspection was not timely and the report is hearsay. GMS failed to exercise due diligence in obtaining a prompt inspection and seeking recovery in behalf of Woods. Therefore, after absorbing expenses of $2,747.00, Growers Marketing Service owed Woods $4,220.00 for his loss in this transaction. GMS paid Woods $1,250 salvage on the load; however, it still owes him $2,970. Transaction number 1520: On June 13, 1991, Growers Marketing Service received 45,940 pounds of watermelons from Willie J. Woods in this transaction. The front of the folder shows that Growers Marketing Service sold this load of watermelons to Winn Dixie in South Carolina for 12 cents per pound, or $5,513. Upon receiving the watermelons on June 15 1991, Winn Dixie rejected the melons because they were "cutting white, green fresh." See copy of front of file. Growers Marketing Service asked another broker to move the load, and that broker and Growers Marketing Service arranged to have the load inspected at its next destination, Staunton, Virginia. The truck broke down in route to Staunton, Virginia and did not arrive until June 18, 1991. The other broker described the melons as looking "cooked" on arrival. Growers Marketing Service charged Woods with freight on this load. Because Growers Marketing Service had a legitimate freight claim against the trucking company, yet charged the loss and freight charges to the grower, GMS owes Woods $5,940 less the salvage, freight and expenses totaling $2,125. GMS owes Woods $3,816. Transaction number 3553: On June 13, 1991, Growers Marketing Service received 29,478 pounds of watermelons from Willie J. Woods on transaction 3553. Subsequently, Growers Marketing Service sold these melons to various concerns realizing $3,450.76 on these sales. GMS's settlement statement with Woods on this transaction reflects a deficit on transaction 1505 of $822.50. According to the records reviewed by the Hearing Officer there was no deficit in transaction 1505; therefore, the deduction of $822.50 was inappropriate. Adding this money back into the amount due Woods, Woods should have received $1,615.74 on transaction number 3553. GMS paid Woods $675, and still owes Woods $941. Transaction number 3552: On June 13, 1991, Growers Marketing Service received 32,769 pounds of watermelons from Willie J. Woods on this transaction. A review of the records reflects that Growers Marketing Service subsequently sold 10,403 pounds of these melons at three cents a pound, realizing $312.09. Growers Marketing Service also sold 19 bins of these melons weighing 22,366 pounds for nine cents a pound for a total of $2,012.94. Growers Marketing Service's settlement statement reflects a packing charge of two and a half cents per pound for 22,366 pounds of melons that were in bins. This is excluded as an expense because the adjustment for packing charges was included in the Hearing Officer's recomputation of the price of nine cents per pound. Similarly, the price adjustment of one and a half cents per pound was included in the recomputation of the price and is therefore excluded. The settlement statement which is attached to this Order reflects total receipts of $2,325 and total expenses of $750. Growers Marketing Services owed Willie J. Woods $1,575 on transaction number 3552, and paid Woods $1,551. GMS owes Woods $24 on this transaction. Transaction number 3549: On June 13, 1991, Growers Marketing Service received 32,564 pounds of watermelon from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold 4,008 pounds of watermelons at three cents a pound on transaction 1669, realizing $120.24 on the sale. Growers Marketing Service sold seven bins of watermelons weighing 8,400 pounds at $217.66 for each bin, realizing a total of $1,523.66 on transaction 1532. Growers Marketing Service sold 1,346 pounds of watermelon at eight cents a pound, realizing $107.68 on transaction 1678. Growers Marketing Services sold 18,810 pounds of watermelons at sixteen and a half cents a pound, realizing $3,104 on transaction 1530. The Growers Marketing Services' settlement statement on transaction 3549, corrected as indicated above, shows that Growers Marketing Services received a total of $4,855 on this transaction. Growers Marketing Services' statement reflects packing charges of four cents per pound for 24,164 pounds. This packing charge was not applicable because the melons are indicated to have been in bins, not in cartons. Further, the price adjustment of one and a half cents per pound on 18,810 pounds was included in the Hearing Officer recomputation of the price per pound. Taking into account these corrections, total revenue was $4,855, and the total expenses of Growers Marketing Services were $1,613. Growers Marketing Services owed Woods $3,242 on transaction 3549, and paid him $1,690. GMS still owes Woods $1,552. Transaction 3556: On June 13, 1991, Growers Marketing Services received 32,898 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Services sold 2,086 pounds of these watermelons for 12 cents a pound on transaction 1622. Growers Marketing Services sold 2,096 pounds of these watermelons at 10 cents a pound realizing $210 on transaction 1575. Growers Marketing Services sold 1,983 pounds of these watermelons at 10 cents a pound realizing $198 in transaction 1647. Growers Marketing Services' settlement for transaction 3556 is attached to this Order and reflects an original price for these melons of 4 cents per pound; however, Growers Marketing Services sold 1,029 of these watermelons at 11.6 cents a pound in transaction 1613. The settlement statement, a copy of which is attached, is corrected to reflect the sales price of 11.6 cents a pound, and the resulting change in the monies received from $41.16 to $119. GMS sold 2086 pounds of melon for 12 cents per pound realizing $250 on transaction 1622. GMS sold 3,841 pounds of watermelons for 10 cents per pound realizing $384 on transaction 1707. Growers Marketing Services sold 21,862 of these watermelons at 7 cents a pound realizing $1,530 on transaction 1627. The total received by Growers Marketing Services was $2,691 less expenses of $1,952. Growers Marketing Services owed Willie J. Woods $739, and paid him $662 on transaction 3556. GMS still owes Woods $77. Transaction number 3557: On June 14, 1991, Growers Marketing Services received 20,013 pounds of watermelons from Willie J. Woods on this transactions. Subsequently, Growers Marketing Services sold 9,214 watermelons at 12 cents a pound on transaction 1616. Growers Marketing Services 3,418 pounds of watermelons at 3 cents a pound in transaction 1669. Growers Marketing Services sold three bins of watermelons weighing 3,525 pounds at 16.5 cents a pound and an additional 3,852 pounds of watermelons at 16.5 cents a pound in transaction 1530. This is a total of 16,162 pounds of watermelons. The Growers Marketing Service's settlement statement, which is attached, is corrected to show the correct number of pounds sold and the correct amounts of money received by Growers Marketing Service. Growers Marketing Service received a total of $3,301.50 for the sell of these watermelons. Concerning the expenses shown by Growers Marketing Service, the number of pounds handled is adjusted to show that 16,162 pounds was handled. In addition, the 4 cent packing charge for 16,484 pounds of watermelons is deleted since these melons were not packed in cartons but in bins. In addition, the 1.5 cent price adjustment for 3,525 pounds of watermelons handled in transaction 1530 is in the recomputation of the price. The corrected expense total is $254. Growers Marketing Service owes Willie J. Woods $3,048 on transaction 3557. GMS paid Woods $643; however, it still owes Woods $2,405. The total of the sums still owed Mr. Woods by GMS is $32,999.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the parties be notified of these findings, and GMS permitted the opportunity to pay to Willie J. Woods $32,999 within 30 days, and if GMS fails to settle with Mr. Woods, Mr. Woods should be permitted to obtain settlement from the Respondent's bond in the amount of $32,999, or to the limits of the bond. DONE and ENTERED this 29th day of July, 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 29th day of July, 1992. COPIES FURNISHED: Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-1550 Willie J. Woods 1022 Piercewood Point Brooksville, Florida 34602 W. R. Ward, Jr., President Growers Marketing Srevice, Inc. Post Office Box 2595 Lakeland, Florida 33806 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure 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 this inspection, the melons accepted by Harmon were Respondents'. Price would vary over the season, but price was agreed upon before the melons were loaded. Settlement had always been prompt, and the Harmons enjoyed the confidence of the local farmers. On June 11, 1991, Petitioner was unable to fill out a load of regular size melons being sold to Respondent. Tommy Harmon was present and instructed Petitioner to finish the load with Pee Wee (smaller) melons. There were 10,602 pounds of Pee Wee melons loaded which Tommy Harmon agreed to purchase at 10 per pound. On June 18, 1991, a load of 49,330 pounds of Mirage melons was loaded for the Respondents. It is controverted by F. H. Dicks whether Harold Harmon was present when these melons were loaded; however, Dicks was uncertain and Harmon testified he could not remember. Petitioner testified Harmon was present, and inspected and accepted the melons under the same terms as all prior loads for a price of 6 per pound. Petitioner's testimony is uncontroverted, and there is no indication that the terms for this load were different from the other transactions, that is, FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking. Under the terms of sale, FOB purchaser's truck at seller's field, the Respondent bore the costs of transportation and the risk of refusal of the produce. Respondent's recourse was against the purchaser who refused delivery. If there was a problem with the grade, the Respondents also bore the risk of loss on sales which they made and which were rejected. The Respondents owe the Petitioner $1,060.20 for the Pee Wee melons, and $2,959.80 for the Mirage melons.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: Respondents be given 30 days to settle with the Petitioner in the amount of $4,020, and the Petitioner be paid $4,020 from Respondents' agricultural bond if the account is not settled. DONE and ENTERED this 6th day of October, 1992, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1992. COPIES FURNISHED: Terry McDavid, Esquire 128 South Hernando Street Lake City, FL 32055 F. H. Dicks, III c/o F. H. Dicks Company P.O. Box 175 Barnwell, SC 29812 Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800 South Carolina Insurance Company Legal Department 1501 Lady Street Columbia, SC 29202 Victoria I. Freeman Seibels Bruce Insurance Companies Post Office Box One Columbia, SC 29202 Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue Whether or not Petitioner (complainant) is entitled to recover $1,340.50 or any part thereof against Respondent dealer and Respondent surety company.
Findings Of Fact Petitioner is a grower of watermelons and qualifies as a "producer" under Section 604.15(5) F.S. Respondent Steve Helms Fruit Co., Inc. is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S. Respondent Ohio Casualty Insurance Co. is listed as surety for Steve Helms Fruit Co., Inc. The amount and period of the bond have not been established. The time material to the amended complaint is June, 1994. Two or three weeks before Petitioner's melons were ready for harvest, Steve Helms personally came to Petitioner's home and requested to ship Petitioner's melons for ultimate retail sale. Petitioner requested to be paid "up front." Mr. Helms would not agree to pay all the money "up front" but agreed to pay some. He also agreed to pay within 14 days of the first shipment. Petitioner had had a bad experience two years previously, so he got Mr. Helms to promise to "clean up" his field. This expression is subject to some interpretation, and although Petitioner initially stated that the agreement was for Respondent broker-shipper to buy all his melons regardless of condition, Petitioner later modified his statement to say that Mr. Helms only promised not to take the best melons and leave the rest. Harvesting began May 15, 1994. Until June 10, 1994, Petitioner's usual contact with Respondent broker- shipper was Frank Favuzza, who oversaw all weighing and loading and assessed the Petitioner's melons on behalf of Respondent broker-shipper. On June 10, 1994, Mr. Helms was again personally in the field. Petitioner told Mr. Helms that he had to get the remainder of the melons off the field by Sunday, otherwise the heat would ruin them. Mr. Helms said he would wait until Monday. Petitioner believes that if the melons had been harvested by Sunday, June 12, 1994, three truckloads could have been harvested. On Monday, less than a full truckload was in good enough condition to be loaded onto a truck. A lot of melons were going bad and were left in the field to rot. On Tuesday, June 14, 1994, Petitioner's melons were weighed at Romeo, Florida and the poundage established at 29,330 pounds. Frank Favuzza estimated to Petitioner that his melons would only bring $.04/lb. From this conversation, related by Petitioner, it may be clearly inferred that Petitioner knew he would not be paid until after Respondent broker-shipper received payment from the ultimate retailer at the other end of the transaction. Petitioner's amended complaint alleged the amounts due as follows: "On June 1, 1994, #92111, 700 lbs. at $.07 equals $49.00, not $490.00; June 3, 1994, #92117, 900 lbs. at $.07 equals $63.00, not $630.00; and June 3, 1994, #92120, 790 lbs. at $.07 equals $55.30, not $553.00. Therefore Item (12) Complaint Total is amended to $1,340.00." The amendments did not alter the original claim for 6-14-94, invoice 92157 for 29,330 lbs. of melons at $.04 for $1,173.20. There was no claim for the melons that rotted in Petitioner's field. Weight tickets and Respondent's corresponding broker-shipper's bills of lading were admitted in evidence. These showed the following amounts were received by Respondent broker-shipper: 6/1/94 INVOICE 92111 46,020 net weight melons 6/3/94 INVOICE 92117 45,580 net weight melons 6/3/94 INVOICE 92120 44,720 net weight melons 6/14/94 INVOICE 92157 29,330 net weight melons Petitioner testified, without refutation, that he was present at each weighing and that he had agreed to take $.07 per pound on all loads except for the June 14, 1994 load for which he was claiming $.04 per pound. The bills of lading support Petitioner's testimony as to the price per pound. The bills of lading also clearly show that the price per pound was "to farm minus labor." This notation means that the net amount to be paid Petitioner by Respondent was subject to a prior deduction for labor, but it cannot reasonably be inferred to include a deduction for shipping. Petitioner's last load of 29,330 lbs. of melons weighed on June 14, 1994 was less than a full truckload, so Respondent added melons from another farm to that truck to make up a full load. Respondent broker-shipper did not pay Petitioner for 700 pounds of the June 1, 1994, invoice 92111 truckload; for 900 pounds of the first June 3, 1994 invoice 92117 truckload; for 790 pounds of the second June 3, 1994 invoice 92120 truckload; or for any (29,330 pounds) of the June 14, 1994 invoice 92157 truckload, upon grounds that those melons were not saleable at their destination. Petitioner put in evidence Exhibit P-3 which is an accounting Respondent had sent him. It shows that Respondent broker-shipper had deducted $690.30 for labor on invoice 92111 and claimed 700 pounds could not be sold; had deducted $683.70 for labor on invoice 92117 and claimed 900 pounds could not be sold; had deducted $670.80 for labor on invoice 92120 and claimed 790 pounds could not be sold; and had paid Petitioner nothing on a June 14, 1994 truckload, invoice 92159. Invoice 92157, which corresponds to Petitioner's June 14, 1994 partial truckload of 29,330 pounds of melons, is not listed or otherwise explained in the exhibit. The exhibit is conclusionary and inexplicably is dated 1993. There is no back-up evidence to support Respondent's making these deductions. No inspection certificate or labor charges are in evidence. Petitioner's initial complaint, which he put in evidence as P-1, constitutes an admission by him. In the complaint, Petitioner contended (1) that he was selling "direct" to Respondent broker-shipper; (2) that he was selling "f.o.b."; and (3) that he was selling "Fob shipping point excectance (sic) after final inspection." Petitioner also stated therein that he was given an inspection sheet showing 46,310 lbs. of watermelons had failed inspection and he did not feel the melons that failed inspection were his melons because Frank Favuzza approved of all melons loaded from Petitioner's field and the inspection sheet did not say that the bad melons were Petitioner's melons. Somewhat contrariwise, Petitioner testified at formal hearing that he had asked Respondent broker-shipper for a government inspection certificate showing that his melons were bad and never got it. From the credible evidence as a whole, it is inferred that Petitioner sold his watermelons on the June 14, 1994 truckload at $.04 per pound contingent upon the melons arriving at their ultimate destination in saleable condition per a federal inspection. It is further inferred that the prior three loads at issue also were sold contingent upon their arriving in saleable condition. The evidence as a whole also supports a finding that Petitioner's melons left the weigh station in a condition capable of being sold for the respective prices agreed upon between Petitioner and Respondent broker-shipper. Any deterioration of melons between June 10, 1994 when Petitioner requested that the broker-shipper take the last load and June 14, 1994 when the last load actually was weighed and shipped is attributable to Respondent broker-shipper, but that fact is not significant since the lesser rate of $.04/lb. was agreed upon prior to shipping and after Respondent broker-shipper had seen and approved the loaded melons. Petitioner's foregoing evidence of delivering saleable quality melons to Respondent broker-shipper is unrefuted. The presumption is thereby created that but for some failure of Respondent broker-shipper, the melons would have arrived at their ultimate destination in saleable condition. There is no evidence of record to support Respondent's deductions for "labor," or for melons which allegedly could not be sold upon delivery at the ultimate destination. Petitioner moved ore tenus to further amend his complaint to include a prayer for reimbursement for the cost of the melons which rotted in his field and became unsaleable between June 10 and June 14, 1994 due to Respondent broker-shipper's delay in loading and to assert a claim for interest on the $1,340.50 claim. This motion was denied as too late.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture enter a final order awarding Petitioner $1,340.50, and binding Respondents to pay the full amount of $1,340.50, which in Ohio Casualty Insurance Co.'s case shall be only to the extent of its bond. RECOMMENDED this 2nd day of June, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1995. APPENDIX TO RECOMMENDED ORDER 94-6189A The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-2 Accepted. Rejected as unnecessary Rejected as subordinate and mere argumentation. 5-6 Rejected as mere argumentation. Rejected as these were not the dates testified. Rejected as mere argumentation. Respondent Steve Helms Fruit Co., Inc.'s PFOF: 1 Accepted. 2-4 Rejected as not proven. Accepted as to the June 10-14, 1994 load. Rejected as not proven. Not proven in whole. Covered to the extent proven. While one inference might be that a different invoice number was assigned to the combined load, that is not the only reasonable inference based on the evidence submitted. Likewise, although Petitioner apparently got some inspection certificate, that certificate is not in evidence. There is no record evidence as to what it covered. It is not reasonable to infer or guess that it covered four loads on four trucks on three dates or that there is any way to calculate from it that the only bad melons were Petitioner's melons and not those mixed in from another farm on June 14, 1994. See FOF 19-20. 8-15 Rejected as not proven. Respondent Ohio Casualty Insurance Co.'s PFOF: None filed COPIES FURNISHED: Frank Favuzza, President Steve Helms Fruit Co., Inc. Post Office Box 1682 Auburndale, Florida 33823 Tom Morton Ohio Casualty Insurance Co. Post Office Box 94-5010 Maitland, Florida 32794-5010 L. C. Stevenson 333 NW 46th Avenue Ocala, Florida 34482 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol PL-10 Tallahassee, Florida 32399-0810 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL 10 Tallahassee, Florida 32399
The Issue Whether A. J. Sales Company owes petitioner $1,712.80 for watermelons loaded on June 18, 1986.
Findings Of Fact Petitioner, Michael C. Jones, is a watermelon grower who resides in Summerfield, Florida. In June of 1986, petitioner arranged to sell his watermelons through Larry Dimaria for four cents a pound. Mr. Dimaria advised petitioner that he would get four cents a pound at the weighing. In his complaint, the petitioner described Mr. Dimaria as his "salesman." At the hearing he stated that Mr. Dimaria was his broker working on commission. Regardless of the characterization, it is clear that Mr. Dimaria was acting as petitioner's agent for the sale of the watermelons in question. Acting on behalf of petitioner, Mr. Dimaria called Carl Boyles, an employee of A. J. Sales Company, to advise that petitioner had watermelons for sale. Mr. Boyles was able to locate a buyer for the watermelons, the Auster Company in Chicago, Illinois. Mr. Boyles then called Mr. Dimaria to inform him of the sale. Mr. Dimaria was specifically advised by Mr. Boyles that the melons would have to be in good condition, meaning that they would pass a USDA inspection, and that petitioner would have to "ride the watermelons in," meaning that petitioner would have to guarantee arrival of the watermelons in good condition in Chicago. In other words, if the melons failed a USDA inspection in Chicago, the Auster Company had the right to reject the watermelons and the risk of the loss would be on petitioner. Petitioner was guaranteed four cents a pound for the watermelons only upon successful delivery. The terms and conditions of the sale were made clear to Mr. Dimaria. Indeed, because A. J. Sales Company had experienced problems with Mr. Dimaria in 1985, which included Mr. Dimaria's misrepresenting the quality of the watermelons he was selling, A. J. Sales Company had determined that the only terms on which it would do business with Mr. Dimaria were that the farmers Mr. Dimaria represented would have to guarantee arrival of the watermelons in good condition and that the farmers would bear the risk of loss if the melons were not in good condition when delivered. Since A. J. Sales Company's representatives do not see the watermelons themselves and could not rely on Mr. DiMaria's representations, A. J. Sales Company felt these terms were necessary to protect its interests. The subject watermelons were shipped to Chicago on June 18, 1986. They were inspected in Chicago on June 20, 1986, by a United States Department of Agriculture inspector. The watermelons failed to grade U.S. No. 1 on account of their condition, which was that the samples averaged 66 percent overmature. Mr. Boyles was advised of the problem with the watermelons on Friday, June 20, the day they were inspected. He attempted to telephone Mr. Dimaria but was unable to reach him. He therefore called the petitioner to advise of the condition of the melons and find out what petitioner wanted done. Petitioner told Mr. Boyles that he knew of no buyer in the area and told Mr. Boyles to do what he could. Mr. Boyles called several people in the Chicago area but could not find anyone who was willing to buy the watermelons. The only possibility was to take the watermelons to a flea market being held on Sunday and sell as many melons as possible directly from the truck. Mr. Boyles was advised that the melons might get $400 or $500 at the flea market, but he knew it would cost $300 to keep the driver in Chicago through Sunday. Therefore, the best return possible from selling the watermelons at the flea market would be $100 or $200. Further, the truck driver advised Mr. Boyles that the melons were popping open and juice was running out the bottom of the truck. Based on all the information that he had, Mr. Boyles determined that the best option was not to add an additional $300 to the freight bill, but simply to tell the truck driver to dump the watermelons. Respondent received a receipt indicating that one load of watermelons, constituting 46 x 2.05 cubic yards, had been dumped at the Inox County, Illinois, landfill and that the charge for dumping had been $94.30. A. J. Sales Company never received any payment for the watermelons in question. A. J. Sales Company invoiced petitioner for the freight charges on the watermelons, but petitioner never paid the invoice. Petitioner never invoiced A. J. Sales Company for the watermelons. What apparently happened in this case is that the petitioner was not fully advised by his agent, Mr. Dimaria, of the terms and conditions of the sale. All negotiations concerning the watermelons were conducted between Mr. Dimaria and Carl Boyles. The petitioner did not talk to any representative of A. J. Sales Company concerning the terms and conditions of the sale. Petitioner's only knowledge of the terms and conditions of the sale came from Mr. Dimaria, and petitioner admitted that he had experienced problems with representations made by Mr. Dimaria on other loads of watermelons he handled for petitioner. On other loads, petitioner was advised by Mr. Dimaria that he would receive a half cent more per pound for the watermelons than he actually got. After the instant dispute, Mr. Dimaria ceased being a broker representing the petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing petitioner's complaint. DONE AND ENTERED this 18th day of February, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 18th day of February, 1987. APPENDIX TO RECOMMENDED ORDER Respondent's proposed findings of fact: 1-2. Accepted in paragraphs 1 and 2. Accepted in paragraph 9. Accepted in paragraphs 3 and 9. Rejected, not a finding of fact. 6-8. Accepted generally in paragraph 4. Accepted generally in paragraph 3. Accepted generally in paragraph 5. 11-12. Accepted generally in paragraphs 6 and 7. 13-15. Accepted in paragraph 8. Petitioner's proposed findings of fact: Accepted in paragraph 5. Accepted in paragraphs 3 and 9. Accepted in paragraph 9. Rejected in that the watermelons failed to grade USDA 1 due to their condition. Rejected as unnecessary and irrelevant. COPIES FURNISHED: Mr. Michael C. Jones Route 2, Box 26-E Summerfield, Florida 32691 Thomas B. Smith, Esquire McGUIRE, VOORHIS & WELLS, P.A. Two South Orange Plaza Post Office Box 633 Orlando, Florida 32802 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 Robert Chastain, Esquire General Counsel Department of Agriculture 513 Mayo Building Tallahassee, Florida 32399-0800
The Issue Did Respondent Williams fail to make an accounting for and payment to Petitioner for the proceeds of agricultural products purchased by Ray Gene Williams d/b/a Williams Produce Company?
Findings Of Fact Petitioner Six L's grows watermelons in Collier County, Florida. It is therefore a producer of agricultural products in the State of Florida. Respondent Ray Gene Williams d/b/a Williams Produce Company is a dealer in agricultural products who engages in business in Florida. Respondent Hartford Accident and Indemnity Company is the surety for a bond posted by Respondent Williams to insure compliance with Section 604.20, Florida Statutes (1979). On May 26, 1980, Six L's sold 46,700 pounds of field run, crimson sweet, watermelons to Respondent Williams at a price of 5 1/2 cents per pound for a total cost of $2,568.50. The sale was negotiated between Mr. Charles Weisinger, a salesman for Six L's, and Mr. Larry DiMaria. Mr. DiMaria at that time was a purchasing agent for Respondent Williams. They agreed that the sale would be F.O.B. at Immokalee, Florida. On May 26, 1980 a truck under contract to Respondent Williams was loaded with 46,700 pounds of crimson sweet field run watermelons from the farm of Petitioner Six L's. The weight was verified by the Immokalee State Farmer's Market at 6:59 p.m., May 26, 1980. At that time Mr. DiMaria inspected the watermelons and accepted them on behalf of Respondent Williams. On the following day, May 27, 1980, Mr. DiMaria made payment for the watermelons by issuing check #465 drawn on the account of Williams Farms in the amount of $2,568.50, payable to Six L's Packing Company. Before Six L's could collect on the check, payment was stopped by Respondent Williams, and no payment for the watermelons has since been made by either Respondent. The final hearing in this case was initially noticed for December 4, 1980. At the request of Respondent Williams and with the agreement of Six L's it was continued to a later date. The final hearing was rescheduled for May 11, 1981 in Fort Myers, Florida at 10:00 a.m. At that time neither Respondent made an appearance. In order to give them time to appear the hearing was recessed until 10:30 a.m. At that time it resumed and was concluded at 11:30 a.m. with still no appearance by either Respondent. To the knowledge of the undersigned no attempt was made by the Respondents to request a continuance or otherwise explain their failure to appear.
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 finding Ray Gene Williams d/b/a Williams Produce Company indebted to Six L's Packing Company, Inc. in the amount of $2,568.50. DONE and RECOMMENDED this 12th day of June, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981.
