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 Upon consideration of the oral and documentary evidence adduced at the hearing, 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 Rentz 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 Respondent Nationwide in the sum of $14,000 - Bond No. LP 505 761 0004. At all times pertinent to this proceeding, 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). Petitioner harvested, loaded and shipped sixteen (16) loads of watermelons to various receivers on instruction from Respondent Rentz during the 1985 watermelon season but only four (4) loads were in dispute on the date of the hearing with a claim of $3,807.98. 1/ Petitioner in previous watermelon seasons loaded and shipped watermelons for Respondent Rentz and on all occasions, including the 1985 season, had been paid for the watermelons either in cash by Respondent Rentz or by check drawn on Respondent Rentz's account. The invoicing of all loads of watermelons shipped by Petitioner for Respondent Rentz was done by Respondent Rentz and payments made by the various receivers were made to Respondent Rentz. Petitioner's understanding that Respondent Rentz was acting as a buyer and not a broker was credible and supported by Respondent Rentz's actions subsequent to the watermelons being loaded and shipped. 2/ Although Respondent Rentz contended that he was acting as a broker, the more credible evidence shows that Respondent Rentz was acting as a buyer and that risk of loss passed to him upon shipment, with all remedies and rights for Petitioner's breach reserved to him. For purposes of Sections 604.15-604.30, Florida Statutes, the Department's policy is to consider a person a broker, 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 $3,807.98. 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 (1983). Respectfully submitted and entered this 15th 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 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1986.
The Issue Whether or not Petitioners (complainants) are entitled to recover $10,258.98, or any part thereof against Respondent dealer and his surety company.
Findings Of Fact Petitioners are growers of watermelons and qualify as "producers" under Section 604.15(5) F.S. Respondent Eddie D. Griffin d/b/a Quality Brokerage is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S. Respondent United States Fidelity & Guaranty Company is surety for Respondent Griffin d/b/a Quality Brokerage. This cause is governed by the claims made in the amended complaint. (Exhibit P-13) That amended complaint sets out the parameters of the claimed amounts as follows: AGREED PRICE PAID PRICE DIFFERENCE CLAIMED 6-13-92 Inv.#573 45,429 lbs. Jub. melons @ .04/lb.$1,816.80 (paid on 41,720 lbs.) Adv. -700.00 NWPB - 9.08 1,107.72 950.46 157.26 6-14-92 Inv.#586 48,060 lbs. Jub. melons @ .05/lb. 2,403.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.61 1,693.39 1,202.79 490.60 6-14-92 Inv.#587 50,610 lbs. Jub. melons @ .05/lb. 2,530.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 10.12 1,820.38 1,304.28 516.10 6-15-92 Inv.#592 44,800 lbs. Crim. melons @ .05/lb. 2,240.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.96 1,531.04 1,153.04 378.00 6-15-92 Inv.#593 46,340 lbs. Crim. melons @ .05/lb. 2,317.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.27 1,607.73 1,144.33 463.40 6-16-92 Inv.#598 47,170 lbs. Crim. melons @ .05/lb. 2,358.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.43 1,649.07 1,177.37 471.70 6-16-92 Inv.#607 48,320 lbs. Crim. melons @ .05/lb. 2,416.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.66 1,706.34 1,223.14 483.20 6-17-92 Inv.#628 1/ 40,890 lbs. Jub. melons @ .05/lb. 2,044.50 (no inv.# provided producer) Adv. -700.00 NWPB - 8.18 1,336.32 .00 1,336.32 6-17-92 Inv.#626 36,690 lbs. Jub. melons @ .05/lb. 1,834.50 (paid on 27,890 lbs.) Adv. -700.00 NWPB - 7.34 1,127.16 688.92 438.24 6-17-92 Inv.#627 37,300 lbs. Jub. melons @ .05/lb. 1,865.00 (paid on 30,500 lbs.) Adv. -700.00 NWPB - 7.46 1,157.54 818.90 338.64 6-17-92 Inv.#642 43,350 lbs. Job. melons @ .05/lb. 2,167.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.67 1,458.83 1,025.33 433.50 6-18-92 Inv.#643 44,150 lbs. Crim. melons @ .05/lb. 2,207.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.83 1,498.67 1,057.17 441.50 6-18-92 Inv.#644 45,060 lbs. Crim. melons @ .05/lb. 2,253.00 Adv. -700.00 NWPB - 9.01 1,543.99 .00 1,543.99 6-18-92 Inv.#646 43,180 lbs. Crim. melons @ .05/lb. 2,159.00 (paid on 38,380 lbs.) Adv. -700.00 NWPB - 8.64 1,450.36 1,211.32 239.04 6-18-92 Inv.645 47,070 lbs. Jub. melons @ .05/lb. 2,353.50 Adv. -700.00 NWPB - 9.41 1,644.09 .00 1,644.09 6-19-92 Inv.#663 43,520 lbs. Crim. melons @ .05/lb. 2,176.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.70 1,467.30 1,032.10 435.20 6-19-92 Inv.#685 44,820 Crim. melons lbs. @ .05/lb. 2,241.00 Adv. -700.00 NWPB - 8.96 1,532.04 1,083.84 448.20 TOTAL DUE $10,258.98 The amended complaint admits that Respondent's deductions for advances and NWPB were appropriate on each load/invoice, and these are not in contention. The amended complaint admits that Respondent has already made the payments to Petitioners, which are indicated. It is only the claimed shortfall on each load that is at issue. At formal hearing, Petitioners discussed a load they claimed they had delivered to Respondent on 6-20-92. They had neither receipts, weight tickets, nor settlement sheets, (invoices) nor payment from Respondent on this load. This "lost load," as the parties described it, is not named in the amended complaint. Therefore, no findings of fact can be made thereon, due to lack of jurisdiction. Petitioner's Exhibit 1 appears to apply to loads 560, 561, 562, and 563, all loads occurring on 6-11-92. That date and those load numbers also are not listed in the amended complaint. Accordingly, no findings of fact will be made with regard to loads 560, 561, 562 or 563, due to lack of jurisdiction. Petitioners delineated two theories of recovery as to the seventeen claims actually named in the amended complaint. Petitioners claimed the right to recover from Respondents due to Respondent dealer's failure to pay for all or some of the poundage delivered by Petitioners to Respondent dealer on the following loads: 6-13-92 #573, 6-17-92 #628, 6-17-92 #626, 6-17-92 #627, 6-18-92 #644, 6-18-92 #646, 6-18-92 #645, 6- 19-92 #685. Petitioners claim the right to recover from Respondents due to Respondent dealer's failure to pay per pound at the rate of one cent below the "wire price" per pound on the following loads: 6-14-92 #586, 6-14-92 #587, 6- 15-92 #592, 6-15-92 #593, 6-16-92 #598, 6-16-92 #607, 6-17-92 #642, 6-18-92 #643, and 6-19-92 #663. For 6-15-92 18-24 lb. average 4.50 - 5.00 cents, few 6.00 26-32 lb. average 4.50 - 5.00 cents, few 6.00 For 6-16-92 18-24 lb. average 5.00 - 6.00 cents 26-32 lb. average 5.00 - 6.00 cents For 6-17-92 18-24 lb. average 6.00 cents, few higher and lower 26-32 lb. average 6.00 cents, few higher and lower For 6-18-92 18-24 lb. average 6.00 - 6.50 cents, "Wire prices" are printed in "spread" form. Evidence was presented (Composite Exhibit P-14), and the parties are agreed, that the following were the "wire prices" at certain times material. Otherwise, there is no evidence in this record concerning amounts or dates of "wire prices." mostly 6.00, few higher 26-32 lb. average 6.00 - 6.50 cents, mostly 6.00, few higher and lower For 6-19-92 18-24 lb. average 6.00 - 6.50 cents, mostly 6.00, few higher 26-32 lb. average 6.00 - 6.50 cents mostly 6.00, few higher and lower Since no "wire prices" were proven up for the days involved in loads 586, and 587, Petitioners are not entitled to recover on their theory of entitlement for those loads. Upon the allegations of the amended complaint and the "wire prices" proven, it appears that Petitioners have already received payment from Respondent dealer at one cent (or better) below the proven low-end "wire price" on loads 592, 593, 598, and 607. Therefore, Petitioners are not entitled to recover on their theory of entitlement for those loads. Petitioners (grower-producers) believed that they had negotiated an oral contract with Respondent dealer to the effect that the dealer would pay Petitioners at the rate of one cent below the "wire price" per pound on those days that Respondent took delivery from them of their watermelons. Respondent testified contrariwise that although such an arrangement was discussed, the parties' final oral agreement was concluded in terms of an excellent quality of every melon, and after negotiations were completed, the dealer understood that the price he was to pay the producers was just the same price per pound he paid all his other producers on any given day. In determining the daily uniform price per pound, Respondent admitted that he used the "wire price" as a guideline, but never explained exactly how the "wire price" constituted a guideline. The Petitioners and Respondent dealer had dealt with one another over a period of years. In past years they had discussed what was to occur if any loads were refused, in whole or in part, by retail buyers at their ultimate destinations. Over the years, the parties had agreed that for loads involving a "small deduct," that is, a small amount of refused melons, Respondent had unilateral authority to informally agree to dump the bad melons or take whatever he could get for the load and pass on the monetary loss to Petitioners. Petitioners conceded that the discretion to take or not take such losses always had been entirely that of Respondent during the parties' several years of past dealing, and that before 1992, whenever an ultimate recipient had refused melons, the "deduct" had been "worked out" this way with no prior notice to Petitioners. In short, by Petitioners' own evidence, it appears that up until the loads at issue in 1992, Petitioners had always simply accepted the Respondent's calculations concerning refusals for quality without requiring proof by way of a federal inspection. Mr. Randal Roberts Sr. testified that in his opinion, any "deduct" over 300 pounds was not "small." However, no evidence defining an industry standard for the relative terms of "small deducts" or "large deducts" was introduced. In light of the parties' standard arrangement over the whole course of their business dealings, it is deemed that Respondent continued to be within his rights in 1992 to unilaterally decide which melons to pay Petitioners for and which melons not to pay Petitioners for where quality became an issue between himself and the ultimate recipients. Petitioners estimated that on a scale of one to ten, the melons they had delivered to Respondent dealer in 1992 were "about a seven" when they delivered them to him, even though Respondent's agents culled out the really bad melons. It may be inferred therefrom that the loads were no better and were probably in worse condition when they reached their ultimate destinations. Respondent testified that he had dumped all or part of the remaining loads in question or reduced the price per pound from that of the "wire price" due to the poor quality of the melons based on complaints or refusals by the recipients when the melons reached their ultimate destinations. These are loads 573, 628, 626, 627, 644, 646, 645, 685, 642, 643, and 663. Although Petitioners adamantly denied that they had ever agreed to rely on federal inspections to determine which melons were bad and which were good, Respondent had gotten federal inspection sheets (R-2) to support his decision to dump all or part of loads 628, 643, 645, 663, and 685. Respondent dealer introduced his business journal (R-3) to show that load 643 was "bad" and load 644 was "dumped" due to poor quality. Respondent dealer introduced his contemporaneous business journal (R- 3) to show that except for loads 607, 643, 644, 663, and 685 he had paid as much to Petitioners per pound as to anyone else on the respective days he had taken delivery. On those loads he had paid Petitioners less than some other producers whom he dealt with on those days, but contended that he had reduced the price per pound paid to Petitioners on those days on the basis of poor quality, too. Nonetheless, 607 was paid at least at one cent below the "wire price" (See Finding of Fact 14), 643 was shown bad by inspection, 644 was dumped in its entirety per the dealer's journal, and 663 and 685 were shown bad by inspection. Upon the foregoing, it is determined that Respondent was within the parameters of his standard dealings with Petitioners where he reduced the price per pound of loads 643 and 663 on the basis of quality, just as he was within his clear unilateral authority and discretion to dump or discard whole melons from loads 628, 644, 645, and 685. After accounting for the foregoing loads, that leaves only loads 573, 626, 627, and 646 left in issue as to poundage and only load 642, (for which Respondent paid 4 cents per pound instead of one cent below the "spread" of the "wire price" for that day) at issue as to price per pound. As to each of these loads, Respondent produced business records wherein he had made contemporaneous notations concerning the quality complaints and/or number of melons rejected by the ultimate recipients. (R-2) Respondent did not pay Petitioners anything on load 645 because of freight deductions and Respondent also made freight deductions on some other invoices. There is no evidence in this record regarding how the parties had negotiated who would bear the ultimate cost of the freight. However, the Petitioners have not proven any entitlement to recover these charges which Respondent advanced and paid. Likewise, Petitioners also have not set out any trail by which the undersigned can trace any mathematical errors on any loads/settlement sheets to the Respondent dealer over Petitioners. Under the parties' standard mode of doing business, Respondent had clear unilateral authority and discretion to dump or discard whole melons for quality and pay Petitioners nothing for the whole melons dumped or discarded in loads 573, 626, 627, and 646. Upon the foregoing, it is determined that Respondent was also within the parameters of his standard dealings with Petitioners in not paying full negotiated price per pound on load 642 where some lesser price per pound could be negotiated with the ultimate recipient as to quality.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture enter a final order dismissing all named claims against Respondents. RECOMMENDED this 7th day of July, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1993.
The Issue The basic issue in this case is whether the Respondent Lawrence J. Lapide, Inc., is indebted to the Petitioner Raiford Dunn for agricultural products purchased by the Respondent from the Petitioner. BACKGROUND AND INTRODUCTION By complaint filed with the Bureau of License and Bond, Florida Department of Agriculture and Consumer Services, on October 7, 1986, and submitted to the Division of Administrative Hearings on November 21, 1986, for hearing, the Petitioner seeks payment of a balance due on watermelons sold and delivered to Lawrence J. Lapide, Inc., on June 17, 18, and 19, 1986. At the hearing the Petitioner and the representative for the Respondent Lapide both testified and both presented the testimony of other witnesses. The Petitioner and the Respondent Lapide also both offered exhibits which were received in evidence. Following the hearing, none of the parties ordered a transcript of the proceedings. Further, none of the parties have filed any post- hearing proposed findings of fact or conclusions of law as allowed by Section 120.57(1)(b)4, Florida Statutes.
Findings Of Fact Based on the parties stipulations, on the testimony at the hearing, and on the exhibits received in evidence I make the following findings of fact. l. The Respondent Lawrence J. Lapide, Inc., is a New York corporation. It is a licensed dealer in agricultural products, having been issued license number 1274. For the time period in question, Lawrence J. Lapide, Inc., had a bond posted through Peerless Insurance Company in the amount of $50,000.00. The bond number was RG-30-44. The Petitioner is a producer of agricultural products, specifically watermelons. The Petitioner has been raising watermelons for approximately 25 years. The Petitioner knows Mr. Lawrence J. Lapide and has had business dealings with Lawrence J. Lapide, Inc., on several occasions during the past 4 or 5 years. During 1986 the Petitioner sold three loads of watermelons to Lawrence J. Lapide, Inc., prior to the four loads which are the subject of this case. (The parties do not have any disputes about the three earlier loads.) During June of 1986, Mr. Lawrence J. Lapide met with the Petitioner to discuss the purchase of watermelons. Mr. Lapide, acting on behalf of Lawrence J. Lapide, Inc., agreed to buy four loads of watermelons. Mr. Lapide purchased 3 loads of small watermelons (referred to as "dinks") at 3 cents per pound and l load of medium watermelons at 5 cents per pound. When the watermelons were loaded and weighed, the totals were as follows: Pig # 676086 43,290 pounds x 3 cents $1,298.70 Pig # 677969 47,980 pounds x 3 cents $1,439.40 Pig # 676036 43,910 pounds x 3 cents $1,317.30 Pig # 677047 45,640 pounds x 5 cents $2,282.00 Thus, the total agreed price for the four loads of watermelons was $6,337.40. When the Petitioner and Mr. Lapide agreed to the sale of the four loads of watermelons, the terms of the sale included an understanding that the transaction was F.O.B. at Sumterville, Florida. The agreement between the parties included an understanding that Mr. Lapide would provide the trailers to haul the watermelons and Mr. Lapide would pay all transportation charges for the watermelons. Pursuant to the agreement of the parties, payment for the watermelons was due "when they moved over the scale," i.e., as soon as the trucks were loaded and weighed. Finally, the evidence shows that the agreement between the parties was to the effect that title and risk of loss to the watermelons passed to the Respondent Lapide on shipment, with all remedies and rights for the Petitioner's breach reserved to the Respondent Lapide. The watermelons in question were loaded on June 17, 18, and 19, 1986, on trailers provided by Mr. Lapide. Pursuant to Mr. Lapide's request, as soon as each truck was loaded, the Petitioner called the transportation company to advise them that the melons were loaded and ready to be shipped. When the watermelons were loaded, they were in good marketable condition and if anthractnose rot was present on the watermelons, it was not visible at the time of loading. During the week of June 16, 1986, the Petitioner loaded watermelons for Mr. James Hill at the same time he was loading watermelons for the Respondent Lapide. The watermelons loaded for Mr. Hill came from the same fields as the watermelons loaded for the Respondent Lapide. Mr. Hill did not have any problems with the loads of watermelons he bought from the Petitioner during the week of June 16, 1986. Two of the loads of watermelons received by the Respondent Lapide were not inspected when received in New York. Those two loads contained saleable watermelons although an unspecified percentage of the watermelons in the two uninspected loads were unsaleable. The Respondent Lapide sold watermelons from the two uninspected loads. Two of the loads of watermelons received by the Respondent Lapide were inspected after they were received in New York. The inspections showed that one load contained anthractnose rot in various stages in 44 percent of the watermelons and that the other load contained anthractnose rot in various stages in 79 percent of the watermelons. The Respondent Lapide dumped the last two loads of watermelons. The Respondent Lapide has previously paid the Petitioner $1,500.00 of the amount due for the four loads of watermelons in question.
Recommendation Based upon all of the foregoing, it is recommended that the Respondent Lawrence J. Lapide, Inc., be ordered to pay to the Petitioner the sum of $4,837.40. It is further recommended that if the Respondent Lawrence J. Lapide, Inc., fails to timely pay the Petitioner as ordered, :the Respondent Peerless Insurance Company then 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. DONE AND ENTERED this 2nd day of June, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 2nd day of June, 1987. COPIES FURNISHED: William C. Harris, Esquire Florida Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Lawrence J. Lapide, Inc. 3 Willshire Court Freeport, New York 11236 Peerless Insurance Company 62 Maple Avenue Keene, New Hampshire 03431 Ted Helms, Chief Bureau of License and Bond Lab Complex Tallahassee, Florida 32399-1650 Lawrence J. Marchbanks, Esquire MARCHBANKS & FEAN 4700 N.W. 2nd Avenue, Suite 101 Boca Raton, Florida 33432 Hon. Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 =================================================================
Findings Of Fact On or about May 28, 1986, Petitioner, T. J. Chastain, was engaged in the business of farming in Punta Gorda, Florida. One of his crops was watermelons. William P. Douberly, Jr., representing himself to be a licensed agricultural dealer, came to him and asked to buy what watermelons he had for sale. Petitioner and Mr. Douberly entered into negotiations for the purchase and Petitioner offered to sell the melons for 5.5 cents per pound. After some deliberation, the parties orally agreed to a sale at 5 cents per pound. Nothing was reduced to writing. The agreement was quite loose and much was left unstated. Costs of freight and other costs incidental to the sale were not mentioned by either party. It was understood, according to Petitioner, that Respondent would provide transport and, in fact, Douberly did contract with a trucker to provide transport of the melons to the ultimate delivery location. Petitioner claims that Mr. Douberly, the only individual with whom he dealt, looked over the watermelons prior to agreeing to the purchase. No conditions or qualifications were placed on the melons by Mr. Douberly and Petitioner contends that a requirement the melons be #1 grade was not stated. Petitioner had his helpers load the truck provided by Mr. Douberly who, according to Petitioner, remained on the scene over the three to four hours it took to put the melons on the truck and, he contends, Douberly saw them being loaded. Mr. Douberly, on the other hand, contends that he observed only the first half of the first truckload being placed on the truck. Thereafter, because he had other things to do, he left and did not return until the next day at which time the original truck was fully loaded as was the second truck he had provided. He contends, therefore, that he saw only one quarter of the entire load placed on the trucks. According to Mr. Chastain, when the first truck was loaded Mr. Douberly asked Petitioner if he wanted to follow the truck to the scale to see how much the load weighed. Mr. Chastain declined, stating that Mr. Douberly should weigh the melons and bring him back the weigh ticket along with payment for the load. He contends that when Mr. Douberly came back that same day with the ticket, he indicated that he wanted another load, alleging that the first load was somewhat overweight and some of the melons had been removed from the truck, to be placed on a second truck as the first part of a second load. Mr. Chastain relates that when the Respondent asked for the second truckload of melons, they engaged in no discussion about any change in the terms of sale. Mr. Chastain assumed that the purchase price would still be 5 cents per pound and the same procedure was to be followed for the second load. Though Respondent was to have paid for the first load after the weight was calculated, Petitioner assumed that when the second load was weighed, the Respondent would come back and pay for both. In fact, Mr. Douberly did not return after the second truck left and did not pay for either load. Numerous attempts to locate him were unsuccessful until ultimately, Mr. Chastain was able to reach him through Douberly's father. Notwithstanding his request for payment, Mr. Chastain did not receive any communication regarding the two loads of melons until some time later when by undated letter from Mr. Douberly, he received a check for slightly over $250.00 in full payment for all the melons. This letter described the condition of the melons at the time they were inspected by a federal inspector and indicated that 43 percent of at least the first shipment was defective in some fashion or another. The letter also indicated that Mr. Chastain was charged freight on both shipments at the rate of 4.4 cents per pound on the good melons sold. The only evidence to show the total weight of the two shipments consists of the letter from Mr. Douberly, Respondent's agent, indicating that the first load weighed 46,250 pounds and that the second weighed 29,990 pounds. This admission of weight by Respondent's agent is dispositive of any issue of the total weight involved and it is found that the total weight of melons shipped was the total of the two, 76,240 pounds. A federal inspection certificate dated June 2, 1986, reflecting an inspection which took place in Joplin, Mo., indicates that the applicant, Millsap Produce, counted 39,500 pounds. This is less than one of Mr. Douberly's load counts and more than the second. Since it cannot be shown which load was involved, or if both were involved in that inspection, as was indicated above, the letter from Mr. Douberly is considered the best evidence of the number of pounds of melons sold by Mr. Chastain to the Respondent. It must be noted that as of the time of the inspection, the refrigeration unit on the truck was inoperative. Returning to the description of the melons inspected by federal officials, the load was described as containing mature, clean, fairly well to well shaped melons. The flesh was described as having a good color with varying percentages of defects such as scars, misshapes, overmaturity, sunburn, and bruises, with 2 percent decay. Notwithstanding this, the melons were graded as meeting quality requirements but not coming up to US Grade #1 standards only because of their condition. Because he inspected only one quarter of the total melon shipment, which he graded as US Grade #1 at the time, Mr. Douberly contends that the Petitioner must have substituted substandard melons for the remaining melons in order to bring the overall grade of the shipment down below standards. He admits that the shipment was picked up from Mr. Chastain's field with the truck parked beside the road, but alleges that since he was not present throughout the entire loading process, Mr. Chastain had the opportunity to bring in substandard melons. Mr. Chastain denies bringing in any other melons and it is found there was no substitution. Mr. Chastain further indicates that nothing was discussed between him and Mr. Douberly regarding the necessity that the entire shipment be #1 grade fruit. He at no time agreed to guarantee the quality of melons and at no time did he agree to be responsible for the cost of transportation if the melons were determined to be of insufficient quality for sale at destination. This was never mentioned. Mr. Chastain pointed out, that in the industry, shipments of produce, where the purchasing broker provides transport, are FOB point of loading sales. No evidence to contradict this was presented by Respondent and it is so found. There were no alternative arrangements made or suggested by the buyer and Mr. Chastain indicated that it is his practice to always sell FOB point of loading. This was a cash sale, according to Chastain, and he expected to be paid by Douberly that night after weighing or, at the latest, the next morning when the second load was weighed. Mr. Douberly contends that the terms of the agreement between him and Mr. Chastain called for him to buy two loads of watermelons at 5 cents per pound pending delivery. The term, "pending delivery", means that the melons were of questionable quality and that Mr. Douberly would pay the grower depending upon how much the melons sold for when delivered. However, this contention is not supportable. It is highly unlikely, and denied by Mr. Chastain, that as grower, he would sell melons for the low price of 5 cents per pound to a buyer who provided the transportation and still agree to assume the risk of spoilage and transportation when he had no control over the method of transport and the time of sale. Mr. Douberly denies having seen the loading of any more than the first half of the first truck. Though he had the opportunity to do so, he did not inspect the melons being placed aboard the trucks nor did he inspect the field. He did, however, examine the first half of the first load, which came out of the same fields and, by his own admission, graded them as US #1. When Mr. Hogan advised Mr. Douberly several days later that there was a problem with the melons, Mr. Douberly claims he tried four or five times while he was still in Petitioner's area, to contact Chastain and left messages for him to call back. Even though, he claims, Mr. Chastain knew where he was staying and had his phone number, no calls were returned. On the other hand, Mr. Chastain indicated he never heard from Mr. Douberly after the second truck was loaded and his efforts to find him to collect his money were unsuccessful. It is unlikely that Mr. Chastain, who had not been paid, would have allowed from May 28 to on or after June 2, some five days or so, to go by without trying to contact his buyer if he knew where he was. More likely, Mr. Douberly was no longer in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore: RECOMMENDED that the Department of Agriculture issue a Final Order providing that Petitioner recover from Respondent or its bonding agent, the sum of $3,812.00. RECOMMENDED this 30th day of December, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 30th day of December, 1987. COPIES FURNISHED: David K. Oaks, Esquire 201 West Marion Avenue Suite 205 Punta Gorda, Florida 33950 Gary Hogan Post Office 626 Clarkton, Missouri 63837 Honorable Doyle Conner Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32399-0800 Ted Helms, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 American State Insurance Company Attn: Bill Kaminski 801 94th Avenue North St. Petersburg, Florida 33702
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
The Issue The issue for determination is whether Respondents owe Petitioner approximately $3,807.00 for a quantity of watermelons provided to Respondents by Petitioner; secondarily, resolution of this issue requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.
Findings Of Fact Petitioner is a resident of Suwannee County, Florida and a farmer who produces agricultural products, including watermelons. Respondent John W. Hill, is a dealer of such products in the course of normal business activity. Respondent Hill's services include arranging for the harvesting and loading of melons for shipment to northern markets, as well as the location of buyers for the melons. Respondent Hill acts as a broker in these arrangements, receives the gross sales receipts from buyers and from that sum deducts costs of labor, freight, inspections, any other associated costs and his commission. The net balance of the gross sales receipts are paid to the melon producers. Respondent Florida Farm Bureau Mutual Insurance Company is the bonding agent for Respondent pursuant to Section 604.20, Florida Statutes. Petitioner knew Respondent Hill and had discussed brokerage or trading of watermelons with him on occasion. Shortly before or on July 2, 1992, Petitioner's watermelon crew left him and he telephoned Respondent Hill. Unable to speak with Hill, Petitioner spoke with Hill's wife. She and Petitioner discussed a possible price for Petitioner's melons of five cents a pound. Shortly thereafter, Respondent Hill later contacted Petitioner by telephone and confirmed the five cents per pound price, provided the melons met requirements. Respondent was using a cellular telephone in his truck and when Petitioner hung up his telephone and walked out of his barn, he observed Respondent's employees in the field starting to cut the vines connected to the melons. Respondent Hill was nearby in his truck. Petitioner and Respondent Hill drove around the farm and looked at Petitioner's various melon plots. Respondent Hill agreed to attempt to market a variety of the melons known as sangaria at the five cents per pound price. The parties did not reduce their agreement to writing. Respondent Hill felt that Petitioner understood that they were partners, that he was acting as Petitioner's broker for the eventual sale of the melons to a specified buyer, FRESH PLUS, a buyer in Philadelphia, Pennsylvania. At one point during the process of driving around the watermelon field, Hill and Petitioner discussed the condition of the melons and that they would run the melons in and see if they could get five cents per pound for them. Hill also was convinced that Petitioner understood that the melons must be accepted by the receiver or meet certain conditions in order to get that price for the melons. It is customary within the industry that, unless stated otherwise, all melons must grade US #1 at the time of delivery to a buyer. Petitioner did not accompany the loads of watermelons to the shipping facility where the sangaria melons were weighed and loaded for shipment. As a result, he did not receive a copy of Respondent Hill's July 2, 1992, track report documenting a 48,320 pound load of sangaria watermelons bearing the written statement "must be accepted by receiving or grade U.S. #1." The melons were rejected by the buyer upon arrival in Philadelphia as not meeting requirements and Respondent Hill, when learning of the rejection, called for and received an official USDA inspection of the melons. The July 6, 1992 inspection revealed that the melons were not US #1. Respondent Hill then shipped the melons to an alternate perspective buyer, T & K Binning in Jessup, Maryland. Upon arrival, T & K rejected 375 of the melons and accepted 2,127 melons at $1.25 per melon for a total purchase price of $2,685.75 which was received by Respondent Hill. After subtraction of labor costs of $733.12, freight costs of $1,965.00, and inspection costs of $133.50, Respondent Hill absorbed a net loss of $212.93. Another 27,280 pounds of melons that were not of the sangaria variety were loaded from Petitioner's farm and shipped to a seller, Park-N-Shop, in Charlotte, North Carolina, along with melons grown by several other producers. These commingled melons were sold for a gross sales price of $1,344.00. After substraction of labor costs of $792.83 and freight costs of $714.20, Hill absorbed a net loss of $163.03 for the melons. Testimony of Respondent Hill at the final hearing was corroborated by documentation of Respondent Hill's absorption of all costs connected with the sale of the melons, including initial loading costs. Hill's testimony establishes that the arrangement between the parties was a brokerage arrangement and that the sale of the melons was subject to conditions common to the industry, i.e., that the melons grade #1 upon receipt by buyer. Testimony of Petitioner is uncorroborated and fails to establish that the agreement between the parties contemplated a direct sale of the melons to Respondent Hill.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing Petitioner's complaint. DONE AND ENTERED this 15th day of July, 1993, in Tallahassee, Leon County, Florida. DON W. 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 15th day of July, 1993. APPENDIX The following constitutes my rulings, pursuant to requirements of Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1. Accepted in substance. 2.-3. Rejected, subordinate to HO findings on this point. 4. Rejected, argument. Respondent's Proposed Findings 1.-9. Accepted in substance. 10. Rejected, cumulative. COPIES FURNISHED: David Hingson Route 4, Box 330 Live Oak, Florida 32060 William A. Slaughter, II, Esquire P.O. Box 906 Live Oak, Florida 32060 Florida Farm Bureau Mutual Insurance Company Legal Department 5700 SW 34th Street Gainesville, Florida 32608 Hon. Bob Crawford Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-1550 Richard Tritschler General Counsel 513 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture Mayo Building, Rm 508 Tallahassee, Florida 32399-0800
Findings Of Fact Petitioners are growers of watermelons and qualify as "producers" 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. Petitioners Brewton and Respondents Smith have had a good business relationship overall, including the 1992 growing season during which several loads of high quality watermelons were sold by the Brewtons through the Smiths. Of the several loads of melons sold, only one load, the one invoiced on June 18, 1992, is at issue. Regardless of oral agreements with varying conditions for other loads, the parties agreed as of June 18, 1992 that the load of June 18, 1992, invoice 2088, (R-5), would be paid for by Respondents Smith advancing harvest costs and agreeing to pay Petitioners for the load, minus the costs of harvesting, after Respondents had received payment from the recipient. At the time of loading, everyone concerned felt the June 18, 1992 load might have some problems with it, but every attempt was made to load only quality product. Petitioners and Respondents each had input on which specific melons were loaded. At that time, Mr. Rick Smith o/b/o Respondents Smith advised Mr. Dewey Brewton, III that because the quality of the load was borderline and as a result of its borderline condition the whole load could be rejected at its ultimate destination, Respondents Smith wanted Petitioners Brewton to protect the Respondents Smith on the quality of the melons. He also specifically advised Dewey Brewton, III that the whole load could be rejected. The parties then entered into an agreement, partly oral and partly written. Rick Smith and Dewey Brewton, III understood their agreement to mean that Petitioners would absorb any loss as a result of the quality of the watermelons from that point forward, but that Respondents would not come back against Petitioners for the costs Respondents had advanced on Petitioners' behalf or for the cost of the freight. To signify this, the words "grower protects shipper on quality" was written on the invoice. On or about June 22, 1992, Rick Smith informed Dewey Brewton, III that the entire June 18, 1992 load had been rejected by the first receiver. At that time, Dewey Brewton, III accepted Rick Smith's representation and did not require further proof of rejection at the first point of delivery or request an independent inspection at the first point of delivery. He also acquiesced in Respondents shopping around for a second buyer who might take all or some of the load originally sent out on June 18, 1992, and did not request the return of Petitioners' watermelons. At that time, Rick Smith also told Dewey Brewton, III that the load might have to be held on the truck a day or two to ripen some of the watermelons for a second point of delivery. He again indicated that the whole load could be rejected again when the load was sent on to a second receiver. Dewey Brewton, III specifically agreed to let the melons ripen "a day or so," and did not request any change in the grower protection plan initially agreed to between the parties. Respondents Smith were eventually able to market the melons to a second delivery point (consignee) in Michigan. That receiver complained that the melons started breaking down and he had to dump 735 melons. Pursuant to standard custom of the trade, Respondents accepted payment of $1,944.00 for the melons, subtracted $1,831.98 they had laid out in freight costs and also subtracted the $675.18 they had advanced on behalf of Petitioners to the harvester. Thus, Respondents sustained a net loss of $563.16. Respondents absorbed the $563.16 loss and did not require any repayment of harvesting costs advanced or any freight charges from Petitioners. Dewey Brewton, III testified that he originally understood that "grower protection" meant that Petitioners "would stand behind their quality product until the ultimate point," but that he had interpreted a comment by Mr. Rick Smith on June 22, 1992 to the effect that "the grower (Petitioners) agreed to 'ride' the watermelons and the shipper (Respondent) agreed to 'ride' the freight" to mean that the growers (Petitioners) no longer had any duty to cover their own losses on the June 18, 1992 load of watermelons after the first rejection and up to final sale to the second buyer. In light of Mr. Brewton's failure to change the written language concerning protection on the invoice, his knowledge from the day of initial shipment that the June 18, 1992 load was of dubious quality, his acceptance that the first recipient had rejected the load, and his agreement that Respondents could have a further waiting/ripening/shopping around period before ultimate sale, coupled with his knowledge from the very beginning that the June 18, 1992 load could be utterly rejected at any point so as to render the endeavor a complete loss to the Petitioners, Mr. Brewton's assumption that on June 22, 1992, Respondents Smith were voluntarily waiving their written agreement that "grower protects shipper on quality" was not reasonable. On June 22, 1992, the load had already been rejected once. At that stage, the outcome of the proposed sale was considerably more precarious than when the crop was loaded on June 18, 1992. It is also found Mr. Brewton's assumption that the agreement had been modified was not knowingly or intentionally induced by the Respondents and that the assumption was not contemporaneously conveyed to Respondents Smith so that they could disabuse Mr. Brewton of his error. Upon the foregoing, it is further found that the written initial agreement that "grower protects shipper on quality" was not altered on June 22, 1992 but continued in force.
Recommendation 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 dismissing Petitioner's complaint. RECOMMENDED this 26th day of March, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda D. Hyatt, Chief Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Jacquelyn J. Brewton 8876 NW 115th Avenue Ocala, FL 34482 Dewey Brewton III 8876 NW 115th Avenue Ocala, FL 34482 Richard L. Smith Midwest Marketing Company P. O. Box 193 Vincennes, IN 47591 South Carolina Insurance Company Legal Department 1501 Lade Street Columbia, SC 29201-0000
The Issue Whether the Respondent owes the Petitioner money for watermelons allegedly purchased from Petitioner. The factual and legal issue is whether Respondent purchased the melons or acted as a broker/agent for Petitioner and attempted to sell the melons for Petitioner.
Findings Of Fact During the 1996 season, the Petitioner, who is a labor contractor and farmer, grew watermelons. The Respondent, who is a building contractor and watermelon broker, was “handling” watermelons in the area around Archer, Florida. The Respondent was represented by Tony Tharp, brother of the Respondent, who spoke with the Petitioner. As a result of an oral agreement reached between Tony Tharp and Petitioner, the watermelons which Petitioner had grown were picked by persons working for Tharp on June 20, 21, and 23, 1996. There was no written contract or memorandum regarding the agreement of the parties. Petitioner stated that he wanted to get his melons picked, but that he was busy with his crew and could not pick them, and the melons needed to be picked because they were past their prime. Tony Tharp agreed to “move them” for Petitioner. One truck load was picked and loaded on June 20; three truck loads were picked and loaded on June 21, and two truck loads were picked and loaded on June 23. Tharp paid Petitioner $700 which was termed an “advance” by Respondent, and considered a “down payment” by Petitioner, who understood he would receive the remainder of the money due him in approximately seven days. The trucking was arranged for by Tharp, and the Respondent bore the cost of picking and freight initially, and the merchants who received the melons paid the shipping for the melons they accepted. The melons were shipped to markets in several states. The first load was refused by the intended recipient, and after several attempts to dispose of the melons, they were sold at salvage for $180. The second load was also refused, and could not be salvaged. Pictures of this load were introduced where it was unloaded in Marianna, Florida. The remaining loads of watermelons were accepted, and $4,876.43 received for them. The costs of loading the two loads which were refused was $1,149.75. The freight costs on these two loads was $3,901.83. The Petitioner testified that the Tharp agreed to purchase the melons in the field, and, therefore, he is entitled to the purchase price for the melons. Dennis Tharp stated he was a broker, and that the Petitioner assumed the risk if the melons could not be sold. Dennis Tharp stated that he had lost the costs of picking, $1,149.75, and transporting, $3,901.83, the two loads of melons offset by the salvage value of $180.00, resulted in a total loss of $4,871.58. When the costs of picking the last four loads, $1,591.20, and the $700.00 advance on the sale is deducted from the proceeds of the sale of the last four loads, $4,876.43, the net profit on the last four loads is $2,585.23. When the profits from the sale of the last four loads is deducted from the loses on the first two loads, there is a net loss of $2,286.35. This net loss was absorbed by the Respondent. Several of the people who were in the field testified regarding the state of the melons being picked. The melons were past their prime for picking. On the last load, the pickers refused to pick any more melons without additional compensation because so many melons were being rejected at the truck. Petitioner, who was present, concurred in this extraordinary expense. Generally, melons are not sold because the market drops and the merchants refuse melons being shipped to them. In this case, the first melons were rejected, and the last loads were accepted. The quality of a watermelon cannot be determined without cutting it open which destroys its merchantability. Watermelon graders attempt to judge the quality of melons from the external characteristics; however, purchasers cut open samples upon receipt to judge their quality. The Respondent notified the Petitioner by letter dated July 11, 1996 that the first two loads had been rejected; that he had salvaged those he could; and that the costs related to these two loads exceeded the profits due Petitioner on the last four loads.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter a Final Order finding that the Respondent owes no further money to the Petitioner. DONE and ENTERED this 12th day of March, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Alphonso Hunt 226 Fawn Drive Archer, Florida 32618 Dennis Tharp 4516 Decatur Street Marianna, Florida 32446 Auto Owners Insurance Company Legal Department Post Office Box 30660 Lansing, MI 48909-8160 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-01 Tallahassee, Florida 32399-0810
The Issue The issue is whether respondent is indebted to petitioner in the amount $5,838.59 as alleged in the complaint filed on September 19, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Bo Bass, is a watermelon farmer in Alachua County, Florida. Respondent, Hapco Farms, Inc., is licensed as a dealer in agricultural products having been issued License No. 8456 by the Department of Agriculture and Consumer Services. As required by state law, respondent has posted a $75,000 bond written by Insurance Company of North America, as surety, to assure proper accounting and payment to producers. Freddie Bell is also a watermelon farmer who operates under the name of B & G Produce. That firm is located in Williston, Florida. According to petitioner, whenever Bell has extra trucks during watermelon season, he will load petitioner’s watermelons on those trucks, deliver them to B & G Produce’s shed for packing, and then sell them to various dealers. Upon collection of the moneys for the sale of such produce, Bell would then pay petitioner. On June 17, 18 and 19, 1996, petitioner verbally agreed to entrust four loads of watermelons to B & G Produce for resale to third parties. Petitioner expected to be paid six cents per pound for his produce. On the same dates, respondent, through its field buyer, entered into an agreement with B & G Produce, but not petitioner, for the purchase of four loads of watermelons. The weight bills for those shipments reflect that, while Bo Bass was the grower on two of those shipments, B & G Produce was the seller of all four loads. After the watermelons were sold to respondent and transported to its customers, a federal inspection determined that a number of watermelons were overripe and rotten. Because of this, a portion of the loads was “dumped.” This in turn reduced the amount of money due the seller. However, respondent made a proper accounting and payment to B & G Produce, and no claim has been filed by the seller against respondent. When petitioner ultimately received only $4,691.30 from B & G Produce, he filed a complaint against respondent seeking an additional $5,838.59. There is no competent evidence that petitioner ever entered into an agreement to sell his watermelons to respondent. Therefore, if petitioner has a dispute over any moneys allegedly due, it lies with Bell, and not respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order denying petitioner’s claim against the bond of respondent. DONE AND ENTERED this 31st day of March, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1997. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Bo Bass 2829 Southwest State Road 45 Newberry, Florida 32669 Andrew B. Hellinger, Esquire First Union Financial Center, Suite 2350 200 South Biscayne Boulevard Miami, Florida 33131-2328 Insurance Company of North America 1601 Chestnut Street Philadelphia, Pennsylvania 19192 Brenda D. Hyatt, Chief Bureau of License and Bond Mayo Building Tallahassee, Florida 32399-0800
